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2006 DIGILAW 166 (CAL)

DILIP KUMAR SEN v. STATE OF WEST BENGAL

2006-03-17

ALOK KUMAR BASU, PRANAB KUMAR DEB

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ALOK KUMAR BASU, J. ( 1 ) SRI Dilip Kr. Sen has preferred this review, application along with a separate application filed under Section 5 of the Limitation Act being c. A. N. No. 1101 of 2006. We have taken up both the applications together for disposal after hearing the parties for the sake of convenience and brevity. ( 2 ) THE applicant through the review application has prayed for reconsideration of the order dated 21st September, 2004 and since there was delay in preferring the review application, the applicant has also filed the CAN application. ( 3 ) AFTER considering the averments of the CAN application and after hearing both the sides, we are inclined to condone the delay in preferring the review application and hence, the CAN application is allowed. ( 4 ) IN the review application, the applicant has contended that for no fault of his own, he has been deprived of his retiring benefits as his application for change from CPF scheme to death-cum-retirement benefit scheme was refused on the ground of delay. The applicant submits that he along with some other teachers of the institution submitted their application in the year 1992, but, the school management for the best reason known to themselves forwarded the said applications only in the year 2002 and the D. I of School refused to accept such delayed application and thereby the applicant did not get the benefit of death-cum-retirement benefit scheme as introduced by the State Government. ( 5 ) APPEARING for the applicant, Mr. Chatterjee submits that right to get pension and other benefits on superannuation is a fundamental right of a citizen and without recording any valid reason such right cannot be denied by the authority on whims and caprices. ( 6 ) MR. Chatterjee submits that the applicant joined the institution in the year 1971 and after putting a long service he retired on and from 28th February, 2005. ( 6 ) MR. Chatterjee submits that the applicant joined the institution in the year 1971 and after putting a long service he retired on and from 28th February, 2005. The applicant earlier was a member of the CPF scheme and since the introduction of the death-cum-retirement benefit scheme of the State government, the applicant along with other teaches submitted their option form as early in 1992, but, due to lapses and latches on the part of the school management, those forms were not submitted before the appropriate authority in due time and those were submitted only in the year 2002 which would be clear from relevant document annexed to the review application. Mr. Chatterjee submits that since the applicant had no fault and since the school management made unusual delay in submitting the option forms beyond prescribed period, the applicant cannot be allowed to suffer by not getting his due retiring benefit on superannuation. ( 7 ) MR. Chatterjee with reference to the different Government orders issued in connection with death-cum-retirement scheme and particularly, with reference to a circular dated 5th February, 1996 contends that Government was always in favour of giving a liberal interpretation regarding the time prescribed for submission of the option forms and in view of that matter the D. I. of School or the Director of Education was not justified in rejecting the option form submitted by the applicant on the ground of delay. ( 8 ) MR. Chatterjee contends that it has been held in a Division Bench judgment of this Court reported in 2001 Vol. 3 CHN page 688 at para 9 that the benefits of service is due to the Government servant from the date of his joining till his retirement and, accordingly, the applicant was entitled to submit the option form even before his superannuation and since the applicant forwarded the option form in the 2002, much before his superannuation, such option form ought to have been accepted and acted upon. Mr. Chatterjee finally has drawn our attention to an order of the Hon'ble Supreme Court recorded in connection with Civil Appeal No. 5061 of 2004 arising out of SLP No. 4928 of 2003 in the case of Bijoli Bhattacharya v. State of West Bengal and Ors. Mr. Chatterjee finally has drawn our attention to an order of the Hon'ble Supreme Court recorded in connection with Civil Appeal No. 5061 of 2004 arising out of SLP No. 4928 of 2003 in the case of Bijoli Bhattacharya v. State of West Bengal and Ors. , to press his points that on the ground of mere delay in exercising option by a teacher, he cannot be deprived of his retiring benefit and Mr. Chatterjee submits that following the ratio of decision of Bijoli Bhattacharya's case, the present review application should be allowed and the impugned order should be recalled and there should be appropriate direction upon the Education Department of the State Government to accept the option form submitted by the applicant and to grant his retiring benefits. ( 9 ) MR. Banerjee appearing for the State has strongly opposed this Review application and submitted that practically there is no ground to consider this review application. ( 10 ) MR. Banerjee contends that under sub-para 4 of the original death-cum-retirement scheme meant for the teachers of Government and nongovernment institution, a headmaster of the Institution was given the entire responsibility