Md. Shamsuddin vs The State Of West Bengal & Ors
2022 Latest Caselaw 1766 Cal

Item No.4.
                IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                                APPELLATE SIDE

                              HEARD ON: 05.04.2022.

                            DELIVERED ON:05.04.2022

                                     CORAM:

              THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA

                                WPA 7177 of 2020
                                       With
                              I.A. No.CAN 1 of 2020

                                Md. Shamsuddin.
                                     VERSUS
                         The State of West Bengal & Ors.

Appearance:-
Mr. Sarwar Jahan,
Mr. Ashraful Huq,
Md. Maidul Islam Kayal                                 .....for the Petitioner

Mr. Tapan Kr. Mukherjee, Ld. A.G.P.,
Ms. Tuli Sinha                                 ..    for the respondents/State.


                                    JUDGMENT

(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)

1. The petitioner filed this writ petition praying for

issuance of a writ in the nature of mandamus commanding the

respondents to quash the memo no.76/01(06)/LS/RO/IC/259/LS/2019

dated 10th August, 2020 issued by the Commissioner of School

Education, West Bengal and for a further direction commanding

the respondents to sanction pension and other retiral benefits

calculating the length of service on and from 1 st May, 2000. The

appointment of the petitioner was approved vide memo no.167/LS

dated 29th December, 2010 with effect from 1st May, 2000. The

petitioner retired from service on superannuation on 31st

January, 2018. Pursuant to a direction passed in W.P.

No.12213(W) of 2019 filed by the petitioner, the Commissioner of

School Education passed an order on 10th August, 2020. By the

said order, the memo dated 29th December, 2010 approving the

appointment of your petitioner with effect from 1 st May, 2000 was

withdrawn and the District Inspector of Schools (SE), Birbhum

was directed to issue a rectified approval memo in favour of the

petitioner with effect from 19th November, 2010 i.e. the date of

the order passed in WP No.18827(W) of 2008. The petitioner

being aggrieved by the said order passed by the Commissioner of

School Education challenged the same by filing the instant writ

petition.

2. The learned Advocate appearing for the petitioner submits

that the Commissioner of School Education directed issuance of

rectified approval memo by treating the date of approval of the

petitioner in service with effect from 19 th November, 2010. He

contends that the respondent authority could not have issued

such order thereby modifying the date of approval after the

retirement of the petitioner from service. He, thus, submits

that by virtue of the said order, the right of the petitioner to

get pension has been taken away.

3. Mr. Mukherjee, learned Additional Government Pleader,

submits that the Commissioner of School Education after taking

into consideration the existing rule and Government order as

well as the observation order passed by the Hon'ble Supreme

Court of India and taking into consideration the facts and

circumstances of the case held that the memo dated 29 th December,

2010 is withdrawn and directed issuance of rectified approval

memo in favour of the petitioner with effect from 19th November,

2010. He further submits that since the petitioner cannot be

said to be appointed to the post of Assistant Teacher with

effect from any date prior to 19th November, 2010, any period

prior to 19th November, 2010 cannot be taken into consideration

for the purpose of computing the qualifying length of service

for grant of pension. He thus submits that the petitioner is

not entitled to get any pension as the service rendered by him

falls short of the qualifying length of service for being

entitled to pension.

4. Today, when the matter is taken up for hearing, the

petitioner files a supplementary affidavit upon serving a copy

of the same to the learned Advocate for the respondent. In

paragraph 7 of the said supplementary affidavit, the petitioner

undertook not to claim any other financial benefit in respect of

the period from 1st May, 2000 to 18th November, 2010 in case the

aforesaid period is taken into consideration for the purpose of

calculating qualifying service for grant of pension under the

West Bengal Recognized Non-Government Educational Institution

Employees (Death-cum-Retirement Benefit) Scheme, 1981.

