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2003 DIGILAW 421 (CAL)

KAMAL KANTA SAHOO v. STATE OF WEST BENGAL

2003-08-19

BHASKAR BHATTACHARYA

body2003
BHASKAR BHATTACHARYA, J. ( 1 ) BY this writ application, the writ petitioner, a retired Primary Teacher, has prayed for direction upon the respondents to sanction and pay pension and other benefits on the revised scale of pay as per g. O. No. 33-Edn. (B) dated March 7,1990. The petitioner also prays for quashing of order dated 16th March, 1992, Annexure 'e', and orders dated May 30,1991 and 2nd January, 1992 being Annexures 'h' and 'j' respectively to this writ application. ( 2 ) THE following facts are not in dispute:a) The petitioner retired from Panchrol Special Primary School w. e. f. 30th September, 1986 due to his physical incapacity on voluntary basis and the same was accepted by D. S. B. , Midnapore, vide Memo No. 4948/2/fs dated August 17,1988. After such retirement, the petitioner applied to the authority concerned as per G. O. No. 378 Edn. (B) dated 31st July, 1986 praying for his pension and other benefits and those were sanctioned in the year 1990 as would appear from Memo No. 4320/2/cs dated 5th February, 1990 issued by the then President, ad-hoc Committee, District School Board, Midnapore. Pursuant to such decision, the petitioner has been receiving the said pension and other benefits till date. B) Subsequently, Government issued a G. O. being G. O. No. 33 Edn. (B)dated 7th March, 1990 stipulating that the teacher who retired on or after 1st January, 1986 should be eligible to exercise option for revision of their pensionary benefit and would be entitled to get the benefit of the revised scale introduced w. e. f. 1. 1. 1986 and that those teachers are to opt for revised scale within a specified time. C) According to the case made out by the writ petitioner in this application, he exercised his option within the fixed time before the concerned respondent but due to his ignorance he exercised such option wrongly in VIII-C Form. Thereafter, he met with the dealing assistant in the office of the respondent No. 4 who told the petitioner for the first time that the option exercised in Form VIII-C was not correct because a voluntary retired teacher should have exercised the option in VIII-B Form. Thereafter, he met with the dealing assistant in the office of the respondent No. 4 who told the petitioner for the first time that the option exercised in Form VIII-C was not correct because a voluntary retired teacher should have exercised the option in VIII-B Form. Thereafter, according to the petitioner, the dealing assistant advised him to file option in VIII-B Form and accordingly, the petitioner submitted another option in Form VIII-B countersigned by S. I. , School, Egra, in place of his earlier option in viii-C Form. D) It appears from Annexure G to the instant writ application that the petitioner was asked to show cause within a fortnight why the pensionary benefit given to the petitioner should not be stopped for giving two option Forms on the ground that the first one is not in conformity with G. O. No. 33-Edn. (B) dated 7th March, 1990. The chairman, Ad-hoc Committee took strong exception to the fact that the petitioner had in writing stated that he did so on the advice of the Council although no such direction was given by the Council. According to the Chairman, once option was submitted, there was no scope of change of such option. E) Subsequently, by Annexure 'h', the Chairman, Ad-hoc Committee informed the petitioner that the option for revised scale of pay, 1986, exercised by him was not in conformity with G. O. dated 7th March, 1990 and hence, the same was cancelled. He was further informed that the petitioner would remain in the existing scale of pay prior to 01/01/1986. The petitioner having prayed for reconsideration of such prayer, the District Inspector of Schools by Annexure 'j' informed the petitioner that there was no scope of altering the previous order issued by the Council. ( 3 ) BEING dissatisfied, the petitioner has come up with the instant writ application. ( 4 ) THIS application is opposed by the respondent No. 6 and its objection may be summarized thus:a) By virtue of G. O. dated 7th March, 1990, the revised scale of pay should be notionally effective from 1st January, 1986 and option under proviso to paragraph 4 should be exercised within 90 days from the date of issue of the said order. The said period was, however, extended to 1st August, 1990. The said period was, however, extended to 1st August, 1990. b) As per petitioner's application, it revealed that the petitioner submitted viii-C option Form putting'no date