State Of West Bengal And Ors vs Sk. Nur Alam And Ors
2022 Latest Caselaw 7645 Cal

18.11.2022
 KC(4)




                                 F.M.A.762 of 2005
                           State of West Bengal and Ors.
                                      -versus-
                              Sk. Nur Alam and Ors.




             Mr. Tapan Kumar Mukherjee,
             Mr. Somnath De..........................For the appellants.


             Mr. Ekramul Bari,
             Sk. Imtiazuddin...........................For the respondents.

This is an appeal from a judgment and order

dated 6th February, 2004 passed by a learned single

judge of this court in the exercise of its writ jurisdiction.

The respondents/writ petitioners were former

teachers of a madrasa receiving aid from the State

government.

The principal question that arose for

consideration in the writ application was whether those

retired teachers would be allowed to switch over from

Contributory Provident Fund cum Gratuity Scheme to

the Pension including Family Pension cum Gratuity

Scheme, 1981?

There is no dispute whatsoever that the

respondents/writ petitioners were eligible to switch over

to the latter scheme, and that an application evincing

such desire had been filed by each of them. However,

the applications were beyond the time period of 90 days

from the date of coming into force of the scheme.

Paragraph 5 of the scheme stipulated that the

application had to be made within that period.

It is common ground that on the question of delay

alone the applications of the respondents/writ

petitioners were rejected by the appellant State.

The learned single judge while allowing the writ

application by the judgment and order dated 6th

February, 2004, inter alia, adopted the reasons in the

case of Md. Jainuddin Biswas and Ors. -vs- District

Inspector of Schools (S.E.), Nadia and Ors., reported in

2002 (3) C.H.N. 284. The learned judge also noted that

where in other cases teachers had been given time till

March, 1992 to exercise their option why the

applications of the respondents/writ petitioners in

August, 1990 "should not be treated as filed on time".

By the said judgment and order the respondent

District Inspector of Schools was directed to allow the

respondents/writ petitioners to change their option

from Contributory Provident Fund cum Gratuity

Scheme to the Pension including Family Pension cum

Gratuity Scheme within four weeks from the date of

communication of the order. The impugned

memorandum dated 8th May, 2002 was set aside.

A similar issue arising from conflicting orders of

the division bench were heard by a Special Bench of

this court in District Inspector of Schools (S.E.), Kolkata

and Anr. -vs- Abhijit Baidya and Ors., reported in 2013

SCC On Line Cal. 13189 : (2013) 3 C.H.N. 711. The

special bench took a liberal view of the delayed

applications and ruled on 16th July, 2013 as follows:

"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 amount 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.

If an employee exercises option, he shall be entitled to Pension-cum-Gratuity in accordance with law with effect from the date refund is made.

Let such exercise be completed within a period of six months from today.

The appeals filed by the State Government are hereby dismissed.

The writ petitions are allowed to the aforesaid extent."

Therefore, the impugned judgment and order has

been substantially affirmed by the Special Bench.

Mr. Bari, learned advocate for the respondents/

writ petitioners submits that the State had accepted the

verdict of the Special Bench and had acted in

accordance with it.

Still Mr. Mukherjee, learned counsel appearing

for the State prays for time to take instructions in the

matter. We are of the view that there is no scope of

taking further instructions.

In that view of the matter we direct the Principal

Secretary, Department of School Education,

Government of West Bengal to examine whether there is

any court order contrary to or in conflict with the

impugned judgment and order of the Special Bench

preventing its compliance.

If there is none he shall forthwith, within eight

weeks of communication of this order, carry

out/implement the impugned judgment and order dated

6th February, 2004 so that the respondents/writ

petitioners start receiving pension or family pension, as

the case may be, within that period, subject to their

complying with all formalities under the scheme.

For abundant clarity we observe that the

applications of the respondents/writ petitioners to

switch from Contributory Provident Fund cum Gratuity

Scheme to the Pension including Family Pension cum

Gratuity Scheme filed beyond time shall be deemed to

have been accepted after condonation of delay. In case

the Principal Secretary finds any order which is

contrary or conflicting with the above orders, preventing

compliance with the order he shall record the same in a

decision and circulate the same to the parties to enable

them to take steps in accordance with law. The

Principal Secretary, while making a decision with regard

to pension/family pension payable to each of the

respondents/writ petitioners shall also take a decision

on applicable interest on the same on delayed payment

of the amount.

The impugned judgment and order is affirmed, to

the above extent.

The appeal (F.M.A. 762 of 2005) is disposed of.

(I.P. MUKERJI, J.)

(BISWAROOP CHOWDHURY, J.)