Ar vs The State Of West Bengal & Ors
2023 Latest Caselaw 5060 Cal

80
        16.8.2023                     FMA 687 of 2022
Ct-08
                                               with
                                       I.A No. CAN 1 of 2022

                                         Basudeb Purkait
ar                                              Vs.
                                  The State of West Bengal & Ors.


                       Mr. Satyajit Mondal
                       Mr. Amar Nath Sen
                       Mr. Malay Dhar
                       Mr. Shouvik Naskar
                       Mr. Amt Bikram Mahata
                                        ... For the Appellant

                       Mr. Sanjib Das
                       Mr. Madhusudan Mukhopadhyay
                                   ... For the State Respondents

Mr. Bhaskar Prasad Vaisya Mr. Gourav Das ... For the Respondent no. 3/ DPSC, South 24 Parganas

1. We have heard the learned counsel

appearing for the parties.

2. The affidavits filed on behalf of the

Commissioner of School Education and the

report in the form an affidavit filed by the

Chairman, District Primary School Council,

South 24 Parganas, are taken on record.

3. The revised affidavits have been filed in

terms of the order dated 2nd August, 2023. In

the said affidavits the deponents have disclosed

the delay in processing the application of the

petitioner.

4. The writ petitioner is aggrieved by the

order passed by the Commissioner of School

Education, Government of West Bengal on 5th

February, 2021 rejecting the prayer of the

petitioner for full pensionery benefits on the

ground of non-completion of 10 years continuous

service. He filed a writ petition. The writ petition

was dismissed. Hence this appeal.

5. During the course of hearing of the appeal,

we directed the respondents to file affidavit

disclosing the reason for delay in processing the

application of the petitioner. The initial affidavit

was found to be unsatisfactory. Thereafter two

affidavits mentioned above have been filed. The

two affidavits are on identical terms. From the

said affidavits, it appears that the

appellant/petitioner participated in the

recruitment process initiated by the District

Primary School Council, South 24 Parganas in

the year 2006 under EC category. He was

empanelled as a successful candidate under the

said category. The written examination of the

said recruitment process was held on

20.12.2009. After preparation of the panel

following the West Bengal Primary School

Teachers Recruitment Rules, 2001 published

vide Notification No. 57-Se(Pry) dated 15th

January, 2002, the Chairman, DPSC, South 24

Parganas had forward the panel to the

Directorate vide memo no. 4703 dated 15th

February, 2010.

6. On verification of the relevant documents

as submitted by the DPSC, South 24 Parganas

and after checking the panel, the said panel was

approved and sent to the District Primary School

Council, South 24 Parganas by the Director of

School Education, West Bengal vide memo no.

2060-SC/P dated 16th February, 2010.

7. Thereafter the Chairman, DPSC, South 24

Parganas had taken steps for verification of the

EC Certificate of the appellant from the

competent authority. In response to such query

the B.D.O, Kakdwip informed the Chairman,

DPSC, South 24 Parganas on 5th April, 2010 that

no record was readily available at the office of the

B.D.O, Kakdwip. Upon receiving the said

communication the then Chairman, DPSC,

South 24 Parganas requested the District

Magistrate, South 24 Parganas for verification of

Census Certificate produced by the appellant on

28th April, 2010. It is stated that the appellant

had also requested the B.D.O, Kakdwip for

rectification the name of his father in the Census

Certificate.

8. The District Census Officer & Additional

District Magistrate (Development), South 24

Parganas issued a satisfactory report on 10th

February, 2011 clearly stating that Hriday

Krishna Purkait and Hriday Kumar Purkait was

the same person, but due to election embargo

the said certificate could not be given effect to

and the issuance of appointment letter could not

be issued immediately. Ultimately, on 18th May,

2011 the letter of appointment was issued and

the appellant joined service on 6th June, 2011.

By reason of this delay there was a shortfall of 1

year 5 months and 4 days for completion of 10

years of qualifying service for the grant of

pension under D.C.R.B Scheme 1981.

