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2024 DIGILAW 1158 (CAL)

Nabarun Debnath v. State of West Bengal

2024-06-18

SUBHENDU SAMANTA

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JUDGMENT : Subhendu Samanta, J. 1. Present petitioners are the Hostel/ Mess Employees of erstwhile Bengla Engineering College (BE), Shibpur, which was subsequently upgraded to State aided university as Bengal Engineering and Science University (hereinafter referred as BESU) thereafter upgraded to Indian Institute of Engineering, Science and Technology, Shibpur (hereinafter referred as IIEST) under the Ministry of Human Resource Development Government of India. 2. In a nutshell the fact of the petitioner is as follows:-Education Department, Government of West Bengal vide notification No. 1583 dated 12.10.1981 introduced uniform service conditions ofthe workers/employees of Hostels/Mess attached to the universities and colleges declaring the pay scale, service conditions etc of the hostel and mess employees. 3. In terms of the said notification dated 19.10.81 the Technical Branch, Education Department Government of West Bengal also issued similar notification No. 998 dated 07.12.81 declaring uniform service conditions for the workers/employees of hostels/mess attached to the Engineering and Technical Colleges, Poli-techniques, Junior Technical Schools and Institutions for Handicapped under the Administrative Control of Director of Technical Education West Bengal. 4. On 14.02.2000. Government of West Bengal, Higher Education Department, University Education Branch with due intimation to Accountant General issued a memorandum regarding revision of scale of pay of the employees of hostel and mess employees. The paragraph 8 of the said memo decaled as follows : 8. The employees of hostels/messes shall be entitled to the benefit of Central Provident Fund and Pension Scheme with effect from the 1st February, 2000. Details of the scheme will be notified in due course. 5. It is the further case of the petitioner that BESU was upgraded to IIEST on March, 2014 Ministry of Human Resource Development, Government of India (MHRD) constitute Finance Committee to prepare report on the expenditure in order to extent the benefit as recommend by the pay committee. It is the further case of the petitioners that the Finance Committee note of the State of West Bengal has declared Government’s structure and other benefits accorded to the Hostel/ Mess Employees of BESU. 6. On 28.10.2014 Higher Education Department, Government of West Bengal issued a memorandum regarding confirmation of benefit of GFF and pension to the hostel/mess employees of state aided university and Government Colleges. The relevant Paragraph 2 of the said notification dated 28.01.2014 is set out as follows. 6. On 28.10.2014 Higher Education Department, Government of West Bengal issued a memorandum regarding confirmation of benefit of GFF and pension to the hostel/mess employees of state aided university and Government Colleges. The relevant Paragraph 2 of the said notification dated 28.01.2014 is set out as follows. The Hostel/ Mess employees of the State-aided Universities in West Bengal shall be eligible for the benefit of General Provident Fund, Death or Retirement Gratuity and Pension, including Family pension and such other retirement benefits as are available to other non-teaching employees of the University, with effect from 01.02.2000. as per the extant rules/provisions/scheme of the University as are applicable to the other non-teaching employees of the University. The employees, who have died or retired tom service on or after 01.02.2000 shall be eligible only for Death or Retiring Gratuity, as the case may be, and Pension or Family Pension, as the case may be, as per the extant rules/ provisions/ schemes of the University. The benefit of General Provident Fund shall however not be open to those employees who have died or retired from service prior to the issuance of this Order. 7. The executive Council of IIEST in its 48th meeting resolved to adopt the memorandum regarding the confirmation of status of non-teaching staff of hostel/mess employees. On the basis of the aforesaid memorandum dated 28.10.2014, Higher Education Department, Government of West Bengal confirmed GPF/Pension other benefits to all non-teaching hostel/mess employees of all Government institutions on and from 01.02.2000. 8. A committee was formed by IIEST to look into the matter regarding to pay fitment, change of designation of the employee engaged in mess service. On 15.04.2017 the Director of IIEST written to the Secretary, MHRD thereby giving detailed clarification of the existing hostel/mess employees of IIEST. MHRD vide e-mail dated 15.09.2017 requested IIEST to take up the issue with State Government. Thereafter on 14.07.2017 the Higher Education Department Government of West Bengal communicated to the Dean of IIEST that the hostel/ mess employees of erstwhile BESU were eligible to the benefits in terms of Memo dated 28.10.2014. The said clarification of the State Governments was referred to MHRD on 16.01.2014, thereafter the MHRD had turned down the proposal for introduce of pension and family pension for the existing mess/hostel employees. 