Calcutta High Court (Appellete Side)
Prasun Kanti Bhaumik vs State Of West Bengal And Others on 1 October, 2021
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Jay Sengupta
W.P.S.T. No.47 of 2019
Prasun Kanti Bhaumik
Vs.
State of West Bengal and others
With
W.P.S.T. No. 48 of 2019
Ayan Dutta and another
Vs.
State of West Bengal and others
For the petitioners : Mr. Soumya Majumder
For the State in WPST 47 of 2019
and for the respondent no.1 in
WPST 48 of 2019 : Mr. Tapan Kumar Mukherjee,
Mr. Somnath Naskar
For the State in WPST 48 of 2019 : Mr. Swapan Kumar Dutta,
Mr. Tapas Kumar Mandal
Hearing concluded on : 23.09.2021
Judgment on : 01.10.2021
Sabyasachi Bhattacharyya, J.:-
1. The present challenge has been preferred against the Judgment and Order
No.12 dated August 1, 2018 passed by the West Bengal Administrative
Tribunal in Case No. OA-435 of 2016, whereby the petitioner's claim to get
pro-rata pension immediately on acceptance of his resignation for taking up
new assignment was turned down. The Tribunal held that the pro-rata
pension will be disbursed in favour of the applicants only on attaining the
age of voluntary retirement, that is, 55 years of age.
2. The petitioner joined as Sub-Inspector (SI) in the West Bengal Police Service
(Unarmed Branch) on January 10, 2000. He submitted his resignation on
February 22, 2010, that is, soon after completion of ten years' service, for
joining services at the UCO Bank as Security Officer. Such resignation was
accepted on March 12, 2010.
3. Prior to submitting resignation, on February 19, 2010, the petitioner
admittedly received his appointment letter from the UCO Bank, asking him
to join within March 15, 2010. Upon acceptance of resignation, the writ
petitioner joined his service with the UCO Bank which is an autonomous
body, although a Nationalized Bank.
4. The moot question raised in the instant writ petition is, whether the
petitioner is entitled to get pro-rata pension for rendering more than ten
years of service as an employee of the West Bengal Government
immediately after acceptance of his resignation or at some future date.
5. Learned counsel for the petitioner places reliance on Rule 58 of the West
Bengal Services (Death-Cum-Retirement Benefit) Rules, 1971 (for short,
"the DCRB Rules"), which stipulates that a retiring pension is granted to an
officer who is permitted to retire after completing qualifying service for 30
years or such less time as may for any special class of officers be
prescribed. Although Rule 59 provides for entitlement on qualifying service
of 25 years for certain classes of officers, it is argued that the petitioner is
not covered under any of such classes. As such, since no specific time is
prescribed for the service of the petitioner, by default the petitioner is
entitled to get pro-rata pension from the date of acceptance of his
resignation.
6. Learned counsel for the petitioner further argues that, as per Rule 92A of
the DCRB Rules, the pension admissible to a police officer in the
subordinate rank shall be determined in accordance with the provisions
contained in Chapters V and VI of the Rules. As such, Rules 58 and 59,
which fall within the said chapters, ought to be applied.
7. Moreover, it is contended, Rule 189A of the DCRB Rules has no manner of
application, since it operates in the event of absorption in, or transfer to, a
public undertaking; whereas, in the present case, the petitioner
independently joined service in a Nationalized Bank (the UCO Bank), which
is not a public undertaking but an autonomous corporate body.
8. Learned counsel for the petitioner, by citing Rule 33 of the DCRB Rules,
submits that as per sub-Rule (2) thereof, resignation of an appointment to
take up, with proper permission another appointment, whether permanent
to temporary, service in which counts in full or in part is not a "resignation
of public service", thereby avoiding the mischief of sub-Rule (1) of Rule 33,
which entails forfeiture of past service for such resignations.
9. It is contended that Rule 67 of the DCRB Rules categorically provides the
amount of pension payable to an employee. Rule 67, Clause (B) provides
that after service of not less than ten years, a pension not exceeding the
amounts given in the chart thereinbelow would be payable to the petitioner.
The first item of the said chart provides for 20 completed six monthly
periods of qualifying service.
10. Hence, the Tribunal acted without jurisdiction, learned counsel submits, in
applying Rule 189A, instead of Rules 58 and 59, of the DCRB Rules.
