- (1.) The husband of the petitioner was Head Teacher of Jorda Primary School, Post- Jorda, District- Bankura and he retired from service on superannuation on 31st October, 1997. The husband of the petitioner died on 25th December, 2009. Admittedly, without appreciating the comparative benefits the husband of the petitioner exercised option on 6th August, 1985 to avail the scheme of contributory provident fund cum gratuity. The revision of Pay and Allowances Rules 1990 (herein after referred to as ROPA 1990) being G.O. No.33-Edn(B) dated 7th March, 1990 came into force and in terms of the said ROPA Rules 1990 the husband of the petitioner exercised his option for availing the benefits of revised scale of pay. The scale of pay of the husband of the petitioner was accordingly revised in terms of the provisions of Clause 17(2) of the ROPA 1990. It is the case of the petitioner that in view of such option exercised by the husband of the petitioner, the husband of the petitioner would automatically come within the purview of getting pensionary benefits. Secondly, in terms of Clause 6 of ROPA 1998, the husband of the petitioner further exercised option to avail the revised scale of pay and in terms of such option exercised by the husband of your petitioner, the state respondents had accepted the said option and revised the scale of pay of the husband of your petitioner. Relying on the decision of the Division Bench (Biswanath Koley & Ors. (APO No. 425 of 2006) Bithika Ghosh(Mondal) (APO 451 of 2006) and Jagabandhu Ghosh (APO 452 of 2006), the petitioner submits that the Division Bench has upheld the judgment of the Single Bench and has been pleased to hold that the teachers became automatically entitled to get the benefit under Ropa Rules 1990 and thereby the teachers would be entitled to get pensionary benefit including dearness allowance at par with State Government employees. The said judgment of the Division bench was challenged before the Apex Court but the Apex Court dismissed the appeal.
(2.) The further case of the petitioner is that the Special Bench of our High Court in the case of District Inspector of Schools Vs. Abhijit Baidya & Ors., 2013 3 CalHN 711 has accepted that an employee who has opted for revised pay scale under ROPA 1990 automatically would be entitled to pension and gratuity by virtue of para 17 of Ropa 1990. The State Government has also accepted such decision of the Special Bench and accordingly issued notice to the employees to submit fresh option under DCRB Scheme 1981. Accordingly, it is prayed that a writ in the nature of mandamus be issued directing the respondent no. 2 to consider the representation of the petitioner for extending the benefit of death cum retirement benefit scheme 1981 for getting family pension in connection with the service of her husband in terms of the decision of Special Bench of Hon'ble High Court in APO No. 94 of 2009.
(3.) Despite giving successive opportunities the State of West Bengal did not file any affidavit controverting the statements made in the writ petition.;