DEBI PROSAD DEY, J. - (1.) The father of the petitioners, Jagajjiban Jana, since deceased, retired from service on superannuation as Assistant Teacher of South Surendragunj Primary School on June, 06, 1984 and died on October, 16, 1991. Smt. Indubala Jana, wife of Jagajjiban Jana submitted an application before the Sub -Inspector of School Pathar Pratima Circle, District - South 24 Parganas to release the family pension and other retiral benefits of her deceased husband. Indubala Jana also died on October, 15, 2006. During her lifetime Indubala Jana received a letter dated November, 30, 2005 from the Assistant Director, Pension, Provident Fund and Group Insurance, West Bengal to the effect that since Jagajjiban Jana did not exercise the option in terms of memo No. 136 -Edn(B) dated May, 15, 1985 and that's why her claim towards retiral benefits/family pension would be covered by the pension scheme, existed prior to 1st April, 1981. Despite repeated representations submitted by the present petitioner, the respondent did not take any action and that's why the present petitioners had filed writ application being WP No.21042(W) of 2010 before this Court and the writ application was finally disposed of by Hon'ble Justice Biswanath Somadder on 5th May, 2011. The said order is being reproduced herein below for appreciation of the case of the petitioner. "The report in the form of an affidavit filed by the learned advocate appearing on behalf of the District Primary School Council, South 24 Parganas, in Court today be kept on record. It is stated in the report, inter alia, that the wife of the deceased teacher had applied for family pension on 4th May, 2004, and the case was forwarded to the Director of Pension, Provident Fund and Group Insurance, Government of West Bengal, but was returned with the observations that the same may be treated as pre -1981 case. However, it is also stated in the report that the wife of the deceased teacher died on 15th October, 2006. It further appears that the writ petitioner no.1, who is the unmarried daughter of the deceased teacher submitted an application for family pension subsequently and the case has been forwarded to the Director of School Education vide memo dated 25th April, 2011. Having regard to the facts and circumstances of the instant case as stated above, this writ petition is disposed of with a direction upon the Director of School Education, Government of West Bengal, to take a decision in the matter and convey the same to the writ petitioners as expeditiously as possible, preferably within a period of six weeks, but not later than eight weeks from the date of communication of a Photostat certified copy of this order."
(2.) The petitioner thereafter filed an application for contempt being CPAN No. 784 of 2012 before His Lordship Hon'ble Justice Biswanath Somadder on 22nd February, 2013 and His Lordship was pleased to dispose of the contempt application holding inter -alia that the respondents have duly complied with the directions given by His Lordship in his order dated 5th May, 2011. The copy of such order of compliance has been filed by the petitioners vide annexure P14 along with the supplementary affidavit. The learned Advocate for the petitioner submitted that the date of such compliance report, as it appears from annexure P14, is of 16th January, 2011 whereas the direction was given by His Lordship on 5th May, 2011. Learned Advocate for the petitioners submitted that such report of compliance ought to be discarded and the respondents be directed to release the retiral benefits along with the family pension atleast in favour of petitioner no.1. It transpires from such report of compliance that Late Jagajjiban Jana did not exercise any option as per G.O. No. 136 -Edn(B) dated May, 15, 1985 and so his retiral benefits have to be calculated and disposed of in terms of the rules existed prior to 01.04.1981 in accordance with the para 5 c of that G. O. Secondly, the School Education Department, West Bengal extended the family pension only to the widow of such teacher who deceased or retired prior to 1st April, 2001. Since the mother of the petitioner died in the year 2006, the present petitioners will not be entitled to get the benefit of family pension. Learned Advocate appearing on behalf of the petitioners categorically submitted that the benefit of family pension should be extended to the petitioner no.1 and such letter of the Director of School Education ought to be set aside in order to extend the benefit of family pension to the petitioner no.1. Learned Advocate appearing on behalf of the state respondents submitted that Jagajjiban Jana did not exercise the option to come within the West Bengal Recognized Non -Government Educational Institution Employees (Death -cum -Retirement) Scheme, 1981 in terms of 5(a) of the Government Order No.136 -Edn(B) dated May, 15, 1985. Learned Advocate however submitted that Jagajjiban Jana has duly received the contributory provident fund in terms of the rules existed prior to 1981 and thereafter he did not return the said amount to the state along with stipulated interest and he also did not exercise his option to come within the purview of West Bengal Recognized Non -Government Educational Institution Employees(Death -cum -Retirement) Scheme, 1981. Learned Advocate appearing on behalf of the District Primary Counsel submitted that the contributory provident fund to the tune of Rs. 4200/ - was paid to Jagajjiban Jana since deceased by cheque no. 349561 dated 23rd April 1987 in terms of the rules existed prior to West Bengal Recognized Non - Government Educational Institution Employees(Death -cum -Retirement) Scheme, 1981 and accordingly the wife or the legitimate heirs of Jagajjiban Jana were not entitled to get any sort of benefit of family pension. Learned Advocate appearing on behalf of respondent no.5 submitted that the instant writ application is barred by the principles of constructive res -judicata as well as by the Law of Limitation.
(3.) Learned Advocate appearing on behalf of respondent no.5 further submitted that the widow of Jagajjibana Jana applied for family pension and the matter has been finally set at rest by the order passed by Hon'ble Justice Biswanath Samadder. His Lordship was however pleased to accept the report of compliance wherein it has been categorically stated by the Assistant Director, pension, provident fund and group insurance that the case of Smt. Indubala Jana the wife of Jagajjiban Jana would be covered by the rules, which existed prior to 1st April, 1981.;