Calcutta High Court (Appellete Side)
Shyam Pada Maity & Ors vs State Of West Bengal & Ors on 23 June, 2022
Item No.4.
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
HEARD ON: 23.06.2022
DELIVERED ON:23.06.2022
CORAM:
THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA
WPA 5602 of 2021
Shyam Pada Maity & Ors.
VERSUS
State of West Bengal & Ors.
Appearance:-
Mr. Kamalesh Bhattacharya,
Mr. Aninda Bhattacharya,
Mrs. Ankita Das Chakraborty .....for the Petitioners
Mr. Pinaki Dhole,
Ms. Kakli Samajpati .. for the State.
JUDGMENT
(Judgment of the Court was delivered by HIRANMAY BHATTACHARYYA, J.)
1. As prayed for by Mr. Bhattacharjee, learned Advocate for
the petitioners, leave is granted to the Learned Advocate-on-
record for the petitioners to correct the typographical mistakes
in the cause title of the instant writ petition, here and now.
2. The petitioners are retired teachers of different secondary
schools. They exercised their option to come over to the GPF
scheme from the Contributory Provident Fund Scheme. The issue
as to whether an employee under the CPF Scheme can come over to
the GPF Scheme was considered by the Full Bench in a batch of
writ petitions being APO 94 of 2009 along with G.A. 665 of 2013
& Ors. (District Inspector of Schools (SE), Kolkata & Anr. Vs.
Abhijit Baidya & Ors.) and by a judgment and order dated July
16, 2013, the Full Bench held as follows:-
"76. We direct the State Government to give opportunity to
all the petitioners and other employees similarly situated to
submit option to switch over to Pension -Cum-Gratuity by
issuing public notice in at least four newspapers having
wide circulation in this State. Three months' time period be
given to them to exercise option and let the among be
specified to each and every employee who elects to switch
over to Pension-cum-Gratuity to deposit the amount of
employer's share of contribution with interest and
additional interest which is required to be refunded to the
Government within the period specified.
77. If an employee exercises option, he shall be entitled
to Pension-cum-Gratuity in accordance with law within
effect from the date refund is made."
3. Thereafter, on an application for clarification filed at
the instance of one applicant, the Full Bench passed an order on
September 30, 2019, the operative portion of which reads as
follows:-
"55. This Bench, to obviate future complications, issues this
clarification too that if in terms of paragraph 77 of the said
order an employee has opted for the Pension-cum-Gratuity
scheme within the time frame fixed in the notice dated June
13, 2014 and has also refunded the quantum of money
that was notified to him/her, he/she shall be entitled to be
paid pension from the date following the date of his/her
retirement on superannuation in accordance with the
provisions in the DCRB Rules."
4. From the judgment and order dated September 30, 2019, it is
evident that an employee, who has opted for Pension-cum-Gratuity
Scheme within the time frame fixed in the notice dated June 30,
2014 and has also refunded the quantum of money that was
notified to him/her, he/she shall be entitled to be paid pension
from the date following the date of his/her superannuation in
accordance with the provision in the DCRB Rules.
5. Thus, the earlier order, which provided that the pension
shall be effective from the date of refund was clarified by
holding that such optee shall be entitled to be paid pension
from the date following the date of his/her retirement on
superannuation.
6. It is the case of the petitioners that pension was
sanctioned in their favour with effect from the date the amount
was refunded in terms of the judgment and order dated July 16,
2013 whereas they are entitled to pension from the date
following the date of retirement pursuant to the subsequent
judgment and order dated September 30, 2019.
7. The learned Advocate appearing for the State, by referring
to the statements made in the affidavit-in-opposition, submitted
that pension was sanctioned in favour of the petitioners
pursuant to the judgment and order passed by the Full Bench
dated July 16, 2013 and the petitioners have accepted the same
without raising any objection thereto. It has been further
submitted by Mr. Dhole, that against the judgment and order
dated September 30, 2019, a Special Leave Petition was preferred
by the State, which stood dismissed and thereafter a review
application has been filed, which is pending consideration
before this Hon'ble Court. Thus, he submits that no order
should be passed at this stage directing the respondent
authorities to release the arrear pension for the period from
the date following the date of retirement of the individual
petitioners till date of the refund of the amount.
8. Mr. Bhattacharya, learned Advocate appearing for the
petitioners, submits that several optees have already been paid
the benefits of pension in terms of the subsequent judgment and
order dated September 30, 2019 and as such, the petitioners
being similarly situated ought not to have been discriminated
against.
9. Heard the learned Advocates for the parties and considered
the materials on record.
10. Since the Full Bench by a judgment and order dated
September 30, 2019 directed that the employees, who have opted
for Pension-cum-Gratuity Scheme shall be entitled to be paid
pension from the date following the date of his retirement on
superannuation in accordance with the provisions in the DCRB
Rules, this Court feels that mere pendency of a review
application shall not preclude this Court at this stage from
passing a direction to pay arrear pension as the Learned
Advocate for the State failed to produce any order of stay of
operation of the judgment and order dated September 30, 2019.
11. In view thereof, this Court directs the respondent
authorities to take appropriate steps that are required for
releasing the arrear pension in favour of the petitioners from
the date following the date of retirement till the date of
refund and to release the same within a period of 10 weeks from
the date of receiving the server of this judgment and order.
12. With the aforesaid direction, the writ petition is disposed
of.
13. There shall be, however, no order as to costs.
14. 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.)
