Calcutta High Court (Appellete Side)

Asit Baran Saha vs The State Of West Bengal & Ors on 3 June, 2021

                                                                Serial No. 20


                    IN THE HIGH COURT AT CALCUTTA
                              (Appellate Side)
                   CONSTITUTIONAL WRIT JURISDICTION




                          W.P.S.T. 9 of 2019
                                              Reserved On:- 13.04.2021

                                              Date of decision:- 03.06.2021



Asit Baran Saha

                                                                ...Petitioners



                                   -versus-



The State of West Bengal & Ors.

                                                                ...State



    CORAM:      HON'BLE MR. JUSTICE RAJESH BINDAL, CHIEF JUSTICE (ACTING)
                HON'BLE MR. JUSTICE ANIRUDDHA ROY

    Present:-   M/s. Nirbanesh Chatterjee, and
                     Anjan Banerjee, Advocates.

                                               ...for the petitioner

                Mr. Joytosh Majumder, Learned Government Pleader,
                Ms. Sucharita Paul, and
                Mr. Sayan Ganguly, Advocates

                                               ...for the State

                                  ORDER

Aniruddha Roy, J.

1. This writ petition has been filed assailing the order dated

September 13, 2018 (for short, the impugned order) passed by the West

Bengal Administrative Tribunal, Kolkata, (for short, the Tribunal) in OA

1113 of 2014 (Asit Baran Saha vs. The State of West Bengal & Ors.) [for

short, Original Application], whereunder, the Original Application filed

by the writ petitioner was dismissed.

W.P.S.T. 9 of 2019

2. The petitioner was employed as a Mohurreir, under one Sri. Durga

Pada Saha, Tahasildar at Block No. 16 attached to Haroa for ten years.

Then pursuant to a scheme framed by the Land & Land Reforms

department for absorption of casual workers who worked for more than

five years, the petitioner was appointed on regular basis on the post of

night guard on May 6, 2002 in the Office of the third respondent. His

service was confirmed on June 29, 2007. Subsequently on November

19, 2009 the petitioner was promoted to the post of Amin under

BL&LRO, Baduria w.e.f. July 1, 2008. The petitioner then

superannuated on September 30, 2010. The petitioner was

reappointed as Amin under the BL&LRO, Basirhat on purely

contractual basis and had served at such post till March 5, 2013.

3. As the petitioner had served the State employer less than ten years

he was not qualified to receive pensionary benefit. The petitioner was

granted his gratuity in terms of The West Bengal Services (Death-cum-

Retirement Benefit) Rules, 1971 (for short, the 1971 Rules).

4. The petitioner made representations before his State employer for

considering and granting him the pensionary benefit. Ultimately the

petitioner's claim for grant of pensionary benefit was rejected.

5. Being aggrieved by such rejection the petitioner applied before the

Tribunal for the following reliefs:

"a) to direct the respondent to grant minimum pension to the

applicant in terms of W.B.S.(D.C.R.B.) Rules, 1971 as amended

from time to time till date thereby considering the qualifying

service of the applicant as 10 years instead of 8 years 4

months 24 days for giving belated appointment after PVR &

medical fitness certificate from the date of his retirement on

superannuation i.e. 01.10.2010 without any further delay;

b) to deal with and/or dispose of the representations of the

applicant dated 29.08.2013 as contained in Annexure "A-B"

herein in its correct perspective;

W.P.S.T. 9 of 2019

c) to direct the respondents to produce the entire records of the

case before this Hon'ble Tribunal for adjudication of the issues

involved herein;

d) And to pass such further or other order or orders as to this

Hon'ble Tribunal may deem fit and proper".

6. By the impugned order the said Original Application was

dismissed.

7. Mr. Nirbanesh Chatterjee appearing with Mr. Anjan Banerjee,

Advocates for the petitioner submitted that, the petitioner had diligently

served the State employer without any complaint. To grant pensionary

benefit to an employee of the State amounts to provide some social

security to such a State employee. It was submitted that, on August 29,

2013 the petitioner submitted his representation before his State

employer and the same was not dealt with. The Learned Advocate for

the petitioner further submitted that, the relevant Rules of the 1971

Rules though provide for a continuous service of ten years, the

petitioner had served more than eight years and the short fall may be

considered by taking into account the period of service spent on casual

basis. It was also submitted that, the petitioner is entitled to a

minimum pension by notionally fixing his pay from the year 2000, as

appointment letter was issued to him belatedly in the year 2002

without any valid or cogent reason. In support of his contention Mr.

Chatterjee, appearing for the petitioner relied upon a judgment of the

Coordinate Bench In the matter of: Pastu Deb Singha vs. State of West

Bengal, reported at 2014(4) CHN(CAL) 32.

8. Mr. Joytosh Majumder, Learned Government Pleader, with Ms.

Sucharita Paul and Mr. Sayan Ganguly, Advocates appearing for the

State submitted that, the relevant Rules dealing with pensionary benefit

of a State employee specifically state that minimum service of ten years

is required for being entitled to receive the pension. So the primary

condition is service for not less than ten years to become eligible for W.P.S.T. 9 of 2019

pensionary benefit. He further submitted that, such Rule must be

construed and considered strictly. The State employer cannot travel

beyond the Rules established in law and grant pensionary benefit to a

State employee. Thus, in the present case the Tribunal had rightly

passed the impugned order rejecting the claim of the petitioner. In

support of his contention Mr. Majumder placed reliance on couple of

judgments, namely, In the matter of: State of Odisha & Ors. vs. Manju

Naik, reported at (2020)11 SCC 809; In the matter of: W.P.S.T. No.