5. I have heard the learned Advocates for the parties and

perused the materials on record. It appears that the petitioner

served the institution at least from 1 st May, 2000. It is not in

dispute that the service of the petitioner was also approved

with effect from 1st May, 2000 by the District Inspector of

Schools vide memo no. 167/LS dated 29th December, 2010. It

appears from the said memo that there was vacancy within the

sanctioned strength due to recognition of the school as Four

Class Junior High School with effect from 1st May, 2000 by the

West Bengal Board of Secondary Education. The petitioner

performed his duties as an Assistant Teacher till his

superannuation on 31st January, 2018. After the retirement of

the petitioner, the claim for payment of pension was disposed of

by the Commissioner of School Education by passing order dated

10th August, 2020 pursuant to a direction passed in a writ

petition thereby withdrawing the memo dated 29th December, 2010

with a direction that the service of the petitioner shall be

approved with effect from 19th November, 2010 i.e. the date of

passing the order in W.P. No.18827(W) of 2008.

6. Upon going through the materials on record this Court finds

that the Memo dated 10th August, 2020 was issued pursuant to the

order dated 3rd February, 2020 passed by a coordinate bench in

W.P. 12213(W) of 2019 whereby the Commissioner, Director of

School Education was requested to consider the grievance of the

petitioner regarding pension in the light of the memorandum

dated 29th December, 2010. A question may arise whether the

respondent was justified in withdrawing the said Memo thereby

altering the date of approval of the petitioner in service in

view of the observation of the coordinate bench. However, in the

light of the undertaking given by the petitioner that he will

not claim any financial benefit for the period 1st May, 2000 to

18th November, 2010, this Court is not inclined to interfere with

the Memo dated 10th August, 2020 insofar as the date of approval

of service of the petitioner is concerned.

7. Though Mr. Mukherjee may be justified in arguing that since

the petitioner could not be said to have been appointed to the

said post from any date prior to 19 th November, 2010 in view of

memo dated 10th August, 2020 but such submission is to be

considered by taking into account the special facts of this

case. Initially the approval to the service of the petitioner

was given by the District Inspector of Schools with effect from

1st May, 2000 as far back as in the year 2010. The said approval

was given in terms of the order dated 19 th November, 2010 passed

in W.P. No.18827(W) of 2008. Such approval was withdrawn in the

year 2020 i.e. after the retirement of the petitioner. An

undertaking has been given by the petitioner herein that he will

not claim any financial benefit if the period from 1 st May,2000

to 18th November, 2010 is added along with the period of service

as per the order dated 10th August, 2020 passed by the

Commissioner of School Education. Thus in view of such special

facts, this Court is of the considered view that the authorities

should be directed to take into consideration the period from 1 st

May, 2000 to 18th November, 2010 for calculating the qualifying

length of service for pension as the petitioner was not

responsible for the delay in disposal of the writ petition being

no.18827(W) of 2008 which was disposed of on 19th November, 2010

and cannot be made to suffer therefor.

8. This Court, therefore, directs the District Inspect of

Schools (SE), Birbhum being the respondent no.4 herein to

process the pension case of the petitioner by taking into

consideration the service rendered by the petitioner with effect

from 1st May, 2000 till 18th November, 2010 together with the

subsequent period till his retirement while calculating the

qualifying length of service for the purpose of pension and

thereafter forward the necessary papers to the Director of

Pension, Provident Fund & Group Insurance being the respondent

no.3 herein, who shall take necessary steps for releasing the

pension in favour of the petitioner and communicate to the

petitioner. The entire exercise shall be completed by the

District Inspector of Schools within eight weeks from the date

of communication of this order.

9. The Director of Pension, Provident Fund & Group Insurance

shall complete the entire exercise for releasing the pension

within a period of six weeks from the date of receipt of the

papers from the District Inspector of Schools (SE), Birbhum.

10. Since this order was passed in view of the special facts of

this case as indicated hereinbefore, it is made clear that this

order should not be treated as a precedent.

11. With the above directions, W.P.A. No.7177 of 2020 and I.A.

No. CAN 1 of 2020 are disposed of.

12. No costs.

13. Urgent photostat certified copy of this order, if applied

for, be furnished to the parties expeditiously upon compliance

of all legal formalities.

(HIRANMAY BHATTACHARYYA, J.)

NAREN, AR(Ct.)