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2001 DIGILAW 795 (CAL)

Kalipada Malakar v. State of West Bengal

2001-12-24

SAMARESH BANERJEA

body2001
JUDGMENT The judgment of the Court was as follows:–– In the instant writ application the writ petitioner who was serving as a Deputy Director of School Education (Anglo Indian School), West Bengal, inter alia, has prayed for issue of a writ in the nature of mandamus commanding the respondents to cancel and rescind the order or decision if any, taken by them to superannuate the petitioner from service at the age of 58 years i.e. with effect from 30th June, 1994 and to allow the petitioner to continue in service till the date of actual age of retirement being 60 years upon payment of salary regularly month by month, in the aforesaid post of Deputy Director of School Education (Anglo India School), West Bengal and to forebear from treating the petitioner as retired from service on and from 1st of July, 1994. The petitioner was initially appointed as an assistant teacher in a Government aided high school in September, 1957 thereafter was appointed as a Sub-Inspector of School on 30th March, 1961 at the same scale of pay which he was enjoying as an assistant teacher. While serving as Sub-Inspector of School he was not permitted to go back to his post of assistant teacher. In June, 1965 he was appointed to the post of Deputy Assistant Inspector of School thereafter on March, 1976 as an Assistant Inspector of School in the cadre of subordinate education service. Between 1978 and 1981 he was deputed to serve the West Bengal Higher Secondary Council in the capacity of Deputy Secretary (Academic). In the year 1982 the petitioner was promoted to the post of District Inspector of School under the West Bengal Education Service. In 1992 he was appointed in the post of Assistant Director of School Education and thereafter was promoted to the post of Deputy Director of School Education. 2. It is the contention of the petitioner that the post of Deputy Director of School Education belonging to senior education service and is filled up on recommendation of Public Service Commission from amongst the District Inspectors of School/Assistant Directors of School Education/Headmasters of Government High Schools, who were/are equivalent in all respect of recruitment qualification and experience, scale of pay etc. 3. 3. It is the further contention of the petitioner that the inspecting officer of inspecting branch and teachers of all ranks of Government schools and junior basic colleges are inter changeable or inter-transferable due to their possessing identical recruitment qualification, experience, scale etc. 4. In Paragraph 9 of the writ petition the petitioner has given some example where the incumbents in such post were interchanged or transferred from one to another namely, from the inspection branch to the teaching branch or vice versa. It is the further case of the petitioner that prior to implementation of 2nd Pay Commission with effect from 1st of April, 1981 the incumbents in the inspection branch and the teaching branch belonged to the same service cadre and all of them had to retire at the age of 58 years. But subsequently the retirement age of the teacher of Government school and junior basic institutes were raised to 60 years from 58 years with option upto 65 years without, however, making any change in the age of retirement of the inspection branch of the Education Directorate. 5. While the petitioner was holding the post of District Inspector of School the Association of the Assistant Inspectors of School as also other association of the incumbents of the inspection branch moved the writ application before this Hon'ble Court being C.O. No. 14277(w) of 1985. 6. The aforesaid writ application was disposed of by a judgment and order dated 3rd April, 1985 whereby it was directed that the age of retirement of the petitioner in the said case belonging to the inspecting staffs are to be fixed at 60 years. 7. Similar order was passed in the other writ petition moved by the other two association of the inspecting branch. 8. The State Government preferred three appeals against the aforesaid orders being F.M.A.T. No.1283 of 1986, F.M.A.T. No.1360 of 1986 and F.M.A.T. No.1361 of 1986. Such appeals were dismissed after final hearing by Division Bench of this Court and it was held by the appellate Court that the Government should have raised the age of retirement of the incumbents in the inspection branch of the Education to 60 years with option upto 65 years as it was done in case of teaching branch. An application for review filed by the State as the aforesaid judgment and order was also dismissed. An application for review filed by the State as the aforesaid judgment and order was also dismissed. The State Government thereafter moved Special Leave Petitions before the Supreme Court being S.L.P. No.14904, 14977 and 16083 of 1987. Such Special Leave Petitions however were withdrawn by the State Government on the ground that the State Government will file the review application before the High Court. 9. As the State Government did not implement such order of the Division Bench for which some of the incumbents in the inspection branch had to retire on attainment of 58 years of age. Subsequently the State Government filed another review application. The aforesaid review application was also rejected on 4th of August, 1994 i.e. during the pendency of the present writ petition. 