RONGINA BEGUM Vs. STATE OF WEST BENGAL
LAWS(CAL)-2019-1-138
HIGH COURT OF CALCUTTA
Decided on January 24,2019

Rongina Begum Appellant
VERSUS
STATE OF WEST BENGAL Respondents




JUDGEMENT

DEBANGSU BASAK,J. - (1.)A Note appended to paragraph 26 of the West Bengal Recognized Non-Government Educational Institution Employees (Death cum Retirement Benefit) Scheme, 1981 is under challenge in the present writ petition.
Learned Advocate appearing on behalf of the petitioner submits that, the Note is discriminatory. It is contrary to the law of succession. It is contrary to the Notification dated January 13, 1997 issued by the Finance Department. By the Note, family pension receivable by one of the widows of the deceased employees ceased upon the death of such widow, when she does not leave behind any other heir. He submits that, the Notification dated January 13, 1997 of the Finance Department allows the share of such widow to be received by the surviving widow. Therefore, there is an apparent discrimination between the employees of the State Government and teachers employed by the State Government. Such a discrimination is violative of Article 14 of the Constitution of India. The petitioner is entitled to receive the family pension of the other widow of her deceased husband. In support of such contentions, he relies upon 1983 SCR (2) 165 (D.S. Nakara and Ors. Vs. Union of India), 1989 (1) LLJ 388 (Non- government Pensioners vs. State of West Bengal and Ors.), (2011) 11 SCC 429 (K.J.S. Buttar vs. Union of India and Anr.) and (2015) 9 SCC (A.N. Sachdeva vs. Maharshi Dayanand University).

The state is represented.

(2.)The petitioner is the widow of a deceased teacher. During his lifetime, the teacher married twice. Family pension was received by two widows equally. Upon death of one of the two widows, the petitioner claims that she is entitled to the share of the deceased widow as the deceased widow did not leave behind any other heir.
Payment of family pension is governed by the provision of the West Bengal Recognized Non- Government Education Institution Employees (Death cum Retirement Benefit) Scheme, 1981. The scheme is a portion of the contract of employment, which the deceased teacher entered into with the appointing authority. It is not for the Writ Court to rewrite the contract between the parties. The Writ Court is, however, entitled to interpret the Clauses of the contract so as to find whether or not such provision violates any provision of the Constitution or not.

The subject Note, which is under challenge as to be discriminatory, is appended to paragraph 26 of the Scheme of 1981. It would be appropriate to set out the entirety of paragraph 26 with the allegedly offending note. It is as follows:-

"26. Period during which family pension is admissible.

Subject to the following conditions, the family pension shall be admissible-

(a) in the case of widow/widower up to the date of death or re-marriage, whichever is earlier;

(b) in the case of minor son, until he attains the age of 18 years;

(c) in the case of unmarried daughter, until she attains the age of 21 years or marriage whichever is earlier;

(d) in the case of dependent parents up to the date of their death or re-marriage, whichever is earlier.

Note: Where an employee is survived by more than one widow, the family pension shall be paid to them in equal shares. On the death of widow, her share of the pension shall become payable to her eligible minor children. If at the time of her death a widow leaves o eligible minor child, the payment of her share of the pension shall cease"

(3.)The Note is being compared with the Notification dated January 13, 1997 issued by the Finance Department. The Notification dated January 13, 1997, the Finance Department allows the share of family pension payable to one of the widows to be paid to the other widow on the death of one of the widows not leaving behind any legal heir to receive the same. The Notification dated January 13, 1997 governs employees of the State Government. A teacher employed by an educational institution cannot be considered to be an employee of the State Government. Equals are to be treated equally so as to understand whether there is any discrimination between the equals or not. A teacher and State Government employee do not fall in the same category so as to be treated as equals. Therefore, it would not be appropriate to compare a Notification governing the field of employment of a State Government employee with that of a teacher.
D.S. Nakara and Ors. (supra) considers the Central Civil Service (Pension) Rules, 1972 of the Regulations governing pension for Armed Forces' Personnel. It finds a portion of such Rules to be unconstitutional. It directs payment of pension as computed under the liberalized Pension Scheme from the specified date irrespective of the date of retirement. D.S. Nakara and Ors. (supra) was considered in Non-Government School Pensioners (supra). It holds that, the revised pensionary benefits must be extended to all persons, who have retired before April 1, 1981. It also directs that, in the matter of computation of pensionary benefits, all other benefits, which have been given to the persons, who have retired after April 1, 1981 should also be given to the persons who have retired before April 1, 1981. The facts situation in both the matters are different to that obtaining in the present case. K.J.S. Buttar (supra) considers disability pension payable to Armed Forces. It also considers the Army Pension Regulations, 1961. In the facts of that case, it found that, the writ petitioner there being entitled to grant of war injury pension with effect from January 1, 1996, it issued directions with regard to computation of the same. A.N. Sachdeva (supra) considers whether the service rendered by the petitioners constitute qualifying service for the purpose of pension and whether the services rendered by the petitioner in another University can be considered for the purpose of computing qualifying service to receive pension or not. In such context, it answered the issue. Again, the fact scenario is different to the present case.



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