Calcutta High Court (Appellete Side)

Maya Chakraborty vs The State Of West Bengal & Ors on 25 August, 2023

                    IN THE HIGH COURT AT CALCUTTA
                  CONSTITUTIONAL WRIT JURISDICTION
                                 (Appellate Side)


Present:     THE HON'BLE JUSTICE RAJARSHI BHARADWAJ


                                          W.P.A 22698 of 2019


                                          Reserved on  : 16.08.2023
                                          Pronounced on: 25.08.2023


     Maya Chakraborty
                                                                        ...Petitioner

                                        -Vs-


     The State of West Bengal & Ors.                             ...Respondents

Present:-

Mr. Srikanta Dutta ... for the Petitioner Ms. Kakali Samajpati Ms. Kakali Naskar ...for the Respondents

Rajarshi Bharadwaj, J:

1. In the present matter, a writ petition has been instituted, wherein the

impugned directive/orders issued by the Secretary, School Education

Department under the Government of West Bengal, stands contested on the

grounds of non-disbursement of pensionary benefits to the petitioner.

2. The facts of the case are that the petitioner's father one late Ramkrishna

Chakraborty was an approved teacher of Satyapur Government Sponsored

Free Primary School (hereinafter referred to as the 'said school') who

discharged his duties and responsibility till 24th December, 1968. Thereafter

the petitioner's deceased father died intestate on 28th December, 1968.

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3. Upon the demise of the petitioner's father, the family pension was

accorded to the petitioner's mother, one Jibanbala Chakraborty. This was in

accordance with the provisions outlined in the West Bengal Non-Government

Education Institution Employee's (Death-cum-Retirement Benefit) Scheme,

1981, hereinafter referred to as the 'said scheme'. However, subsequent to

this, the petitioner's mother also passed away without leaving a valid will on

the 16th day of January, 2015. The surviving family members include the

petitioner, who is the daughter and a widow herself, as well as a married son

and a married daughter.

4. Owing to the Government Order (G.O) being no. 39 SE(B)/1M-19/07

dated 10th January, 2008 the scope of the family pension in terms of the said

scheme was extended to the widowed daughter of such employees/pensioner

whose income was not exceeding Rs.2,600/- per month. The petitioner having

no other source of income became entitled to receive the family pension in

terms of the said order. On learning the same from the office of respondent

no.3, herein the District Inspector of School (PE), Nadia the petitioner made an

application before the respondent no. 3, on 9th September, 2016 for granting

of pension. As no steps were taken for the disbursement of the family pension

the petitioner filed a writ petition before this Hon'ble Court being W P No.

14143(W) of 2017.

5. An order was passed by the Learned Single Judge directing the

respondent no.3 to forward all necessary documents to the respondent no.1

subsequent to which the respondent no.1shall take a decision in accordance

with the law for disbursement of the family pension in favour of the petitioner

after being given an opportunity of hearing. However, on conclusion of the

hearing an order vide memo no.11/1/(5) SE(Law) PL/5S-30/18 dated 3rd

January, 2019 was passed by the respondent no.1 rejecting the claim of the

petitioner. Thus, being aggrieved by the impugned order the present petition

has been preferred.

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6. Submissions of the learned counsel for the petitioner are that the stands

taken by the respondent authorities for rejecting the claim of the petitioner are

highly prejudicial to the rights and claims of the petitioner. This unfavorable

disposition stems from an oversight in recognizing the petitioner's claim,

founded on the provisions of Government Order (GO) no. 539 SE(P&B), dated

1st November, 2010, which, in truth, does not find applicability to the specific

circumstances of the petitioner's case.

7. Having heard the learned counsel for parties and on perusal of records

this Court is of the view that the outdated concept that pension is bestowed as

a gift, an unobligated payment subject to the employer's benevolence and not

legally enforceable as an entitlement, has been invalidated by the ruling of the

Constitutional Bench in the case of Deoki Nandan Prasad v. State of Bihar

reported in 1971 (Supp) SCR 634: (AIR 1971 SC 1409). The Court

unequivocally established that a pension is indeed a legally recognized

entitlement. The disbursement of pension is not subject to the discretionary

authority of the Government; rather, it is governed by established regulations.

A government employee falling within the purview of these regulations has the

rightful entitlement to claim their pension. While it might be necessary for the

appropriate authority to issue an order for the purpose of calculating the

specific amount, taking into account the duration of service and related

considerations, the entitlement to receive pension is inherent to the officer by

virtue of the governing rules, not contingent upon any such order.

8. In the case of Kumari Reba Ghosh v. The State of West Bengal and

Others dated October 28, 2014 passed in MAT No. 119 of 2014 this Court

ruled that an unmarried or widowed daughter of a retired teacher who had

concluded their service prior to 1st April, 1981, is eligible to receive the

benefits of family pension introduced under the said scheme. The Division

Bench's decision was grounded in the content of the memorandum dated 15th

June, 1990. However, it is imperative to note that the memorandum from 15th

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June, 1990 per se, does not expansively grant pensionary advantages to

unmarried or widowed daughter. The extensiveness of pensionary entitlements

to unmarried, widowed, or divorced daughters was actually promulgated

through subsequent memoranda, specifically Memorandum No.39 SE (B)/1M-

19/07 dated January 10th, 2008, and Government Order (G.O.) No.95 (80)-SE

(B)/1M-112/2008 dated April 13th, 2010, as previously cited. A three Judges

Bench in MAT 1518 of 2019 had upheld the judgment of Kumari Reba Ghosh

(Supra) determining that the entitlement to family pension could be expanded

to encompass unmarried or widowed daughters of employees who retired or

passed away before the enactment of the said scheme.

9. It is clear that the legislative intent is unequivocal in its aspiration to

broaden the scope of family pension benefits to encompass unmarried,

widowed or divorced daughters of employees who retired either prior to or

subsequent to April 1st, 1981, as well as those of family pension recipients. In

this light, the memorandum issued on 1st November, 2010, should not present

an impediment to the extension of these benefits, particularly in the absence

of any explicit provisions therein that limit or impede such entitlements. If one

were to invoke socio-economic justice derived from the principles of societal

morality, the memoranda that fortify the provision of subsistence security to

the aforementioned categories of women through the dispensation of family

pension ought to be liberally construed. Consequently, the petitioner has a

valid claim to receive the benefits pertaining to pensionary considerations.

Therefore, memo no.11/1/(5) SE(Law) PL/5S-30/18 dated 3rd January, 2019

is set aside and the competent authority being respondent no.5, Director,

Pension Provident Fund and Group Insurance, West Bengal is requested to

take appropriate measures in initiating the disbursement of the family pension

to the petitioner. It is further requested that all outstanding awards and

entitlements be granted retrospectively, thereby acknowledging the rightful

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benefits of the petitioner without delay preferably within four (04) months from

date.

10. For the foregoing reasons the writ petition is, accordingly, allowed. All

pending applications are accordingly disposed of. There will be no order as to

costs.