Calcutta High Court (Appellete Side)
Manoj Kumar Mondal vs The State Of West Bengal & Ors on 17 February, 2022
17.02.2022
SL No. 1
Court No. 24
(P.M)
WPA 25497 of 2018
Manoj Kumar Mondal
Vs
The State of West Bengal & Ors.
(Via Video Conference)
Mr. Samarendra Nath Biswas,
Mr. Arunesh Pathak
... for the petitioner.
Ms. Tuli Sinha
... for the State
The petitioner is a retired primary school
teacher. He joined service under the Exempted
Category on 29th August, 2000 and retired from
service on attaining his normal age of superannuation
on 30th June, 2009. The petitioner was in service for a
period of eight years ten months and three days.
As the petitioner did not complete the qualifying
service for getting benefit of pension, accordingly, his
prayer for pension has been rejected by the District
Inspector of Schools (Primary Education), Nadia. The
said Office Order bearing Memo No. 1088/PE, dated
26th September, 2018 issued by the District Inspector
of Schools (Primary Education), Nadia is under
challenge in the present writ petition.
The petitioner submits that he served as a
Camp Assistant in the Refugee Relief and
Rehabilitation Department under the Additional
District Magistrate, Nadia. The appointment letter
2
issued in favour of the petitioner by the Additional
District Magistrate (Relief) dated 25th June, 1971
mentions that the petitioner is being appointed as
Camp Assistant, on a consolidated pay, inclusive of all
allowances, temporarily, with effect from the date of
joining until further orders. The appointment was
purely temporary and the service was terminable with
twenty-four hours notice. The petitioner accepted the
said appointment.
By a communication dated 4th May, 1972 the
petitioner was informed by the Additional District
Magistrate that his service as Camp Assistant was no
longer required and the same is terminated with effect
from 31st May, 1972.
The petitioner participated in the selection
process for appointment of primary school teacher
under the Exempted Category and being successful
was issued a letter of appointment on 22nd August,
2000 and he joined the service on 29th August, 2000
and retired on superannuation on 30th June 2009.
As the petitioner was found ineligible to receive
pension due to shortfall in the qualifying service
period of ten years, he made a representation before
the District Inspector of Schools (Primary Education),
Nadia but his prayer was turned down.
The primary contention of the petitioner is that
the period of service that he rendered as Camp
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Assistant be taken into consideration for the purpose
of calculating the qualifying service period. If the
period that he rendered service as the Camp Assistant
is taken into consideration together with the period of
service as the Assistant Teacher, the petitioner will
qualify to receive pension.
In support of his prayer the petitioner has relied
upon a judgment delivered by the Hon'ble Supreme
Court in the matter of Parmeshwar Nanda Etc. - vs -
The State of Jharkhand through Chief Secretary &
Ors. Etc. reported in 2016 (1) SCC 9.
The State respondents have filed a report in the
form of affidavit wherein it has been mentioned that as
per Rule 3(f) of the West Bengal Primary Education
Employees' (Death-cum-Retirement Benefit) Rules,
2009 the petitioner does not fall within the definition
'employee'.
As per the third proviso to Rule 12(1) of the said
Rules, service rendered by an employee under the
Central or any State Government or Union Territories
shall count for determining qualifying services.
The service rendered by the petitioner in the
Refugee Relief and Rehabilitation Department,
Government of West Bengal as Camp Assistant since
25th June, 1971 to 31st May, 1972 i.e. for the period of
eleven months and five days cannot be treated as
service of an employee under the aforesaid Rules.
The service of the petitioner as Camp Assistant
is not admissible towards counting qualifying service
for pension.
I have heard the submission made on behalf of
both the parties.
Admittedly, the petitioner did not complete the
qualifying service period for being eligible to receive
pension. The petitioner prays for adding the period of
service that he rendered as Camp Assistant to the
service that he rendered as Primary School teacher for
the purpose of obtaining the said benefit.
As per Rule 12(9) any period of service not
covered under Rule 12(1) to 12(8), shall not count as
qualifying service. The service of the petitioner does
not fall under any of the sub Rules of Rule 12. The
petitioner also does not satisfy the definition of
employee for the period he rendered service as Camp
Assistant.
The judgment relied upon by the petitioner in
Parmeshwar Nanda Etc. (supra) primarily deals with
the Bihar Pension Rules, 1950. The Hon'ble Supreme
Court clearly recorded that the entire case is based
upon Rule 59 of the Rules and the Circular of the
State Government dated 12th August, 1969 of the
erstwhile State of Bihar.
The Court was of the opinion that as the
appellants were never appointed by the Government
either on a temporary or on permanent basis but were
engaged under the project i.e. the Scheme, therefore,
the benefit of such a Circular cannot be claimed by
the appellants. The notification for absorption and the
subsequent letter of appointment do not contain any
condition that the services rendered by the appellants
under the project shall qualify for pension.
In the absence of any specific condition in the
Circular to grant pensionary benefit, it is not possible
to read that pensionary benefits are to be granted to
the erstwhile employees of the project. An employee
cannot turn around to say that the services rendered
by them under the project shall be counted for
pension.
The Court was of the opinion that the
appellants have been appointed as fresh candidates
and, therefore, their period of services for pension has
to be calculated from the date of their regular
appointment and, therefore, they cannot get any
benefit of past service rendered by them.
The Hon'ble Supreme Court refused to interfere
with the appeal as the Court was of the opinion that
the appellants were absorbed as fresh appointees
without pay protection and seniority. As a
consequence thereof, they will not be entitled to count
their past service rendered under the project for the
purpose of pension. The appeal stood dismissed.
In a connected appeal with the aforesaid case
being Civil Appeal No. 544 of 2020, which the
petitioner specifically relies upon, the Court referred to
Rule 103 of Bihar Pension Rules, 1950. The Court
directed the State to consider the writ petitioners as
continuing in service solely for the purpose of granting
personal monetary benefits. The Court held that the
petitioners were not entitled to pay salary for the
period in any manner and neither claim and seniority
over other Government servants.
The Court further recorded that in the State of
Bihar, past services rendered by employees under the
project were taken into consideration for pensionary
benefits.
In the present case, the State of West Bengal
does not take into consideration the past service
rendered by a Camp Assistant, on temporary basis
under the Refugee Relief and Rehabilitation
department for the purpose of pensionary benefit.
The petitioner was duly giving benefit of
reservation under the Exempted Category only
because of the service rendered by him as Camp
Assistant. He was treated to be in fresh service. The
petitioner cannot claim further benefit by praying for
taking into consideration the past service rendered by
him as Camp Assistant.
The Pension Rules does not provide for counting
of any such past service in a temporary project for
grant of pensionary benefit to a primary school
teacher.
In view of the above, no relief can be granted to
the petitioner in the instant case. The writ petition
fails and is hereby dismissed.
Urgent photostat certified copy of this order, if
applied for, be given to the parties on completion of
usual formalities.
(Amrita Sinha, J.)
