Calcutta High Court (Appellete Side)
Ar vs The State Of West Bengal & Ors on 21 August, 2023
19 21.8.2023 MAT 146 of 2011
Ct-08 with
I.A No. CAN 1 of 2011(Old CAN No. 964 of 2011)
CAN 2 of 2011(Old CAN No. 4815 of 2011)
Sribas Ranjan Patra
ar Vs.
The State of West Bengal & Ors.
Mr. Jayanta Das
Ms. Soumita Ghosh
... For the Appellant
Ms. Tapati Samanta
... For the State
Re: CAN 4815 of 2011
(Condonation of Delay)
1. There is a delay of 545 days in presenting
the memorandum of appeal.
2. We are satisfied with the explanation offered
for not being able to file the memorandum of
appeal within the statutory period, we are
inclined to condone the delay in presenting
the memorandum of appeal.
3. The application for condonation of delay is,
thus, allowed without any order as to costs.
4. CAN 4815 of 2011 is thus disposed of.
MAT 146 of 2011
1. We have heard the learned counsel
appearing for the parties.
2. The appeal is arising out of an order dated
20.4.2009 passed in a writ petition in which the
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petitioner prayed for pensionery benefits for his
service in the upgraded segment (Secondary) of
Dubai Rasiknagar Vivekananda Vidayatan in the
district of Purba Medinipur.
3. The writ petition involves two issues:
firstly, the audit observation with regard to the
period between 1st May, 1997 and 28th February,
2002 denying pension due to shortfall in
qualifying service and secondly, the arrear salary
and other allowances for the aforesaid period
consequent upon the approval of the said post by
the D.I w.e.f 1st May, 1997 with notional pay
fixation and financial benefit w.e.f 01.3.2002.
4. The writ petitioner was initially appointed
without approval in the school. The school was,
however, upgraded during his tenure of service
and he had applied for absorption in the
upgraded segment being the Secondary section.
When his application was not accepted in normal
course, the petitioner filed a writ petition and an
order was passed on 3rd October, 2001 by
directing the concerned District Inspector of
Schools to send a District Level Inspection Team
to the Institution within a period of two weeks
from the date of communication of the order on a
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working day and upon notice to all concerned in
order to satisfy whether the petitioner was
actually working in the said school, as claimed in
the writ petition. In compliance of the said
order, an inspection was held and the petitioner
was found to be working at the relevant time.
5. The grievance of the petitioner was that his
service for the period between 1st May, 1997 and
28th February, 2002 is not being counted as
qualifying service for the purpose of computation
of his pension by the District Inspector of
Schools(S.E), Purba Medinipur. As a result
thereof, he could not fulfill the 10 years of
qualifying service which would have entitled him
to receive in terms of West Bengal Recognised
Non-Government Educational Institutions
Employees (Death-cum-Retirement) Benefits
Scheme, 1981 (1981 Scheme in short).
6. Learned Single Judge on consideration of
the materials on record observed that "the
admitted position is that the school concerned
was upgraded as a High School with effect from
1st May 1997. Thereafter in pursuance of the
direction of this Court, the District Level Inspection
Team had conducted the inspection and in their
report filed on 31st December, 2001, the petitioner
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was found to be working in the said school as
organizer teacher. Relying on this report, the
authorities chose to regularize the service of the
petitioner with effect from 1st May, 1997 in the
vacancy created due to opening of Class X. The
memorandum, which has been reproduced in the
earlier part of this judgment, specifies that from
1st May, 1997 the regularization of the service of
the petitioner was taking effect with notional
fixation and financial benefits was to be given
from 1st March, 2002. Clause 7 of the 1981 Rules
deal with service qualifying for pension, and sub-
clause (b) of the said clause provides:
" .... Continuous service of a whole-
time approved employee in any
educational institution, shall count as
qualifying service."
Clause 8 of the said Rules prescribes that
subject to satisfactory service, an employee shall
be entitled to pension upon completion of ten
years of qualifying service on attaining the age of
superannuation, or thereafter on the expiry of the
period of approved extension. Different criteria of
qualifying service has been laid down in clause 8
in relation to voluntary retirement, but that again
is not relevant for the purpose of determination of
the subject dispute.
