Santosh Devi vs Indian Institute Of Technology Roorkee And Others

Ravindra Maithani, J

Petitioner claims family pension, which has been denied to her by the impugned orders dated 23.05.2014 and 08.07.2014 by the Institute of Technology, Roorkee (for short 'the IIT').

It is the case of the petitioner that her husband was appointed as a regular employee as Baildar in the Roorkee University ("the University"). The University was subsequently changed as the IIT. The husband of deceased died on 05.06.2001 after completing twenty and half years of service. The University and subsequently the IIT was deducting GPF from the salary of the husband of the petitioner. After death of her husband the petitioner requested for pension. It was not paid to her and when represented by virtue of communication dated 23.05.2014 and 08.07.2014, family pension was denied on the ground that he had not opted for pension scheme. It is the case of the petitioner that, in fact, the liaisoning officer of the IIT had recommended that the petitioner be paid family pension as she is entitled for it in view of the government order dated 11.12.1991. Reference has been made to the government order dated 11.12.1991 which provided that the employees who did not earlier exercise their option, pursuant to the Government Order dated 22.09.1984 may submit their option within 90 days. If any employee does not exercise this option, it shall be considered that they have given option for the retirement at the age of 58 years with the benefit of pension, family pension and other retiral benefits. Petitioner had also agreed that she is ready to deposit the amount which she has received as a contributory provident fund (CPF) of her husband but she may be paid the pension which was denied. Hence, the petition.

On behalf of the respondents, counter affidavit has been filed. According to it, the husband of the petitioner was not entitled for pension because he had not opted for it. The husband of the petitioner namely Mr. Ram Singh was appointed as regular Baildar on temporary cadre but his name was not included in the government order dated 14.03.1978. Ram Singh had been a member of CPF and he had never given option to switch over from CPF to pension scheme. In paragraph 11 of the counter affidavit, the respondents have stated that the issue of regularization of quasi regular employees was considered by the Board of Governors of the IIT and a resolution was also sent to the Ministry of Human Resource Development, Government of India for expediting the issue but it is averred that "unfortunately, Mr. Ram Singh (petitioner's husband) expired on 05.06.2001 and his name could not be included in the list. In paragraph 16 of the counter affidavit, the respondents have pleaded that the husband of petitioner Ram Singh was appointed on the vacancy of Dharam Singh, Baildar, whose name was included in the government order dated 14.03.1978 at serial number 33. The appointment was as regular Baildar on temporary cadre.

On the question of application of government order dated 11.12.1991, according to the respondents, it was applicable to the regular employees who worked on government approved post of the University and as the name of Ram Singh was not included in the government order dated 14.03.1978, he would not get the benefit of the government order dated 11.12.1991.

Heard learned counsel for the parties and perused the record.

Learned counsel for the petitioner would submit that petitioner was appointed as a regular Baildar in the University on 01.01.1978. He was on the pay-scale. He was appointed on the vacancy, which occurred due to death of Dharam Singh, whose name was included in the government order dated 14.03.1978. Learned counsel referred to the government order dated 11.12.1991, which is annexure-4 to the writ petition. It, inter alia, provides that the employees could give their option for retiral dues within 90 days from the date of issuance of the government order and in case any employee does not give such an option, it shall be presumed that he had opted for his retirement at the age of 58 years with the benefit of pension, family pension and other retiral benefits. Learned counsel also submits that, in fact, the liaisoning officer of the IIT had recommended the case of the petitioner for pension with the Director of the Institute, but, it has not been paid to her. Insofar as the question of member of CPF scheme is concerned, learned counsel for the petitioner would submit that the respondents had in many cases, after taking the money received by the incumbent under the CPF scheme, granted pension to such employees. Reference has been made to such orders, which are enclosed with annexure-5 to the writ petition.

On behalf of the respondents, it is argued that the husband of the petitioner was in the temporary cadre, therefore, he could not get the benefit of government order dated 11.12.1991 and was not eligible for pension. It is also argued that the husband of the petitioner was the member of the CPF scheme and he had never opted for pension.

The appointment letter of the husband of the petitioner is annexure-1 to the writ petition, according to which, he was appointed as regular Baildar. This order does not reveal that he was against any temporary cadre. Not only this, in fact, the respondents have filed annexure-2, a letter of Executive Engineer of the University in the month of August, 1978, which has recommended that the husband of the petitioner may be appointed as regular Baildar. It supports the claim of the petitioner that her husband was regular Baildar appointed w.e.f. 01.01.1978. Though, this order was passed on 13.12.1978. So there is no question of any temporary cadre. Reference has been made to a government order dated 14.03.1978 by the respondents to argue that the husband of the petitioner was not included in the list enclosed with government order dated 14.03.1978. In fact, according to this government order, certain posts were created on which employees had already been working for continuously three years prior to issuance of this government order. The husband of the petitioner's name could not have been included in this government order dated 14.03.1978 because, according to the respondents themselves, he was appointed against the vacancies, which arose after the death of Dharam Singh, whose name was included at serial number 33 in the list enclosed with the government order dated 14.03.1978. In other words, it may be treated that the name of the husband of the petitioner was included in the government order dated 14.03.1978 because the post was already sanctioned by the Government, on which a Dharam Singh was working and after his death, the husband of the petitioner was appointed as a regular Baildar. The government order dated 11.12.1991 is definitely applicable to the husband of the petitioner because in case, the husband of the petitioner had not opted for pension, in view of this government order dated 11.12.1991, it shall be presumed that he had opted for retirement at the age of 58 years with pension and other related benefits.

The husband of the petitioner was in the regular employment. He was working on a post, which has been sanctioned by the Government by virtue of government order dated 14.03.1978. If the husband of the petitioner was member of CPF scheme, it also does not disentitle him for pension because the amount which has been received by the petitioner under that scheme may be refunded and pension may be paid. Government Order dated 11.12.1991 is applicable to the petitioner and it shall be presumed that the husband of the petitioner had opted for his retirement at the age of 58 years with pension and other retiral benefits. Accordingly, this Court is of the view that the writ petition deserves to be allowed.

The writ petition is allowed.

The impugned orders dated 23.05.2014 and 08.07.2014 (annexure-3 to the writ petition) are hereby quashed. The petitioner is entitled to family pension. The respondent no.1 is directed to pay the family pension to the petitioner after taking the funds, which she received under the CPF scheme.

The arrears of family pension is restricted to the period of three years prior to filing of the writ petition without any interest. The arrears of three years family pension shall be paid to the petitioner within a period of three months.