11. Learned Senior Advocate appearing for the State argues that the petitioner
was an employee for ten years in a post under the West Bengal Police
Service, thus excluding him from the purview of Rule 58. On the other
hand, Rule 59 contemplates qualifying service of 25 years and, thus, is not
applicable to the petitioner.
12. Hence the Tribunal, it is submitted, was justified in applying Rule 189A of
the DCRB Rules, which governs pro-rata pensions for employees who take
up service under Government-owned or controlled enterprises, including
Nationalized Banks.
13. There are two components to the petitioner's claim: first, his entitlement to
it; second, the quantum, if entitled.
14. Rule 189A of the DCRB Rules provides for pro-rata pension, as claimed by
the petitioner. Sub-Rule (1), clause (i), in no uncertain terms, provides that
such entitlement arises on "permanent absorption" in a service or post in or
under a Corporation, Company or a body wholly or substantially owned or
controlled by "the Government", a "permanent Government servant" shall
be so eligible on the length of his "qualifying service under Government" till
the date of "absorption" in accordance with the pension rules "of
Government" in force on the date of absorption. The emoluments for such
purpose shall mean the emoluments with the "Government" servant would
have drawn under "the Government" but for his transfer to such
undertaking.
15. Clause (iii) of Sub-Rule (1) stipulates such pro-rata pension or gratuity
admissible in respect of the service render under "Government" to be
disbursable from the date on which the Government servant would have
retired voluntarily under the rules applicable to him or from the date of his
absorption in the undertaking whichever is later.
16. In the present case, admittedly, the petitioner was working in the unarmed
branch of the West Bengal Police Service which is controlled by the State
Government of West Bengal. However, he opted for retirement after ten
years of service and joined a Nationalized Bank, which can be construed as
a body wholly or substantially owned or controlled by the Central
Government.
17. In the absence of any definition of the term "Government", the same has to
be construed, in the context of the DCRB Rules, as the State Government of
West Bengal and not the Central Government. The names of the Rules is
the West Bengal Services (Death-Cum-Retirement Benefit) Rules, 1971 and
the same has been enacted by the State Legislature. The Rules, thus,
operates within the State of West Bengal and its services, in the absence of
anything to the contrary, and cannot be assumed to refer to the Central
Government as "the Government" in any of its provisions.
18. It would be absurd to assume that the first half of Rule 189A (1) (i)
connotes the State Government services and, in the second, refers to the
Central Government as "the Government". In the instant case, the
petitioner would be entitled to pro-rata pension, only if he had joined in a
State Government undertaking after the qualifying period of service in a
State Government service.
19. However, the petitioner opted for service in a Nationalized Bank, which is
controlled substantially not by the State Government, but by the Central
Government. Hence, the petitioner does not get the benefit of pro-rata
pension under Rule 189A in any event, since he does not qualify under the
second portion of Clause (i).
20. Secondly, the petitioner voluntarily retired and, of his own initiative, joined
service in a Nationalized Bank, which is not a State Government
undertaking at all. Clause (i) contemplates "permanent absorption" and
speaks of "transfer", none of which terms applies to a voluntary
retirement/resignation and joining service under a different entity than the
State Government.
21. Thirdly, the term "qualifying service" has been defined in Rule 17 of the
DCRB Rules as qualifying service of a Government servant commencing
from the date he takes charge of the office to which he is first appointed
either substantively or in an officiating or temporary capacity.
22. Rule 58 of the DCRB Rules fixes the minimum period of qualifying service
at 30 years to entitle an officer of the State Government to retiring pension,
with the exception that if less time is prescribed as qualifying service for
any special class of officers, the latter will be entitled to retiring pension
upon completing of such less period.
23. Rule 59 carves out such exceptions by providing that the period of
minimum qualifying service for members of certain services, as specified in
the categories given therein, would be 25 years. Category 10 of Rule 59
applies such exception to members of the West Bengal Police Service.
Admittedly, the writ petitioner completed only ten years of service as a sub-
inspector of the West Bengal Police Service (unarmed branch). Hence, Rule
59, and not Rule 58, of the DCRB Rules is applicable to the petitioner,
which fixes the minimum period of qualifying service at 25 years.
24. Since the writ petitioner did not complete 25 years' qualifying service, he is
not entitled to get retiring pension at all, either under Rule 58 or Rule 59.