in the option Form which was irregular. c) The petitioner was required to submit VIII-B Form in lieu of VIII-C. d) The petitioner submitted VIII-B Form putting no date after the stipulated period viz. August 1, 1990. e) Non-submission of option within the stipulated period disentitled the petitioner to the benefit of revised scale of pension. ( 5 ) THEREFORE, the questions that arise for determination in this application is whether the petitioner is entitled to get the benefit of G. O. dated 7th March, 1990 and whether the option given by the petitioner is defective. ( 6 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, I find that according to G. O. dated 7th March, 1990 the petitioner, a retired Primary Teacher, is also entitled to get the benefit of revised scale of pension by virtue of the executive instruction issued by the State of west Bengal. There is, however, one condition imposed by the said executive instruction. According to such instruction, such retired employee should exercise option in accordance with G. O. No. 33-Edn. (B) within 1st August, 1990 provided he is willing to come under ROPA - 90. ( 7 ) IN my view, question of exercising option arises when there are more than one offer given to a particular person. Forms VIII-A, VIII-B or VIII-C are meant for employees as mentioned in Rule 2 (e) of ROPA-'90 and those employees are required to opt for any one of the offers mentioned therein. But if the government decides to confer benefit of revised scale of pension to retired employees, in such a case, no question of exercising any option arises because such a retired employee had no scope of selecting any out of more than one offers. Once, higher scale of pension is offered to the retired employees, it is obvious that all the retired employees should be given such revised scale of pay. The retired employees, in such a case, in my opinion, should, as a matter of course, get such enhanced scale of pension. Once, higher scale of pension is offered to the retired employees, it is obvious that all the retired employees should be given such revised scale of pay. The retired employees, in such a case, in my opinion, should, as a matter of course, get such enhanced scale of pension. Therefore, in my view, the respondent authority acted illegally in refusing the benefit of higher scale of pension simply on the ground that the petitioner wrongly exercised VIII-C Form. ( 8 ) IN Form VIII-B, the employee must declare that he should not apply for extension of his service on attaining the age of superannuation prescribed in para 17 of the order. In Form VIII-C, he is required to declare that he would either retire on the date of presentation of option or on attaining the age of superannuation mentioned in para 17. VIII-C Form or VIII-B Form, thus, cannot be applicable to a retired employee who has already retired more than three years from the date of issue of memo dated March 7, 1990. ( 9 ) I, thus, hold that State Government having decided to grant higher scale of pension to all retired school teachers who retired after 01/01/1986, the petitioner is entitled to get such scale even exercising no option. It is ridiculous to suggest that if the retired teacher do not in writing inform their willingness to get the higher scale of pension, it should be presumed that they are not willing to accept such higher scale of pension. ( 10 ) AS regards second question, although Mr. Maity, the learned Counsel appearing on behalf of the added respondent, tried to convince this Court that no option Form was at all filed within the extended period, in view of my finding that a retired employee is not required to give any option Form, the second question has become superfluous. ( 11 ) I, thus, hold that the petitioner having retired on 30th September, 1986 is entitled to get the enhanced scale of pension conferred upon the retired employee by virtue of G. O. dated 7th March, 1990 even if he had not exercised any option in Form VIII-B. It is the duty of the State Government to grant such benefit to all retired employees and no question of their exercising any option arises since the State Government has not given any alternative proposal to those persons. ( 12 ) I, thus, allow this writ application, set aside the Annexures E, H and J of the instant writ application and direct the respondents to grant pension to the petitioner immediately at the enhanced scale of pay as per G. O. No. 33-Edn (B)dated March 7, 1990 with effect from October 1, 1986. The amount of arrears should be paid within three months from date. ( 13 ) IN the facts and circumstances, there will be, however, no order as to costs. Writ application allowed.