Raj Rajeswari Mukhopadhyay vs State of West Bengal

Aniruddha Bose, J.—The writ Petitioners in the present application are the widow and the son of one Banshi Badan Mukhopadhyay (BBM in short) a school teacher, who died on October 22, 1968 while in service in Bhalkuti Bhudeb Chandra Buniadi Vidyalay, a Junior basic school. He had served the school for fifteen years and nine months before he passed away. In the writ petition, prayer has been made for grant of pension to the widow (i.e. the Petitioner No. 1) as well as appointment of the son of the deceased teacher, (being the Petitioner No. 2) as a teacher from the exempted category, which is also known as "death-in-harness" category. The claim of the latter is for consideration of his case for appointment on compassionate ground, but this claim was not pressed at the time of hearing by Mr. L.K. Gupta, learned Senior Advocate appearing for the Petitioners. He confined his submissions for a direction upon the concerned Respondents for granting family pension to the Petitioner No. l.

At the stage when the writ petition was moved, the Petitioners'' main grievance was that the pension papers of BBM were not being finalized. It appears that the District Inspector of Schools (PE) had recommended the case of the first Petitioner for family pension with effect from April 1, 1981, but the matter was held up in the offices of the Director of Education (PE) and the Accountant General (A & E), Pension, being the Respondent No. 2 and 4 herein. At the motion stage, an Hon''ble Single Judge of this Court directed the Respondent No. 4 [the Accountant General (A&E)] to take appropriate steps in this matter, and submit a report on the next date of hearing. Such report had been filed on June 6, 2006. It was indicated in such report that the concerned pension papers at that stage had been forwarded to the Director of School Education, who was also requested to look into the matter personally and take appropriate steps. Thereafter, directions were issued for filing of affidavits.

At the time when the predecessor of the Petitioners passed away while serving the school, his service was guided by a memorandum issued by the education department. Government of West Bengal, bearing No. 485-Edn (P) dated March 25, 1968, and the legislation covering the field was Bengal (Rural) Primary Education Act, 1930. The school in question was functioning under the District School Board. Clause 3(c) of the said memorandum dealt with pension, and the relevant part of this clause is reproduced below

Under this scheme the teachers will be entitled to the following benefits:

(a) Contributory Provident Fund:

Contributory Provident Fund with employer''s contribution @ 6�% of pay and employee''s contribution @ 6�% of pay.

(b) Gratuity or Pension:

(1) If an employee has put in five years'' service but less than ten years'', he will be entitled to receive gratuity @ � month''s pay for each completed year of service:

(2) If an employee has completed ten years'' service he will be entitled to receive monthly pension equal to 1/20 of the monthly average of his last three years'' pay for every completed year of service subject to a maximum of 30/20 of the average monthly pay.

(c) Family Pension:

(1) If an employee dies while in service after putting in service not less than 5 years but not more than 20 years, his family will be entitled to a gratuity @ the of one month''s pay for each completed year of service subject to a minimum of Rs. 500/; and

(2) If an employee dies while in service after completing twenty years'' service, his family will get a pension equal to half the, pension admissible to the employee had he retired on the date of his death subject to a minimum of Rs. 20/- per month and maximum of Rs. 75/- per month for a period; of five years from the date of the death of the employee.

The memorandum dated March 25, 1968, in substance, revised the benefits which at that point of time was available to the approved primary and Junior Basic School teachers. Clause 5 of this memorandum stipulated that the teachers appointed prior to April 1, 1968 could opt to remain in the prevailing scheme, but in that event they were to exercise their option within a period of six months. If no such option was exercised, the teachers were to have automatically been covered by the revised scheme. The claim of the Petitioners in the present writ petition is based on the benefits the family of the deceased teacher became entitled to under the memorandum dated March 25, 1968, (a copy of which has been annexed to the Supplementary Affidavit filed on behalf of the Petitioners and marked "Y"), and his coverage under the 1968 scheme has not been disputed. On his death, the family If BBM was paid Rs. 834/- and Rs.552.35/- respectively, the former sum being described by the Respondent authorities as "death gratuity."

By a memorandum dated May 15, 1985 bearing No. 136-Edn. (B), a new scheme was formulated by the State Government, entitled the West Bengal Recognized Non-government Educational Institution Employees (death-cum-retirement Benefit) Scheme 1981. Under this scheme, revised terminal benefits were prescribed for whole-time employees of State Government sponsored or aided educational Institutions (excluding, DA getting Schools) who were in service on April 1, 1981, and those appointed after that date. Clause 23 of this scheme deals with family pension, which is reproduced below:

Family Pension-(l) Family Pension is admissible to the member of the family of an employee who dies while in service aft10:34 AM 10/24/2011er rendering at least one year''s service.

(2) The benefit shall also be admissible in case of death of an employee after retirement if at the time of death he was in receipt of a compensation invalid, retiring or superannuation pension or gratuity.

