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2009 DIGILAW 314 (CAL)

Sribas Ranjan Patra v. STATE OF WEST BENGAL

2009-04-20

ANIRUDDHA BOSE

body2009
JUDGMENT 1. IN this writ petition, the petitioner seeks pensionary benefits for his service in the upgraded segment (Secondary) of Dubai Rasiknagar vivekananda Vidyayatan in the District of Purba Medinipur. The petitioner claims to have been appointed to the post of Assistant Teacher in that School on and from 1 January, 1981 and further claims to have had discharged his service as an organizer teacher in the said school continuously since then, till he attained the age of superannuation on 31 March, 2009, The District inspector of Schools has not released his pension in view of, an audit observation requiring order from "competent authority". Such stipulation has been made on the ground that the petitioner has not completed the period specified for 'qualification service', which entitles a similarly placed teacher to receive pension. 2. HIS initial appointment was without approval from the State authorities. The school, however, was upgraded during his tenure of service and he had applied for absorption in the upgraded segment, being the secondary section. When his application was not accepted in normal course, the petitioner had approached this Court by filing a writ being C. O. No. 16823 (W) of 1996. This writ petition was disposed of by an Hon'ble Single judge of this Court on 3 October, 2001 with the following direction : "under such situation, the writ petition is disposed of with a direction upon the concerned District Inspector of Schools to send a District level Inspection Team to the Institution within a period of two weeks from the date of communication of this order on a working day and upon notice to all concerned, furnish a report before the concerned dist. Inspector of Schools to satisfy themselves as to whether the petitioner was working there or not and if such report is furnished before the concerned Dist. Inspector of Schools, such authority will be entitled to take step for regularization of service of the petitioner in the vacant post already available in the Institution from 1987 against which the petitioner is rendering his service, within a period of one month thereafter". The State authorities had complied with the order without preferring any appeal against the said order of this Court. A memorandum was issued by the District Inspector of Schools to the Secretary of the, institution in which the petitioner was serving on 1 February, 2002. The State authorities had complied with the order without preferring any appeal against the said order of this Court. A memorandum was issued by the District Inspector of Schools to the Secretary of the, institution in which the petitioner was serving on 1 February, 2002. A copy of the memorandum has been made Annexure "p2" to the writ petition. This memorandum specifies : "referring to the above the undersigned has to inform him that in obedience to the solemn Order of the Hon'ble Court passed by Hon'ble justice Amitava Lala dated 03. 10. 2001 and considering the D. L. I. T. report drawn up dated 31. 12. 2001 in obedience to the solemn order dated 03. 10. 2001 passed by Hon'ble Justice Amitava Lala the service of Sri Sribas Ranjan Patra, B. S. is regularized with effect from 01. 05. 97 in the vacancy created due to opening of class X with notional fixation and financial benefit with effect from 01. 03. 2002. He is also requested to submit prayer for withdrawal of vacancy lying with the School Service Commission as per letter of the Secretary, regional School Service Commission (Western Region) No. 1478 (64)dated 31.03.2001 due to regularization of Sri Patra". 3. IN this writ petition, the petitioner's grievance is that his service for the period between 1st May, 1997 and 28 February, 2002 is not being counted as qualifying service for the purpose of computation of his pension by the District Inspector of Schools (S. E.), Purba Medinipur. As a result of this, he is not fulfilling the requirement of 10 years' of qualifying service which would have entitled him to receive pension in terms of West Bengal recognised Non-Government Educational Institutions Employees (Death-cum-Retirement) Benefits Scheme, 1981 ("1981 Scheme" in short ). The memorandum issued in this regard by the District Inspector of Schools has been made annexure P-5 to the writ petition. The reason for not counting the period between 1 st May, 1997 and 28 February, 2002 for computing his term of qualifying service is the adverse observation by the Audit department, which has been indicated in the earlier part of this judgment. There is also observation of the audit department as regards certain annual increments but that is not material for the purpose of adjudication of the present writ petition. 4. There is also observation of the audit department as regards certain annual increments but that is not material for the purpose of adjudication of the present writ petition. 4. THE admitted position is that the school concerned was upgraded a. s a High School with effect from 1st May, 1997. Thereafter in pursuance of the direction of this Court, the District Level Inspection Team had conducted the inspection and in their report filed on 31st December, 2001, the petitioner was found to be working in the said school as organizer teacher. Relying on this report, the authorities chose to regularize the service of the petitioner' with effect from 1st May, 1997 in the vacancy created due to opening of Class X. The memorandum, which has been reproduced in the earlier part of this judgment, specifies that from 1st May, 1997 the regularization of the service of the petitioner was taking effect with notional fixation and financial benefits was to be given from 1st March, 2002. Clause 7 of the 1981 Rules deal with service qualifying for pension, and sub-clause (b) of the said clause provides : ". . . continuous service of a whole-time approved employee in any educational institution, shall count as qualifying service. " Clause 8 of the said Rules prescribes that subject to satisfactory service, an employee shall be entitled to pension upon completion of ten years of qualifying service on attaining the age of superannuation, or thereafter on the expiry of the period of approved extension. Different criteria of qualifying service has been laid down in Clause 8 in relation to voluntary retirement, but that again is not relevant for the purpose of determination of the subject dispute. 