HARISH TANDON, J. - (1.) THIS writ petitioner has impugned an inaction on the part of the respondent authorities in extending the benefit of the family pension in terms of the West Bengal Recognized Nongovernment Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 (hereinafter referred to as the DCRB Scheme, 1981). The husband of the writ petitioner was appointed as an assistant teacher and became the head teacher since 1.10.1974. Unfortunately the said teacher was killed on 12.5.1978 by some miscreants. The writ petitioner thereafter approached on several occasions to the District Inspector of School (PE) for payment of the retrial benefits but no relief was given to the writ petitioner.
(2.) AFTER the promulgation of the said DCRB Scheme, 1981 the writ petitioner made an application for grant of the family pension. The said application was forwarded by the Accountant General to the District Inspector of School (PE) for forwarding the said pension case to the school education department for their opinion. Pursuant to the said direction the applications along with other relevant documents were forwarded to the Director of School Education (PE) for sanctioning the family pension but till today nothing has been done. It is submitted by the leaned Advocate appearing for the petitioner that the authorities cannot deny the benefit of family pension under the DCRB Scheme, 1981. Reliance is placed upon the judgment of the Supreme Court in case of D S Nakara and Ors. Vs. Union of India reported in AIR 1983 SC 130 to the principle that Article 14 of the Constitution of India forbids class legislation but permits reasonable classification for the purpose of legislation to satisfy the twin test of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of group and the said differentia must have a rational nexus to the object of the statute. It is further submitted that this court in case of Nongovernment School Pensioners Association and Anr. Vs. State of West Bengal reported in 1989 (1) CLJ 116 held that there cannot be two class of pensioners; those who retired after a cut-off date and those who retired earlier. Further reliance is placed to an unreported judgment of this court delivered on 13.8.2008 in WP 15601(w) of 2007 to the proposition that a teacher who died prior to the said cut-off date is also entitled to the family pension. Mr. Ujjwal Trivedi, learned Advocate appearing for the state respondent disputed the contention of the writ petitioner. However, he submits that by a memorandum dated 1.11.2010, a decision has been taken to grant family pension to an employee who died in harness prior to the cut-off date i.e. 1.4.1981 and to avail the same, the petitioner should make an application before the concerned authority. Having considered the respective submissions, the fact as emerges, is that the husband of the writ petitioner died prior to the said cut-off date. The benefit under the DCRB Scheme 1981 was promulgated on 15.5.1985 by extending the benefit of family pension to an employee who was in service as on 1.4.1981 but the said benefit was not extended to an employee who retired prior to 1.4.1981. The word family is defined in clause 5(s) of the said scheme to include, for the purpose of family pension, wife in case of a male employee, husband in case of a female employee, minor sons including adopted sons, unmarried daughters including adopted daughters and dependant parents. On perusal of the said Scheme it appears that the same was restricted to the employee who were in service as on 1.4.1981. By a subsequent memorandum/government order dated 15.6.1990 the benefit under the DCRB Scheme 1981 was extended to an employee who retired prior to 1.4.1981. Yet another government order dated 12.4.2006 was passed by which the benefit under the DCRB Scheme 1981 was restricted to an employee who had/has opted for contributory provident fund and pension under the Old Scheme only. The said notification was challenged in case of Indu Prava Glshosh Vs. State of West Bengal reported in 2010 (1) CLJ 114 and this court quashed the said notification dated 12.4.2006. In case of D S Nakara (supra) the apex court held that there cannot be any classification amongst the pensioners who formed one class. The classification has to be based on some rational principle and the rational principle must have nexus to the objects sought to be achieved. It is further held in the said report that if the liberalization was considered necessary for augmenting social security in old age to the government servants than those who retired earlier cannot be worse off than those who retired latter and the division which classified pensioners into two classes is not based on any rational principle. The aforesaid principle was applied in case of Non-government School Pensioners Association and Anr. (supra).
(3.) THUS, there is no hesitation in holding that if the benefit is extended to an employee who died in harness after the cut-off date i.e. 1.4.1981 then such benefit cannot be denied to an employee who died in harness prior to 1.4.1981. Such classification is not rational. The court can also not lose sight of the policy decision of the state by extending the benefits of the DCRB Scheme 1981 by a subsequent memorandum/government order dated 1.10.2010 to an employee who died in harness prior to 1.4.1981. THUS the petitioner cannot be denied a family pension, the benefit extended under the DCRB Scheme 1981, by making an unreasonable classification amongst the pensioners who forms one class. The concerned respondent is, therefore, directed to consider the application of the writ petitioner in the light of the observation made hereinabove upon giving an opportunity of hearing to the writ petitioner within six weeks from the date of communication of this order.;