Calcutta High Court (Appellete Side)

Sanatan De vs The State Of West Bengal & Ors on 17 May, 2022

                                        1


                    IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                              APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                            WPA 23568 of 2018

                                 Sanatan De

                                   Versus

                      The State of West Bengal & Ors.



            Mr. Sujit Kumar Rath
            Mr. Sukumar Sarkar
            Mr. Anirban Saha
                                                  .....For the Petitioner


Heard on                 : 07.04.2022

Judgment on              : 17.05.2022

Krishna Rao, J.:     Inspite of service of notice and several directions, the

respondents have neither appeared nor have filed Affidavit-in-Opposition.

The petitioner has challenged the Memo No. 1159-GA dt. 04.08.2017

issued by the Deputy Director of School Education (G.A), West Bengal

wherein the request for counting of past service of the petitioner as

qualifying service for pensionary benefit was rejected.

The question involved in the present matter is whether services

rendered by the petitioner in Ramakrishna Mission, Narottam Nagar,

Arunachal Pradesh as Assistant Teacher is qualifying service for the purpose

of pension.

The petitioner was appointed as Assistant Teacher in Ramakrishna

Mission, Arunachal Pradesh on 13th August, 1992 and he had reported his

duty on 26.10.1992.

In the year 2012, the West Bengal School Service Commission has

published an advertisement for the recruitment of Headmaster/

Headmistress in recognized aided Non-Govt. High/Higher Secondary

Schools in West Bengal. As per the advertisement, the petitioner had

participated in the said recruitment process.

The petitioner was selected in the said recruitment process and

appointed as Headmaster in Dubgohal Vivekananda Sikshaniketan (H.S)

School, Paschim Medinipur, West Bengal.

After the appointment of the petitioner as Headmaster, the petitioner

was relieved from Ramakrishna Mission School, Arunachal Pradesh on

15.09.2014 and the petitioner had reported his duty at Dubgohal

Vivekananda Sikshaniketan (H.S) School, Paschim Medinipur on

19.09.2014.

The appointment of the petitioner as Headmaster was duly approved

by the competent authority. The petitioner had made representation

praying for counting his past service rendered in the Ramakrishna Mission,

Arunachal Pradesh as Assistant Teacher from 26.10.1992 to 14.09.2014 for

the purpose of pensionary benefits.

Vide letter Memo No. 115-9-GA dt. 04.08.2017, the Deputy Director of

School Education, West Bengal had rejected the request made by the

petitioner in terms of para 7 (e) (ii) of Chapter III of G.O. No. 136-Edn (B) dt.

15.05.1985 (DCRB Scheme 1981).

Clause 7 (d) & e (ii) of Chapter III of Memorandum No. 136-Edn (B) dt.

15.05.1985 reads as follows:-

"7. Service qualifying for pension- (d) service rendered partition, i.e., during the period up to 14th August, 1947, by an employee in any affiliated institutions in areas included in East Pakistan (now Bangladesh) shall qualify for pension and the period of break from the date of leaving the institutions in East Pakistan (now Bangladesh) and the date of appointment in any institution in West Bengal is to be treated as automatically condoned.

Affiliation of a school will be verified on the basis of documentary evidence. In the absence of documentary evidence, contemporary evidence duly signed by Director or any officer authorized by him, will be accepted.

Service rendered by an employee under Government if any will count towards pension. The service in an institution before its recognition will not count.

(e) (ii) Services rendered in other States shall not count as qualifying services. Services rendered in territories which have since been merged in West Bengal and service rendered in East Pakistan now Bangladesh up to 14.8.1947 shall however, count towards pension."

Clause 7 (d) of Memorandum dt. 15.05.1985 provides that "service

rendered by an employee under Government if any will count towards

pension." "Wherein clause 7 (e) (ii) provides that service rendered in other

States shall not count as qualifying services."

As per advertisement for the post of Headmaster/Headmistress

published by the West Bengal School Education Commission one of the

essential qualifications was:

"Ten years continuous Teaching Experience on the date of advertisement in approved service in a Higher Secondary School/ High School/ Jr. High School recognized by the West Bengal Council of Higher Secondary Education/West Bengal Board of Secondary Education or equivalent."

