Disposed

Reeta Devi v. State of Jharkhand through Secretary Animal Husbandry and Fisheries Deptt

Jharkhand HC3 Apr 2024WPC/1265/2023

Case brief

AI extract

What is this about?

Widow sought notional regularization of her husband's ad-hoc service and post-death pensionary benefits; he died in a terrorist attack while on election duty after ~25 years of service. Court directed regularization and payment of death benefits, without salary arrears.

What did the court decide?

Direction to respondents to regularize/confirm the deceased husband's services notionally and pay post-death benefits to petitioner within four months; no salary arrears granted.

Reeta Devi Vs State of Jharkhand through… — Pension and Retirement Benefits | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (S) No. 1265 of 2023

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Reeta Devi, aged about 56 years, wife of Late Amit Kumar, Resident of Village Babhanbigha, P.O. Barbigha, P.S. Barbigha, District Shiekpura (Bihar)

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… … Petitioner

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Versus

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State of Jharkhand through Secretary, Animal Husbandry and Fisheries Department having its office at Project Building, P.O. & P.S. Dhurwa, District Ranchi

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Deputy Secretary, Animal Husbandry and Fisheries Department having its office at Project Building, P.O. & P.S. Dhurwa, District Ranchi

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Director General, Animal Husbandry Department, Dumka, P.O. & P.S. Dumka, District Dumka

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Deputy Director, Animal Husbandry Department, Dumka, P.O. & P.S. Dumka, District Dumka

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Assistant Director, Animal Husbandry Department, Dumka, P.O. & P.S. Dumka, District Dumka

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Deputy Commissioner, Dumka, P.O. & P.S. Dumka, District Dumka

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Chief Instructor, Institute of Training and Broadcast, Dumka, P.O. & P.S. Dumka

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Accountant General (A&E), Jharkhand, P.O. & P.S. Doranda, District Ranchi Pin Code 834002 … … Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner	--- : Ms. Khalida Haya Rashmi, Advocate : Mr. Zeeshan Ahmad Khan, Advocate
For the Resp.-AG	: Ms. Richa Sanchita, Advocate
For the Accountant General	: Ms. Chaitali C. Sinha, Advocate ---

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07/3^rd April 2024

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1. Heard the learned counsel for the parties.

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2. This writ petition has been filed seeking a mandamus upon the respondents to regularize the services of the petitioner notionally from the date of recommendation made by higher authorities or from the date from which his juniors were regularized in regular/permanent post since the deceased

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employee had already served more than 25 years and died in harness while as serving the respondents when he was deployed as a polling officer in Parliamentary Election, 2014. The husband of the petitioner died due to terrorist attack. A further direction has been prayed for to pay the benefits for pension and gratuity from the date of death of the husband i.e. Amit Kumar.

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Arguments of the petitioner

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3. The foundational facts of the case are not in dispute.

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4. On 10.07.1989, the husband of the petitioner joined the office of Deputy Director, Regional Dairy Development Office, Dumka, Department of Animal Husbandry and Dairy Unit, Dumka on the post of stenographer on ad-hoc basis and he worked against the vacant sanctioned post of steno typist. A letter of recommendation for regularizing his services was issued on 28.04.1990 and also on various subsequent dates and one such letter is dated 14.04.1998 issued by Assistant Director to the Director.

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5. It is not in dispute that the husband of the petitioner continued to work though initially appointed on ad-hoc basis way back in the year 1979 against vacant sanctioned post even in the year 2014; on 10.04.2014, he was appointed as polling officer for General Parliamentary Election, 2014; while on duty he expired on 24.04.2014 on account of extremists’ attack and by this time the husband of the petitioner had already served the respondents for a period of 25 years. Even after his death, a letter dated 06.06.2014 was issued by the respondents for his transfer mentioning therein that he was working as GradeIII employee.

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6. It is further not in dispute that since the husband of the petitioner died while performing his duty as polling officer an amount of Rs. 20,00,000/- has been paid to the petitioner by way of compensation as per the scheme of the Central Government.

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7. Even after death, letters dated 10.12.2015 05.04.2016, 06.04.2017 and 11.09.2017 were issued for regularization of the services of the husband of the petitioner as the petitioner was pressing hard for payment of post retiral

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benefits. However, when no decision was taken, the present writ petition has been filed.

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8. It has been stated by the writ petitioner that her husband was being treated as a regular government employee, inasmuch as, he was not only paid salary from time to time but was also transferred during his service tenure as per the requirement of the respondent authority and these facts as stated in the writ petition have not been denied by the respondents in their counter-affidavit. The learned counsel has also submitted that even service book of the husband of the petitioner was prepared and appropriate entries were made regarding his posting and pay-scale.

