Calcutta High Court (Appellete Side)
Indu Prava Ghosh vs State Of West Bengal & Ors on 29 July, 2009
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
W. P. No.953(W) of 2006
Indu Prava Ghosh
versus
State of West Bengal & Ors.,
For Petitioner : Mr. Narayan Ch. Mandal,
Ms. Anita Khattri,
Ms. Sunanda Sil.
For Respondent : Mr. P. K. Basu.
No.4 For the State : Ms. Chabi Chakraborty Judgment On : 29-07-2009.
This writ application is filed by the petitioner for a direction upon the respondent authority to grant benefits under the Non-Government Educational Institution Employees (Death- cum-Retirement Benefit) Scheme, 1981 arising out of the services of the deceased husband of the petitioner, namely Rajkrishna Ghosh, who was a Primary Teacher under the North 24 Parganas District Primary School Council.
The aforesaid husband of the petitioner attended the age of 60 years, i.e. the age of retirement on superannuation on September 30, 1978 while he was working for gain as a Primary School Teacher in Bankura Debor F.P. School, North-24 Parganas. He breathed his last on December 1, 1980 while he was in the above services on extension.
The petitioner approached the respondent authority time and again after the death of her husband for granting benefits under the Non-Government Educational Institution Employees(Death-cum-Retirement Benefit) Scheme, 1981 (hereinafter referred to as the said DCRB Scheme, 1981) in her favour. Last of such prayer was made by a representation dated September 15, 2005. But the respondent authority did not pay any head to the above prayer. Hence this writ application.
According to the petitioner by virtue of the Government order bearing Memo No.136- Edn(B) dated May 15, 1985 the retirement benefits at the rates described in the said DCRB Scheme, 1981, were made available to all wholetime approved teaching and non-teaching employees of non-Government/sponsored/aided Institutions, who were in active service on or after April 1, 1981. The attention of this court is drawn to a decision in the matter of Non- Government School Pensioners' Association Vs. The State of West Bengal, reported in 1989(1) CLJ 116, by which above benefits under the said DCRB Scheme, 1981 were held to be payable to the persons who had retired before April 1, 1981. Consequent thereupon, a Government Order bearing Memo. No.163-Edn(B)/1M-54/88 dated June 15, 1990, was also issued to extend the benefits under the said DCRB Scheme, 1981 to the teaching and non- teaching employees of non-Government educational institutions and organisations covered by the said DCRB Scheme, 1981, who retired prior to April 1, 1981. In another application under Article 226 of the constitution of India bearing W.P. No.3782(W) of 2005 (in re: Jahanara Bibi Vs. The State of West Bengal & Ors.,), a Single Bench of this court followed the earlier decision of Non- Government School Pensioners' Association(supra). According to the petitioner, there was no scope for the respondent authority to take a different view in the instant matter.
While opposing the above submissions of the petitioner, Mr. Pabitra Kumar Bose, learned Counsel appearing for the respondent Council, relied upon a departmental memorandum issued by the Joint Secretary to the Government of West Bengal, School Education Department, Budget Branch, under Memo No.126-SE(B)/IM-23/2006 dated April 12, 2006, to submit that only those employees who had opted for "contributory Provident Fund and Pension" under "Old Scheme"
would get the benefit of the said DCRB Scheme, 1981 in accordance with the provisions of Government order issued under Memo No.163-Edn.(B)/1M-54/88 dated June 15, 1990. The husband of the petitioner was not covered under the "Contributory Provident Fund and Pension' under the "Old Scheme". Therefore, according to Mr. Bose, the petitioner was not entitled to the benefits and the said DCRB Scheme, 1981.
I have heard the submissions of the respective parties as also I have considered the entire facts and circumstances of this case.
Admittedly the introduction of cut off date of April 1, 1981, for extending the benefits of the said DCRB Scheme, 1981 to pensioners was held to be inapplicable in the matter of Non- Government School Pensioners' Association (supra) on the basis of the settled principles of law as laid down by the Hon'ble Supreme Court in the matter of D.S. Nakara Vs. Union of India reported in AIR 1983 SC 130. For proper adjudication of this matter the relevant portions of the decision of D.S. Nakara (Supra) are quoted below:
"42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits from a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worse off then those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstances of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension. One retiring a day earlier will have to be subject to ceiling of Rs.8,100/- p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs.12,000/- p.a. and average emolument will be computed on the basis of last ten months' average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hors' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Art. 14."
After the decision of Non-Governmental School Pensioners' Association(supra), the State Government issued the Government order bearing No.163-Edn(B)/1M-54/88 dated June 15, 1990, for the purpose of declaring the policy of the Government of extending the benefits of the said DCRB Scheme, 1981, to the pensioners irrespective of any cut off date of retirement. The State Government followed the settled principles of law in the same tune as that of the judiciary. It would be evident from the following clause of the Government order dated June 15, 1990:-
"3. After careful consideration of the matter, the Government ha snow been pleased to decide that the retirement benefits, as provided for in the aforesaid Scheme, shall stand extended to the teaching and non-teaching employees of the non-governmental educational institutions and organisation covered by the aforesaid Scheme, who retired prior to 1.4.81 on the same terms and conditions and subject to due adjustment of pension and ex-gratia increases and aforesaid as were or area being drawn by such pensioners againt revised retirement benefits to be sanctioned to them in terms of this order."
But the benefit remained elusive, a far cry for the old widow in spite of so much laws. An officer of education department of the State Government issued a departmental circular instruction under Memo. No.126-SE(B)/1M-23/2006 dated April 12, 2006, for the purpose of picking out a baseless objection from a hat that only those who had opted for "Contributory Provident Fund and Pension" under the "Old Scheme" would get the benefit of the said DCRB Scheme, 1981.
Clause 3 of the Government order dated June 15, 1990 purported that the benefits of the said DCRB Scheme, 1981, stood extended to those employees of non-Government educational institutions and organisations which were covered by the aforesaid scheme and those benefits would be paid subject to due adjustment of pension and ex-gratia, in appropriate cases.
On a bare reading of clause 3 of the Government order dated June 15, 1990, a man of ordinary prudent cannot come to the above conclusion by stretch of imagination up to any extent that only those who had opted for "contributory Provident Fund and Pension" under the "Old Scheme" would get the benefit of that scheme. So, the above departmental circular/instruction dated April 12, 2006 cannot be sustained in law.
The above departmental circular/instruction is liable to be set aside on another ground that the policy of the Government declared by way of a Government order in the name of the Governor of a State cannot be subjected to supersession or sub-plantation by virtue of a mere departmental circular/instruction issued by an officer of a department of the State Government in the garb of clarification.
Consequent upon the observations and discussions made hereinabove, the departmental circular/instruction issued under Memo No.126-SE(B)/1M-23/2006 dated April 12, 2006, is quashed and set aside. The respondent authority is directed to extend the benefit of the said DCRB Scheme, 1981, to the petitioner within a period of six weeks from date. It is, however, made clear that the benefits of the said DCRB Scheme, 1981 shall be payable to the petitioner from the date on which the above scheme comes into force.
This writ application is thus disposed of to the extent mentioned hereinabove. Let there be a cost of Rs.3,400/- only to be paid towards the advocate's fees of the petitioner from the public fund at the first instance within six weeks from date. The Principal Secretary to the Government of West Bengal, School Education Department is directed to fix up the responsibility of the concerned officer which compelled the petitioner to file this writ application as also to realise the above cost from his salary or by way of initiating appropriate proceeding in accordance with law in case of his retirement.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
( Debasish Kar Gupta, J. )