The petitioner was having teaching experience as Assistant Teacher

since 26.10.1992 i.e. more than 10 years in the Ramakrishna Mission

School, Arunachal Pradesh and the said school was duly affiliated with

Central Board of Secondary Education since the year 1986 and accordingly

the respondents have accepted the teaching experience of the petitioner and

allowed to participate in the recruitment process.

The letter issued by the Chairman, West Bengal Regional School

Service Commission dt. 26.12.2013 wherein the petitioner was directed to

appear before the Board for Personality Test and in the said letter in clause

(e) the respondents directed the petitioner to bring the following documents:-

"e) Employer's Certificate as a regular teacher, not against deputation vacancy, along with service continuation particulars as per Service Book from the competent authority of the institution in which you have been serving at present."

As per the direction, the petitioner had produced the said documents

i.e. the Certificate issued by the Deputy Director of School Education, Tirap

District, Khonsa, Arunachal Pradesh wherein it was certified that:

"This is to certify that Sri Sanatan De B.Sc (Hon) MA (English) B.ED. has been serving as an approved Junior Teacher (chemistry) at Ramakrishna Mission School Narottam Nagar Deomali, Tirap District Arunachal Pradesh since 26thOct/1992 regularly.

The school is recognized by the Govt. of Arunachal Pradesh and permanently Affiliated to Central Board of Secondary Education, New Delhi."

The petitioner has also submitted the copy of Service Book of

Ramakrishna Mission School, Arunachal Pradesh both documents have also

annexed with the writ application.

In the Constitution Bench Judgment passed by Hon'ble Supreme

Court in the case of D.S. Nakara & Ors. -Vs- Union of India & Ors. reported

in 1983 (1) SCC 305 held that reasonable classification is permissible. The

classification must be founded on an intelligible differentia and that must

have a rational relation to the object sought to be achieved. This Court has

laid down that even though the scheme is prospective, the benefit of

liberalised pension scheme should be applied equally to all and they are

required to be paid the upward revision commencing from the specified date.

No arrears would be payable. This Court has laid down thus:-

"29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation

or for service rendered. In one sentence one can say that the most practical raison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.

42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bracket, the average emolument was the same and both had put in equal number of years of service. How does a fortuitous circumstance of retiring a day earlier or a day later will permit totally unequal treatment in the matter of pension? One retiring a day earlier will have to be subject to ceiling of Rs 8100 p.a. and average emolument to be worked out on 36 months' salary while the other will have a ceiling of Rs 12,000 p.a. and average emolument will be computed on the basis of last 10 months average. The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely no nexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has not only no nexus to the liberalised pension scheme but it is counter-productive and runs counter to the whole gamut of pension scheme. The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. A 48 hours' difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does not stand the test of Article 14.

43. Further the classification is wholly arbitrary because we do not find a single acceptable or persuasive reason for this division. This arbitrary

action violated the guarantee of Article 14. The next question is what is the way out?

48. It was very seriously contended, remove the event correlated to date and examine whether the scheme is workable. We find no difficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for computation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule 34 and introducing the slab system and the amount worked out within the floor and the ceiling.

49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words who were in service on March 31, 1979 and retiring from service on or after that date excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed".

In the case of M.C. Dhingra -vs- Union of India & Ors. reported in

1996 (7) SCC 564, the question arose with respect to the counting of the

previous service for grant of pension. The circular dt. 31.03.1982 which

came up for consideration provided the benefit thereof only to the persons

retiring on or after the date of issuance of circular was held to be arbitrary.