5. THE specific objection of the audit department, as it appears from the memorandum issued by the District Inspector of Schools (Annexure "p5" to the writ petition) is :- "without pay period i.e. from 01. 5. 97 to 28. 2. 2002 will not be counted as qualifying service towards retirement benefit without specific order from competent authority. " 6. THE audit authority has not rejected the claim of the petitioner for pension, and has observed that this approximately five year period can be counted as qualifying service only with a specific order of the competent authority, without specifying who would be such authority. " 6. THE audit authority has not rejected the claim of the petitioner for pension, and has observed that this approximately five year period can be counted as qualifying service only with a specific order of the competent authority, without specifying who would be such authority. I choose to address the dispute on merit without embarking upon a fresh enquiry as to who would be the actual authority for deciding the petitioner's eligibility for pension and then again relegating the matter to him for fresh adjudication of the dispute. I adopt this course for two reasons. To determine the question of petitioner's entitlement to pension, only legal issues would have to be examined. The core facts from which the subject dispute originates are not in dispute. Second, I think it would only add to the miseries of the petitioner, a retired teacher of a school if he is again required to apply to the educational authorities for pension, who have so far taken an indecisive stand in this matter. The question which falls for determination in this writ petition is as to whether the service rendered by the petitioner between 1 st May, 1997 and 28 February, 2002 would constitute qualifying service or not. As per the memorandum issued by the District Inspector of Schools, the petitioner's service was regularized with effect from 1 st May, 1997 with notional fixation of pay. It is not the case of the respondents that the petitioner did not render service continuously from that date. The very use of the expression "regularised" confers legitimacy on his service from 1st May, 1997. 7. IN terms of Clause 7 (b) of the 1981 scheme, what is required to count as qualifying service is "continuous service of a whole-time approver employee". Since the petitioner's service has been regularised since 1st may, 1997, he fits the description of a whole-time approved employee. The authorities, in my opinion, are laying undue emphasis on the period from which the petitioner's fixation of pay was effected ignoring his regularisation in service. Such fixation of pay was done from a date subsequent to the date on which the petitioner's service was regularised under special circumstances of the petitioner's case. That date cannot be taken as the relevant date for computing the petitioner's qualifying service. Such fixation of pay was done from a date subsequent to the date on which the petitioner's service was regularised under special circumstances of the petitioner's case. That date cannot be taken as the relevant date for computing the petitioner's qualifying service. Requirement of Clause 7 (b) of the 1981 scheme is that there must be continuous service for the period of ten years by a whole-time approved employee in an educational institution. This clause does not stipulate that for this entire period, he must have received regular pay. 8. OF course, it would be a reasonable presumption that a whole-time approved employee should receive regular salary specified for the post during the entire period of his service. But in my opinion, it does not lead to an automatic inference that the regular service of an employee would lose its legitimacy if because of special circumstances like the one involved in the present case, such employee does not receive the regular pay for his entire service period. Otherwise, the regularisation of the petitioner's service with notional fixation would be rendered nugatory. As the memorandum of the District Inspector of Schools dated 1st February, 2002 specifies that the petitioner's service was being regularized with notional fixation with effect from 1st May, 1997, in my opinion the observation by the audit department that the period between 1st May, 1997 and 28 February, 2002 would not constitute qualifying service is without any basis. There was no necessity to withhold the release of the petitioner's pension pending decision of unspecified "competent authority". 9. UNDER these circumstances and for the reasons I have already discussed, I direct the District Inspector of Schools to process the petitioner's papers for pension ignoring the Clause 2 of the audit observation dated 23rd July, 2008 which has been reproduced in the memorandum issued by the District Inspector of Schools dated 29th August, 2008. The part of the memorandum which contains Clause 2 of the audit observation stands quashed. The District Inspector of Schools and other authorities concerned with the process of granting pension are directed to process the petitioner's claim for pension treating the period between 1st May, 1997 and 28th February, 2002 as part of his qualifying service but the petitioner shall not be entitled to claim any arrear salary and other allowances for the said period between 1st May, 1997 and 23rd February, 2002. 10. 10. THE authorities shall process the petitioner's pension paper within a period of twelve weeks from the date of communication of this order and issue the pension payment order within the said time framed. The writ petition stands allowed in the above terms, but without any order as to costs. 11. AS this writ petition is being disposed of without calling for any affidavit, to which arrangement the learned Advocates appearing for the respondents agreed to because this writ petition involved determination of questions of law only, the allegations made in the writ petition shall be deemed to have not been admitted by the State respondents, excepting the statements on the basis of which this Court has arrived at its finding. 12. URGENT Photostat certified copy of this order, if applied for, be supplied to the parties, as expeditiously as possible.