Lalita Kandulna vs The State of Jharkhand and Others

D.N. Patel, J.—The present petition has been preferred by the widow of Assistant Teacher for getting deathcumretirement benefits.

It is submitted by learned Counsel for the Petitioner that husband of the Petitioner was appointed as Assistant Teacher at R.C. Primary School, Kurkura, District- Simdega with effect from 6th December, 1983 and, thereafter, Petitioner''s husband was serving sincerely, honestly, diligently and to the satisfaction of the Respondents. Never any show cause notice was given to the husband of the Petitioner and he was getting salary from the Government. The Petitioner''s husband expired on 26th September, 2005 during the course of his employment and, therefore, the Petitioner being a widow is entitled to get the death-cum-retirement benefits. The deathcumretirement benefits have been denied to the Petitioner only on the ground that her husband was illegally appointed and dehors the procedure established by the Respondents. Thus after the death of husband of the Petitioner, this ground is not tenable at law and the Petitioner is entitled for deathcumretirement benefits of her husband.

Learned Counsel for the Respondent State vehemently submitted that the husband of the Petitioner was not appointed in accordance with law and he was not having necessary Teachers Training Certificate and, therefore, he could not be appointed as Assistant Teacher. Moreover, his services were not approved by the Respondents in the year 1999 and, therefore, the Petitioner is not entitled to get the deathcumretirement benefits because of death of her husband.

Learned Counsel for Respondent No. 5 submitted that as per Rule 58 of the Jharkhand Pension Rules, 2000, once the appointment is made under the Government on substantive and permanent basis and if he is paid salary by the Government, then there is no reason to not pay pension and such other retirement benefits and as per Annexure 3 to the memo of the petition the services of the husband of the Petitioner have been approved by the Respondents and there is no denial in the counter affidavit that the services of the husband of the Petitioner were never approved. Neither it has been stated that Annexure-3 2is a fabricated document.

Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by Respondent No. 3 dated 3rd December, 2007, which is at Annexure2 to the memo of the petition mainly for the following facts and reasons:

(i) The husband of the Petitioner was appointed as Assistant Teacher at R.C. Primary School, Kurkura, DistrictSimdega on 6th December, 1983, thereafter, husband of the Petitioner worked honestly, sincerely, diligently and to the satisfaction of the Respondents and never any show cause notice was given to the husband of the Petitioner for any misconduct nor for as alleged irregular appointment.

(ii) It further appears from Annexure3 to the memo of the petition that the District Superintendent of Education, Gumla (now Simdega) has approved the appointment of the husband of the present Petitioner in R.C. Primary School, Kurkura, DistrictSimdega. Thus, the services of the husband of the Petitioner were approved by the Government and the pay scale of Rs. 535765 is also given, which is at Annexure 3 to the memo of the petition.

(iii) It also appears that the Respondents have also granted Matric Trained Scale with effect from 17th December, 1995 to the husband of the Petitioner, meaning thereby, the necessary Teachers Training Certificate Examination must have been cleared by the husband of the Petitioner and, thereafter, Matric Trained Scale was given to the husband of the Petitioner. This fortifies the stand of the Petitioner that the services of the husband of the Petitioner was further approved vide order at Annexure4 to the memo of the petition.

(iv) Thereafter, husband of the Petitioner was given salary by the Government and the Petitioner''s husband expired on 26th September, 2005 during the course of his employment. Thus, the Petitioner is entitled to get the deathcumretirement benefits because of death of her husband, who was serving as Assistant Teacher in the aforesaid school.

