====================================================== Mani Mala Prasad wife of Late Brahamdeo Prasad, Junior Engineer, Jamalpur Municipality, resident v. 1. The State Of Bihar 2
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.703 of 2006 ====================================================== Mani Mala Prasad wife of Late Brahamdeo Prasad, Junior Engineer, Jamalpur Municipality, resident of Sikandar, P.S. East Colony, Town Jamalpur, Munger .... .... Petitioner/s Versus 1. The State Of Bihar 2. Mr. Sukhdeo Prasad son of Late Karoo Mahton, presently working/posted as Special Officer, Jamalpur Municipality, Munger 3. Bharat Yadav son of father’s name not known presently Chairman, Jamalpur Municipality, Jamalpur Munger …Contemnor …..Opposite parties ====================================================== Appearance: For the Petitioner/s : Mr. Sujeet Kumar Sinha with Mr. Mukesh Kumar Sinha Mr. Indu Bhushan Pandey For Jamalpur Nagar Parishad Mr. Rakesh Kumar Sinha For the State Mr. Lalit Kishore AAG-1 with A.C. to AAG 1 ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 31 06-03-2013 Heard Mr. Sujit Kumar Sinha for the petitioner, Mr. Rakesh Kumar Sinha for Jamalpur Municipality (now Nagar Parishad) and its official and A.C. to AAG 1 for the State. This application has been filed to initiate a contempt proceeding and punish the opposite parties for having willfully acted in disregard of the order dated 8.9.2005 passed in CWJC No. 6610 of 2003 (Annexure-1). Operative portion of the said order reads thus:- “In the facts and circumstances, the respondents are directed (i) to make payment of all retiral dues to the petitioner for her late husband. (ii) to give benefit of 2
Facts
Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 2 / 8 time bound promotion to the petitioner’s husband. (iii) to fix the family pension as well as other retiral dues on the basis of the promotional scale.(iv) to make payment of arrears of salary and the arrears of family pension and (v) to make payment of G.P.F. leave encashment, bonus and all other retiral dues, if not paid till the date. The aforesaid directions must be complied the respondents within four weeks from the date of production/communication of a copy of this order.” by Learned counsel for the petitioner has submitted that in the light of the said order the Nagar Parishad paid her the family pension to the petitioner for a period of 08 years and thereafter stopped payment thereof. It is next submitted that the deceased husband of the petitioner had served the Nagar Parishad for nearly 32 years before his death in an accident and he was entitled to consideration and grant of time bound promotion, as directed under the said order. The opposite parties have not granted the time bound promotion and the consequential benefits thereof and as such they have acted in disobedience of the order of this Court. Let it be recorded that in the writ application no counter affidavit on behalf of the State was filed. The Municipality (now Nagar Parishad) had filed counter affidavit(s) resisting the claim of the petitioner for grant of time bound promotion to her deceased husband. In the present proceeding show cause on behalf of the State of Bihar and its official as well as Nagar Parishad have been filed. The petitioner has filed rejoinder thereto. On a bare perusal of the order passed on the writ petition, it appears that the direction was issued to grant the 3 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 3 / 8 petitioner family pension in the light of the provision of the Act and also to grant time bound promotion to the deceased husband of the petitioner who had served for more than 32 years without any upgradation in his scale of pay. This Court would first consider the grievance of the petitioner regarding non payment of the family pension. From the rejoinder filed on behalf of the petitioner to the show cause(s) of Nagar Parishad and State of Bihar it appears that a civil review application vide Civil Review No. 239 of 2005 was preferred by the Nagar Parishad against the order dated 8.9.2005. The same was considered and disposed of by order dated 18.01.2007 (Annexure-4 to the rejoinder affidavit) in the following terms:- “The ground which has been taken for reviewing the order is that as per Rule 36 of the Bihar Municipal Officers and Servants Pension Rule, 1987, direction could not have been issued for allowing family pension to respondent No.5 as Rule 11(1) of Bihar Municipal Officers and Servants Pension Rule, 1987 states that if Municipal Servant dies before actually retiring or being discharged, his heirs have no claim to any things this pension. The grounds which have been taken by the petitioners of the review petition, do not make out a case for reviewing order. In Chapter VI of Bihar Municipal Officers and Servants Pension Rule, 1987 the details of family pension has been mentioned. Rule 35 clearly states as follows:- in respect of 4 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 4 / 8 “That a family pension not exceeding the amount granted to the family of a Municipal employee who dies whether while in service or after retirement after completion of than 20 years not qualifying service for a period of 10 years.”. less The case of the writ petitioner is fully covered by Rule 35. Rule 11 of Bihar Municipal officers and Servants pension Rule 1987 has no application.” There is agreement at Bar that the petitioner was paid family pension for nearly eight years whereafter payment thereof has been stopped. Learned counsel for the petitioner, on instruction, submits that in the light of the order passed on the civil review application being Civil Review No. 239 of 2005 (Annexure-4 to the rejoinder/reply) the Nagar Parishad would pay to the petitioner family pension as was being paid earlier for the remaining period(s) upto 10 years. The order dated 18.01.2007 was passed after hearing the parties. The said order has not been
