Samita Saha vs State Of Tripura And Ors

[1] Heard learned counsel for the parties for final disposal of the petition.

[2] Though petitioner has made wider prayers, learned counsel for the petitioner, at the outset, confined this petition to the following prayer :

"As to why a writ in the nature of mandamus should not be issued directing the respondents to count the past service of the petitioner which was rendered as Anganwadi Worker w.e.f. 10.03.1976 for the purpose of retiral benefits including pension."

He did not press for the remaining prayers.

[3] Brief facts are as under :

The petitioner was engaged as Anganwadi Worker w.e.f 10th March, 1976. For several years, she was continued in the said position. Eventually, she was given a permanent appointment on the post of School Mother(Group D) on 24th April, 2013 in the pay band of Rs.4,530-13,000/- with the Grade Pay of Rs.1,200/-. She joined her duty on the said post on 15th May, 2013. The petitioner crossed the age of retirement on 10th January, 2018 and would ordinarily have retired w.e.f 31st January, 2018. She was granted a limited extension of service and actually retired on 30th April, 2018. Counting only her service as School Mother she had not put in qualifying service for pension. Her request, however, is that past service or at least a portion thereof as Anganwadi Worker should count towards pensionable service and on the basis of which she should be paid pension by the Government. For such propose, the petitioner has filed this petition.

[4] Learned counsel for the petitioner would point out that under somewhat similar circumstances, learned Single Judge of this Court in case of Smt. Sandhya Banik and Ors. Vs. The State of Tripura and Ors., WP(C) No.71/2011 and connected petitions under a judgment dated 24th January, 2017 had given directions to the Government to consider 50% of the past services of Anganwadi Worker for the purpose of pension of those Anganwadi Workers who were brought on the regular establishment as Supervisor from which post they had retired. He pointed out that the Government has accepted the said decision and also paid pension to the concerned petitioners.

[5] The respondents have filed reply. They do not dispute the decision of this Court in case of Smt. Sandhya Banik(supra) or that the directions contained in such decision having implemented by the Government. They, however, contend that the case of the employees in case of Sandhya Banik concerned the post of Supervisor. The Government does not have any policy to count the past service for purpose of pension in case of a retired School Mother. Hence, such benefit was not given to the petitioner.

[6] Having heard learned counsel for the parties, I find that the State Government had framed a policy under memorandum dated 24th February, 1981 for counting the services of a Contingent Worker towards pension once they are brought on the regular establishment. This policy envisages that 50% of such service would count towards pensionable service.

[7] In case of Smt. Sandhya Banik(supra), all the petitioners were initially engaged as Anganwadi Workers. Over a period of time, they were brought on the regular establishment of Integrated Child Development Scheme(ICDS) and absorbed on the post of Supervisor. They claimed that 50% of the service rendered by them as Anganwadi Workers should count towards qualifying service for pension. The learned Single Judge referred to the Government policy of counting half of the past service of contingent employees towards pensionary benefits upon regularization and concluded as under:

" * * * *

We are in a welfare State and all schemes, rules, regulations, are aimed towards welfare of the citizens. Anganwadi workers were engaged by the State under a scheme formulated by the Central Government and they have discharged their duties as Anganwadi workers without any break only on the basis of remuneration they got under the scheme. Definitely, the State being a welfare employer has taken decision to give promotion to the post of Supervisor(ICDS) of the eligible Anganwadi workers and thereby recognized the services of Anganwadi workers. While the State is a benevolent employer of the workmen, I do not think it appropriate for the State would be taking a stand that simply because the particular nomenclature was not mentioned in those Govt. notifications, the petitioners who spent their entire service period, they will be deprived/denied of the benefits of at least 50% of their such services towards their pensionary benefits. In my considered opinion, though there is no mention of Aanganwadi workers in those notifications of the State Government, the same view may be taken in respect of the Anganwadi workers, who have been ultimately promoted to the post of Supervisor(ICDS). The services rendered by those Supervisor(ICDS) in the post of Anganwadi workers should be taken to consideration and 50% of such services shall be counted for pensionary benefits.

The writ petitions are therefore allowed to the extent that the State respondents shall take into account 50% of the total period of service rendered as Anganwadi workers by those Supervisor(ICDS) and they should be paid pensionary benefits taking into account such 50% services.

The State respondents are therefore directed to process the cases of the petitioners for pensionary benefits after taking into account 50% of their services rendered as Anganwadi workers, and if it is found that they have rendered requisite pensionary period of service, taking into account 50% of the services as Anganwadi workers and the service as Supervise(ICDS), their cases should be processed for pension.

The process should be completed within three months from today."

[8] I do not find any distinction in the case of the petitioner as compared to the case of the petitioners in case of Smt. Sandhya Banik(supra). Only cosmetic difference of those petitioners being absorbed as Supervisors as against the present petitioner being brought on the regular establishment on the post of School Mother would make no difference. The basic philosophy is common, namely, that the Government itself has a scheme under which 50% of the past service rendered by Contingent Worker would count towards pensionary benefits upon being regularised. This policy was utilized for the purpose of issuing directions in favour of the petitioners in the said case of Smt. Sandhya Banik. Merely because the petitioner was absorbed as a School Mother and not as a Supervisor, would not make her case distinguishable.

[9] Reference can also be made to a decision of Division Bench of this Court in case of Smt. Mamata Rani Roy(Saha) Vs. the State of Tripura and Ors., WP(C) No.77/2015 dated 8th July, 2015. In the said case, the petitioner was appointed as School Mother on fixed term basis on 19th July, 1990. She was regularized in service on 3rd November, 2007. She retired on attaining the age of superannuation on 30th June, 2013. She claimed that her past service before regularization should qualify for pensionable service. The Government had taken a stand that as a School Mother she was not holding a pensionable post. This contention was rejected by the Court by making following observations:

"10. It is urged on behalf of the State that the petitioner was in a non-cognisable establishment. All employees of the Government have to be given benefits either under some pension funds or under the Provident Fund Scheme. There can be no employment under the Government who does not fall under either of the two beneficiary schemes. Either there should be an Employees Pension Scheme and in case, there is no such scheme, then the employee would fall within the ambit of the Pension Rules. Under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, every employer is required to frame a scheme for Employees Pension Scheme providing for superannuation pension, retiring pension or permanent total disablement pension. There has to be a pension fund. The State cannot have it both ways. It cannot claim that it is neither liable to pay under the Employees' Funds Act nor is liable to pay pension."

[10] In the result, the petition is allowed. Respondents are directed to count 50% of the petitioner's past service as Anganwadi Worker towards qualifying service for pension. Her pension may be fixed accordingly. Arrears payable may be released. Entire exercise shall be completed within 4(four) months from today.

Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.