Calcutta High Court (Appellete Side)
Smt. Latika Mondal (Ray) vs The State Of West Bengal & Ors on 8 August, 2023
08.08.2023
SL No.20
Court No.8
(gc)
FMA 595 of 2021
CAN 1 of 2022
Smt. Latika Mondal (Ray)
Vs.
The State of West Bengal & Ors.
Mr. Ekramul Bari,
Mr. K.M. Hossain,
Mr. Abdus Salam
...for the Appellant.
Mr. Arjun Roy Mukherjee,
Ms. Tapati Samanta,
...for the State.
1. The appeal is arising out of an order dated
13th November, 2019 passed in a writ
petition filed by the appellant challenging
the fixation of pension by the authorities in
terms of the pension payment order dated
November 29, 2016. This writ petition was
dismissed on the ground of res judicata
and/or constructive res judicata by reason
of the fact that in the earlier writ petition
although the appellant has relied upon
G.O. No.57-SE (B) dated 27th January,
1995. At the time of disposal of the said
writ petition, it was observed that the
entire grievance of the writ petitioner with
regard to the fixation of pension has been
duly taken care of and remedied and
respondent No.8 was directed to release
necessary cheque/pay order in favour of
the petitioner as regards arrears of
pension, the basis of which was disclosed
in the compliance affidavit filed before the
learned Single Judge. It appears that at
the time of disposal of the writ petition, the
appellant had accepted the submission
made on behalf of the State that necessary
order for fixation of pay had already been
issued and the same would be disbursed in
accordance with law from the Treasury
Office, respondent No.8.
2. In the subsequent writ petition, the writ
petitioner based her claim on the basis of
the Government Order dated 27th January,
1995 issued by the Department of School
Education, Secondary Branch,
Government of West Bengal. According to
the appellant/petitioner, the said
Government Order made the petitioner
eligible for grant of higher scale of pay as
the petitioner had taken six classes per
week in History, though the petitioner was
appointed as a teacher of Work Education.
In the earlier writ petition, the writ
petitioner had disclosed an Audit
Observation dated 27th November, 2014
whereby it was observed that a clarification
of the school regarding M.A. scale could
not be acceptable as it was a matter of
improvement of qualification and hence
G.O. No.57-SE (B) dated 27th January,
1995 could not be made applicable and the
P.S.A was requested to look into the matter
and take necessary steps as per G.O.
3. However, in the said writ petition, a
document was disclosed dated 17th
October, 1995 in which the D.I. of Schools
(S.E.), Bankura in its communication to
the Secretary, school concerned had
informed that the appellant was entitled to
draw the Post-Graduate scale of pay with
effect from 1st February, 1995 vide the said
Government Order for taking 6 periods in
History notwithstanding the reservation
expressed in the Audit and communicated
to the D.I. of Schools (S.E.), Burdwan by
Government of West Bengal, Directorate of
Pension, Provident Fund & Group
Insurance, Finance Department. Hence in
the earlier writ petition, there was a
necessity for adjudication with regard to
the applicability of the said G.O. to the writ
petition.
4. The writ petition was finally disposed of by
recording of the writ petitioner with regard
to the pension being fixed by the
department concerned and admittedly, the
petitioner had received the revised pension
for almost 18 months before the present
writ petition is filed.
5. We cannot lost sight of the fact that the
petitioner although having raised the issue
ultimately did not pursue it and the writ
petition was disposed of on the basis of the
affidavit filed by the State fixing the
pension which apparently was fixed on the
basis of the order passed by Justice
Dipankar Datta, as His Lordship then was,
on 2nd June, 2015 by which it was made
clear that whatever amount to be released
in favour of the petitioner and accepted by
her upon rectification of the defect pointed
out in the impugned Audit Observation is
carried out without prejudice to her rights
and contentions in the writ petition.
Unfortunately, this issue was never
decided at the time of disposal of the writ
petition. The writ petition was disposed of
by Justice Rajiv Sharma, as His Lordship
then was, on 5th December, 2016 with the
following observation:-
"Learned Counsel for the State has
put up appearance on behalf of the State
and states that necessary orders for
fixation of pension has already been
issued and the same shall be disbursed
in accordance with law from the treasury
office, respondent no.8.
In view of the aforesaid
submission the grievance of the
petitioner has already been meted out.
Therefore, the instant writ petition has
become infructuous and the same is
dismissed as infructuous.
However, the respondent no.8 is
directed to release necessary
cheque/pay order in favour of the
petitioner as regards arrears of pension
and to communicate the same to the
petitioner within a period of one month
from the date of communication of
certified copy of the order."
6. The learned Counsel for the writ petitioner
did not raise the issue that the acceptance
of the pension pursuant to the rectification
of the defect pointed out in the impugned
Audit Observation did not take away her
right to challenge the said impugned Audit.
It, thus, creates an impression that the
stand taken by the State with regard to the
pensionary benefits of the writ petitioner
has been accepted and any other objection
with regard thereto is deemed to have been
waived.
7. This primarily was the reason for the
learned Single Judge in the subsequent
writ petition to deny the reliefs by applying
principles of res judicata and/or
constructive res judicata as it is settled
principles of law and that in a writ
proceeding, the principle of res judicata
and/or constructive res judicata clearly
applies. (See Asgar & Ors. Vs. Mohan
Varma & Ors., reported in 2019 SCC
Online SC 131)
8. Mr. Ekramul Bari, learned Counsel
representing the appellant/writ petitioner
submits that the legal right to receive
pension consequent upon enhancement of
qualification has been duly recognized by
two Coordinate Benches in which one of us
(Soumen Sen, J.) was a party and denial of
such benefits would cause irreparable
prejudice to the petitioner. The decisions
relied upon are:-
i) MAT 1824 of 2014 (Sujit
Kumar Adhikari Vs. State of
West Bengal & Ors.) dated
24.07.2023;
ii) Rajendra Nath Biswas Vs.
State of West Bengal & Ors.
reported at 2012 (2) CLJ (Cal)
320.
9. The learned Counsel for the State has
submitted that the writ petition was
required to be dismissed on the ground of
acquiescence and if any right the writ
petitioner had, she has consciously waived
such right.
10. There cannot be any doubt that the writ
petitioner did not argue with regard to the
non-applicability of the said Government
Order and had accepted the amount
towards the pension as fixed by the
Government without any demur. Hence, it
cannot be said that the judgment of the
learned Single Judge in dismissing the writ
petition was erroneous and/or contrary to
law.
11. Mr. Bari has further submitted that
there are error apparent on the face of the
judgment as it did not consider the view
expressed by Justice Datta at the stage of
the admission of the writ petition clearly
preserving the right of the writ petitioner to
agitate such point at the time of disposal of
the writ petition and the writ petitioner
may not suffer for the mistake committed
by the learned Advocate in not arguing the
said point and raising the said issue at the
time of disposal of the said writ petition.
12. It would be open for the appellant, if so
advised, to take appropriate steps in
accordance with law.
13. We are not presently in seisin over the
said matter and we are refraining ourselves
from making any comment with regard to
the submission of Mr. Bari.
14. Accordingly, the appeal and the
application are dismissed.
15. However, there shall be no order as to
costs.
16. Urgent Photostat certified copy of this
order, if applied for, be given to the parties
on usual undertaking.
(Uday Kumar, J.) (Soumen Sen, J.)
