Calcutta High Court (Appellete Side)
Uttam Kumar Khan vs The State Of West Bengal & Ors on 1 April, 2022
01.04.2022 IN THE HIGH COURT AT CALCUTTA
Sl. No.62 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
WPA 117 of 2020
Uttam Kumar Khan
Vs.
The State of West Bengal & Ors.
Mr. Ekramul Bari,
Ms. Tanuja Basak,
Mr. Sk. Imtiaj Uddin
....for the petitioner.
Mr. Arjun Ray Mukherjee,
Ms. Debapriya Mitra,
Mr. Jayjeev Medhi
...for the State.
Mr. Satyajit Talukdar,
Mr. Abhishek Sarkar
....KMDA.
The petitioner joined Calcutta Metropolitan
Development Authority (in short "CMDA") now known
as Kolkata Metropolitan Development Authority (in
short "KMDA") on 3rd March, 1987 as Assistant
Engineer (Civil) (in short A.E.(Civil). The service of the
petitioner was confirmed on 3rd March, 1989.
Subsequently, the petitioner was permitted to join
West Bengal State Warehousing Corporation (in short
"WBSWC") on 31st December, 1997 on lien. The
initial period of lien being extended, the petitioner
served WBSWC on lien for a period of two years. The
petitioner's service was absorbed by WBSWC with
effect from 10th November, 1997. The petitioner
approached this Court by filing a writ petition, being
2
W.P. 18150 (W) of 2005, inter alia claiming pro-rata
pension along with connected death-cum-retirement
benefits as admissible to him. The said writ petition
was finally disposed of by a judgment and order dated
17th May, 2017. The operative portion of the said
judgment and order is as follows:
"In the back drop of the above discussion,
the Secretary, Urban Development Department,
Government of West Bengal being the
respondent no.1 is directed to consider the claim
of the petitioner for pro-rata pension and other
admissible retirement benefits upon allowing the
adjustments towards his liabilities on evaluation
of his record of service with the KMDA in
accordance with the rules and, taking notice of
the observations as recorded above.
The Chief Executive Officer of the KMDA,
the respondent no.2 shall, as considered
necessary by the respondent no.1 depute a
competent officer conversant with the facts to
assist the respondent no.1 in completing the
above noted exercise. The respondent no.1 shall
also receive necessary cooperation from the
petitioner or, through his authorised
representatives, as and when called for.
The respondent no.2 shall be entitled to
take consequential steps on the basis of the
reasoned decision of the respondent no.1.
Considering the long pendency of the claim of
the writ petitioner, the respondent no.1 shall be
also entitled to award a just quantum of interest
to the dues, if arrived at, of the petitioner. In the
event interest is denied the respondent no.1 shall
record reasons for the same. The petitioner shall
be entitled to receive the communication of the
reasoned order of the respondent no.1.
It is expected that the above noted exercise
shall be carried out not later than twelve weeks
from the date of communication of this order."
Pursuant to the directions given in the said
judgement and order dated 17th May, 2017, the
Secretary, Department of Urban Development &
Municipal Affairs passed a reasoned order on 18th
July, 2017. A copy whereof was forwarded to the
petitioner by a letter dated 10th August, 2017 written
by the Special Secretary to the Government of West
Bengal, Department of Urban Development &
Municipal Affairs. The operative portion of the said
order dated 18th July, 2017 is as follow:
"In view of the above facts and
circumstances and considering the extant Govt.
orders, statutory rules, regulations etc., it may
be stated that the petitioner, Sri Khan may be
entitled to get the pro-rata pension from KMDA
for the period of service rendered in KMDA (the
then CMDA) with effect from 03.03.1989 to
31.12.1999 subject to the extension of benefit by
condoning the provision laid in sub-rule (xi)(3) of
Rule 189(A) of WBS (DCRB) Rules, 1971 by the
Finance Department, Government of West
Bengal."
The petitioner has approached this Court as
nothing further happened after passing of the order
dated 18th July, 2017. The petitioner says that he is
entitled to the pro-rata pension from KMDA for the
period between 3rd March, 1989 and 31st December,
1999, in terms of the order dated 18th July, 2017
passed by the Secretary to the Government of West
Bengal, Department of Urban Development &
Municipal Affairs.
