High Court
Case Details
W.P.(S) No 2204 of 2005 In the matter of an application under Article 226 of the Constitution of India Josifin Khalko ... … Petitioner Versus 1. The State of Jharkhand 2. The Commissioner-cum-Secretary,Human Resources Development Department, Jharkhand, Ranchi. 3. The Director Primary & Middle Education, Jharkhand, Ranchi 4. Regional Deputy Director of Education, South Chhotanagpur Division, Ranchi. 5. District Education Officer, Gumla For the Petitioner : Mr. Rajesh Kumar Mishra, Advocate For the Respondents : J.C to , S.C. (L& C) ….....Respondents P R E S E N T HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR By Court: The petitioner has approached this Court seeking direction upon the respondents for payment of pension, G.P.F. gratuity etc. 2.
Legal Reasoning
The brief facts of the case are that, the petitioner was appointed as Assistant Teacher on 12.11.1979 and after she suffered certain mental illness and fell ill, she sought leave for treatment and finally on 1.11.1990, she wrote a letter to the School authorities and stopped teaching work. Few medical prescriptions have been brought on record by the petitioner in support of her claim that she under-went treatment. When the petitioner became fully fit, she wrote letter on 9.7.1993 to the School authorities requesting for continuance of her service in the school or in alternative for adjustment by transfer in any other school. She has written several other letters seeking permission to join service however, when she was not permitted she moved this Court for direction upon the respondents for payment of pension etc. 3. A counter-affidavit has been filed in which it has been admitted that she was appointed vide Memo No.42 dated 10.11.1979 however, it has been stated that she joined only on 2.2.1981. It has also been admitted that she resigned from her 2 service on 1.11.1990. The claim of the petitioner has been resisted on the ground that she did not complete minimum period of 10 years of service which is minimum period of serivce for grant of pension. It has further been claimed in paragraph no. 10 of the counter-affidavit that the petitioner is still abnormal mentally. 4. A supplementary counter-affidavit dated 3.4.2013 has been filed in which a stand has been taken that the school in which the petitioner was working comes in the category of non- Government aided school and the teachers of non-Government aided (including minority) schools who are appointed as per the norms of State Government and who have been given the benefit of pension (including family pension), gratuity and the provident fund only, no post-retiral benefits have been allowed to them. It has been stated that since the resignation of the petitioner was accepted by her appointing authority, office of the answering respondents has no authority to send the petitioner to the Medical Board on or after her resignation. 5. A supplementary affidavit has been filed by the petitioner bringing on record the Resolution No. 6796 dated 15.7.1975 in support of her claim that even though she has not completed 10 years of service, she is entitled for pension which would be equivalent of family pension. 6. Heard learned counsel for the parties and perused the documents on record. 7. Learned counsel appearing for the petitioner has submitted that it is admitted by the respondents that the petitioner worked for 8 years, 8 months and 29 days. It is also admitted that her letter dated 1.11.1990 has been treated as resignation letter and it was duly accepted by the authorities. 8. In the counter-affidavit filed by the respondent no. 5, it has been claimed that the petitioner is still suffering from mental illness. In terms of Rule 116 r/w Rule 128 of the Bihar Pension Rules, it would be incumbent upon the authorities to get the petitioner medically examined at the time when she wrote letter on 1.11.1990 however, in the present case in view of the specific claim made in the counter-affidavit that the petitioner is still suffering from mental illness, this was also not necessary as 3 the respondents have accepted the position that the petitioner resigned from service due to her illness as she was unable to perform her duties. 9. The learned counsel appearing for the petitioner has relied on a decision rendered in W.P.(S) No.1012 of 2007, wherein a learned Single Judge of this Court allowed the writ petition which was filed almost after 30 years of resignation of the employee from service. I further find that in W.P.(S) No.5398 of 2006 and in W.P.(S) No.1012 of 2007, this Court has again
Decision
taken a similar view and allowed the writ petition directing the respondents to grant family pension to the employee. I find that the case of the present petitioner is on a better footing than the writ petitioners of W.P.(S) No. 5398 of 2006 and of W.P.(S) No. 1012 of 2007, as the illness of the petitioner has been admitted by the respondents. The learned counsel appearing for the petitioner has further relied on resolution no. 6796 dated 15.7.1975 which has been approved by the 4th Pay Revision Committee to fortify his submission that even if the petitioner had not completed 10 years of service, she was entitled for grant of invalid pension. 10. From the materials on record, it would appear that the petitioner though worked for 8 years, 8 months and 29 days only, in terms of the resolution no. 6796 dated 15.7.1975 which has been approved and accepted by the 4th Pay Revision Committee, she would be entitled for grant of pension. Letter dated 1.11.1990 of the petitioner has been treated as letter of resignation by the petitioner and in the counter-affidavit the respondents have claimed that the petitioner is still mentally ill and thus the conditions specified in resolution no. 6796 dated 15.7.1975 stand satisfied and the benefit of grant of pension to the petitioner cannot be denied by the respondents. 11. In view of the aforesaid, the writ petition is allowed and the respondents are directed to grant pension to the petitioner with effect from 2.11.1990. The petitioner would be entitled for interest at the rate of 10 % simple and the arrears of pension from 2.11.1992 till the date, on which payment is made to her. The order to be complied with within 6 weeks. 12. However, there is one more aspect of the matter which 4 cannot be left unattended. I find that the supplementary counter-affidavit dated 3.4.2013 has been filed stating that it is being filed pursuant to order dated 22.3.2013 of this Court however, from the order-sheet of this case, I find that no such direction was given on 22.3.2013 to the respondents for filing supplementary counter-affidavit on the point as to why the petitioner was not referred to Medical Board. It appears that in view of the Judgment of this Court in W.P.(S) No.5398 of 2006 and in W.P.(S) No.1012 of 2007, wherein a contention that after long lapse of time, it was not possible to decide the issue of grant of pension particularly when, the employee did not get himself examined medically in support of his claim that he resigned from service on account of ill health, was repelled by this Court, the present affidavit has been filed whereby an attempt has been made to shift responsibility on the Managing Committee of the School. I find that such attempt made by the respondents in the counter-affidavit filed which was sworn by one Arjun Prasad, posted as District Superintendent of Education, Gumla is unwarranted. A false statement has been made on oath stating that the supplementary counter-affidavit is being filed pursuant to order dated 22.3.2013 of this Court. This is a matter of record that no such direction was issued by this Court, however, I am not inclined to issue show-cause notice to the person namely, Arjun Prasad, who has sworn the affidavit but it is made clear that the conduct of the person/persons at whose instance the affidavit was filed is highly deplorable. The State as a litigant cannot be permitted to play hide and seek. 13. Let a copy of this order be sent to the Secretary, Department of Human Resources, Government of Jharkhand. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated 26/4/ 2013 Shanant/A.F.R.