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2016 DIGILAW 828 (CAL)

Parul Chakraborty v. State of West Bengal

2016-10-05

DEBI PROSAD DEY

body2016
JUDGMENT : Debi Prosad Dey, J. 1. The husband of the petitioner was Head Teacher of Jorda Primary School, Post-Jorda, District-Bankura and he retired from service on superannuation on 31st October, 1997. The husband of the petitioner died on 25th December, 2009. Admittedly, without appreciating the comparative benefits the husband of the petitioner exercised option on 6th August, 1985 to avail the scheme of contributory provident fund cum gratuity. The revision of Pay and Allowances Rules 1990 (herein after referred to as ROPA 1990) being G.O. No. 33-Edn(B) dated 7th March, 1990 came into force and in terms of the said ROPA Rules 1990 the husband of the petitioner exercised his option for availing the benefits of revised scale of pay. The scale of pay of the husband of the petitioner was accordingly revised in terms of the provisions of Clause 17(2) of the ROPA 1990. It is the case of the petitioner that in view of such option exercised by the husband of the petitioner, the husband of the petitioner would automatically come within the purview of getting pensionary benefits. Secondly, in terms of Clause 6 of ROPA 1998, the husband of the petitioner further exercised option to avail the revised scale of pay and in terms of such option exercised by the husband of your petitioner, the state respondents had accepted the said option and revised the scale of pay of the husband of your petitioner. Relying on the decision of the Division Bench (Biswanath Koley & Others, APO No. 425 of 2006, Bithika Ghosh (Mondal), APO 451 of 2006 and Jagabandhu Ghosh, APO 452 of 2006), the petitioner submits that the Division Bench has upheld the judgment of the Single Bench and has been pleased to hold that the teachers became automatically entitled to get the benefit under Ropa Rules 1990 and thereby the teachers would be entitled to get pensionary benefit including dearness allowance at par with State Government employees. The said judgment of the Division bench was challenged before the Apex Court but the Apex Court dismissed the appeal. The said judgment of the Division bench was challenged before the Apex Court but the Apex Court dismissed the appeal. The further case of the petitioner is that the Special Bench of our High Court in the case of Abhijit Baidya and Others, reported in 2013 (3) CHN 711 has accepted that an employee who has opted for revised pay scale under ROPA 1990 automatically would be entitled to pension and gratuity by virtue of para 17 of Ropa 1990. The State Government has also accepted such decision of the Special Bench and accordingly issued notice to the employees to submit fresh option under DCRB Scheme 1981. Accordingly, it is prayed that a writ in the nature of mandamus be issued directing the respondent no. 2 to consider the representation of the petitioner for extending the benefit of death cum retirement benefit scheme 1981 for getting family pension in connection with the service of her husband in terms of the decision of Special Bench of Hon’ble High Court in APO No. 94 of 2009. 2. Despite giving successive opportunities the State of West Bengal did not file any affidavit controverting the statements made in the writ petition. A final chance was given to the learned Advocate for the State to file affidavit in opposition but that opportunity was also not availed of by the State respondents. Ultimately, the matter was taken up for final hearing. 3. Admittedly, the husband of the petitioner exercised option for the scheme of contributory provident fund cum gratuity way back in the year 1985. Admittedly, the husband of the petitioner also exercised option for availing the benefits of ROPA 1990 as well as of 1998. The State authorities have accepted such options exercised by the husband of the petitioner. The Special Bench in the decision District Inspector of Schools vs. Abhijit Baidya & Others, reported in 2013 (3) CHN 711 has been pleased to decide as follows:- “1. An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was not necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had not opted for ROPA 1990. An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was not necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had not opted for ROPA 1990. Benefit of Pension-cum-Gratuity was conferred due to acceptance of reduced age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right for pension-cum-Gratuity so accrued could not have been taken away retrospectively by substitution of the provisions of para 17 in 2007 or by substitution of para 13 of ROPA 1998 in 1999. 2. Once option has been exercised under ROPA 1990, a person cannot be subjected to the rider of the option exercised under the DCRB Scheme, 1981 as the invitation of the option under the said Scheme was with respect to the employees who elected to continue in service till the age of 65 years and to have the benefit of the old scheme. For such employees, opportunity was given to submit fresh options as per Memo dated 16th December, 1991. The amendment made in para 17(2) of ROPA 1990 on May 16, 2007 cannot be said to be valid piece of law as such provisions cannot be substituted with retrospective effect to take away the rights already accrued to an employee. So as to validate provisions of para 17(2) of ROPA 1990, as substituted, it was necessary to invite option for switching over to Pension-cum-Gratuity from CPF-cum-Gratuity when the substitution of para 17(2) of ROPA 1990 was made on 16th May, 2007 with retrospective effect. 