Calcutta High Court (Appellete Side)
Biswa Bhusan Nandi vs Union Of India & Ors on 3 October, 2024
03 & 04
03.10.2024
Ct. No. 11
Jayanta
WP.CT 88 of 2017
Biswa Bhusan Nandi
Vs.
Union of India & Ors.
with
WP.CT 177 of 2017
+
CAN 1 of 2023
Union of India & Ors.
Vs.
Biswa Bhusan Nandi
Ms. Soma Pandey
Mr. Debashis Sinha
Ms. Sharmistha Dhar
Ms. Sonali Gupta Sa
Mr. Rishav Ray
Mr. Chiradeep Sinha
....For the Petitioner in WP.CT 88/2017.
&
....For the Respondents in WP.CT 177/2017.
Mr. Anirban Mitra
....For the Respondents in 88/2017.
&
....For the Petitioners in WP.CT 177/2017.
1. This case has a chequered history. The petitioner,
namely, Biswa Bhusan Nandi (hereinafter referred to as
Biswa) in the writ petition being WP.CT. 88 of 2017
(hereinafter referred to as the first WP) after joining the
Indian Air Force rendered service for about 15 years.
Thereafter, he applied for the post of Data Entry Operator
as an Ex-Serviceman pursuant to a notification of the
Department of Personnel and Training (in short, DoPT) on
12th February, 1986. He emerged to be successful in the
written test and also cleared the interview, however, he
was not granted appointment. Aggrieved thereby, he
preferred an original application (in short, OA), being OA
22 of 1997. The said OA was, however, dismissed by an
order dated 28th June, 2005. Challenging the same,
Biswa preferred a writ petition being WP.CT 215 of 2005,
which was disposed of by an order dated 20 th June, 2005
setting aside the order impugned and directing the
respondents to accommodate Biswa in the post of Data
Entry Operator, Gr. B, (DEO) and if for any reason it
cannot be made possible, the petitioner may be
accommodated in a suitable alternative post.
2. Biswa thereafter filed an application being CAN
No. 6744 of 2005 seeking correction of typographical
errors and on the date of hearing of the same, on the oral
prayer of the respondents in the said writ petition, time
towards compliance of the order dated 20 th June, 2005
was extended for three months by an order dated 31st
August, 2005. Thereafter again the respondents preferred
an application being CAN no. 10446 of 2005 seeking
further extension of time towards compliance and by an
order dated 17th February, 2006 such time was extended
till 31st March, 2006. In the midst thereof, the respondent
no. 2 and others preferred a Special Leave Petition being
SLP (C) no. 5694 of 2006 challenging the order passed in
WP.CT. 88 of 2017 but the same upon contested hearing
was dismissed with costs assessed at Rs. 50,000/- by an
order dated 29th August, 2008.
3. Thereafter, the competent authority vide memo
dated 27th January, 2009 offered appointment to Biswa.
However, he was not granted seniority as per his batch of
selection of the year 1994 and his back wages. He was
also not included in the Old Pension Scheme applicable
to employees appointed prior to the year 2004. As the
representations for such benefits were not considered,
Biswa preferred an application for appropriate order
being CAN 10731 in WP.CT 215 of 2005 but the same
was dismissed on 11th September, 2013 with liberty to
apply before the Tribunal and accordingly, Biswa
preferred OA 590 of 2014. The same was disposed of by
an order dated 16th November, 2016. Challenging inter
alia the inaction towards implementation and denial of
fixation benefits, Biswa preferred the first WP. The Union
of India and its functionaries also preferred a writ
petition being WP.CT 177 of 2017 (hereinafter referred to
as the second WP) challenging the order dated 16 th
November, 2016. The said writ petitions were analogously
heard on 10th July, 2018 and the parties were directed to
exchange their affidavits. In the second WP, Biswa also
filed an application being CAN 1 of 2023 for
disbursement of his legitimate and lawful claims.
4. Ms. Soma Panda, learned advocate, assisted by
Mr. Sinha, learned advocate appears on behalf of Biswa
and submits that the respondents in the first WP have
violated the directions of the Hon'ble Court for which
Biswa had to approach this Court on repeated occasions.
In the midst thereof, Biswa attained his age of
superannuation on 31st March, 2018 and till date, his
retirement benefits had been withheld.
5. She argues that it would be explicit from the
memo dated 5th June, 2009 and 14th October, 2010 that
Biswa had been granted seniority at the bottom of the
batch of the year 1995 and that as such he cannot be
denied the benefit of notional fixation of pay on and the
year of 1995 and the benefits of the Old Pension Scheme
which was in force at the said juncture.
6. She contends that in course of hearing before the
learned Tribunal, it was submitted on behalf of the
respondents in the first WP that Biswa had been granted
appropriate seniority along with the 1995 batch and he
has also been granted the benefit of notional fixation.