102 of 2017, The State of West Bengal & Ors. vs. Ram Chandra Pal; In

the matter of : W.P.S.T. No.64 of 2018, Smt. Gouri Sen Mallick vs. The

State of West Bengal & Ors. and In the matter of: W.P.S.T. No. 176 of

2019, Pranab Kr. Sarkar vs. State of West Bengal & Ors.

9. After considering the submissions made on behalf of the parties

and upon perusal of the material before this Court, it appears that

while passing the impugned order the Tribunal had considered all the

relevant facts and material before it. The petitioner failed to prove that

he was in continuous regular service of not less than ten years. As per

Rule to be eligible for grant of pension one has to serve the State for a

minimum period of ten year on regular service.

10. In the matter of: Pastu Deb Singha (supra) it was not in dispute that

the petitioners therein were initially appointed on temporary basis. That

service was followed, without a break, by permanent service. The

petitioners continued to work as such till they reached the age of

superannuation. The fact in the instant cases is not such, the

petitioner had re-employment when he was employed at the Office of

BL&LRO.

11. In the matter of: Manju Naik (supra) the Hon'ble Supreme Court

held as under:

"18. An employee becomes entitled to pension by stint of his

long service for the employer and, therefore, it should be seen

as a reward for toiling hard and long for the employer. The W.P.S.T. 9 of 2019

Pension Rules provide for qualifying service of 10 years for

such entitlement. When the question arises as to how certain

provisions of the Pension Rules are to be understood, it would

be appropriate to read the provision in its context which would

mean reading the statute as a whole. In other words, a

particular provision of the statute should be construed with

reference to other provisions of the same statute so as to

construe the enactment as a whole. It would also be necessary

to avoid an interpretation which will involve conflict with two

provisions of the same statute and effort should be made for

harmonious construction. In other words, the provision of a

Rule cannot be used to defeat another rule unless it is

impossible to effect reconciliation between them. Pension as

already stated is earned by stint of continuity and longevity of

service and minimum qualifying service should therefore be

understood as the requirement for invalid pension as well. The

Pension Rules can be harmoniously construed in this manner

and in that event, there shall be no clash between provisions in

the said Rules.

19. The condition of qualifying service prescribed in the Pension

Rules must be satisfied to become eligible for invalid pension

and the arguments made to the contrary that invalid pension

can be claimed under Rule 39 without satisfying the stipulated

qualifying service mentioned in the same Rules, do not appeal

to us. The respondent's husband who had served for lesser

years that the 10 years qualifying service, was found entitled

by his employers to service gratuity only, because of his

premature retirement on the ground of mental incapacitation

and this is what is prescribed by the Pension Rules. The dues

toward service gratuity was paid accordingly. The Pension

Rules definitely envisaged that there could be a situation W.P.S.T. 9 of 2019

where an employee may not be eligible for pension benefits for

not satisfying the prescribed qualifying service of 10 years. For

those with less than 10 years' service, the Pension Rules

provide for gratuity payment and therefore, it is difficult for us

to conclude that for invalid pension, qualifying years of service,

can be ignored".

11. In the matter of: Pranab Kr. Sarkar (supra) a Coordinate Bench of

this Court had held as under:

"Be that as it may, at the time the petitioner was absorbed on

July 26, 2007, he accepted the appointment without any

demur. On behalf of the petitioner, learned advocate had drawn

the attention of the tribunal to two decisions of coordinate

Benches of this Court, the first being a unreported decision

dated February 16, 2015 in W.P.S.T. 81 of 2014 : Sk. Golam

Zikria vs. State of West Bengal & Ors. and the other decision

reported in 2014 (4) CHN (Cal.) 32 : Pastu Deb Singha vs. State

of West Bengal & Ors.

The tribunal took into consideration the decisions in Sk. Golam

Zikria (supra) and Pastu Deb Singha (supra) and rendered a

finding that there was nothing on record to establish that the

petitioner, while working as a Tahasil Mohurrior had been in

continuous engagement, in the sense that he had been engaged

for a perennial nature of job and that he rendered service

throughout the year; accordingly, the tribunal held the decisions

to be distinguishable on facts. This was followed by the

following observations:

"........In the present case, we have already observed that

there was no continuity of service of the applicant during

the period from March 2, 1985 to July 30, 2007 and the W.P.S.T. 9 of 2019

applicant rendered service in a permanent post for about

six months only......"

"In view of our above observation, we are constrained to

hold that the applicant is not entitled to get pension in

terms of the provisions of the DCRB Rules of 1971."......

We are of the considered opinion that the tribunal was

right in concluding that the petitioner had failed to prove

that he was in continuous service during the period he was

engaged as a Tahasil Mohurrior. The distinction that has

been drawn by the tribunal while not relying on the

decisions in Sk. Golam Zikria (supra) and Pastu Deb

Singha (supra) is fine but real"

12. Rule 67(B) of the 1971 Rules stipulates that, to become entitle to

receive pensionary benefit a permanent government employee must

complete no less than ten years of continuous service. In the present

case, the petitioner in 2002 became a permanent/ a regular employee of

the State employer which was confirmed in 2007 and finally he was

superannuated on September 30, 2010. So, the tenure of the petitioner

as a permanent employee of the State employer was little more than

eight years and not ten years of a continuous employment. Prior to

2002 the petitioner was employed as casual workers and he failed to

show that he was in a continuous employment even before 2002, when

he was appointed on regular basis. On interpretation of the relevant

rules to receive pensionay benefit in various judgments discussed

above, the law is now well settled.