25. As per Rule 33 (2) of the DCRB Rules, the writ petitioner's resignation could
not entail forfeiture of past service as stipulated in Rule 33 (1), since he
resigned from his appointment to take up, with proper permission, another
appointment and, thus, cannot be said to have resigned from public service
as envisaged in Sub-Rule (1) of Rule 33. However, the said provision does
not help the writ petitioner in the present case since, even if his past
service is taken into account, the petitioner did not complete the necessary
period of qualifying service, that is, 25 years, to be entitled to retiring
pension in the first place.
26. Rule 67 (B) of the DCRB Rules merely enumerates the amount of pension
payable after service of not less than ten years. However, the same pertains
merely to the quantum of pension, which is subject to the entitlement of
the concerned official to get pension. In view of Rule 59 (10) of the DCRB
Rules, the petitioner is not entitled to pension at all (having not completed
the requisite qualifying period of 25 years in service), hence rendering the
question of quantum redundant.
27. Rule 67 itself comes under Chapter VI of the DCRB Rules, which provides
the amount of pensions under normal circumstances, subject to
entitlement of the officer in the first place. In view of Rule 59 (10), the
petitioner's entitlement to get retiring pension does not arise at all.
28. Chapter VIII of the DCRB Rules provide for the rules applicable to special
departments or special officers. Rule 92A, which comes under the said
Chapter, clearly stipulates the special rules for the police. As per the said
Rule, the pension admissible to a police officer in the subordinate rank
shall be determined in accordance with the provisions contained in
Chapters V and VI of the DCRB Rules.
29. However, on a conjoint reading of Rules 58 and 59, the petitioner is not
entitled to retiring pension at all, which renders the question of amount of
pension academic.
30. Moreover, the genesis of the concept of "pro-rata pension", which the
petitioner claims, is Rule 189A of the DCRB Rules, which is not applicable
to the writ petitioner as per his own admission and also in view of the above
discussions.
31. The concept of 'retiring pension' is to provide financial support to retired
persons after superannuation. However, the writ petitioner took a chance
by opting to resign from the West Bengal Police Service after only ten years
of service for the specific purpose of joining a different remunerative post
with a Nationalized Bank. Whatever may be the petitioner's entitlements
under the provisions applicable to Nationalized Banks, he cannot be
permitted to be unduly enriched from the public exchequer by opting out of
a State Government service of his own volition, much prior to completion of
the minimum qualifying service, to join a service for gain, while
simultaneously claiming the benefit of pension for his State Government
service.
32. Thus, the writ petitioner is not entitled to pro rata pension at all. Although
the Departmental Representative of A.G., West Bengal, conceded before the
Tribunal that the petitioner is entitled to pension on attaining the age of 55
years, such concession on law is immaterial and does not bind the State,
particularly since public money is involved.
33. Rule 75 (aaa) of the West Bengal Service Rules, Part I, has been erroneously
relied on by the Tribunal on the sole premise that Rule 189A (iii) of the
DCRB Rules apply to the petitioner. Yet, in view of the above discussions,
such premise itself is erroneous, since Rule 189A is not applicable in the
case of the petitioner, which denudes the petitioner of the entitlement to
pro-rata pension altogether.
34. Although no challenge has been preferred to the impugned judgment and
order of the Tribunal at the behest of the Respondents, this Court has
ample powers of superintendence and the power of judicial review over
Tribunals in West Bengal under Article 227 of the Constitution of India,
read in conjunction with Article 226 of the Constitution, which is not
confined to the strict parameters and grounds of the present challenge.
Since such illegality has been brought to the notice of Court, this Court
cannot shut its eyes, thereby permitting the petitioner to get unduly
enriched without any entitlement to get pro-rata pension at all, which
would involve unnecessary and unlawful expenditure of public money.
35. Hence, the impugned judgment ought to be modified to the extent that the
writ petitioner is not entitled to get pro-rata pension, as claimed by him, at
any point of time; not even when he attains the age of voluntary retirement.
36. W.P.S.T. No.47 of 2019 and W.P.S.T. No.48 of 2019 are disposed of
accordingly, without any order as to costs.
37. Urgent certified server copies shall be supplied to the applying parties,
subject to due compliance with the necessary requisites.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Jay Sengupta, J.)