On behalf of the State, it is submitted that in
view of the provisions of Rule 189A(xi)(3) of the West
Bengal Services (Death-cum-Retirement Benefit)
Rules, 1971 (hereinafter referred to as the 1971
Rules) which is applicable in view of the Regulation
52(2) of KMDA Death-cum-Retirement Benefit
Regulation, 1988, the Finance Department,
Government of West Bengal is not empowered to
condone the provisions laid down in Rule 189 A (xi)(3)
as required to be done in terms of the order dated
18th July, 2017 for granting pro-rata pension to the
petitioner.
After hearing the parties and considering the
materials on record, I find that under Rule 189 A (i) of
the 1971 Rules, the petitioner is entitled to pro-rata
pension and gratuity based on the length of his
qualifying service. In the instant case the petitioner
served KMDA till 9th November, 1997. By that time
the 1988 Regulation of KMDA had come into
operation. The qualifying service therefor has to be
considered in terms of Regulation of 1988 as
applicable to KMDA. The only embargo, which was
noted by the Secretary, Department of Urban
Development & Municipal Affairs in his order dated
18th July, 2017 was the provisions of Rule 189A(xi)(3),
which provides as follows:
"Cases of resignation from the undertaking
before due date of superannuation will for the
purpose of these rules be treated as resignation
from Government service, entailing forfeiture of
the earlier service under Government and loss of
the pensionary benefits under the rules."
This provision was taken into consideration
because the petitioner resigned from the service of
WBSWC with effect from 15th November, 2011, that
is, prior to the due date of superannuation.
The petitioner between 3rd March, 1987 and 9th
November, 1997 served KMDA i.e., for 10 years and
nine months. The petitioner served WBSWC between
10th November, 1997 and 15th November, 2011 i.e.,
more than 14 years. The total period in the two
organizations is more than 24 years and nine months.
Under the regulation 15(1) (b) of the 1988
Regulation, a person serving more than ten years in
KMDA is reckonable for pension. Under regulation
21(b) of the 1988 Regulation, a person having served
KMDA for more than 10 years but less than 30 years
is entitled to proportionate pension. The petitioner
having served KMDA more than 10 years is, therefor,
entitled to proportionate pension.
The issue of forfeiture of past service on
resignation as provided in Rule 33 of the 1971 Rules
which is similar to the provisions of forfeiture of past
service as in Rule 189A(xi)(3) has been considered by
a Division Bench of this Court in the judgment
reported in (2003) 2 CHN 354 (Dr. Sajal Kanti
Chakraborty Vs. State of West Bengal & Ors.). In the
said judgment, the Division Bench held that the
petitioner in that case, being a Veterinary Assistant
under West Bengal Veterinary Services, has qualified
for the retiring pension upon having served the
department for 25 years even though he resigned
before serving for 30 years after considering the
provisions of rule 59 of the 1971 Rules.
In the instant case, the fact that petitioner
served KMDA between 3rd March, 1989 and 31st
December, 1999, is not in dispute. The petitioner,
therefor, has served KMDA for over 10 years. The
petitioner has the qualifying service tenure to receive
the pro-rata pension. Although the petitioner does
not come within the specified services included in
Rule 59, yet applying the ratio laid down in Dr. Sajal
Kanti Chakraborty (supra) an exception in case of the
petitioner can be culled out by applying the
provisions of regulations 15(1)(b) and 21 (b) of the
KMDA Regulation, 1988. I am, therefor, inclined to
extend the benefit of the pro-rata pension for the
period between 3rd March, 1989 and 31st December,
1999 to the petitioner without any further act or
approval by the Department of Finance, Government
of West Bengal, as has been held in the order of the
Secretary to the Government of West Bengal,
Department of Urban Development & Municipal
Affairs dated 18th July, 2017. The order dated 18th
July, 2017 passed by the Secretary to the
Government of West Bengal, Department of Urban
Development & Municipal Affairs is thus modified to
the extent as if the portion recommending for
condonation of delay by the Finance Department,
Government of West Bengal did not exist in the same.
KMDA is directed to pay the pro-rata and/or
proportionate pension to the petitioner for the period
between 3rd March, 1989 and 31st December, 1999 as
computed on the basis of 1988 Regulation within a
period of four months from date.
Parties are directed to act on the basis of a
server copy of this order without insisting upon
production of a certified copy thereof.
Nothing further remains to be adjudicated in
this writ petition. The same is disposed of accordingly
without any order as to costs.
Since I have not called for any affidavits,
allegations made in the writ petition save those
admitted in the reports are deemed to have not been
admitted.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance
of necessary formalities.
(Arindam Mukherjee, J.)
