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2006 DIGILAW 749 (CAL)

SUDHAN CHANDRA RAUL v. STATE OF WEST BENGAL

2006-11-29

JAYANTA KUMAR BISWAS

body2006
Before Jayanta Kumar Biswas, J. ( 1 ) THE petitioner is seeking several reliefs including a declaration that clauses 7 (d) and 8 of the West Bengal Recognized Non-Government educational Institution Employees' (Death-cum-Retirement) Scheme, 1981 are ultra vires the provisions in Articles 14, 16 and 21 of the Constitutions of India. ( 2 ) HE claims that on January 1, 1971 he was appointed in Deuli sudhir Junior High School, Paschim Medinipur as an organizing assistant teacher. By order dated August 11, 2000 the West Bengal Board of secondary Education recognized that institute as a Junior High School with effect from May 1, 2000. By orders dated September 7, 2000 and May 10, 2005 appointments of the organizing members of the staff were approved by the District Inspector of Schools concerned. ( 3 ) IT is claimed that with effect from May 1, 2000 his appointment was approved. On reaching the age of superannuation he retired on March 31, 2006. The competent authority issued the pension payment order. It was mentioned that he would not be entitled to pension, as he did not have the qualifying period of service for entitling him to get pension. His contention is that the period during which he served the institute as an organizing teacher should be considered for counting the period of qualifying service. ( 4 ) THIS contention has no merit for the simple reason that according to provisions of the death-cum-retirement scheme period of service during which the petitioner worked as approved teacher is only to be counted for determining the qualifying service. Admittedly he did not serve for the requisite period of ten years. There is absolutely no scope to issue a mandamus directing the authorities to take into consideration the period during which he served the institute as a member of the organizing staff. ( 5 ) THE question whether that period was to be counted for any purpose reached finality the moment requisite order was issued by the district Inspector of Schools approving the appointment. That event happened six years age, and the petitioner accepted the decision without any protest. Now after retirement he cannot be permitted to turn around any say that the period during which he worked as a member of the organizing staff should be counted towards qualifying service. That event happened six years age, and the petitioner accepted the decision without any protest. Now after retirement he cannot be permitted to turn around any say that the period during which he worked as a member of the organizing staff should be counted towards qualifying service. ( 6 ) AS to the declaration he has sought, I find that he has failed to make out a prima facie case for entertaining the writ petition. On the strength of the Apex Court decision in Yashwant Hari Katakkar v. Union of India and ors. , (1995)8 SLR 56, counsel argues that since non-payment of pensionary benefits will cause great hardship to the petitioner, the provision fixing the period of qualifying service at ten years should be declared as ultra vires the provisions in Articles 14, 16 and 21 of the Constitution. ( 7 ) I am not impressed by the submission. Simply because the period fixed in the scheme may deprive some of the employees like the petitioner of the pensionary benefits, it cannot be held that the stipulation offended provisions in Articles 14, 16 or 21 of the Constitution. It is known that in such scheme as the one in question the state is empowered to fix the period of qualifying service. The period is fixed after considering very may aspects, and the chief of them is the financial ability of the state. ( 8 ) THE petitioner has also prayed for a mandamus directing the respondents to grant him extension of service till the age of sixty-five. Counsel concedes that extension is not a matter of right. When he does not have an enforceable legal right to get extension of service, in my opinion, he is not entitled to approach the writ Court seeking a mandamus for that. Needless to say that if he wishes to request the authority for extension, nothing prevents him from doing so, and that if he submits any application, then the authority shall consider it in accordance with law. ( 9 ) FOR these reasons, I am unable to give any relief to the petitioner. The writ petition is accordingly dismissed. There shall be no order for costs in it. Urgent certified xerox copy of this order shall be supplied to the parties, if applied for, within three days from the date of receipt of the file by the section concerned.