Calcutta High Court (Appellete Side)
Chinmoy Kumar Mondal vs State Of West Bengal & Ors on 18 April, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WPA 27838 of 2017
Chinmoy Kumar Mondal
-Vs-
State of West Bengal & Ors.
_______
Mr. Arunava Banerjee, Adv.
Ms. Mamata Dutta,Adv.
Ms. Sudipa Mandi,Adv.
Mr. Sk. Qareeb,Adv.
..... for the Petitioner
Mr. Bhaskar Prasad Vaisya,Adv.
Mr. Sagnik Chatterjee, Adv.
..... for the State Respondents
Heard On : 17.03.2023
Judgment on : 18.04.2023
Rabindranath Samanta, J:-
1. By preferring this writ petition the petitioner seeks pensionary benefits
counting his service from 8th May, 1991 instead of 1st January, 2014.
2. The background facts which led to the filing of the writ petition may
briefly be stated as follows:-
3. The petitioner was appointed as an organizing teacher of Dari
Keoradangi Ananda Prasad Junior High School at village Dari Keoradangi,
South 24 Parganas on 8th May, 1991.
4. The school was recognised as 2 Class i.e. Class V and Class VI Junior
High School. Thereafter, the Secretary of the School made several
representations to the concerned authority for granting further recognition for
upgradation of the said school. On 25th May, 2010 the West Bengal Board of
Secondary Education granted recognition for upgradation of the said school as
4 Class Junior High School and the school had been upgraded accordingly with
effect from 1st March, 2010.
5. On 19th March, 2010 the District Inspector of Schools (Secondary
Education), South 24 Parganas sent a memo dated 19th March, 2010 to the
Deputy Secretary, Government of West Bengal, School Education Department
for granting financial assistance to the school.
6. The petitioner was working as an organising teacher much prior to the
upgradation of the school since his appointment in the year 1991. He rendered
service for the benefit of the students of the school to the satisfaction of the
school authority. He was working in the regular available vacancy according to
the staff pattern of the school.
7. The petitioner made several representations to the concerned authority
seeking approval of his appointment as an Assistant Teacher of the School. But,
when the approval was not given in his favour he along with other teaching and
non-teaching staff of the school preferred a writ petition being W.P No.
14073(W) of 2010 praying for direction upon the District Inspector of Schools
(SE), South 24 Parganas to approve his appointment as well as the appointment
of other writ petitioners. By order dated 24.12.2010 the writ petition was
disposed of by a learned Single Judge directing the District Inspector of Schools
(SE), South 24 Parganas to approve the appointment of the petitioner within a
specified time. Since the solemn order of the learned Single Bench was not
complied with, the petitioner filed an application for contempt being CPAN 930
of 2011. Subsequently, the appointment of the petitioner was approved by the
District Inspector of Schools vide Memo dated 6th February, 2017 with effect
from 1st January, 2014 instead of 8th May, 1991.
8. Owing to the aforesaid order of approval financial benefit including
salary of the petitioner were granted to him on and from 01.01.2014 ignoring
the finding of the Hon'ble Court that the service of the petitioner should have
been counted from 8th May, 1991 for the purpose of pensionary and retiral
benefits. Because of this the petitioner may be deprived of getting pensionary
and other retiral benefits. The petitioner submits that had the District Inspector
of Schools approved his appointment with effect from the year 1991, he would
been entitled to get pensionary and other service benefits since the date of his
joining the school. The petitioner should have been given the financial benefits
from the month of June, 2010 when the school was upgraded.
9. The petitioner avers in the writ petition filed on 10th November, 2017
that he will retire from service on superannuation on 31.12.2017. Though he
served the Educational Institution for twenty seven years, he will be deprived of
getting pensionary benefits. His legal right to livelihood during the retiring
period till death has been taken away arbitrarily and in gross violation of Article
21 of the Constitution. Under such circumstances, the petitioner seeks
direction upon the respondent authorities to modify the order of approval dated
06.02.2017 counting his qualifying service with effect from 8th May, 1991
instead of 1st January, 2014 for his pensionay and other retiral benefits and to
give salary and other financial benefits to him from the date of filing of the
earlier writ petition being W.P No. 14073(W) of 2010.
