IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2824 of 2006 MUSMAT SUMITRA DEVI Versus THE STATE OF BIHAR & ORS ----------- 03/ 13.04.2010 Heard Ms. Pallavi Thakur, learned counsel appearing on behalf of the petitioner, Mr. Anil Kumar Jha, learned Government Advocate No. 2 for the State and Mr. J.P. Karn for the Accountant General. The petitioner is a widow of late Prabhu Gope who was appointed as a Tubewell Khalasi in the Work Charge Establishment on 29.8.1972 and died in harness while holding the said post on 3.11.1981. Admittedly the husband of the petitioner did not complete the qualifying service of 10 years to entitle him for pension and pensionary entitlements. The writ petition was filed for payment of admissible amount of post retiral benefits. A counter affidavit has been filed by the State and its authorities and in which it is stated that the admissible dues towards group insurance, general provident fund, relief grant for funeral etc. has been paid to the petitioner. It is further contended that as the husband of the petitioner was in the Work Charge Establishment and had rendered less than 10 years of service, hence he was not found entitled for any pension. As the husband of the petitioner did not complete qualifying service 2 for pension, hence the widow was not entitled for any family pension. Notwithstanding the aforesaid position, learned counsel for the petitioner with reference to Finance Department’s Resolution No. BC-1-9-16/97-1853F dated 19.04.1990 more particularly paragraph-3 (iii) thereof submits that the petitioner would be entitled to payment of gratuity in terms of the stipulations made in the said paragraph. Learned counsel submits that admittedly the husband of the petitioner had completed more five years and less than 20 years of service and had died in harness. It is submitted that in the cases of death in harness a death gratuity has been admitted at the rate of 12 times the emoluments. Learned counsel thus submits that even if the petitioner was not found entitled for family pension nevertheless she was entitled for consideration of her case of gratuity in terms of the Finance Department’s Resolution dated 19.04.1990. Learned counsel appearing on behalf of the State and Accountant General submit that the petitioner was admittedly in the Work Charge Establishment and his services had not been regularized, hence the rendering of 9 years service cannot be termed as a qualifying service so as to entitle the petitioner for payment of death gratuity. Learned counsel submits that had the deceased completed 10 yeas of qualifying service, the matter would have been different but since the admitted position is that he died in harness in the Work Charge 3 Establishment, hence the claim for death gratuity is not admissible. Having considered the rival contentions of the parties, I deem it fit to remit this matter for consideration before the respondent no. 2, the Executive Engineer, P.H.E.D., Divison, Darbhanga to consider the claim of the petitioner for gratuity in the light of the Circular relied upon and in the backdrop of the relevant provisions governing the claim raised by the petitioner. The petitioner would file a representation and raise her claim before the respondent no. 2 with supportive documents and relevant rules on the issue and which shall be considered by respondent no. 2 and be disposed of in accordance with law upon consideration of the matter, expeditiously and preferably within three months of receipt of any such representation. The writ petition is disposed of. S.Sb/- (Jyoti Saran, J.)