9. Hence this revision. 10. The said clarification of the State Governments was referred to MHRD on 16.01.2014, thereafter the MHRD had turned down the proposal for introduce of pension and family pension for the existing mess/hostel employees. 9. Hence this revision. 10. Learned Counsel for the petitioner submits that the present petitioners are erstwhile hostel/mess employees of the BESU; their pay structure was created by the Government of West Bengal vide notification No. 1248 of 28.04.2001. In the said notification it has been clearly mentioned that the hostel and mess employees shall be entitled to the benefit of General provident fund and pension scheme with effect from 1st February, 2000; It was also mentioned in the said Memo that the details of the scheme will be intimated in due course. 11. She further submitted that the Higher Education Department Government of West Bengal issued the said scheme only on 28.10.2014; on the strength of the said scheme of the hostels/ mess employees having same status with the petitioners, of all state aided universities and Government colleges, are received the benefit of such schemes. 12. Learned Advocate for the petitioner further argued that the present petitioners are arbitrary deprived by the MHRD the act of MHRD is not justified and it is liable to be set aside. 13. The congesting respondent No. 5 (Union of India) used affidavit-in-opposition against the writ petition Mr. Debashis Bose Learned Advocate appearing on Behalf of the Union of India submits that the scheme of the Government of West Bengal 28.10.2014 came into force after transformation BESU to IIEST. No such approval was given by the cabinet in this regard and no such provisions are available in NITSCR (amendment) Act 2014 and in the statute of IIEST Shibpur. Mr. Bose further argued that the Ministry was of the view that the said inspection of the said Government Notification dated 28.10.2014 is not applicable to IIEST Shibpur. He further submits that proposal of the IIEST was not acceded to became of the facts that nowhere in the cabinet note approval was taken for the mess employees in respect of the GPF/Pension, though at the time of retirement they are entitled only to gratuity. He further submits that proposal of the IIEST was not acceded to became of the facts that nowhere in the cabinet note approval was taken for the mess employees in respect of the GPF/Pension, though at the time of retirement they are entitled only to gratuity. He had further argued that IIEST Shibpur is Governed by the provisions of NITSR (amendment) Act 2014 which came into force on 04.03.2014 and Ministry is limited in implementation of any State Government instructions because of these statutory powers. 14. It is the positive case of the Union of India that mess employees were taken on the strength of the Institutes with the same liabilities and on the same prevailing conditions as per provision of Section 5A of NITSER (Amendment) Act, 2014 and at the time no pension scheme was extended to the mess employees, thus they are not entitled to got any release. 15. Heard the Learned Advocates. Perused the writ petition including memorandums of the State of W.B., also perused the impugned memo issued by the MHRD on 17.04.2018. The impugned memo was issued on 17.04.2018. by MHRD Government of India. On plain perusal of the same it appears to me that the memo is cryptic one and no reason has been assigned by the Government Authority for denying the release GPF/Pension towards the existing hostel/mess employees IIEST Shibpur. The Registrar of IIEST make a specific prayer and recommendation to the MHRD for consideration of GPF/Pension and family pension of the present petitioners but the secretary as turned down the said perusal without assigning any reason. The said notification dated 17th April 2014 appears to me violative to the principle of natural justice. The concern authority has adopted a very casual approach to dispose of the legible grievances of the petitioners. 16. In considering the issue in hand it is required to set out Sub section (d) of Section 5A of NITSAR (Amendment) Act, 2014 5. The said notification dated 17th April 2014 appears to me violative to the principle of natural justice. The concern authority has adopted a very casual approach to dispose of the legible grievances of the petitioners. 