10. In his affidavit-in-opposition the respondent no. 4, the District Inspector
of Schools (Secondary Education), South 24 Parganas states that the petitioner
was appointed by the concerned school authority namely Dari Keoradangi
Ananda Prasad Junior High School in the year 1991 without having any
sanctioned post of Assistant Teacher. The school was upgraded to high school
with effect from January 1, 2014 vide Memo dated 13.03.2014 issued by the
West Bengal Board of Secondary Education and since January 1, 2014 the
school was entitled to get 12 teaching posts, out of which, 4 posts were reserved
for language group in terms of G.O No.670-AC(S) dated September 4, 1998. The
petitioner was accommodated in language group in the said school in the
sanctioned post and had been working since 2014 till his superannuation.
Though the petitioner was engaged as an organizing teacher by the school
authority in the year 1991, but at the relevant point of time there was no
provision for appointment of any organizing teacher and/or formation of any
organizing managing committee. No authority was conferred upon any
organizing managing committee, even if formed, to appoint any teacher or
employee before the recognition of the concerned school. When the petitioner
was appointed as an organizing teacher in the concerned school, then
recruitment of teachers in a school was guided by the relevant Memorandum
issued by the Director of School Education. As per the Memorandum the
guidelines which were invoked for direct recruitment are as follows:
I) Obtaining prior permission of the concerned District Inspector of
Schools to fill up the posts;
II) There must be sanctioned posts in the school against which prior
permission was sought for by the school
III) Calling of names from Employment exchanges and in case of non-
availability of suitable candidates there was provision for open
advertisement
IV) Formation of selection committee in the school
V) Candidate must have age and qualification for recruitment and
process of evaluation of candidature
VI) Preparation of panel of selected candidates
VII) Approval of Panel by the District Inspector of Schools
11. But, there is nothing on record to show that the petitioner was
appointed by following the aforesaid procedure for recruitment. Since the
petitioner retired from service on superannuation in the year 2017 without
rendering atleast 10 years of service, he is not entitled to get pensionary
benefits. It may be noted that while the school authority submitted prayer for
upgradation of the school the Secretary of the Managing Committee of the
school in an affidavit stated that the school had no teaching and non-teaching
staff for an upgraded school. On such grounds and denying and disputing the
averments as made in the writ petition this answering respondent seeks
dismissal of the writ petition.
12. However, in his affidavit-in-reply the petitioner denies the averments as
made in the affidavit-in-opposition.
13. By a supplementary affidavit the petitioner has annexed some
documents namely viz, resolution dated 09.12.1990 adopted by the Managing
Committee of the school, staff pattern of teaching and non-teaching staff of the
school, photocopy of order dated 17th May, 1991 passed in writ petition being
CR No. 14396(W) of 1991 preferred by the Managing Committee of the school,
photocopy of order dated 24.12.2010 passed in W.P No. 14073(W) of 2010, copy
of approval letter dated 19.05.1992 issued by the District Inspector of Schools
according approval to the appointment of some teachers etc. The petitioner
states that though the staff pattern of the school prepared by the Managing
Committee of the School mentions the name of the petitioner, but the then
Secretary while made representation for upgradation of the school in an
affidavit stated that no teaching and non-teaching staff was recruited for the
school to be upgraded. The petitioner states that such statement in affidavit is
untrue.
14. It may be noted that during the pendency of the writ petition the
petitioner retired from service on 31st December, 2017.
15. Learned Counsel appearing for the petitioner submits that the prayer of
the petitioner now be restricted to granting pensionary and other retiral benefits
to him counting his service from his initial appointment on 8 th May, 1991
instead of 1st January, 2014 as mentioned in the approval of appointment dated
6th February, 2017. Learned Counsel by referring to the order dated 24.12.2010
passed by a learned Single Bench in W.P No. 14073(W) of 2010 submits that
the learned Single Bench observed that the petitioner had been discharging his
duties as a teacher of the school since 1991. In such context, learned counsel
submits that while the petitioner giving his heyday to the school authority
served the educational institution since 1991 should not be deprived of the
retiral benefits for his survival in the rest of his life.