Legal Reasoning
annulled/modified by this Court in any proceeding levied either by the petitioner or the Nagar Parishad. In view of aforesaid stand taken by opposite party no.2 (Nagar Parishad) this Court is satisfied that the grievance of the petitioner relating to the same stands redressed. Let the Nagar Parishad pay family pension to the petitioner for the remaining years within six weeks from 5 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 5 / 8 today. Another grievance of the petitioner is with respect to non grant of time bound promotion in the light of the order passed
Decision
on the writ petition. Mr. Sinha learned counsel for the petitioner states that the said direction was issued in the light of the ratio laid down by this Court in the case of Bihar Rajya Zila Parishad Abhiyanta Seva Sangh vs. State of Bihar & Ors. (2000(2) PLJR 306/para 7). In the show cause filed on behalf of Nagar perished a stand has been taken that no employee of the Nagar Parishad has till date been granted the said benefit. In fact, no post carrying higher scale of pay is sanctioned in the Nagar Parishad. The matter concerning the petitioner has, therefore, been referred to the Government in appropriate department. In the supplementary show cause filed on behalf of opposite party no.1 the following facts have been stated in para 5,6 and 7:- “5. That so far as the benefit of time bound promotion is concerned, it is submitted that the same has not been extended to the employees of the Urban Local Bodies in view of their poor financial condition as the Urban Local Bodies are not even able to pay the monthly usual salary of their employees. The State Govt. has to pay a handsom amount every year as grant to the Urban Local Bodies to enable them to pay the monthly salary of their 6 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 6 / 8 employees although the responsibility of paying salary to the employees is on the concerned Urban Local Body. 6. That it is further submitted that at present no employee of Urban Local Body is getting the benefit of time bound promotion. Employees of local bodies are not government servants. Hence, they cannot claim the same benefits. 7. That it is further submitted that the Hon’ble Court has directed the Jamalpur Municipality to consider the prayer of the petitioner regarding the benefit of time bound promotion when it is given to the employees in other similar cases. No employee of any Urban Local Body is getting the benefit of time bond promotion at present. As such, the benefit of time bound promotion is not admissible to the deceased.” Along with the show cause an order passed by the Government in the Department of Finance as contained in letter bearing no. 942 dated 16.2.2000 issued by the Finance Commissioner of the State of Bihar has been enclosed. Counsel for the State drawing attention of the Court to the said document submits that a clear instruction has been issued in the light of the order passed by the then Ranchi Bench of the Patna High Court wherefrom it would appear that the employees of the Nagar parishad cannot be treated at par with the employees of the State Government and as such the benefit of the time bound promotion granted to the employees of the Government is not applicable in the case of the employees of the Nagar Parishad/local body. 7 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 7 / 8 The petitioner in his reply has stated that few employees of the Nagar Parishad like the husband of the petitioner has been granted such benefit(s). I have considered the submissions of the parties. It appears that stand of the State could not be placed before the Court when the said order on the writ petition was passed. It further appears that the said direction was issued in the light of the ratio laid down in Bihar Rajya Zila Parishad Abhiyanta Seva Sangh (supra). Any statutory provision governing the case of the writ petitioner was not made basis thereof. The parties before me in such circumstance(s) have taken a fair stand that petitioner be granted liberty to approach the concerned authority of the Government relating to the said grievance who should consider and pass a reasoned order thereon. The petitioner would bring to the notice of the authorities diverse orders granting time bound promotion passed by the different local bodies/Nagar Parishad. This Court in such view of the matter, while disposing of the present contempt application, would grant the petitioner said liberty. Needless to observe that once such an application/representation is filed the concerned authority of the 8 Patna High Court MJC No.703 of 2006 (31) dt.06-03-2013 8 / 8 State Government shall consider and pass a reasoned order thereon expeditiously. . The contempt application is disposed of accordingly. (Kishore Kumar Mandal, J) HR/-