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9. The petitioner has made specific statement in paragraph 11 of the writ petition that junior to the husband of the petitioner, namely, Tarun Kanta Topno who was subsequently appointed was also regularized by virtue of the judgment passed by this Court in W.P. (S) No. 981 of 2020. The order of regularization of Tarun Kanta Topno has also been brought on record by referring to Annexure-4 of the writ petition.

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10. It is the case of the petitioner that the respondents having taken work from the husband of the petitioner for more than 25 years and having throughout treated her husband as a regular employee but no formal order of regularization was passed and while on duty he ultimately expired on 24.04.2014 and the junior to the husband of the petitioner regularized subsequently entitles the husband of the petitioner to similar benefit notionally so that the petitioner would be entitled for death-cum-retiral benefits. The learned counsel has also submitted that there has been no complaint with regard to husband of the petitioner while in service.

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11. The learned counsel has referred to the judgment passed in the case of Tarun Kanta Topno in W.P. (S) No. 981 of 2020 and has submitted that said Tarun Kanta Topno was granted the same relief as was granted to several persons whose names were mentioned in Annexure-13 and 13/1 of the said writ petition. She has referred to internal page 3 of the judgment passed in the aforesaid writ petition, wherein three persons, namely, Nobal Kachhap, Prabhat

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Kumar Sinha and Budhdeo Asur were confirmed in their services vide order dated 27.06.2011 and order dated 25.07.2013 by the State of Bihar. The learned counsel submits that the order dated 23.04.2019 denying the regularization of services of Tarun Kanta Topno was quashed by this Court and the respondents were directed to confirm his services as was done with regards to the persons who were appointed along with him. The learned counsel submits that specific statement to this effect has been made in paragraph 11 of the writ petition, but the same has not been denied by the respondents in their counter-affidavit.

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12. The learned counsel for the petitioner has also relied upon the judgment passed by this Court in the writ petition being W.P. (S) No. 6347 of 2018 (Narendra Kumar Tiwari vs. State of Jharkhand) and has submitted that in the said case, it was observed that even those persons who had worked for more than 10 years and had retired during the pendency of the writ petition were also entitled for regularization from retrospective date.

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13. The learned counsel has also relied upon the judgment passed by this Court in W.P. (S) No. 2183 of 2019 (Bishwanath Sharma vs. State of Jharkhand & Others) and has submitted that the petitioner in the aforesaid case was also appointed as back as on 07.11.1983 as bill clerk-cum-cashier against sanctioned vacant post and his services were extended from time to time and he also retired from service and after his retirement considering the fact that he had completed more than 23 years of service, his services were ultimately directed to be regularized with all consequential benefits.

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14. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 1109 of 2022 (The State of Gujarat & Others vs. Talsibhai Dhanjibhai Patel) and has submitted that in a case where the original writ petition had put in 30 years of service on ad-hoc basis, the Hon’ble Supreme Court was of the view that the pensionary benefits could not be denied to such a person.

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15. The learned counsel has submitted that no reason is reflecting from the counter-affidavit for not considering the case of regularization of the husband of the petitioner in spite of repeated recommendation from time to time.

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Arguments of the respondents

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16. The learned counsel appearing on behalf of the respondents has opposed the prayer of the writ petitioner and has submitted that an ad-hoc employee even if continued for a long time is not entitled for pension as the condition precedent for grant of pension that the employee should be a regular employee is not satisfied.

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17. The learned counsel has also submitted that three conditions have been prescribed in Rule 58 of the Jharkhand Pension Rules; (i) the service must be under government; (ii) the employment must be substantive and permanent: and (iii) the service must be paid by the Government. The learned counsel submits that the condition No. 2 is not satisfied.

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18. The learned counsel has submitted that so far as the case of Tarun Kanta Topno is concerned, the fact regarding his case has been mentioned in internal page 2 of the judgment which indicated that he was appointed on ad-hoc basis in Regional Dairy Development Office, Ranchi vide order dated 29.07.1990; his appointment extended for three months vide order dated 13.10.1990 and by order dated 18.12.1993, the Director, Dairy Development Directorate, Bihar, Patna directed the Regional Joint Director, Dairy Development, South Bihar to make appointment of the candidates by due process on sanctioned vacant post and pursuant thereto a Selection Committee was constituted who recommended his name along with others for the post of Typist-Clerk vide selection committee proceeding dated 28.02.1994 and that he had also cleared the examination of first and second paper prescribed for Mufsil Office in view of memo dated 23.07.2011 and the pay-scale was also fixed which was revised from time to time and subsequently he was allocated Jharkhand cadre. The learned counsel submits that on account of the aforesaid facts, the case of Tarun Kanta Topno is different from the case of the husband of the petitioner.