16. Learned Counsel appearing for the State respondents submits that the
school namely Dari Keoradangi Ananda Prasad Junior High School was
upgraded to High School with effect from January 1, 2014 and the appointment
of the petitioner was approved with effect from January 1, 2014. His rendering
service since 1991 was not warranted by law and as such his qualifying service
would be counted from 1st January, 2014 till his retirement on 31st December,
2017. As the petitioner lacked the qualifying ten years' service, he is not entitled
to get any pensionary or retiral benefits. Learned counsel argues that the
appointment of organizing teachers is illegal and they are not entitled to any
benefits. In support of his contention learned lawyer places reliance on a
decision rendered by Division Bench of this Court on 14th September, 2017 in
MAT 582 of 2017 ( The State of West Bengal and Others-Vs-Tapan Kumar
Das and Others).
17. Undisputedly, the Managing Committee of the school by filing a writ
petition being C.R No. 14396 (W) of 1991 sought for direction upon the State
respondents to extend recognition of the school and approval of the
appointment of the staff made by the school authority. By order dated
17.05.1991 the writ petition was disposed of directing the State respondents to
extend the recognition of the school with effect from 1 st April, 1991 and approve
the staff pattern of the school for smooth functioning of the school.
18. In compliance of the aforesaid order the District Inspector of Schools
(SE), South 24 Parganas by a memo dated 19th May, 1992 approved the
appointment of three Assistant Teachers of Dari Keoradangi Ananda Prasad
Junior High School namely Shyamal Das, Shakila Khatun and Soumen Mondal
with effect from 01.04.1991, 01.04.1991 and 02.01.1992 respectively. It is the
contention of the petitioner that though he was appointed as an Assistant
Teacher in language group, his name was not included in the Memo of Approval
dated 19.05.1992.
19. Feeling aggrieved by the non-inclusion of his name in the approval of
appointment the petitioner Chinmoy Kumar Mondal and two others namely
Uttam Kumar Ghosh and Shyamal Kumar Mondal filed a writ petition being
WPA No. 14073(W) of 2010 seeking approval of their appointment as teaching
and non-teaching staff since 1991 onwards. Admittedly, by order dated
24.12.2010 the writ petition was disposed of by a learned Single Bench with the
following observation and direction:
"Since it appears that the petitioners have been serving the
institution in question since 1991, 1996 etc. as Assistant Teacher
and non-teaching staffs the appointments of the petitioners
should permanently be recognized by the concerned District
Inspector of Schools simply by virtue of their long length of
service. The school authority concerned who has received the
services of the petitioners for all these years does not oppose the
writ petition on merits.
In view of the above, I am of the opinion that the District
Inspector of Schools concerned should immediately approve the
appointments of the petitioners made by the Managing Committee
of the school way back in the year 1991 on words being to the
petition appearing at page 89 thereof. The District Inspector of
Schools concerned is, therefore, directed to approve the
appointments of the petitioners within a period of four weeks
from the date of communication of this order and once the
appointments are approved, the petitioner will be entitled to
receive salary and other benefits month by month without any
interruption.
The writ petition is disposed of without any order as to costs.
In passing the above order the decision of the Supreme Court cited
in support of the case of the writ petitioner, namely U.P. State
Electricity Board -Vs- Purna Chandra Pandey & Ors., reported in
2008, 1, C.L.J. (S.C.) is taken into account together with the
earlier decisions of this Court.
For the sake of convenience, urgency and communication, let a
Xerox plain copy of this order duly countersigned by the Assistant
Registrar (Court) or the Assistant Court officer be given to the
learned advocates for the petitioners on usual undertakings."
20. A reading of the order as quoted above shows that the learned Single
Bench by recording observation that the petitioners were appointed as teaching
and non-teaching staff in the year 1991 and onwards directed the District
Inspector of Schools to approve the appointments of them within four weeks
from the date of communication of the order. It was also directed therein that
once the appointments were approved the petitioners would be entitled to
receive salary and other benefits month by month without any interpretation.
Since the authority concerned did not comply with the direction of the learned
Single Bench within the stipulated period the petitioners preferred a contempt
application against the authority concerned. However, ultimately, by a Memo
dated 6th February, 2017 the District Inspector of Schools (SE), South 24
Parganas approved the appointment of the peititoner Chinmoy Kumar Mondal
as Assistant Teacher with effect from 01.01.2014, appointment of Uttam Kumar
Ghosh as a Clerk with effect from 01.01.2014 and appointment of Shymal
Kumar Mondal as a Group D also with effect from 01.01.2014.