10. The present writ petition was filed on 29th of July, 1994 as the respondents were seeking to retire the petitioner at the age of 58 years without implementing the aforesaid order of the Division Bench by which the aforesaid writ petition was disposed of wherein the present writ petitioner was also a party. In the writ petition a number of instances have been given by the writ petitioners wherein under similar circumstances in the writ application moved by the inspecting staffs were allowed by holding that the age of superannuation should have fixed at 60 years. Such order was passed in Matter No.1355 of 1988 in case of Tapan Kanti Roy, in Civil Rule No. 3029(w) of 1983 in the case of Prithwish Ch. Bhattacharjee. When the present writ application was moved before this Court in view of the fact that the other Hon'ble Judges of this Court already has held that the age of retirement of inspecting staffs should have been raised to 60 years, an interim order was granted restraining the respondents from interfering with the service of the petitioner till he attains the age of superannuation. 11. The appeal in F.M.A.T. No. 2389 of 1994 preferred by the State Government against the aforesaid interim order granted by this Court was also dismissed prior to that, in view of the said interim order the Government issued a letter on 18th September, 1994 allowing the petitioner to continue in his post of Deputy Director of School Education (Anglo Indian School) until further order from the end of the Government or from the Hon'ble High Court at Calcutta whichever would be earlier. 12. It is pertinent to note in this connection that interim order similar to such order granted by this Court was also passed by other Hon'ble Judges in case of different other writ petitions including in the writ petition of Sri G. C. Pal. 13. In the appeal preferred before the Division Bench against such order of this Court the respondents contended in their stay application that the case of the writ petitioner is not identical with that of Sri G. C. Pal and therefore the interim order is liable to be set aside. Against the order passed in case of Sri G. C. Pal after rejection of the second review application the State respondent moved another Special Leave Petition. 14. The aforesaid Special Leave Petition being C.A. No. 6191 of 1995 has been allowed by the Supreme Court by a judgment and order dated July 14, 1995. In the said judgment it has been held by the Supreme Court that the inspecting staffs governed by the Statutory Rules are not at par with the teaching staffs and therefore the inspecting staffs are required to be retired compulsorily on attaining the age of superannuation of 58 years. 15. After passing of the aforesaid judgment of the Supreme Court the respondents without getting the interim order vacated which was granted in favour of the writ petitioner and without obtaining any leave from the Court appointed the petitioner which he was holding namely, Deputy Director of School Education (Anglo India School) another incumbent was holding the post of Director of Secondary Education (Boys' High) and appointed the petitioner as Lecturer of the State Council of Educational Research and Training at the last scale drawn by the petitioner as Deputy Director of Secondary Education (Anglo India School) by G.O. No.550-SE (Apptt) dated 7th of August, 1995. Such appointment was made for a period of 6 months from the date the petitioner would take over charge in the said post. Such appointment of the petitioner in the said post therefore was extended from time to time and ultimately it was not continued any further after the petitioner attains the age of 60 years on 30th June, 1996. 16. Such appointment of the petitioner in the said post therefore was extended from time to time and ultimately it was not continued any further after the petitioner attains the age of 60 years on 30th June, 1996. 16. Although it will thus appear from the fact stated hereinabove that the writ petitioner has continued his service till the attainment of 60 years of age the question which has now come up for determination is for the purpose of payment of his terminal and retirement benefit whether 58 years of 60 years would be treated at his age of retirement. 17. The respondents have contended in view of the aforesaid decision of the Supreme Court the petitioner would be deemed to have retired on attaining the age of 58 years. It has been submitted further that he will be paid his retirement benefit from 30th June, 1994 i.e. when he attained the age of 58 years but the salary enjoyed by him for rendering service beyond 30th June, 1994 will not be reduced from his pensionary benefit. The writ petitioner, on the other hand, contends that he is entitled to retirement benefit from the date he attained the age of 60 years and the decision on the Supreme Court in the case of said G. C. Pal cannot be made applicable to him. 18. It has been contended inter alia, that even according to the respondents themselves the case is different from that of said G. C. Pal and some of the facts on the basis of which the Supreme Court held that the inspecting staffs have to retire on attainment of age of 58 years are absent in his case and therefore the decision of the Supreme Court cannot be made applicable. 19. It appears from the decision of the Supreme Court in the aforesaid case of Sri G. C. Pal the Supreme Court held that the inspecting staffs could have been retired at the age of 58 years on consideration of the following materials and facts :–– (a) Service condition of the teaching staffs and the inspecting staffs are regulated by statutory rules and the teaching posts are neither feeder post nor filled up by transfer from inspecting staffs as a mode of recruitment; (b) The rules does not prescribe for transfer of inspecting staffs to become a member of teaching staff. 