Sona Devi vs The State of Bihar and Others

Ajay Kumar Tripathi, J.—Heard counsel for the petitioner and counsel for the State as well as the Accountant General, Bihar. Admitted position is that the husband of the petitioner, who was initially engaged as a daily wager as a Nalkup Khalashi sometime in the month of May 1980, by the Executive Engineer, PHED. Subsequently vide office order No. 8 dated 3.2.1983, he was selected and appointed with many others on the post of Nalkup Khalashi on a pay scale of Rs. 305-425. On 11.1.1993 petitioner''s husband was also promoted on the post of Nalkup Mistri with effect from 1.4.1992. No doubt, sometime in the year 2002, his services was dispensed with but he was ordered to be reinstated on the intervention of the High Court in a order passed in CWJC No. 3173 of 2002, a copy of which is Annexure-3. Petitioner''s husband worked but died in harness or, 12.3.2011 while posted as Nalkup Mistri in PHED Division, Munger. Now, a writ application has been filed seeking benefit of family pension and other retiral dues.

The stand of the petitioner is that in similar matter, which was the case of Most. Baby Devi and Others Vs. The State of Bihar and Others, , the learned Single Judge opined in favour of such a petitioner and directed the respondent authorities to give the benefit of pension etc. Paragraphs 14 and 15 of the said decision has application and reflection on the prayer made in the present writ application as well, which are quoted herein-below:--

"14. Learned counsel for the petitioners in rejoinder submitted that original writ petitioner in CWJC No. 4517 of 2007 moved this Court in C.W.J.C. No. 6217 of 2003 for compliance of the Government circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 issued for regularization of the Work Charge Employees and this Court under orders dated 15.3.2004, Annexure-8 (in CWJC No. 4517 of 2007) directed the State respondents to consider his case for regularization as per the cut-off date for entry in the Work Charge Establishment fixed under Resolution No. 6394 dated 23.10.1937 but the Commissioner-cum-Secretary of the Department ignoring the mandate of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990 passed erroneous order dated 29.3.2006, which was assailed by the original writ petitioner of C.W.J.C. No. 4517 of 2007. During the pendency of C.W.J.C. No. 4517 of 2007, on account of ill-luck the original writ petitioner left for heavenly abode on 2.8.2008, as such, even though the right of the original writ petitioner to seek regularization may not be surviving but the widow petitioner No. 1 is entitled to enforce her right for grant of family pension. In this connection, learned counsel also relied on the judgment of the another Single Judge in the case of Shambhu Sharan Singh Vs. The State of Bihar and Others, . In the case relied upon the deceased employee was appointed by the competent authority as Choukidar in the Work Charge Establishment. While serving in the Work Charge Establishment for about six years he died on 6.1.80. Relying on the circular of the Government dated 22.10.1984 that Work Charge Employees completing five years of continuous satisfactory service is entitled to be regularized retiral benefits of the deceased Work Charge Employee was directed to be paid to the heirs of the deceased employee who died while serving in the Work Charge Establishment for more than six years.

In view of submission of the counsel for the State noted in paragraph 13 reliance placed by the counsel for the petitioners over the judgment of Division Bench in the case of Sangam Lal Yadav (supra) is misplaced, however, considering the submission noted in paragraphs 9, 11, 12, 14 and the contents of circular dated 22.10.1984 and resolution dated 23.10.1987, 20.9.1990, I set aside the order dated 29.3.2006, Annexure-9 in C.W.J.C. No. 4517 of 2007 and direct that the husband of the substituted petitioner No. 1 of C.W.J.C. No. 4517 of 2007 and petitioner of C.W.J.C. No. 4600 of 2007 be regularized on the post of Watchman-cum-Peon and Roller Khalasi respectively with effect from the date they completed five years in Work Charge Establishment and petitioner No. 1 of CWJC No. 4517 of 2007 be paid family pension with effect from the date of death of her husband i.e. 2.8.2008, as early as possible, in any case within two months of the date of receipt of a copy of this order before the Secretary of the Department. Within the same time respondent State should also extend the cut-off date fixed for regularization of the Work Charge Employee from 21.10.1984 to 11.4.1990 as was done in the case of Muster Roll Workers from 1.8.1985 to 11.1.1990 under resolution No. 489 dated 10.5.2005 of the Government in appreciation of the fact that Work Charge Employees are superior in status to the Muster Roll Workers who are paid wages for the days on which they are actually engaged whereas the Work Charge Employees are paid salary as per the scale admissible for the post on which they are serving and are also allowed the benefit of pay revision and other service conditions admissible for regular employees."

Looking at the long length of service and engagement of the petitioner''s husband, who did not remain in casual employment but became a work charge employee with regular pay scale as "well as benefit of promotion, it is too harsh and too late in the day for the State to take a plea that the petitioner is not entitled to any benefit of pension etc. because petitioner''s husband was an employee on a work charge establishment.

As recent as in the year 2013, the State Government has taken a policy decision to grant pension to such kind of employees and there is no reason that this petitioner, who is a widow of an employee, who had rendered more than 28 years of service, will be asked to fend for herself without any kind of beneficial hand being extended by the State, who has exploited the husband of the petitioner for a long period of time by taking regular service. In view of the above for the reasons indicated even in the case of Baby Devi (supra), the writ is allowed. Respondents are directed to process and sanction family pension to the petitioner and other retiral benefits accruing therefrom. This must be done within a period of three months from the date of production of a copy of this order.