IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12118 of 2009 SULTANA JALIL, WIFE OF LATE DR. EKRAM JALIL, RESIDENT OF HOUSE NO. 300, PATLIPUTRA COLONY, P.S. PATLIPUTRA, TOWN AND DISTRICT PATNA-13.--------------- PETITIONER . Versus 1. THE STATE OF BIHAR 2. PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. PRINCIPAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 4. DIRECTOR-IN-CHIEF, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. CIVIL SURGEON, MUZAFFARPUR 6. TREASURY OFFICER, PATNA 7. ACCOUNTANT GENERAL, BIHAR, BIR CHAND PATEL PATH, PATNA-1-------RESPONDENTS. ----------- For the petitioner:- Mr. Vivek Prasad, Advocate For Accountant General:- Mr. L.P.K. Rajgriha For State:- Mr. Ram Subhash Singh, Ac to AAG VI 2 14 .12.2009 Petitioner is the widow of Late Dr. Ekram Jalil, who superannuated as Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur on 1.11.1983. He received his pension by PPO No.111898 till his life time. He died on 22.1.1988 and the petitioner was given family pension with effect from 23.1.1988. Petitioner’s prayer is for quashing of Clause 7 of notification no. 29(3) dated 2.2.2005 of the Health Department (Annexure-5), whereby the benefit of pay revision in terms of resolution No. 11556 dated 22.12.1999 has not been made available to the Medical Officers, who retired/died prior to 1.1.1996, though the benefit of this resolution has been made 2 available to all other employees of the State Government irrespective of their superannuation or death prior to 1.1.1996. The State Government vide resolution no. 660 of the Finance Department revised the pay scale of Government employees with effect from 1.1.1996 and the monetary benefit on account of this revision was allowed with effect from 1.4.1997. Vide resolution no. 660 dated 8.2.1999 the pay scale of Medical Officer up to the rank of Civil Surgeon was given to the extent of Rs.6500-10500, as all the Medical Officers were kept in basic grade scale. Subsequently, the State Government realized the mistake of categorization of Senior Medical Officers up to the rank of Civil Surgeon into basic grade and vide Resolution no. 5989 dated 16.8.2004 the scale of Civil Surgeon was revised to 12000- 165000 with effect from 1.1.1996. The Finance Department in order to ensure that family pension should not be less than 30% of the entry scale for the post held by a Government employee, came out with resolution No. 11556 dated 22.12.1999. In this resolution, it was reiterated that family pension will not be less than 30% of the entry scale approved by the Finance Department under 3 Resolution No. 660 dated 8.2.1999. The Department of Health on 2.2.2005 issued a notification, whereby it is decided that Medical Officers who retired after 1.1.1996 would be given the benefit of pay revision in terms of resolution No. 11556 dated 22.12.1999 but at Clause 7 of this notification, it was stated that this benefit will not be made available to those Medical Officers, who superannuated or died prior to 1.1.1996. Petitioner’s grievance is that Clause 7 of Health Department notification dated 2.5.2005 is discriminatory as though it has been made effective for those who retired/died prior to 1.1.1996 but such employees who died/retired prior to 1.1.1996 have been excluded. This part of the notification is in contradiction of Resolution no. 660 dated 8.2.1999 as well as Resolution No. 11556 and 11558 dated 22.12.1999. Inherent spirit of this resolution will prevail over all notifications issued by the other Departments, as the Finance Department has issued its resolution in the light of the policies of the Central Government dated 27.10.1997. It transpires that the Health Department had issued such notification without considering this fact the benefit of Finance Department resolution No. 11556 and 11558 dated 22.12.1999 has been made applicable in cases of all 4 Government employees. This benefit has already been allowed to the employees of other Departments without excluding such employees who died or retired prior to 1.1.1996, for similar benefit the employees of Health Department are also entitled. Petitioner cannot be given family pension which is less than 30% of the basic pay scales at entry level, fixed to be Rs.12000- 16500. In Para 16 of the petition, the petitioner has disclosed her entitlement for family pension in terms of resolution no. 11558 dated 22.12.1999 of the Finance Department which comes to Rs. 8254/-. Counter affidavit has been filed on behalf of the State, where there is no specific denial. However, it is stated that with effect from 1.1.1996 vide Resolution No. 660 dated 8.2.1999 the selection grade has been abolished and all Medical Officers of Health Department, who superannuated prior to 1.1.1996 were automatically placed back to the post of Medical Officer (basic grade). Fitment Committee had directed to identify the need based post for promotion, with effect from 1.1.1996. Since, Petitioner’s husband had superannuated on 31.10.1983 itself, as such there is no question to allow him benefit of need based post, in pay scale of Rs. 12000- 16500. Counsel for the petitioner submits that the 5 statement regarding a benefit of need based post in pay scale of Rs.12000- 16500/- has no application in her case, rather in her case the Department should have taken consideration of Resolution No. 11556 dated 22.12.1999, according to which, family pension would not be less than 30% of the entry scale approved by the Finance Department under resolution no. 660 dated 8.2.1999. The pay scale of the Civil Surgeons have been revised to Rs. 12000 to 16500 and in that view, her family pension should not be less than 30% of the entry scale i.e. 3600/-. Counsel appearing for the Accountant General has also supported the claim of the petitioner stating that the Finance Department’s resolution cannot be ignored by the Health Department and there is no question regarding entitlement of the petitioner for revision in the family pension. Along with the counter affidavit Letter No. 768(3) 21.10.2009 issued by Departmental Secretary, Department of Health, Government of Bihar, in favour of Accountant General, Bihar, Patna has been annexed from which it transpires that even Department is of this view, that petitioner’s family pension should be revised in the light of the Finance Department Resolution No. 11558 dated 22.12.1999. 6 In the facts and circumstances, the Clause 7 of the notification No. 29(3) dated 2.2.2005 of the Health Department is quashed, being discriminatory and contrary to Finance Departments’ resolution dated 22.12.1999. The respondents are directed to refix the family pension of the petitioner in the light of resolution No. 11558 dated 22.12.1999 of the Finance Department. The arrears of revised family pension should also be paid to the petitioner with effect from 1.4.1997. The writ application stands allowed. (Mridula Mishra,J.) A.Kumar