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2018 DIGILAW 168 (CAL)

Gostha Bihari Guchhait v. State of West Bengal

2018-01-25

TAPABRATA CHAKRABORTY

body2018
JUDGMENT : TAPABRATA CHAKRABORTY, J. The present writ petition has been preferred challenging, inter alia, an order dated 19th September, 2011 passed by the respondent no. 2. 2. Mr. Das, learned advocate appearing for the petitioner submits that the petitioner was initially appointed as an organising teacher in the unrecognised sections of Classes IX and X of a junior high school, namely, Hakola Junior High School. The petitioner and others preferred a writ petition being CO 194 (W) of 1993 inter alia praying for upgradation of the school and for regularisation of their services. The said writ petition was disposed of by an order dated 26th November, 1993 directing the Education Department to forward the District Level Inspection Team (in short, DLIT) report to the West Bengal Board of Secondary Education (in short, Board) and it was expected that the Board would accord necessary approval for upgradation of the school. It was also directed that upon receipt of necessary sanction towards upgradation, the respondent no. 3 therein will take necessary steps for absorbing the teachers according to their seniority and requirements. In the said order it was also observed that “the absorbed teaching and non-teaching staff will be entitled to get the notional benefit from their date of appointment in their respective posts”. Pursuant to such directions the school was upgraded with permission to open class-IX and class-X with effect from 1st May, 1994 and 1st May, 1995 respectively. Thereafter the respondent no. 5 by a memo dated 11th July, 1995 approved the appointment of three teachers including the petitioner with effect from 1st May, 1995 and prior thereto, by a memo dated 31st January, 1995 the said respondent no. 5 approved the appointment of three other teachers from 1st May, 1994 but notional benefit was not extended to the petitioner and others from their respective dates of appointment as reflected in the DLIT report and as such a representation was submitted on 14th December, 1998 to the respondent no. 5, who forwarded the same to the respondent no. 3. Upon considering the same, the respondent no. 3 directed the respondent no. 5 to conduct an enquiry. 5, who forwarded the same to the respondent no. 3. Upon considering the same, the respondent no. 3 directed the respondent no. 5 to conduct an enquiry. Pursuant thereto, an enquiry was conducted and a report was filed observing inter alia that all the other teachers approved along with the petitioner were fulfilling ten years of qualifying service to be get pension and as such similar benefit may be given to the petitioner. By a memo dated 7th June, 2000, the respondent no. 5 forwarded the enquiry report to the respondent no. 3. As no decision was taken by the respondent no. 3, the petitioner filed a writ petition being W.P.10754 (W) 2004 which was disposed of by an order dated 7th September, 2004 directing the respondent no. 3 to take a final decision regarding grant of approval of service of the petitioner as recommended by the District Inspector of Schools. Pursuant to the said order the respondent no. 3 passed an order on 21st April, 2005 rejecting the petitioner's claim. Challenging the same the petitioner again approached this Court by a writ petition being WP 13543 (W) of 2005 which was disposed of by an order dated 12th May, 2011 directing the Principal Secretary, School Education Departments to examine the petitioner's right in the light of a memorandum dated 2nd February, 2009. Pursuant to the said order the Secretary passed an order dated 19th September, 2011 rejecting the petitioner's claim. In the midst thereof, the petitioner attained the date of his superannuation on 31st March, 2004. 3. Mr. Das contends that the impugned order dated 19th September, 2011 is not sustainable in law inasmuch as the same has been issued being oblivious of the observation made by this Court in the first writ petition being CO 194(W) of 1993. The fact that the petitioner was working in the said school as an organising teacher would be explicit from DLIT report on the basis of which the school was upgraded. In the said report the date of appointment of the petitioner as organising teacher was stated to be 1st July, 1982 and in terms of the order passed in CO 194(W) of 1993 the respondents ought to have counted the petitioner's service on and from 1st July, 1982. In the said report the date of appointment of the petitioner as organising teacher was stated to be 1st July, 1982 and in terms of the order passed in CO 194(W) of 1993 the respondents ought to have counted the petitioner's service on and from 1st July, 1982. The said period of service rendered in the unrecognised sections of the said school should not be altogether ignored and should be taken into consideration at least to make up the shortfall in computing service for the purpose of granting benefit of pension. All the other teachers, who were regularised along with the petitioner, got the benefits of pension. 4. Per contra, Mrs. Bhattacharyya, learned advocate appearing for the State respondents submits that by the order dated 26th November, 1993 in CO 194(W) of 1993, the Court directed the respondent no. 3 to take necessary steps for absorbing the petitioner and other teachers according to their seniority and requirements from the beginning of the academic session 1994-95 upon receipt of necessary sanction for upgradation from the Board. In the said order there was no direction to count the service rendered by the said teachers from their initial date of appointment as organising teachers. The respondent no. 3 by his order dated 21st April, 2005 observed that the Board recognised the upgraded sections of Class IX and X with effect from 1st May, 1994 and 1st May, 1995 respectively and as per seniority, the petitioner was rightly appointed and approved with effect from 1st May, 1995. 