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2017 DIGILAW 641 (CAL)

Tapas Kumar Gupta v. State of West Bengal

2017-07-25

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. The issue which arises for consideration in the writ petition is as to whether the petitioner is entitled to pension on the basis of 13 years 10 months and 26 days of service rendered by him prior to acceptance of the prayer for voluntary retirement by the State authorities. 2. The said issue needs to be decided in the backdrop of the facts that the petitioner served in the post of Assistant Engineer under the Public Works Department (hereinafter referred to as PWD), Government of West Bengal for the period from 5th July, 1961 to 30th August, 1964. For the period from 31st August, 1964 to 31st August, 1974 he was sent on deputation to Farakka Barrage Project of the Government of India. After release from the said project the petitioner again joined as Assistant Engineer in PWD and thereafter on 31st May, 1975 he joined the Government of Nigeria on foreign assignment initially for a period of three years which was ultimately extended till 31st August, 1981. As the petitioner was thereafter disallowed resumption of his services under PWD, he was constrained to submit a representation on 20th June, 1991 praying for voluntary retirement with effect from 1st April, 1981. As such prayer was not considered, the petitioner preferred an original application being OA 839 of 1996 before the learned Tribunal which was disposed of by an order dated 2nd December, 1997 directing the respondents to consider the petitioner’s representation for voluntary retirement. Pursuant to such direction the respondent no.2 passed an order on 11th May, 1998 refusing the petitioner’s prayer for voluntary retirement. The said order was again challenged by the petitioner by an original application being OA 2196 of 1998 which was disposed of by an order dated 9th July, 2004 observing, inter alia, that the Government is required to decide regarding regularisation or otherwise of absence of the applicant after Foreign assignment was over on 31.3.1981 and his prayer for study leave and service continuity. It was further directed that upon determination of the date of the petitioner’s retirement, the required information and certificate should be transmitted to the AG, WB for payment of balance amount of the petitioner in GPF and to settle the retiral benefits. It was further directed that upon determination of the date of the petitioner’s retirement, the required information and certificate should be transmitted to the AG, WB for payment of balance amount of the petitioner in GPF and to settle the retiral benefits. Pursuant thereto, the respondent no.2 passed an order on 30th August, 2004 observing, inter alia, that as the petitioner was not given any permission to stay in Nigeria beyond 31st March, 1981 his lien expired and his service stood terminated. Challenging the said order the petitioner again approached the learned Tribunal by an original application being OA 14 of 2005 which was disposed of by an order dated 4th November, 2008 directing the respondent no.2 to accept the voluntary retirement of the petitioner under Rule 75 (aaa) of WBSR. Pursuant to the said order, the respondents agreed to allow the petitioner to retire voluntarily with effect from 31st March, 1981 but in the said order of acceptance dated 20th May, 2009 issued by the Deputy Secretary, PWD it was also observed that the period spent by the petitioner in foreign service for the period from 1st June, 1975 till 31st March, 1985 shall be deducted from his qualifying service. Aggrieved by the said order the petitioner again preferred an original application being OA 328 of 2010 which was disposed of by an order was passed on 6th August, 2013. The operative part of the said order runs as follows: “We, therefore, dispose of this application by directing the Principal Secretary, PWD, Government of West Bengal to immediately sanction admissible retiral benefit of the petitioner as per acceptance of his voluntary retirement which was concurred by the Finance Department and this should be done positively within two (2) months from communication of this order. We also direct the Principal Secretary to forward the admissible sanction order to the Office of A.G. West Bengal immediately thereafter and we direct the Office of A.G. West Bengal to issue necessary order within next two (2) months. The application is accordingly disposed of”. 3. Challenging the said order dated 16th August, 2013 the petitioner preferred the present writ petition. By an order dated 17th March, 2016 we directed the Principal Secretary, PWD to pass the necessary order as directed by the learned Tribunal within a period of four weeks. The application is accordingly disposed of”. 3. Challenging the said order dated 16th August, 2013 the petitioner preferred the present writ petition. By an order dated 17th March, 2016 we directed the Principal Secretary, PWD to pass the necessary order as directed by the learned Tribunal within a period of four weeks. Pursuant to such direction the said Principal Secretary has passed an order on 23rd May, 2016 which has been brought on record by way of a supplementary affidavit. 4. As the matter relates to disbursement of the pensionary benefits and as the petitioner is presently about 80 years of age we thought it fit to test the veracity and sustainability of the order dated 23rd May, 2016 instead of relegating the matter again to the learned Tribunal. 5. Mr. Ghosh, learned advocate appearing for the petitioner submits that upon rendering qualifying service for a continuous period of 10 years, a government employee becomes entitled to pension and gratuity. In support of such contention reliance has been placed upon Rules 17 and 18 of the West Bengal Services (Death cum Retirement Benefits) Rules, 1971 (hereinafter referred to as DCRB Rules) and a Finance Department circular dated 22nd March, 1973. 6. He further argues that even a temporary employee upon rendering service for a continuous period of 10 years becomes entitled to pension and gratuity. A temporary or officiating service under the State Government has to be reckoned for determining the qualifying service. In support of such contention reliance has been placed upon the judgment delivered in the case of Nemai Ch. Chatterjee vs. State of West Bengal, reported in 2014(3) CHN (CAL) 608. 