of submitting the option forms from the teachers in the matter of a change from CPF scheme to death-cum-retirement benefit scheme. ( 11 ) MR, Banerjee contends that the applicant was a headmaster of the institution and he has been holding such post from 1982 and the applicant as headmaster although submitted option form in the year 1992, but, he never took any step for forwarding the same to the appropriate authority within the prescribed time which was extended from lime to time and only in the year 2002 the same was forwarded and naturally, the D. I. of School or for that matter the Director of Education could not accept such delayed application as the same had no approval from (he Finance Department of the Government of west Bengal. ( 12 ) WE have heard both Mr. Chatterjee and Mr. ( 12 ) WE have heard both Mr. Chatterjee and Mr. Banerjee and we have also taken into consideration the different circulars mentioned by Mr, Chatterjee in support of the Review Application, ( 13 ) BOTH from the order of the learned Single Judge as also from the order of the Division Bench it is very much clear that although applicant being the headmaster of the institution had the sole responsibility of submitting the option from within the extended time, the applicant did not discharge his duty and only after a lapse of ten years such form was forwarded which was refused by the appropriate authority on the ground of unusual delay. ( 14 ) WE find from the relevant circulars that Government time to time extended the period for submission of option form with the concurrence of the finance Department, because, it was the Finance Department which would provide budgetary support for extension of the benefit of death-cum- retirement benefit scheme to a school teacher under the new scheme. ( 15 ) THE applicant as headmaster under the scheme was the only person to submit the option form within the prescribed, and extended period, but, it is undisputed position that although the option forms were submitted in the year 1992, the same were not forwarded to the D. I. of School till 2002 and it is needless to mention that the final period lapsed much before 2002 and in such a situation, the D. I. of School did not accept the option form and the action of the D. l. of School found support both from the learned Single Judge as well as from the Division Bench. ( 16 ) THERE is no denying of the fact that a public servant is entitled to get all service benefits unless debarred by any law. But, if there is any optional clause to get any benefit under a scheme introduced by the Government, the public servant is bound to follow the relevant provisions of that option rule. ( 16 ) THERE is no denying of the fact that a public servant is entitled to get all service benefits unless debarred by any law. But, if there is any optional clause to get any benefit under a scheme introduced by the Government, the public servant is bound to follow the relevant provisions of that option rule. ( 17 ) FROM the scheme as well as from the subsequent orders we find that a teacher opting for death-cum-retirement benefit was to submit his application showing his willingness to part with the Government share of his P. F, within a specified time and by several Governments orders, the time limit for filing such option form was extended from time to time with concurrence of the Finance department. ( 18 ) WE find from sub-para-4 of the original scheme of death-cum-retirement benefit that a head of the institution was given the sole responsibility of submitting the option forms within the prescribed period and the applicant, being the head of the institution, although filed his application in the year 1992, but, did not submit the same before the appropriate authority within the extended period and only in the year 2002 he submitted the same through a forwarding letter of his Secretary. ( 19 ) WE have examined the order of the Hon'ble Supreme Court recorded in the case of Bijali Bhattacharya (supra ). The fact of the case is clearly distinguishable from the case of the applicant. Bijoli Bhattacharya was not the head of the institution. Bijoli Bhattacharya submitted her application beyond the prescribed period and only considering her submission beyond the prescribed period and considering the fact that in similar case Government accepted such delayed submission of option form, the Hon'ble Supreme Court granted the prayer of Bijoli Bhattacharya. But, in this case of the applicant, the option form was never submitted before the appropriate authority and such submission was made after a lapse of ten years. ( 20 ) THUS, the case of the present applicant cannot be equated with that of Bijoli Bhattacharya and naturally, the decision of the Hon'ble Supreme Court recorded in the case of Bijoli Bhattacharya cannot be of any help for the applicant. ( 20 ) THUS, the case of the present applicant cannot be equated with that of Bijoli Bhattacharya and naturally, the decision of the Hon'ble Supreme Court recorded in the case of Bijoli Bhattacharya cannot be of any help for the applicant. ( 21 ) THUS, having regard to the submission of both the sides and after considering the grounds for review, we are of the considered view that there is no merit in the present review application and accordingly, the same is rejected. ( 22 ) IN the result, the CAN application No. 1101 of 2006 is allowed, but, the Review Application No. 4238 of 2004 is rejected, but, without any order as costs.