Uttarakhand High Court
Smt. Santosh Devi vs Indian Institute Of Technology on 6 September, 2021
1
RESERVED
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 1330 of 2017
Smt. Santosh Devi ........Petitioner
Versus
Indian Institute of Technology,
Roorkee and Others .......Respondents
Present:-
Mr. Pankaj Miglani, Advocate for the petitioner.
Mr. Vipul Sharma, Advocate for the respondents.
JUDGMENT
Hon'ble 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').
2. 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.
3. 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.
4. 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.
5. Heard learned counsel for the parties and perused the record.
6. 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.
7. 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.
8. 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.
9. 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.
10. The writ petition is allowed.
11. 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.
12. 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.
(Ravindra Maithani, J.)
06.09.2021
Ujjwal