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The specific objection of the audit department,
as it appears from the memorandum issued by
the District Inspector of Schools ( Annexure "P5" to
the writ petition) is:-
"Without pay period i.e. from 01.5.97 to
28.2.2002 will not be counted as
qualifying service towards retirement
benefit without specific order from
competent authority."
The audit authority has not rejected the claim
of the petitioner for pension, and has observed
that this approximately five year period can be
counted as qualifying service only with a specific
order of the competent authority, without
specifying who would be such authority."
"The question which falls for determination in
this writ petition is as to whether the service
rendered by the petitioner between 1st May, 1997
and 28th February,2002 would constitute
qualifying service or not. As per the memorandum
issued by the District Inspector of Schools, the
petitioner's service was regularised with effect
from 1st May, 1997 with notional fixation of pay.
It is not the case of the respondents that the
petitioner did not render service continuously from
that date. The very use of the expression
"regularised" confers legitimacy on his service
from 1st May, 1997.
In terms of Clause 7(b) of the 1981 scheme,
what is required to count as qualifying service is
"continuous service of a whole-time approved
employee". Since the petitioner's service has been
regularised since 1st May, 1997, he fits the
description of a whole-time approved employee.
The authorities, in my opinion, are laying undue
emphasis on the period from which the petitioner's
fixation of pay was effected ignoring his
regularization in service. Such fixation of pay was
done from a date subsequent to the date on which
the petitioner's service was regularised under
special circumstances of the petitioner's case.
That date cannot be taken as the relevant date for
computing the petitioner's qualifying service.
Requirement of Clause 7(b) of the 1981 scheme is
that there must be continuous service for the
period of ten years by a whole-time approved
employee in an educational institution. This
clause does not stipulate that for this entire
period, he must have received regular pay.
Of course, it would be a reasonable
presumption that a whole-time approved employee
should receive regular salary specified for the post
during the entire period of his service. But in my
opinion, it does not lead to an automatic inference
that the regular service of an employee would lose
its legitimacy if because of special circumstances
like the one involved in the present case, such
employee does not receive the regular pay for his
entire service period. Otherwise, the
regularization of the petitioner's service with
notional fixation would be rendered nugatory.
As the memorandum of the District Inspector
of Schools dated 1st February, 2002 specifies that
the petitioner's service was being regularized with
notional fixation with effect from 1st May, 1997, in
my opinion the observation by the audit
department that the period between 1st May, 1997
and 28th February, 2002 would not constitute
qualifying service is without any basis. There
was no necessity to withhold the release of the
petitioner's pension pending decision of
unspecified "competent authority"(emphasis
supplied).
7. The order of the learned Single Judge has
been complied with, however, the learned Single
Judge declined to pass any order with regard to
arrear salary and other allowances for the said
period between 1st May, 1997 and 28th February,
2002.
8. The appellant is aggrieved by the aforesaid
refusal.
9. From the aforesaid narrative it is clear that
the service of the petitioner was regularised by
the District Inspector of Schools (SE) with effect
from 1st May, 1997 in the vacancy created due to
opening of Class X with notional pay fixation and
financial benefit with effect from 1st March,2002
vide Memo no. Law-53/1, dated 01.02.2002.
This memorandum is not under challenge. The
petitioner had received his remuneration on the
basis of such approval.
10. The petitioner was principally aggrieved
by the observation of the audit department, after
he retired, denying his pensioner benefits. The
order of approval of appointment of the petitioner
on 1st February, 2002 was passed on the basis of
the inspection report of the District Level
Inspection Team, which found upgradation of the
school. Thereafter, it was felt that service of the
petitioner could be regularised with retrospective
effect as he was found to be in the school
working and it was accordingly approved. The
petitioner claims to be the organizer teacher.
11. In view of the aforesaid order, the writ
petitioner was denied arrear salary and other
allowances.
12. We do not find any reason to interfere
with the order passed by the learned Single
Judge. The approval of appointment of the
petitioner is accepted by the authority.
13. In compliance of the order dated
20.4.2009 the pension file of the petitioner was
processed immediately and P.P.O was given as
per rule.
14. On such consideration, the appeal being
MAT 146 of 2011 is dismissed.
15. In view of dismissal of the appeal
nothing remains to be decided in the application
for stay being CAN 964 of 2011 and the same is
accordingly dismissed.
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.)