Another memorandum was issued on June 15, 1990 being G.O. No. 163-Edn. (B) by the State Government under the signature of one J.M. Chatterjee, Deputy Secretary to the Government of West Bengal. Under this memorandum, the retirement benefit contemplated in the 1981 Scheme was extended to teaching and non-teaching employees who retired prior to April 1, 1981. A photocopy of this memorandum has been made Annexure "B" to the Supplementary Affidavit, and Clause 3 of this memorandum stipulates:

After careful consideration of the matter, the Governor has now 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-government educational institutions and organizations covered by the aforesaid Scheme, who retired prior to 1.4.81 on the same terms and condition and subject to due adjustment of pension and ex-gratia increases as aforesaid as were or are being drawn by such pensioners against revised retirement benefits to be sanctioned to them in terms of this order.

The coverage of the 1981 Scheme was widened further by a memorandum issued by the School Education Department, Budget Branch, Government of West Bengal, date April 12, 2000 bearing No. 152-SE (Budget)/IB-IM-80/99, The text of this memorandum is reproduced below:

Sub: Revision of Pension/Relief of the employees governed by the West Bengal Recognised Non-Govt. Educational Employees'' (Death-cum-Retirement Benefit) Scheme, 1981, who retired/died while in service prior to 1.4.81.

The undersigned is directed to state that in terms of this Department memo No. 64-SE (B) dt. 9.4.99 and in compliance with the solemn order of the Hon''ble High Court, Calcutta dt. 27.2.97 in Matter No. 1789 of 1994, the Governor has been pleased to extend the benefit of consolidation of existing pension including family pension to all wholetime approved teaching and non-teaching employees of Non-Govt. State aided Educational Institution under (DCRB) Scheme 81 whose pension/family pensions were revised/sanctioned in terms of C.O. No. 63-Edn. (B) dt. 15.6.90 read with No. 341 - Edn. (B) dt. 26.11.93 and who retired or died while in service prior to 1.4.81.

The undersigned is also directed to say that the Governor has been pleased to sanction, on consolidated pension so arrived at relief at the same rate as applicable to the pensioners who were State Govt. employees which will be admissible as per ready reckoner enclosed) with effect from 1.4.96 and from time to time at the rate as prescribed in the respective Govt. order.

This order issues with the concurrence of the Finance Department (Pension Branch) vide their U.O. No. F. (Pen)-134 dt. 29.2.2000.

The Accountant General, West Bengal, Treasury Officers are being informed accordingly.

A copy of this memorandum has been made Annexure "D" to the Supplementary Affidavit.

The case of the Petitioners is primarily founded on this memorandum dated April 12, 2000. Submission of Mr. Gupta is that since this memorandum contemplates coverage of 1981 Scheme on those teachers who died in service prior to April 1, 1981, the Petitioners would be entitled to family pension.

The Respondents have contested this writ petition, and it is primarily the Accountant General of West Bengal who has resisted grant of pension in this matter by filing affidavit-in-opposition. The ground on which the claim of the Petitioners has been resisted is that the deceased had opted for contributory provident fund cum gratuity, and thus he would not be entitled to the benefit for family pension in terms of the 1968 Scheme. The Respondents sought to establish this on the ground that the deceased teacher was sanctioned and paid death gratuity and contributory provident fund amounting Rs. 834/- and Rs. 552,35/-.

Mr. Bhattacharyya, learned Advocate appearing for the Respondent No. 4 brought to my attention a memorandum dated 12th April 2006 bearing No. 126-SE(B)/lM-23/2006) issued by the State Government. In this memorandum, reference was drawn to the 1968 Scheme, read with relevant amendment of Bengal Rural Primary Education Act, 1930 published under notification No. 2299-Edn (P) dated December 12, 1972, and it was stipulated that Primary Teachers were given options to come under any one of the three schemes, being

(a) Contributory Provident Fund and Pension.

(b) Contributory Provident Fund and Gratuity

(c) Retention of old Scheme of Gratuity (... for Rural Primary Teachers).

It has been recorded in this memorandum that only those who had opted for the contributory provident-cum-pension under the old scheme were to get benefit of the memorandum dated June 15, 1990. Those who had opted for gratuity and provident fund under the 1968 scheme or retained voluntary option to "Gratuity only" under Bengal Rural Primary Education Act 1930 could not be brought under the 1981 Scheme.

In the Affidavit-in-opposition of the Respondent No. 4. reference has also been made to another memorandum issued by the School Education Department, Government of West Bengal bearing memorandum No. 197/JSII/ES/O/B dated July 7, 2006. In this memorandum the actual copy of which has not been produced before me, it appears to have been laid down that no pending case of a primary teacher who has opted for CPF-Cum-Gratuity could be reopened or considered for pension under the DCRB 1981 Scheme in terms of the memorandum bearing G.O. No. 163 Edn. (B) dated June 15, 1990.

As regards the question of entitlement of the family pension of the members of the family of the deceased schoolteacher, the same has not been specifically denied. The stand of the Respondent No. 4 is reflected in paragraph 12 of the affidavit-in-opposition on his behalf. It has been stated in this paragraph:

I submit that in light of the aforesaid facts the office of the Accountant General (A&E), West Bengal, Treasury Buildings, Kolkata 700 001, can act only upon the decisions taken by the State Government from time to time.