The Hon'ble Supreme Court held that,

"4. It is seen that though the appellant had retired on 1-2-1973, since the question of tagging the previous service rendered in the State Government on temporary basis and the similar cases are pending, the Government had taken a decision on 31-3-1982 to tag the previous service for computation of the pension. Learned counsel appearing for the respondents contended that clause 4 of the abovesaid circular is one of the conditions which prescribes that it would be applicable to the government servants who retired from that date, namely, 31-3-1982. Since the appellant had retired on 1-2-1973, he is not eligible. We find no force in the contention. All the persons who rendered temporary service prior to their joining the Government of India Service have been given the benefit of fixation of the pension payable by tagging the temporary service. The cut-off date is arbitrary violating Article 14 of the Constitution of India. Having grouped all the similarly circumstanced employees, fixing the cut-off date and giving benefit to those who retired thereafter is obviously arbitrary. In similar circumstances, following the ratio in D.S. Nakara v. Union of India [1983 (1) SCC 305], this Court held in the case of R.L. Marwaha v. Union of India [1987 (4) SCC 31 that such a restriction is arbitrary violating Article 14. On the facts and circumstances, we find that the restriction imposed in clause 4 of the circular is violative of Article

14. It is, therefore, unconstitutional. However, the appellant will be entitled to the pro rata pension from March 1982".

In the case of Vallamattom & Anr. v. Union of India reported in (2003)

6 SCC 611 held that,

"62. Article 14 of the Constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The first part of Article 14 of the Constitution of India is a declaration of equality of civil rights for all purposes within the territory of India and basic principles of republicanism and there will be no discrimination. The guarantee of equal protection embraces the entire realm of State action. It would extend not only when an individual is discriminated against in the matter of exercise of his right or in the matter of imposing liabilities upon him, but also in the matter of granting privileges etc. In all these cases, the principle is the same, namely, that there should be no

discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. In my view, all persons in similar circumstances shall be treated alike both in privileges and liabilities imposed. The classification should not be arbitrary; it should be reasonable and it must be based on qualities and characteristics and not any other who are left out, and those qualities or characteristics must have reasonable relations to the object of the legislation."

The object sought to be achieved was not to create a class within a

class, but to ensure that the benefits of pension were made available to all

persons of the same class equally. To hold otherwise would cause violence

to the provisions of Article 14 of the Constitution of India. It could not also

have been the intention of the authorities to equate the pension payable to

officers of two different ranks by reporting to the step up principle envisage

in the fundamental rules in a manner where the other officers belonging to

the same cadre would be receiving a higher pension.

The Judgment passed in the case of A.N. Sachdeva (dead) by LRs. &

Ors. -vs- Maharshi Dayanand University, Rohtak & Anr. reported to in the

Hon'ble Supreme Court held that,

"27. Considering the principles enunciated under Articles 14 and 16 of the Constitution, and that the benefit is not an ex gratia payment but a payment in recognition of past service, in our opinion, discrimination could not have been made between those employees who have been absorbed/allocated are entitled to count their services as qualifying service for the purpose of pension and not those who have been appointed directly. Fact remains that all these employees have served in Punjab University/Kurukshetra University/MD. University without any break. M.D. University, prior to its establishment, was the regional centre of Kurukshetra University. Expectation had arisen to compute the period of service rendered in Punjab University/Kurukshetra University which cannot be unreasonably deprived of. Merely because a person has been appointed and others have been absorbed/allocated makes no difference as to the service rendered. Even otherwise, it is a case of

upward revision of benefit and the classification which is sought to be created by the aforesaid method of not extending benefit to persons appointed directly and by fixing cut-off date cannot be said to be intelligible one; same is discriminatory and thus, the appellants would be entitled for the benefit from the date decision has been taken on 24.12.2001 to compute the previous service rendered in Punjab University/Kurukshetra University as qualifying service. In other words, they would be entitled for the benefit prospectively from the date of issuance of memorandum dated 24.12.2001. The employees have expressed their willingness to deposit/adjustment of the employer's contribution of CPF as required in the memorandum dated 24.12.2001."

In the instant case also the respondents have issued Memorandum dt.

15.05.1985 wherein in one part it is declared that "Service rendered by an

employee under Government if any will count towards pension" and other

part it is mentioned that, "Service rendered in other States shall not count

as qualifying services". In the advertisement, it was mentioned that ten

years of continuous teaching experience recognized by the West Bengal

Council of Higher Secondary Education or West Bengal Board of Secondary

Education are equivalent and petitioner had submitted the certificate issued

by the Deputy Director of Education Arunachal Pradesh wherein it was

certified that petitioner rendered as Jr. teacher since 26th October, 1992 and

the school was recognized by the Government of Arunachal Pradesh and

permanently affiliated with Central Board of Secondary Education and thus