IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7303 of 2006 SAVITRI DEVI widow of Late Jitendra Prasad resident of village and post office- Agarsanda Behra Police Station-Ara Mufassil, District- Bhojpur… Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Road Construction Department, Bisheswaraiya Bhawan, Baily Road, Patna. 2. The Engineer in Chief-cum- Special Secretary, Road Construction Department, Bihar, Bishweshwariya Bhawan, Baily Road, Patna. 3. The Chief Engineer, National High Way Division Road Construction Department, Bishweshwariya Bhawan, Baily Road, Patna. 4. The Superintending Engineer (National High Way Work Circle) Road Construction Department, New Secretariat, Patna. 5. The Executive Engineer (National High Way Division), Gulzarbagh, Patna. 6. The Executive Engineer (National High Way Division) Araria, District- Araria. 7. The Executive Engineer (National High Way Division) Road Construction Department Ranchi, Jharkhand. 8. The District Provident Fund Officer, Patna. 9. Accountant General ( A & E) Bihar Veerchand Patel Marg, Patna-1. .. Respondents. ----------- 4. 21.05.2010 Heard learned counsel for the petitioner and learned Advocate General appearing on behalf of the respondents. Reference may be made to the order of this Court dated 14.5.2010. Pursuant thereto, the departmental officials who were arrayed as respondents in this case have appeared in person and have filed their counter affidavit. Though they have sought to explain the delay in filing of the counter affidavit, yet such examination cannot be treated to be satisfactory. By now, this court has experienced 2 that respondents- officials of the State of Bihar do not file counter affidavit in time and it is only when this court would call upon them, they would oblige this Court by filing the counter affidavit. Such practice needs to be at once changed. The Principal Secretary, Road Construction Department who is personally present today assures this Court that so far as the Road Construction Department is concerned, in the contempt applications the counter affidavit would be filed within a period of three months so that similar situation does not arise. Recording the aforementioned undertaking of the departmental Secretary, the personal appearance of the official respondents is hereby exempted. Coming to the merit of this case, this Court would find that in this writ petition the petitioner has made prayer for the following reliefs:- (a) to fix family pension of the petitioner after determining the pension of the deceased employee (husband of the petitioner) as per total revised admissible pay for the post. (b) To pay the admissible amount of gratuity. (c) To pay the amount of encashment for the unutilized leave of 240 days. (d) To pay the General Provident Fund amount with year wise admissible rate of interest till the date of actual 3 payment. (e) To pay the Group Insurance amount of the proper calculation. (f) To pay other dues standing with the respondents after retirement under any head. (g) To pay the exemplary penal interest at the rate of 18% over all the death- cum-retiral dues till the date of actual payment. (h) To award a penal cost of litigation through against the respondents. (i) To direct the respondents to furnish a detail calculation chart of payment of dues under any head.’ The respondents in the counter affidavit have explained the amount to which the deceased-employee and consequently his widow by way of death-cum-retiral benefit was/is entitled and details of such payment has given which is recorded hereinbelow; Lo0 ftrsUnz izlkn] dk;ZHkkfjr VkSy fyfid dh iRuh eks0 lkfo=h nsoh dks Hkqxrku dh xbZ cdk;s osru Hkfo"; fuf/k ,oa thou chek dh jkf'k dk fooj.khA dz0 en vof/k jde cSad M~k¶V dh la[;k fnukad izkfIr dk lzksr vfHk;qfDr 1 xzqi thou chek ;kstuk 10/80- 5/87 36826 872258 23.05.08 jk0m0i0 izeaMy] fcgkj'kjhQ 2 lkekU; Hkfo"; fuf/k 10/80- 5/87 61945 872257 23.05.08 3 xzqi thou chek ;kstuk 6/87-3/90 12923 526258 19.05.09 jk0m0i0 izeaMy] gtkjhckx 4 lkekU; Hkfo"; fuf/k 6/87-3/90 22820 526259 19.05.09 5 xzqi thou chek ;kstuk 4/90- 3/2000 19882 70371 03.12.08 jk0m0i0 izeaMy] jkWph 6 lkekU; Hkfo"; fuf/k 4/90- 3/2000 62597 703272 03.12.08 7 fu;fer 11/79- 1111 244178 03.10.08 4 LFkkiuk dk LIC 12/2002 jk0m0i0 izeaMy] xqytkjckx] iVukA fnukad 26-10- 2000 ls fnukad 21-08-2001 ds vof/k dks NksM+dj (Absconding Period) milfpo] iFk fuek.kZ foHkkx] fcgkj iVuk dk i=kad 3563 ¼,l½ fnukad 15-04-2009 8 fu;fer LFkkiuk dk GPF 7/75-9/80 10942 358521 18.03.10 9 dk;ZHkkfjr LFkkiuk dk LIC 4/2000- 12/2002 15601 344356 09.11.09 10 dk;ZHkkfjr vof/k dk osru 4/2000- 10/2000 8/2000- 12/2002 175039 270402 22.06.09 11 cdk;k csru 01.04.81 TO 30.06.81 2805 345837 17.11.09 12 cdk;k csru 01.04.97 TO 30.06.99 Difference pay 2874 351003 10.02.10 Total 425365 It would thus appear that the dispute remains only in respect of payment of pension and gratuity. So far the payment of gratuity is concerned, the learned Advocate General in presence of the departmental Secretary assures that amount of gratuity payable for the period of service rendered by the deceased- employee will be made to the widow- petitioner within a period of six weeks from the date of receipt/production of a copy of this order along with statutory upto date interest. On the issue of payment of family pension, there is a big hitch between the parties. The petitioner claims to be her husband was appointed on substantive post of Tracer. The respondents, however, have produced the document to show 5 that the husband of the petitioner was working only as a Toll Clerk in the Work Charged Establishment. The claim of the petitioner therefore as with regard to entitlement for family pension is not admitted. In fact, the petitioner in one of representation dated 27.5.2008 had herself described to the widow of permanent tracer ( Toll Clerk in work charge). It has to be also noted that after 30 years the petitioner in the capacity of widow had sought to assail the order dated 8.9.1980 whereby and whereuder the husband of the petitioner was appointed as a Toll Clerk. Such prayer was rejected by this Court on 14.5.2010 on the ground that it being wholly belated. In that view of the matter, it does not appear as to on what basis if the husband of the petitioner had already been appointed as Toll Clerk on 8.9.1980 and had continued on such post for next 20 years, the widow-petitioner can claim pension. If he was never brought to the regular establishment, nonetheless the learned counsel for the petitioner is quite emphatic that earlier appointment of the husband of the petitioner in view of the office order dated 17.12.1971 issued by the Superintending Engineer of National Highways Works Circle, Patna on the post of Tracer was in regular 6 establishment. This disputed question for the first time cannot be gone into by this Court unless the authorities take a final decision with regard to entitlement of the petitioner as with regard to her claim of receiving family pension. In that view of the matter, this Court would direct the petitioner to file a compact representation enclosing evidence of her husband being a member of regular service of the department and in the event such representation is filed, the Principal Secretary of the Department will himself examine the matter in the light of the government records and would take final decision within a period of three months from the date of filing of such representation. In the event, it is found that the widow will be entitled for payment of family pension in terms of Family Pension Rules, the arrears and current thereafter will also be extended to her within a period of six weeks from the date of passing of such order of the Departmental Secretary. Further, if the claim of the petitioner is rejected, the departmental Secretary will give reasons for the same. With the aforementioned observations and directions, this writ petition is disposed of. 7 kanchan (Mihir Kumar Jha, J.)