9. Learned counsel for the appellant has

submitted that the admit card and all relevant

documents having the signature of B.D.O were

produced for verification at the time of

processing his application and in all those

documents the name of the father of the

appellant was mentioned as Hriday Krishna

Purkait. Attention of the court is drawn to such

certificate appearing at pages 79, 80 and 81 of

the said petition.

10. It appears that the mistake was done on

behalf of the B.D.O and the B.D.O admittedly

could not furnish any detail as it is stated in the

report that he could not readily found out the

record which, however, was retrieved later and

cross verified. It cannot be doubted that if the

appellant were given the appointment letter soon

after 16th February, 2010, when the panel was

approved in which his name appeared, there

would not have been shortfall of 2 months of

qualifying service. Which is condonable under

Rule 7(e)(iv) of the D.C.R.B Scheme 1981. The

said Rule is reproduced below:-

"7(e)(iv): Upon any condition which it may

think fit to impose, Government may condone a

deficiency of six months in the qualifying service

of the employees of non Government/ Sponsored/

Aided Educational Institutions/ Organisations.

Note: The deficiency should not be condoned with

a view to make up the minimum prescribed

qualifying service for the purpose of death gratuity

or family pension. In other cases power should be

restricted to the employees drawing pay not

exceeding Rs.425.00 per month at the time of

retirement on invalid or compensation pension."

11. The said rule came up for consideration

before the coordinate bench presided over by one

of us (Soumen Sen,J.) in MAT 1917 of 2019 with

CAN 279 of 2020 ( The State of West Bengal Vs.

Rabindra Nath Ghosh) decided on 28th May,

2021, in which the coordinate bench observed

that:"The teacher has worked for almost 10 years

and was found to be eligible for being appointed

as a teacher would be denied pensionary benefits

on such flimsy ground. The avowed object of the

1981 scheme which is undoubtedly a beneficial

piece of legislation enacted for the purpose of

teachers and other employees covered by the said

scheme to not be deprived of their past service is

now being attempted to be rendered nugatory by

taking recourse to harsh and irrational views in

denying such legitimate claim. In our view. it does

not augur well with the appellants. The object and

of the said scheme is defeated and rendered

otiose if the interpretation given by the appellants

are accepted to deny the benefits to the teachers."

12. It is clear from the affidavit filed on

behalf of the respondents that there has been no

willful delay or neglect on the part of the writ

petitioner/appellant. The delay was attributable

to the respondents. The appellant/petitioner

cannot be made to suffer for the delay caused in

processing his application for appointment. He

was a successful empanelled candidate as on

16th February, 2010. From March 2010 till the

issuance of the appointment letter i.e. 18th May,

2011, the files were moved from one department

to other for verification of the name,

notwithstanding the fact that all documents

disclosed by the appellant at the time of

processing his application were mostly issued by

competent authorities of the Government and

there was no reason for the State respondents to

doubt the veracity of the said documents.

13. Under such circumstances, the order

dated 5th February, 2021 issued by the

Commissioner of School Education is set aside.

In our view there will be a shortfall of

approximately 2 months which requires approval

from the Government.

14. We direct the Secretary, Education

Department (Primary) to consider the prayer for

condonation of approximately 2 months of

qualifying service of the appellant within three

weeks from date taking into consideration the

observation made in this order and the judgment

of the coordinate bench passed in MAT 1917 of

2019 with CAN 279 of 2020 ( The State of West

Bengal Vs. Rabindra Nath Ghosh) mentioned

above and shall dispose of the matter by passing

a reasoned order to be communicated to the

appellant within one week thereafter.

15. On such consideration, the appeal being

FMA 687 of 2022 is allowed and stands disposed

of. The order of the learned Single Judge is set

aside. However, there shall be no order as to

costs.

16. In view of the disposal of the appeal

nothing remains to be decided in the application

for stay being CAN 1 of 2022 and the same is

accordingly disposed of.

13. Urgent Photostat certified copy of this

order, if applied for, be given to the parties on

usual undertaking.

 (Uday Kumar, J.)                  (Soumen Sen, J.)