3. Para 13 of the ROPA 1998 as amended on 13th July, 1999 cannot be said to be valid in the eye of law as it has the effect of taking away benefit conferred by para 17(2) of ROPA 1990, as the ROPA 1998 was made applicable to the employees who had opted for ROPA 1990 and the benefit conferred could not have been taken away by substitution of provisions contained in para 13 of ROPA 1998. It was clearly arbitrary and an unreasonable exercise of power and to treat it as valid and legal, it was necessary to invite fresh option under the DCRB scheme, 1981 for switching over to Pension-cum-Gratuity as the provisions had been amended drastically which could not operate to the prejudice of the employees in whose favour right to claim Pension-cum-Gratuity had accrued. The substituted provisions of para 13 of ROPA 1998 fail to qualify Wednesbury principles of reasonableness. The action was in utter violation of fair play and justice. 4. In our opinion, after substitution of para 13 of ROPA 1998 on 13th July, 1999 and para 17 of ROPA 1990 on 16th May, 2007, in order to save the provisions from the vice of arbitrariness, it was necessary to give an opportunity to the employees to submit fresh option under DCRB Scheme, 1981. As the option exercised earlier in terms of the DCRB Scheme, 1981 was made applicable, it was necessary to give fresh opportunity to exercise an option for switching over to Pension-cum-Gratuity and the State could not have acted to the detriment of the employees opting for ROPA 1990 who chose the rider of reduced age of superannuation i.e. 60 years under para 17(1) of ROPA 1990. 5. In our opinion, as there was drastic change of provisions of para 17(2) of ROPA 1990 made by way of substitution in 2007, and ROPA 1998 also interfered with the rights conferred upon the employees under para 17(2) of ROPA 1990, all the employees who opted for ROPA 1990 ought to be given fresh opportunity to submit the option to switch over to Pension-cum-Gratuity.” 4. This judgment was delivered on 16th July, 2013. The Special bench has clearly decided that an employee, who opted for revised pay scale under ROPA 1990, is entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It has been further held that it was not necessary for him to exercise fresh option as per memo dated 16th December, 1991 which was applicable to employees who had not opted for ROPA 1990. It has been further held that it was not necessary for him to exercise fresh option as per memo dated 16th December, 1991 which was applicable to employees who had not opted for ROPA 1990. Benefit of pension cum gratuity scheme was conferred due to acceptance of Reduced age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right of pension cum gratuity so accrued could not have been taken away prospectively by substitution of provisions of para 17 in 2007 or by substitution of para 13 by ROPA 1998 in 1999. The Special Bench has removed the confusion created in this regard by the judgment referred to herein above. No fresh exercise of option is required for an employee who had already exercised option under ROPA Rules 1990. The State respondents have not challenged anything in respect of such exercise of option by the husband of the petitioner. 5. The husband of the petitioner himself could not exercise the fresh option in terms of such decision of the Special Bench only on the ground that the husband of the petitioner died on 25th Day of December, 2009 vide annexure P1. It would also be apparent from annexure P2 that the husband of the petitioner agitated the matter before this Court and the matter was referred to the appropriate authority for taking action but the authorities could not take any action since the matter was pending before the Special Bench for decision. Lastly, in Writ Petition No. 5494 (W) of 2015 this Court accordingly accepted that the State cannot refuse to extend the benefit of DCRB Scheme, 1981 once the employee concerned had opted for revised pay scale under ROPA 1990. In such circumstances the petitioner being widow of the Head Teacher of a Primary School is entitled to get family pension as per death cum retirement benefit scheme, 1981. However, the husband of the petitioner, if withdrew any amount towards contributory provident fund, is required under the law to refund the same along with interest for claiming the pensionary benefit under the death cum retirement scheme, 1981. After the demise of such employee, the petitioner being the legal heir and representative of such employee, is holding over such amount which was disbursed in favour of the husband of the petitioner towards contributory provident fund. Therefore, the District Inspector of Schools Primary Education Board respondent no. After the demise of such employee, the petitioner being the legal heir and representative of such employee, is holding over such amount which was disbursed in favour of the husband of the petitioner towards contributory provident fund. Therefore, the District Inspector of Schools Primary Education Board respondent no. 3 is directed to release family pension in favour of the writ petitioner upon compliance of all formalities. The concerned District Inspector of Schools is also directed to intimate the writ petitioner to refund the actual amount of the employers share of contribution along with interest to be calculated at the rate of 8 percent per annum by the concerned District Inspector of Schools in the event provident fund amount is withdrawn by the employee. The District Inspector of Schools shall proceed to do the needful upon notice to the writ petitioner within a period of 8 weeks from the date of receipt of the certified copy of this order. The State respondents namely Director of Pension, Provident Fund and Group Insurance, West Bengal shall also do the needful after receipt of necessary papers in this regard and after refund of such amount of contributory provident fund. If the petitioner fails to pay the amount to be refunded along with interest at the rate of 8 percent per annum, the petitioner shall be liable to pay additional 2 percent interest per annum over such amount till the actual date of payment and District Inspector of School shall not proceed with the pension of the petitioner unless the amount of contributory provident fund is refunded to the authorities along with the interest as stipulated herein above. 6. The writ petition is thus disposed of in terms of the aforesaid order. No order as to costs.