21. While, the state authority approved the appointment of teaching staff of
the school before its up-gradation in terms of order dated 17.05.1991 passed in
the writ petition being C.R No. 14396(W) of 1991 and subsequently approved
the appointment of the petitioner Chinmoy Kumar Mondal and two others as
organizing teaching and non teaching staff, the argument advanced on behalf of
the State authority that their appointment was made without following the
recruitment rules is not acceptable.
22. The staff patterns as prepared by the Managing Committee and which
are annexed to the writ application show in unequivocal terms that since his
appointment on 8th May, 1991 the petitioner had been working as an Assistant
Teacher in language group of the school. A resolution dated 09.12.1990 adopted
by the then Managing Committee of the School evinces that the petitioner was
appointed as an Assistant Teacher to run the school properly since Class VII
and Class VIII were introduced in the school. The managing Committee of the
school is one of the respondents to the writ petition. But, no pleading has been
used by the Managing Committee of the school denying the staff pattern
showing the name of the petitioner as an Assistant Teacher as annexed to the
writ application.
23. It appears that the state authority by filing an application in a contempt
proceeding being WP CRC 76 (w) of 2014 sought for recalling the order dated
24.12.2010 passed in WP no. 14073(W) of 2010. By order dated 24th July, 2015
a learned Single Bench rejected the application on the reason that inherent
power cannot be exercised to recall the same order and reopen the writ petition
which was heard in presence of the parties and disposed of on merits.
Challenging the order dated 24th July, 2015 the State authority preferred an
appeal being MAT 1308 of 2015. By an order dated 3rd December, 2015 a
Division Bench of this Court dismissed the mandamus appeal preferred by the
State. Therefore, it stands that the order dated 24th December, 2010 passed by
the learned Single Bench in WP no. 14073(W) of 2010 has attained finality.
24. The learned Single Judge in the order dated 24th December, 2010
passed in the aforesaid writ petition observed that the petitioner was appointed
as an Assistant Teacher in the year 1991 and the school authority who received
the services of the petitioner for all those years did not oppose the writ petition
on merits. On such observation the learned Single Judge directed the District
Inspector of Schools to approve the appointment of the petitioner obviously with
the desire that his appointment would be since 1991. However, as stated above,
the District Inspector of Schools contrary to order of this Court approved the
appointment of the petitioner Chinmoy Kumar Mondal as an Assistant Teacher
with effect from 01.01.2014. The petitioner retired from service on
superannuation on 31st December, 2017.
25. It is submitted on behalf of the petitioner that presently the petitioner
does not pray for financial benefits with effect from 2010, but he restricts his
prayer to count his service with effect from 8th May, 1991 for the purpose of
pensionary and retiral benefits.
26. While the learned Single Bench in the order dated 24th December, 2010
upheld by the Hon'ble Appeal Court, has observed that the writ petitioner had
been serving the educational institution since 1991, the question which now
begs consideration is whether the long service rendered by the peitioner would
be thrown to winds.
27. While the school authority as well as the concerned State authority
utilised the service of the petitioner as an Assistant Teacher of the school to its
fullest extent, I do not find any justification as to why he should be denied to
get the pensionary and retiral benefits on counting his qualifying service since
8th May, 1991. An employee who gives all his youthness and heyday to his
employer legitimately expects that his employer will secure the rest of his life
after retirement.
28. Having heard learned counsels appearing for the parties and
considering all aspects of the matter I feel that in order to do the complete
justice this Court in exercise of its extraordinary or plenary power should grant
appropriate relief to the petitioner so that he may get the pensionary or retiral
benefits.
29. Accordingly, in exercise of its plenary power the writ petition may be
disposed of by passing the following order.
30. The concerned respondents are directed to grant pensionary and other
retiral benefits to the petitioner based on the last pay which he drew at the time
of retirement on superannuation by issuing Pension Payment order in his
favour with effect from 1st January, 2018 within eight weeks from the date of
communication of this judgement and order.
31. However, it is made clear that the petitioner shall not be allowed to
claim any other financial benefits of his service prior to 01.01.2014.
32. This judgment and order shall not be cited as a precedent.
33. With the aforesaid directions the writ petition stands disposed of.
34. No order as to costs.
35. Parties may act on the Server copy of this judgement and order duly
downloaded from the Official Website of this Court.
36. Urgent certified/Website copy of this judgment and order, if applied for,
be given to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.)