7. She submits that with the sole intent to frustrate
Biswa's claim and to heckle and harass him, the Union of
India and its functionaries also preferred the second WP
and simply kept it pending. Such conduct is most
unbecoming of the model employer.
8. Mr. Mitra, learned advocate appearing for the
petitioners in the second WP, however, denies and
disputes the contention of the respondents and argues
that the submission made by the learned advocate does
not bind the authorities. The learned Tribunal
erroneously recorded that 'it is not denied that the benefit
of notional fixation of pay has been granted to the
applicant with his batchmates 1995, admittedly i.e. prior
to the date of commencing of New Pension Scheme from
01.01.2004.'
9. According to him, Biswa was not qualified for the
post and he is not even entitled to notional benefits on
and from the year 1995 since he was actually appointed
vide memo dated 27th January, 2009. Such appointment
was duly accepted by Biswa without raising any objection
whatsoever and as such at this juncture he cannot turn
back and claim benefits of appointment from the year
1995.
10. He further argues that the learned Tribunal erred
in law directing the authorities to grant the benefits of
the Old Pension Scheme in favour of Biswa since the said
scheme expired much prior to the issuance of the letter of
appointment in the year 2009 and the New Pension
Scheme came into effect from 1st January, 2004. Such
arguments, as advanced, were glossed over by the
learned Tribunal and no finding was returned on the
same.
11. Answering our query Ms. Panda, learned advocate
appearing for Biswa informs us that Biswa had already
retired in the month of November, 2018 and till date the
pension payment order has not been issued and the
retirement benefits have been arbitrarily withheld by the
authorities. Mr. Mitra, however, submits that he has no
instruction till date as to whether any retirement benefit
has been released in favour of the Biswa.
12. We have heard the learned advocates appearing
for the respective parties and considered the materials on
record.
13. The argument of Mr. Mitra that the actual
submissions of the learned advocate appearing for the
authorities were wrongly recorded is not acceptable to
this Court since no steps were taken by the authorities
before the learned Tribunal contemporaneously.
14. Fairness and reasonableness are paramount
issues for administrative action. As a model employer, the
State must conduct itself with high probity and candour
and ensure that its employees do not succumb to the
procedural rigmarole particularly when the claim pertains
to retirement benefits. Biswa had contested his claim
since the year 2003 and had remained trapped in a
purgatorial legal rigmarole, moving back and forth
between the High Court and Tribunal.
15. A perusal of the order of the Hon'ble Supreme
Court would reveal that on behalf of the petitioners in the
second WP assurance was given before the High Court
that the order passed by High Court would be complied
with and that such promise was absolute and
unequivocal in nature and that as such the Hon'ble
Supreme Court refused to exercise discretionary
jurisdiction under Article 136 of the Constitution of India
and did not interfere with the order impugned in the SLP.
16. The said SLP was disposed of on 29 th August,
2008 and appointment was issued on 27th January,
2009. Issuing a memo dated 14th October, 2009 the
Director himself stated that Biswa may be allotted a
seniority at the bottom of the batch (year of examination)
on the basis of which candidate just before him has
joined. The seniority list published vide memo dated 5th
June, 2009 clearly indicates that Biswa was granted
seniority along with his batchmates from the year 1995
and his name stands incorporated at serial 282 of the
seniority list. In the said conspectus, the learned
Tribunal held that Biswa was entitled to notional benefits
from the year 1995. However, as Biswa did not render
actual service on and from 1995 till 27th January, 2009,
the learned Tribunal did not grant him back wages and
we do not find any infirmity in such direction. The
learned Tribunal further observed that as Biswa had
been treated to have been appointed along with his
batchmates with bottom seniority from the year 1995 and
as at that juncture the Old Pension Scheme was in
operation, he is entitled to the benefits of the said Old
Pension Scheme and the respondents in the second WP
were rightly directed to grant the benefits of the Old
Pension Scheme to Biswa upon making necessary
deduction from his salary, in accordance with law.
17. The learned Tribunal, upon dealing with all the
factual issues arrived at specific findings and we do not
find any error, least to say any patent error of law in the
judgment impugned.
18. In view thereof, the prayer of the petitioners in
the second WP for setting aside the order of the learned
Tribunal is refused and they are directed to disburse all
the retirement benefits to Biswa granting him notional
fixation of pay as has been granted to his batchmates of
the year 1995 with fixation benefits and to treat him to be
a member of the Old Pension Scheme and to grant the
benefits of the said Scheme, upon making necessary
deduction, in accordance with law, positively within a
period of four weeks from the date of communication of
this order.
19. With the above observations and directions both
the writ petitions and the connected application are
disposed of.
20. There shall, however, be no order as to costs.
21. Urgent certified photocopy of this order, if applied
for, be supplied as expeditiously as possible.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