16. In considering the issue in hand it is required to set out Sub section (d) of Section 5A of NITSAR (Amendment) Act, 2014 5. With reference to Subsection (d) of the Section 5A of NITSER (Amendment) Act, 2014, it is stated that: "Every person (including Director, officers and other employees) who is employed in the Bengal Engineering and Science University, Shibpur, immediately before the date of commencement of the National Institutes of Technology, Science, Education and Research (Amendment) Act, 2014, shall, on and after such commencement, become an employee of the Indian Institute of Engineering Science and Technology, Shibpur and shall hold his office or service by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as he would have held the same on the date of the commencement of the National Institutes of Technology, Science Education and Research (Amendment) Act, 2014, as if the said Act had not been brought into force and shall continue to do so until his employment is terminated or until such tenure, remuneration, terms and conditions are altered by the Statutes or Ordinances." 17. So, it is clear from the said statute that however, employees of BESU after commencement of NITSAR (Amendment) Act, 2014 become an employee of IIEST Shibpur, and shall held their respective offices/services by the same tenure, at the same remuneration and upon the same terms and conditions and with same rights privilege as to pension, leave, gratuity, provident fund and other matters as he would have hold the same on the date of commencement of the said Amendment Act, 2014, as if the said act had not been brought into force and shall continue to do so until his employment is terminated. The hostel/mess employees were not received pension/GPF as the scheme of State Government was not declared at the date of commencement of NITSER (Amendment) Act, 2014. On considering the Section 5A of NITSER (Amendment) Act, 2014, it appears to me that submission of Union of India is not actually tenable in the eyes of law. The hostel/mess employees were not received pension/GPF as the scheme of State Government was not declared at the date of commencement of NITSER (Amendment) Act, 2014. On considering the Section 5A of NITSER (Amendment) Act, 2014, it appears to me that submission of Union of India is not actually tenable in the eyes of law. The petitioners were enjoying the benefit of revised scale of pay vide memorandum dated 14.02.2000 of the Government of West Bengal. On the date of commencement Amendment Act, 2014; thus the said memo dated 14.02.2000 has already declared the right of entitlement of GPF and Pension Scheme of petitioners at 1st February 2000. If the present petitioners deprived due to the latches of the State Government, who declared of the said scheme after the up gradation of BESU to IIEST, that would tantamount to the violation of natural justice. I make it clear that the provision of Act, 2014 accepted the employees of IIEST with their existing entitlements regarding conditions of service and pay protection. Denying the present petitioner on the strength of Section 5A NITSER (Amendment) Act 2014, is not appears to me a correct approach. It further appears to me that after such impugned memo the Registrar of IIEST Shibpur issued letter to MHRD on 22.11.2018 (annexure P-22 of the writ petition), the MHRD did not respond the same. 18. Considering the entire situation and circumstances of the issue the impugned memo is set aside. The instant writ petition is disposed of with a direction to Respondent No.-5 to this writ petition to arrive at a just and proper decision in response to the letter of Registrar IIEST, Shibpur dated 22.11.2018(Annexure P-22) within 08 weeks positively from dated of communication of this order. I further make it clear that the respondent No. 5 shall form a reasoned decision in respect of acceptation of pension scheme of the present petitioners after giving a reasonable opportunity of being heard to the Institute (IIEST), taking into account of the fact that all existing posts of Hostel/ Mess employees of the IIEST Shibpur shall be considered to be a “dying cadre’ and all such post shall be treated as personal to the present incumbents. No further recruitment after 28.10.2014, either contractual or permanent, including appointment on compassionate ground shall be allowed in such port. No further recruitment after 28.10.2014, either contractual or permanent, including appointment on compassionate ground shall be allowed in such port. The hostel and messes of the Institution shall be maintained by outsourcing through private entrepreneurs. The respondent No. 5 shall communicate its decision to the Registrar IIEST Shibpur within 02 weeks from the date of taking the decision. 19. Under the above observation the writ petition is disposed of. Connected CAN applications if pending are also disposed of. 20. Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.