Calcutta High Court (Appellete Side)
Ct. No. 04 Sudhansu Karmakar And ... vs Ab State Of West Bengal And Others on 18 January, 2022
07 18.01. WP.ST 91 of 2019
2022
Ct. No. 04 Sudhansu Karmakar and others.
Vs.
Ab State of West Bengal and others.
---------------
Mr. Asit Baran Mukherjee.
... for the petitioners.
Mr. Swapan Kumar Datta,
Mr. Dipankar Das Gupta.
... for the State.
The instant writ petition has arisen from the
judgment and order dated 11th September 2018 passed
by the West Bengal Administrative Tribunal in OA 1227
of 2015, by which the tribunal application filed by the
writ petitioners was dismissed.
Admittedly, the writ petitioners have attained the
age of superannuation and retired in the post of
Constable of Police on divulged dates. The dispute sees
the light of the day when the writ petitioners claimed the
pensionary benefits under the Death-cum-Retirement
Benefit Rules, 1971 (in short 'DCRB Rules'). Since the
authorities did not find the continuous service of ten
years in such post, the claim of the pensionary benefits
was rejected, which prompted the writ petitioners to
move before the West Bengal Administrative Tribunal.
The point urged before the tribunal was that prior
to the appointment in the post of Constable of Police,
the writ petitioners were the Members of the National
Volunteer Force and rendered the continuous services
for a considerable period and, therefore, the authorities
have misconstrued the relevant provisions, which
permits the computation of period taking into account
the earlier services rendered in different departments.
According to the writ petitioners, the period of services
as the Member of the National Volunteer Force before
their appointment as Constable of Police must be taken
into account for the purpose of computation of the
continuous services in order to make the writ petitioners
entitled to pension and pensionary benefits.
There is no dispute to the settled proposition that
Rule 67 of the West Bengal Services (Death-cum-
Retirement Benefit) Rules, 1971 provides for a qualifying
service of ten years to make the employee eligible for a
pension or the other benefits admissible to such post.
The Counsels appearing for the respective parties
have uniformly submitted that the power to relax the
said period for such purpose is also provided in the said
Rules but with an outer cap of six months.
The tribunal after narrating the date of
appointment and the date of superannuation found
each of the writ petitioners fall short of the qualified
service period and even far less of the period provided
for relaxation to be given by the competent authority. In
other words, the writ petitioners were found short of
more than six months of qualifying service and the
authorities could not find any justification in the claim
of the writ petitioners.
Before we proceed further, one has to recapitulate
the object and purpose behind the incorporation of the
West Bengal National Volunteer Force Act, 1949. The
object as adumbrated in the preamble of the said Act
would evince that such National Volunteer Force was
required during the period of emergency or for such
other purposes as the provincial Government may think
fit. It was never considered to be the permanent service
in the Government, but the persons who have a zeal to
serve the society and to maintain the peace and order
should have volunteered for such services, which would
be evident from Section 3 and 7 thereof. Both the
enrollments as a member of Volunteer Force and the re-
enrollment after expiration of definite period connotes
that the aforesaid appointment cannot be treated as a
service in another department of the Government.
Mr. Asit Baran Mukherjee, learned Advocate for the
writ petitioners, emphasized on a Memo issued by the
Finance Department, Audit Branch, Government of
West Bengal on 29th September, 1988 that the Rule
33(2) of the DCRB Rules, 1971 is silent about the
qualified service in the event of any resignation being
given for the purpose of taking up the another
appointment. The clarification was made that in the
event the resignation is made to take up another
appointment, whether permanent or temporary, the
service in which counts full or in part shall not be
treated as a resignation of the public service and,
therefore, in order to assess the continuity of the
service, such resignation shall not be deemed to be a
resignation.
The notification is clear, explicit and vividly reflects
the mind of the authorities that a person has resigned
to take up another job, provided he obtained the prior
permission of his parent department. In such event, the
period of service rendered in the parent department
shall be counted for the purpose of qualifying services or
computation of the period as qualifying services for the
purpose of pension.
We, thus, do not find that there was any necessity
for seeking a prior permission nor any case of such
nature has been made out by the writ petitioners.
However, a plea is taken by the writ petitioners that
the order dated 23rd September, 1987 issued by the DG
& IGP, West Bengal has thrown the light on the claim of
the writ petitioners where certain relaxation was
extended to a Ex-NVF. There is no doubt that power to
relax the rigorous provision, if exercise, does not throw
any light on the fact that such relaxation pertains to
continuance in the service.
Indubitably, the recruitment process was initiated
inviting the applications and the writ petitioners applied
under a special category, i.e. Ex-NVF, and once selected
will be deemed to have entered into a fresh appointment
and not in-service as contemplated in the said Memo
dated 29th September, 1988. The authority can relax the
eligibility criteria provided such power is conferred by
the statute.
Admittedly, the power to relax the period for the
purpose of qualifying service is provided in DCRB Rules,
1971 but with an outer cap of six months. The
authorities cannot act in contravention to the statutory
provisions nor the Writ Court should issue a Mandamus
commanding the authorities to act in clear violation of
the statutory provisions. Once the power of relaxation is
brindled with an outer cap, the authorities are denuded
of power to extend such relaxation, who do not come
within the purview thereof.
The writ petitioners have relied upon an unreported
judgement of the Supreme Court in case of Union of
India and others vs. Sarju (Special Leave to Appeal
[Civil] No. 20041 of 2008, decided on 30th September,
2011) for the proposition that the period rendered by a
person as casual or temporary shall be taken into
account for the purpose of counting the qualifying
services. The judgement rendered by the Supreme Court
pertains to a case where the respondent was engaged as
casual labour and, subsequently, was given a temporary
status and later on was regularized at the said post. The
point arose that once the service of the respondent
therein was regularized, will the period rendered by him
as casual or temporary labour be counted for the
purpose of qualifying services. The Apex Court held
"after adverting to the relevant policy decisions, this
Court held that the policy of the Railways does not
suffer from any Constitutional infirmity. That judgment
has no bearing on the decision of the issue whether the
temporary service, which was followed by regularization
should be counted as part of the qualifying service for
the purpose of retiral benefits". (emphasis supplied)
It is axiomatic to say in this regard that the ratio
laid down therein pertains to the computation of the
period rendered as casual or temporary employee after
regularization for the purpose of determining the
qualifying service in order to get the retiral benefits. The
writ petitioners have not claimed any benefit after
regularization of their services to a post having rendered
as casual or temporary employees but have participated
in the recruitment process and were selected thereafter
and, therefore, the judgement rendered in Sarju (supra)
has no manner of applicability in the present case.
We, thus, do not find any infirmity and/or illegality
in the impugned order.
In view of the findings made herein above, the writ
petition is disposed of.
There shall, however, be no order as to costs.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