5. She further submits that the petitioner accepted the approval of his appointment with effect from 1st May, 1995 and continued his service till the date of his superannuation on 31st March, 2004. Upon such cessation of employer employee relationship with effect from 31st March, 2004 and after a lapse of more than about ten years from the date of his retirement, the petitioner cannot pray for grant of notional benefits. The pay benefits are attributable and payable from the date a post is sanctioned and permanently created. The post in which the petitioner was absorbed was admittedly sanctioned with effect from 1st May, 1995 and accepting such appointment and approval the petitioner cannot claim notional benefits on and from a date prior to the date of actual sanctioning of the post. The post in which the petitioner was absorbed was admittedly sanctioned with effect from 1st May, 1995 and accepting such appointment and approval the petitioner cannot claim notional benefits on and from a date prior to the date of actual sanctioning of the post. In support of such argument reliance has been placed upon the judgment delivered in the case of Brij Mohan Lal v. Union of India (UOI), reported in (2012) 6 SCC 502 . 6. She further submits that the order impugned in the present writ petition does not suffer from any infirmity inasmuch as in terms of the DCRB scheme, 1981, only a fraction of a year equal to 3 months and above can be treated as completed 6 monthly period of service for determining and to reckon the same as qualifying service for determining the retirement benefits. In the instant case the shortage in qualifying service is of one year two months though erroneously stated in the impugned order to be of two months and the provisions of the said DCRB scheme do not permit condonation of such period of deficiency in qualifying service. 7. Pension is a retirement benefit partaking of the character of regular payment to a person in consideration of the past service rendered by him and is claimable as a matter of right and such right is in the nature of a property in the hands of the employee. 8. The argument of Ms. Bhattacharyya that the petitioner having accepted the approval from 1st May, 1995 has waived all his right to claim any notional benefit from a date prior to the date of such approval, is not acceptable to this Court. The prospective effect given by the respondent no. 5 was only in order to ensure that the petitioner is not to be paid any arrears of difference of salaries for the period from the actual date of appointment of the petitioner in the year 1982 till the date of approval with effect from 1st May, 1995. There was also no delay on the part of the petitioner inasmuch as he was pursuing his claim since the year 1998 and responding thereto, the authorities conducted an enquiry and filed a report and on the basis of the subsequent orders of the Court, the respondent no. 2 passed the final order on 19th September, 2011. 9. There was also no delay on the part of the petitioner inasmuch as he was pursuing his claim since the year 1998 and responding thereto, the authorities conducted an enquiry and filed a report and on the basis of the subsequent orders of the Court, the respondent no. 2 passed the final order on 19th September, 2011. 9. In the order dated 19th September, 2011 passed by the respondent no. 2 the observation made by this Court in the order dated 26th November, 1993 that the absorbed teaching and non-teaching staff will be entitled to get the notional benefit from their date of appointment in their respective posts was not taken into consideration. The said order dated 26th November, 1993 in CO 194 (W) of 1993 was not appealed against and it attained finality inter se the parties therein and as such the order impugned in the present writ petition being derogatory to the order dated 26th November, 1993, is not sustainable. Furthermore, two different yardsticks cannot be applied for the purpose of calculation of length of qualifying service under clause 7(e)(iii) and clause (e)(iv) of the DCRB Scheme and the benefits under the said Scheme cannot be scuttled by limiting the period of condonation inasmuch as such restriction would lead to discrimination. In the case of Brij Mohan Lal (supra) the Court was considering the conditions of service of Fast Track Judges appointed in temporary posts under a scheme sponsored by the Government of India. The said judgment is clearly distinguishable on facts and has no manner of application in the instant case. 10. In the DLIT report dated 29th September, 1992 leading to recognition of the said school the petitioner's name features as a teaching staff serving in the unrecognized section of the school with effect from 1st July, 1982 and as such, the period of service rendered by the petitioner, though in an unrecognized section of the school, should not be altogether ignored and should be taken into consideration to make up the short fall in computing the service for the purpose of granting the benefits of usual pension and gratuity to the petitioner. 11. 11. A grant of pensionary relief to the retired person was introduced by the Government as a social beneficial scheme and as noted in the DLIT report upon proper enquiry that the petitioner had rendered service since 1st July, 1982, the respondents cannot deny to condone the deficiency in qualifying service of the petitioner through grant of notional approval only for the purpose of disbursement of pensionary benefits. 12. In the aforesaid circumstances, the impugned order dated 9th September, 2011 passed by the respondent no. 2 is set aside and the respondents are directed to condone the deficiency of about one year two months in qualifying service of the petitioner through grant of notional approval and to disburse the pensionary benefits in favour of the petitioner along with all arrears of pension on and from the date of his retirement within a period of eight weeks from the date of communication of this order and to continue payment of pension month by month thereafter. 13. With the above observations and directions, the writ petition is disposed of. 14. There shall, however, be no order as to costs.