Calcutta High Court (Appellete Side)
Maya Das vs The State Of West Bengal & Ors on 11 January, 2022
20
11.01.2022
Ct. No.23
(NB)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPA 9370 of 2021
(via Video Conference)
Maya Das
Vs.
The State of West Bengal & Ors.
Mr. Mrinal Kanti Ghosh
... for the petitioner.
Mr. Arjun Samanta.
...for the respondents.
The petitioner's husband was in service under the
District Judgeship at Howrah and retired from service on
30th September, 2008 on attaining the age of
superannuation.
The petitioner says that the pay and allowance of
the petitioner's late husband was revised under the
Revision of Pay and Allowances (in short "ROPA"), 2009.
The petitioner is claiming the arrears on account of revision
of pay and allowances for the period between 1 st April 2003
and 30th September, 2008 and from August, 2009 till
November, 2010 as also an amount on account of leave
salary.
The husband of the petitioner had filed a previous
writ petition which was ultimately dismissed on 9th
February, 2018. The petitioner has thereafter, made a
representation to the learned District Judge, Howrah on
22nd February, 2021. The petitioner's husband admittedly
approached this Court at a belated stage to claim his
entitlement, if any. The said petition was ultimately
dismissed. The petitioner submits that the writ petition filed
by the petitioner's husband was not dismissed on merit and
as such the petitioner is entitled to file and maintain the
instant writ petition.
On behalf of the respondents, it is submitted that
after the dismissal of the previous writ petition filed by the
petitioner's husband, the subsequent writ petition is not
maintainable. In such circumstances, the writ petition was
"dismissed" and not "dismissed for default".
Be that as it may, delay in approaching the Court
by legal heirs of an employee for the retiral benefits has
been held to be not fatal by the Hon'ble Supreme Court in
the judgment of Union of India & Ors. Vs. Tarsem Singh
reported in 2008(8) SCC 648 if there is continuing wrong
and that retiral benefits in absence of statutory provisions
can also be claimed under Article 14, 19 and 21 as held in
S. K . Dua Vs. State of Haryana & Anr. reported in [(2008)
3 SCC 44]. The petitioner's claim, if any, can be clarified as
a continuing wrong if it is ultimately found that the
petitioner's husband has not been given the benefit of
ROPA, 2001.
In the aforesaid facts and circumstances, I direct
the learned District Judge, Howrah to consider the
petitioner's representation dated 22nd February, 2021 within
a period of six months from the date of communication of a
server copy of this order.
The learned District Judge shall be free to decide
on all issues since I have not gone into the merits of the
matter. The learned District Judge shall pass a reasoned
order explaining the entitlement if any, of the petitioner's
late husband on account of implementation of ROPA, 2001.
The learned District Judge shall give a personal
hearing to the petitioner by observing the prevailing Covid-
19 protocol and communicate the reasoned order within a
fortnight from the date of passing of the same. Nothing
further remains to be adjudicated in this writ petition.
The writ petition is, therefor, disposed of.
Since I have not called for any affidavits, allegations
made in the writ petition are deemed to have not been
admitted by the respondents.
(Arindam Mukherjee, J.)
