Calcutta High Court (Appellete Side)
State Of West Bengal vs Suphal Chandra Pramanik And Ors on 6 July, 2023
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
F.M.A. 1313 of 2021
State of West Bengal
Vs.
Suphal Chandra Pramanik and Ors.
For the appellant :- Mr. Pinaki Dhole,
Mr. Abhishek Prasad, Advs.
For the respondents :- Mr. Kamalesh Bhattacharya,
Ms. Papiya Chattopadhyay, Advs.
Judgment on :- 06.07.2023
I. P. Mukerji, J.:-
What is the interpretation to be given to the memorandum of the Education
Department (Budget branch), Government of West Bengal dated 20th May,
1988? It is in the following terms:-
"GOVERNMENT OF WEST BENGAL
Education Department (Budget Branch)
MEMORANDUM
Memo No. 180-Edn.(B)
IM-83/88 Dated : Calcutta, the 20th May, 1988.
Sub : Counting of service spent in unaided Institution(s) by teaching
and non-teaching staff of Educational Institution(s) towards
pensionary benefits.
In supersession of G.O. No. 31.EDn.(B) dt. 1.2.88 the undersigned is
directed by order of the Governor to say that the Governor has been pleased
to direct that service rendered by a teaching or non-teaching employee in
unaided Institution or Institutions shall be counted towards pensionable
service provided at the time of retirement/death/superannuation of the
employee concerned the Institution or Institutions in which the incumbent
served received aid from the Government or any other body authorised by
the Government for the purpose.
2. While forwarding the pension case to the Directorate of Pension, Provident
Fund and Group Insurance, West Bengal, the Pension Sanctioning Authority
will have to certify accordingly in the service book of the incumbent
concerned that the employee concerned served in a recognised institution
and retired from an aided institution (other than only D.A. getting school).
3. This Memo, takes effect from 01.04.1981.
4. The aforesaid provision will not apply to educational institution which
receive only Dearness Allowance.
5. This has the concurrence of Finance Department, Group-J vide their U/O
No. 1473-Gr. J date 20.5.88.
Sd/- S. S. Chattopadhyay, (Secretary)."
The respondent writ petitioner had a long career as a teacher in different
schools in West Bengal from 1974. He retired in the year 2008 from
Sahapur Mathuranath Vidyapith, an aided institution. During his career,
he also worked in Batanagar High School which was a D.A. getting school,
from 1979 till 1982. Batanagar continues to be a D.A. getting unaided
institution.
The question is whether on the strength of the above memorandum of the
government the service of the respondent writ petitioner in the unaided
institution Batanagar would be counted towards pensionable service?
According to the government, the interpretation to the notification would be
that at the time of retirement, all the institutions where the respondent
taught would have to be an aided institution.
Learned counsel for the appellant has relied upon a memorandum dated
19th April, 2006 of the government to the effect that if the service of a
teaching or non-teaching staff was in more than one institution out of
which one or more than one was a D.A getting institution, then the service
in the D.A getting institution would constitute a break in service and not be
taken into account in calculating pensionable service. If the service in the
aided school was prior to that in a D.A getting school, that service would
not be counted.
In WP No. 20990 (W) of 1998 (Amulya Ratan Chakraborty vs. State of West
Bengal & Ors.) on 7th July, 2000 the Hon'ble Mr. Justice M.H.S. Ansari
sitting singly, dealing with the self same issue ruled that the institution
from which the employee retired would have to be an aided institution. The
court held that the service of the writ petitioner in Batanagar High School,
an unaided but dearness institution had to be counted towards his
pensionable service since he had retired from an aided institution.
Following that interpretation, the learned single judge on 20th August, 2018
allowed the instant writ application setting aside the departmental order
dated 28th January, 2014 and directed the appellant authorities to
calculate the pensionary benefits of the respondent writ petitioner by
taking into account the entire service period starting from 1974 including
his service in Batanagar High School.
We are fully in agreement with the reasons given by his lordship in Amulya
Ratan Chakraborty vs. State of West Bengal & Ors. and followed by Mr.
Justice Saraf in the impugned judgment and order.
We also have our own reasons for not accepting the interpretations to the
memorandum dated 20th May, 1988 made by the government. Suppose, an
employee had worked in institutions 'A', 'B', 'C' and 'D' during his tenure as
a teacher. Let us assume that 'A', 'B' and 'D' were aided institutions and 'C'
was not. Suppose while the employee was rendering service in the last
institution 'D', which was an aided institution, the government stopped
aiding 'A' and it ceased to be an aided institution. Having retired from 'D',
an aided institution and having worked in 'A', which was an aided
institution throughout the period the employee worked there, would he lose
the benefit of his service in 'A' because at the time he was teaching in 'D',
'A' ceased to be an aided institution? That would make a most illogical
interpretation of the memorandum. The right interpretation is that which
has been made by Mr. Justice Ansari and Mr. Justice Saraf that what
would be counted was the petitioner's service in an aided institution at the
time of retirement and if that were so, his service in the unaided institution
prior to that would also be counted towards pensionable service.
This memorandum of 19th April, 2006 was not cited before the learned trial
judge. The effect of this memorandum is to take away the benefit conferred
by the memorandum dated 20th May, 1988. The benefit that was conferred
on the respondent by the 1988 memorandum could not have been taken
away by the 2006 memorandum just two years before his retirement. This
latter memorandum could only be made effective against those employees
who joined D.A getting schools during the course of their service after the
date of notification and not to those who had served in aided and D.A
getting schools and lastly in aided schools earning the right of pension
under the 20th May, 1988 notification. Enforcing the memorandum of 2006
of the respondent who retired in 2008 would be inequitable and most
unreasonable and unjust. For those reasons, the said memorandum of
2006 has no application to the case of the respondent.
We dismiss the appeal and affirm the impugned judgment and order dated
20th August, 2018. Compliance of the impugned judgment and order dated
20th August, 2018 read with this judgment and order is to be made within
eight weeks from the date of communication of this order. The appeal (FMA
1313 of 2021) is accordingly disposed of.
Certified photocopy of this order, if applied for, be supplied to the parties
upon compliance with all requisite formalities.
I agree.
(BISWAROOP CHOWDHURY, J.) (I. P. MUKERJI