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19. She has also referred to the initial appointment letter of the husband of the petitioner to submit that though a post of typist-cum-clerk was vacant but still the husband of the petitioner was appointed on ad-hoc basic.

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Rejoinder argument of the petitioner

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20. In response, the learned counsel for the petitioner has referred to letter dated 05.04.2016 (page 69 of the writ petition) to submit that a letter No. 1785 dated 01.10.1986 was issued which exempted the typist from passing the departmental examination. She submits that by the said letter, the arrear of payment with regard to other dues of the ex-employee were sought to be paid by referring to different dues and a recommendation was again made for regularizing the services. She has also submitted that the detail with regard to the services of the husband of the petitioner has been mentioned in page 68 of the writ petition which was prepared by the respondent on 10.12.2015.

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Findings of this Court

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21. After hearing the learned counsel for the parties and upon going through the records of this case, this Court finds that the aforesaid factual aspects which have been recorded above with regards to the husband of the petitioner are based on materials on record and not disputed by the respondents. However, for the purposes of regularizing the services of the husband of the petitioner, some details have been mentioned in page 68 which refers the date of appointment of the husband of the petitioner as typist as 01.11.1992; he joined on 01.11.1992 and completed 21 years, 5 months and 24 days in Grade-III post and was drawing salary at the pay-scale of 1320-30-1560-40-2040 and was also given revised pay-scale in scale of 4000-100-6000 and 5200-20200, grade pay 2400/-, basis pay 10050 and he worked as typist for the period 01.11.1992 to 24.04.2014.

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22. The records of the case reveal that the husband of the petitioner continued in service but no order of regularization was passed although he was treated as a regular employee, inasmuch as, not only he was granted pay on the pay-scale fixed by the Government, his service book was also opened and he was transferred to different places under the direction of the respondents. It

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further appears from page 60 of the writ petition that one memo dated 27.09.1994 was issued wherein it was mentioned that the husband of the petitioner was to be interviewed for the purposes of regularization and his services were extended for a period of six months and in case he becomes unsuccessful his services would be discontinued. The respondents have not brought on record as to what happened to the interview of the husband of the petitioner. However, the fact that he continued in service till 2014 till his death is not in dispute and there have been repeated recommendations to regularize the services of the husband of the petitioner.

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23. This Court is of the considered view that the husband of the petitioner having worked for about 25 years and that his junior, namely, Tarun Kanta Topno who was appointed after the husband of the petitioner was subsequently regularized though by the order passed by this Court in W.P. (S) No. 981 of 2020 by referring to the other persons who were regularized in service way back in the year 2011 and 2013 by the State of Bihar, this Court finds no reason to deny the same relief to the husband of the petitioner notionally as was done in the case of other persons whose names were contained in Annexure-13 and 13/1 of the writ petition filed by Tarun Kanta Topno. Said Tarun Kanta Topno was granted the relief by this Court in the following manner: -

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“As a cumulative effect of the above discussions, the impugned order cannot sustain in the eye of law and accordingly, the impugned order dated 23.04.2019 is quashed and the respondents are directed to confirm the services of the petitioner as has been done in the case of the persons who have been appointed alongwith the petitioner as contained in Annexure-13 and 13/1 by the State of Bihar. The petitioner shall be entitled for consequential benefits.”

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24. Further, the Hon’ble Supreme Court in Special Leave to Appeal (C) No. 1109 of 2022 (The State of Gujarat & Others vs. Talsibhai Dhanjibhai Patel), where the original writ petitioner had put in 30 years of service on ad-hoc basis, has held that the pensionary benefits could not be denied to such a person. In the present case, the husband of the petitioner having put in more than 25 years of service and was killed in terrorist attack while on election duty in 2014 elections. In such circumstances, this court is of the considered view

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that the claim service benefits in the form of family pension cannot be denied to the petitioner.

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25. As a cumulative effect of the aforesaid findings, the respondents are directed to regularize and confirm the services of the husband of the petitioner. However, it is made clear that this order will carry no consequential benefits in terms of arrears of salary etc. and as a consequence of this order, the petitioner would be entitled for post death benefits of her husband from the date of his death.

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26. The follow up orders be passed by the respondent No. 1 so that the post death benefit is granted to the petitioner within a period of four months from the date of communication of this order.

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27. Accordingly, this writ petition is disposed of with the aforesaid observations and directions.

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28. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Mukul

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Reeta Devi v. State of Jharkhand through Secretary Animal Husbandry and Fisheries Deptt

Case brief

What is this about?

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Reeta Devi v. State of Jharkhand through Secretary Animal Husbandry and Fisheries Deptt

Case brief

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