(v) Learned Counsel for the Respondent State contended that the appointment of the husband of the Petitioner was dehors the provisions of law. This contention is not accepted by this Court, at this stage i.e. after the death of husband of the Petitioner. Appointment of husband of Petitioner was never terminated and/or cancelled on account of alleged irregularity or illegality. No such order has been brought on record by the Respondents. Moreover, it is further submitted by learned Counsel for the Respondent State that the services of the husband of the Petitioner was not approved in the year 1999. This contention is also not accepted by this Court, looking to Annexure3 dated 24th February, 1984 as well as looking to Annexure4 dated 7th February, 1997. By these two annexures, the services of the husband of the Petitioner were confirmed and approved, necessary pay scales were also given after attaining further Teachers Training Certificate and Matric Trained Scale was also given to him which is further approved, looking to Annexure4/1 a detailed calculation of fixation of pay scale was given by the District Superintendent of Education, Gumla (now Simdega). Thus, the reasons assigned in Annexure2 by the Respondents while passing the impugned order dated 3rd December, 2007 are absolutely wrong reasoning and runs counter to Annexures3, 4, 4/1.

(vi) Looking to Rule 58 of the Jharkhand Pension Rules, 2000, it appears that the Petitioner is entitled to get the deathcumretirement benefits. For the ready reference, Rule 58 of the Jharkhand Pension Rules, 2000 reads as under:

The service of a Government servant does not qualify for pension unless it conforms to thefollowing three conditions:

First - The service must be under Government.

Second - The employment must be substantive and permanent.

Third - The service must be paid by the Government.

Thus, in view of the aforesaid Rule 58, the husband of the Petitioner was in the service under the Government, he was employed on the substantive and permanent basis and husband of the Petitioner was also paid salary by the Government. Thus, all these conditions have been established in the facts of the present case and, therefore, the Petitioner is entitled to the pension which is now known as family pension. Looking to this Rule to be read with Annexure7 circular, issued by the Respondent State authorities, it appears that this is extended even for the teachers of the Government aided minority school.

(vii) It has been held by the Hon''ble Patna High Court in the case of Ranju Devi Vs. State of Bihar and Others, in paragraphs 5 and 6, which read as under:

This Court fails to appreciate the said submission of the learned Counsel for the State. It is not the case of the Respondents that the appointment of the Petitioner''s husband was ever terminated and/or cancelled on account of the alleged irregularity and/or illegality. No such order has been brought on the record by the Respondents. It may be true that the husband of the Petitioner absented after 7.10.1996 but so long his service was not terminated, he continued to be in Government service.

It is not disputed that as per the amended provisions relating to payment of family pension, the requirement of minimum one year service prescribed in the Finance Department''s Memo No. Pen103/649505 dated 3.9.1964 was done away with by the State Government and it was decided that the person will be entitled to family pension in case of death of a Government employee who was examined by the doctor at the time of his initial appointment. From the order, contained in Annexure 1 it appears that the joining of the Petitioner''s husband was to be accepted after production of medical certificate from the Civil Assistant Surgeon. It is not the case of the Respondents that the Petitioner''s husband was not examined by the doctor before his joining. It is submitted on behalf of the Petitioner that the medical certificate was submitted by the Petitioner which is already on record in the file of the Petitioner''s husband maintained in the department.

(emphasis supplied)

In view of the aforesaid decision also, the Petitioner is entitled to get the deathcumretirement benefits of her husband and the plea taken by the Respondents that when her husband was appointed, there was irregularity in his appointment is not permitted to be taken, even after death of husband of the Petitioner.

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, I hereby quash and set aside the order passed by Respondent No. 3 dated 3rd December, 2007, which is at Annexure2 to the memo of the petition. I hereby direct the Respondents to grant all the deathcumretirement benefits, which are legally payable to the Petitioner. This exercise will be completed by Respondent No. 3 within a period of four weeks from the date of receipt of a copy of the order of this Court. I also hereby direct Respondent Nos.1 and 2 to make the actual payment of monetary benefit to the Petitioner within further period of four weeks, thereafter. Necessary pension papers and such other papers will be sent by the concerned Respondent authorities to Respondent No. 5 within a period of one week from the date of receipt of a copy of the order of this Court and Respondent No. 5 will decide the same promptly.

The writ petition is allowed with the cost of Rs. 5,000/(Rupees five thousand), which will be paid by the Respondent State of Jharkhand to the Petitioner within a period of two weeks from the date of receipt of a copy of the order of this Court.

The writ petition is allowed and disposed of.