20. 20. It was further held that the inspecting staffs and the teaching staffs are two distinct and independent service and two streams never mingled at any stage and the qualification, the mode of recruitment and service conditions are separate. Rule 75 of the Rules expressly prescribes the age of superannuation of all Government employees to be 58 years. Such Rule is unequivocal and clear and stray incidents of transfer by sub-ordinate officer would not give legitimacy to claim parity at the stage of superannuation. 21. It was further held that the ratio in the judgment of the Delhi High Court where a teacher was transferred as an inspecting staff was not applicable to the facts of the case as the concerned inspecting staff was regarded as a teacher. 22. It has been contended by the petitioner that unlike other inspecting staffs he was recruited as a teacher. 23. That apart the previous statutory rules by which the petitioner was guided at the time of his appointment, contained in G.O. No. 552 Mis., dated 26th February, 1927 (Annexure 'B' to the supplementary affidavit), permitted the Director, Public Instruction, Bengal to fill up vacancy in the post of English Teacher and Sub-Inspector of School by promotion from lower teaching service of the department or by transfer from another branch of the sub-ordinate education service subject to the appointees being possessed all the requisite qualifications. 24. The petitioner has also drawn the attention of the Court to the Government Notification No.252-Edn(A/SE) dated 3rd May, 1989 which provides the recruitment to the post of Joint Director of School Education in the Directorate of School Education will be made by promotion from amongst the confirmed officers in West Bengal Senior Educational Education who have put in at least 13 years of services including the service of West Bengal Educational Service. The petitioner as Deputy Director of Secondary Education (Anglo India School) was guided by the said 1989 Notification. 25. It appears from the aforesaid judgment of the Supreme Court that the Supreme Court had no occasion to consider all those facts as indeed the same were never placed by the State respondent before the Court. It will further appear from the number of documents annexed as Annexure 'B' to the supplementary affidavit that the qualification for recruitment to the post of teachers and Sub-Inspectors of School were also same. It will further appear from the number of documents annexed as Annexure 'B' to the supplementary affidavit that the qualification for recruitment to the post of teachers and Sub-Inspectors of School were also same. That apart it will appear from the conduct of the respondents themselves that even after the delivery of the aforesaid judgment of the Supreme Court the respondents are 'treating the said two branches as inter-changeable for the purpose of promotion and transfer. The respondents have permitted Mrs. Radhika Prodhan, Headmistress, Dow Hill Govt. Girls' High School, Kurseung, to the post of Joint Director of School Education vide G.O. No.719-Edn(A/SE) dated 17th of December, 1985. Mr. Jayadeb Dasgupta, Headmaster, Victoria Govt. High School, Kurseung, was also transferred by the Governor to the post of Deputy Director of School Education, West Bengal, who subsequently had been promoted to the post of Joint Director of School Education. 26. Although because of the aforesaid decision of the Supreme Court from now on the teaching wing and inspecting wing are to be treated as distinct and separate, because of the reasons state above, in case of the writ petitioner the respondents should treat 60 years as age of retirement and consequently shall pay to him all retirement benefits from the date the petitioner attained the age of 60 years. 27. That apart the dispute as to whether the retirement age of the inspecting staffs should also be 60 years like the retirement age of the teaching staffs has lost all its significance in view of the fact that the State Government itself by a Government Order issued in the year 1998, has changed the age of retirement of all Government employees from 58 years to 60 years. 28. It may be noted in this connection during the pendency of the writ petition as the respondents were not paying the petitioner his proper pensionary benefit even treating his age of superannuation as 58 years, this Court by order dated 24.11.2000 directed the respondents to pay his all pensionary benefits which was admittedly due to him on the basis that his age of retirement was 58 years, with 12% interest and although the respondents thereafter have made such payment the correct amount in respect thereof has been disputed by the petitioner. 29. 29. For the reasons stated above I dispose of the writ application by directing the respondents to pay the petitioner all the pensionary benefits treating his age of superannuation as 60 years positively within a period of 3 months from the communication of the order, after adjustment of the amount which has been paid already to the petitioner under order of the Court treating his age of superannuation as 58 years. 30. The service rendered by the petitioner beyond 60 years of age shall be treated as service on re-employment and all salaries and other benefits in respect thereto, as admissible to the petitioner, shall also be paid in the aforesaid period, if not paid already. There will be no order as to costs. Urgent xerox certified copy of the judgment, if applied for be submitted as expeditiously as possible.