7. Drawing the attention of this Court to the order dated 23rd May, 2016 passed by the respondent no. 2, Mr. Ghosh argues that upon taking into consideration the service rendered by the petitioner in PWD, in the Farakka Barrage Project and in Nigeria, the respondents have admitted that the total qualifying service rendered by the petitioner is of a period of 13 years 10 months and 26 days and as such they cannot deny the benefits of pension to the petitioner. 8. 8. He further argues that the respondents did not take into consideration Rule 27 of DCRB Rules which, inter alia, provides that an officer appointed to a service or post may add to his service qualifying for superannuation the actual period not exceeding five years by which his age at the time of recruitment exceeds 25 years. 9. Placing reliance upon the Finance Department Circulars dated 22nd March, 1973, 7th February, 1977 and 20th August, 1981, Mr. Ghosh argues that the pension rules were liberalized by condoning interruptions between two spells of service and entitling government employees to apply for voluntary retirement upon completion of 20 years of service. The petitioner did complete 20 years of service on the date of acceptance of voluntary retirement, i.e., 1st April, 1981 inasmuch as prior to appointment to the post of Assistant Engineer under PWD the petitioner also rendered service in Durgapur Project Limited as Assistant Engineer on and from 1st March, 1961. 10. Per contra, Ms. Chaitali Bhattacharya, learned advocate appearing for the respondents submits that the petitioner’s prayer for voluntary retirement was accepted by the respondents with effect from 31st March, 1981 in terms of Rule 75 (aaa) of WBSR. The said rule categorically provides that a government servant upon giving a notice of not less than three months can retire after he attains the age of 50 years. The date of birth of the petitioner is 25th January, 1937 and he did not attain 50 years of age on the date of his voluntary retirement, i.e., 31st March, 1981. As such, the petitioner does not become entitled to pension. 11. She further submits that as the petitioner’s claim for voluntary retirement was accepted it needs to be ascertained as to whether he becomes entitled to pension in terms of Rule 59 of DCRB Rules. The said rule categorically provides that an employee becomes entitled to retiring pension only after completing qualifying service of not less than 25 years. In the instant case even if the petitioner’s service on deputation and service at Nigeria is counted, his qualifying service does not tantamount to 25 years and that as such the petitioner’s claim for pension has been rightly rejected. The acceptance of voluntary retirement does not amount to waiver of statutory period of qualifying service required to be fulfilled for grant of pension. The acceptance of voluntary retirement does not amount to waiver of statutory period of qualifying service required to be fulfilled for grant of pension. In support of such contention reliance has been placed upon a judgment delivered in the case of Punjab National Bank and Others vs. Ram Kishan, reported in (2014)13 SCC 485 . 12. Heard the learned advocates appearing for the respective parties and considering the materials on record. 13. Rule 37 of DCRB Rules provides for four classes of pension, namely, compensation pension, invalid pension, superannuation pension and retiring pension. Government employees whose prayer for voluntary retirement is accepted by the employer become entitled to retiring pension subject to the provisions of Rules 58 to 61 of the DCRB Rules. The petitioner was allowed to retire voluntarily with effect from 31st March, 1981 as per the order passed by the learned Tribunal on 4th November, 2008. The said order was not challenged by the petitioner. By the order impugned in the present writ petition the respondent no.2 was directed to immediately sanction admissible retiral benefit of the petitioner as per acceptance of his voluntary retirement. 14. In the order dated 20th May, 2009 it was also directed that the period spent by the petitioner on foreign service shall be deducted from qualifying service for pensionary benefits as the foreign service contribution has not been deposited for the said period by the concerned borrowing authorities. No record could be produced by the petitioner to establish that the foreign service contribution was deposited by the borrowing authorities. Even if the said direction contained in the order dated 20th May, 2009 towards deduction of foreign service rendered by the petitioner from his qualifying service is set aside and the said period, i.e., from 1st June, 1975 to 31st March, 1981 is added with the service rendered by the petitioner prior thereto on and from 5th July, 1961, he does not fulfil the requirement of Rule 59 of DCRB Rules. 15. The argument of Mr. Ghosh as regards entitlement of the petitioner to the benefits of Rule 27 of DCRB Rules is not acceptable to this Court since the said Rule is applicable only in respect of superannuation pension and not retiring pension. 15. The argument of Mr. Ghosh as regards entitlement of the petitioner to the benefits of Rule 27 of DCRB Rules is not acceptable to this Court since the said Rule is applicable only in respect of superannuation pension and not retiring pension. The petitioner was also not a temporary employee and this is not a case of counting of the period of service rendered by a temporary employee prior to appointment in regular service for computing qualifying service and as such the judgment delivered in the case of Nemai Ch. Chatterjee (Supra) has no manner of application in the instant case. 16. For the reasons discussed above, we are of the opinion that there is no infirmity in the order dated 23rd May, 2016 passed by the respondent no.2 and the petitioner is not entitled to pension. 17. With the above observations and directions the writ petition is disposed of. 18. There shall, however, be no order as to costs.