As regards the position of the Petitioners'' case in the decision making process within the administrative hierarchy, the same appears to be pending with the Directorate of School Education.

It is in these factual circumstances I have to examine the Petitioners'' case. Under ordinary circumstances, the proper course in this matter would have been to remit the dispute back to the Directorate of School Education with a direction upon them to decide on the Petitioners'' claim for pension within a prescribed time frame. But having regard to the fact that substantial argument has been advanced on the basis of various circulars on the question of the Petitioner''s entitlement to pension, and the authorities have failed to reach a conclusion on this question for a period of over two years, I choose to address on merit the issue of the first Petitioners'' entitlement to receive family pension.

In the Scheme of 1968 there is provision for being retained in the scheme prevailing prior to April 1, 1968, by exercising option in favour of such retention. No case has been made out that the deceased teacher had exercised such option.

The provisions relating retiral or terminal benefits has been specified in Clause 3 of the Scheme, the text of which has been reproduced in the earlier part of this judgment. These include Contributory Provident Fund at stipulated rate. As regards gratuity or pension, it has been prescribed that a teacher would be entitled to gratuity if he completes five years of service, but less than ten years. In the even an employee completes ten years of service, then he would be entitled to monthly pension at the rate stipulated therein. On the question of family pension, for employees'' who die in service after putting in service of not less than five years but not more than five years, the family of such person would be entitled to gratuity at the rate of one-fourth of one month''s pay for each completed year of service subject to a minimum of Rs. 500/-. The deceased teacher in the present case comes within this category.

The memorandum dated April 12, 2000 brings within the compass of 1981 Scheme all whole-time employees of non-government state aided educational institutions whose pension/family pensions were revised in terms of the G.O. No. 163-Edn. (B) dated June 15, 1990 read with G.O. No. 341-Edn (B) dated November, 1993 and who retired or died while in service prior to April 1, 1981. This notification thus cover the following category of employees: -

(a) Those who retired prior to 1981, and were brought within the 1981 Scheme by the G.O. of June 15, 1990, including those whose service books could not be produced, and received revised pension as a special case in terms of G.O. dated November 26, 1993.

(b) Those who died in service prior to April 1, 1981.

The latter category of employees were not covered in any earlier administrative orders of memoranda. At least no such memorandum has been brought to my notice, In case of employees who died while in service prior to 1981, no further condition has been prescribed in the memorandum dated April 12, 2000. This memorandum stipulates consolidation of existing pension including family pension in such cases.

A case was sought to be made out that the deceased teacher was not entitled to family pension as only those who had opted for Contributory Provident Fund and Pension under the 1968 Scheme could be brought within the scope of G.O. dated June 15, 1990 From a plain reading of the 1968 scheme, I find that the deceased teacher came within the fold of Contributory Provident Fund and Pension only. His pension was calculated on the yardstick of gratuity, but what he received was family pension only, in terms of Clause 3 (c) of the 1968 Scheme. The memorandum dated April 12, 2006 refers to notification dated December 12, 1972 while analysing the option given to the primary teacher. But, the, late husband of the Petitioner No. 1 died on October 22, 1968. On that date, the Scheme as prevailed, does not speak of any option barring the option to remain in the Scheme which prevailed prior to April 1, 1968. But no case has been made out on behalf of the Respondents to the effect that the predecessor of the Petitioners chose to be excluded from the operation of the 1968 Scheme.

Since the deceased school teacher remained in the 1968 Scheme, his case comes within the category of the beneficiaries under the head of family pension, in, terms of Clause 3 (c) of the 1968 Scheme. It is true that the entitlement of the family of the deceased teacher has been quantified and expressed in terms of "Gratuity", but this fact by itself does not lead to the conclusion that what the family members of the deceased school teacher got was not "family pension" but "gratuity". In my opinion, what the Petitioners received at the time of death of their husband and father respectively was family pension only. The memorandum dated April 12, 2006 thus does not assist the Respondents in any way. In the present case, the coverage of the deceased teacher under the Contributory Provident Fund and Pension is not in dispute. In fact, his family had received the benefits under these two heads only, thought the family pension was calculated in terms of gratuity, as provided in the said Scheme. The memorandum dated July 7, 2006 also does not negate the claim of the Petitioners for family pension, as no material has been produced before me from which it can be concluded that the predecessor of the Petitioner was covered by CPF-cum-Gratuity Scheme.

Under these circumstances, I am of the opinion that the Petitioner No. 1 has made out a case for grant of family pension, with effect from the date the memorandum of April 12, 2000 (No. 152-SE Budget)/IB- 1M-80/99 became operational. The Director of School Education is directed to issue appropriate order within a period of six weeks from the date of communication of this order. The Respondent No. 4 shall issue pension payment order in pursuance thereof within a further period of four weeks, which shall provide for arrear payment along with simple interest at the rate of 9% per annum. The appropriate authority shall release pension along with arrear dues within two weeks therefrom.

The writ petition stands allowed in the above terms, without any order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties as expeditiously as possible.