Calcutta High Court: A single-judge bench comprising of Hiranmay Bhattacharyya, J., held that the delay in appointing the petitioner is solely attributable to the conduct of the respondent authorities and directed the authorities to consider the petitioner’s claim for pensionary benefit, treating him notionally appointed on the date the decision was taken to forward his name for approval.
Factual Matrix
In the instant matter, the petitioner, an assistant teacher in a primary school retired from service on superannuation on 31.08.2020 after serving for 9 years, 5 months, and 17 days. The qualifying service period for receiving pension as per the service rules is 10 years and due to a shortfall of about 6 months and 13 days, the petitioner was denied retiring pension.
The petitioner submitted a representation on 28-09-2020 to the District Inspector of Schools (DI), Murshidabad, seeking condonation of deficiencies in the service period. However, due to alleged inaction on the part of the respondent authorities in considering the request, the petitioner filed a writ petition. The Court directed the Secretary, Department of Primary Education, to decide on the petitioner’s prayer for condonation within a specified time frame. The court directed the Secretary, Department of Primary Education, to decide the matter in light of a specific precedent (Aparesh Chandra Dutta) within a specified time frame.
The petitioner challenged the order of the Principal Secretary to the Government of West Bengal School Education Department dated 24-02-2022, which again rejected his application for condonation of deficiency in the qualifying service period for grant of pension.
Parties’ Contentions
The petitioner contended that the delay in the petitioner’s appointment was due to the respondent authorities, and thus, the petitioner should not be deprived of pensionary benefits. Relying on State of W.B. v. Sumohan Mondal, MAT 1211 of 2019, order dated 11-04-2022, Niharendu Som v. State of W.B., WPA 12444 of 2017, order dated 08-09-2022 and State of W.B. v. Aparesh Chandra Datta, 2016 SCC OnLine Cal 486, the petitioner contended that he should be notionally appointed from an earlier date to extend pensionary benefits.
The respondent contended that the authorities do not have the power to condone the delay in qualifying service beyond six months, as stated in the Death-Cum-Retirement Benefit Rules, 1981 (DCRB Rules).
Court’s Observations
The Court observed that the petitioner had to approach the Court to sit for the examination for the post of Primary School Teacher and therefore, the delay in the appointment was solely attributable to the conduct of the respondent authorities, and the petitioner should not be penalized for it.
It Court noted that the DCRB Rules 1981 have statutory force, and without the power to condone the shortfall in qualifying service beyond the specified limit, no mandamus can be issued to act contrary to the statutory provisions, on the other hand “it is equally well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”
The Court held that the delay in appointment of the petitioner is solely attributable to the conduct of the respondent authorities and “the date on which the decision is taken to forward the name of the petitioner before the Director of Secondary Education shall be treated as the date of appointment notionally only for the purpose of computing the period of qualifying service for consideration of the claim of the petitioner for pensionary benefit.”
While relying on Sumohan Mondal (Supra) where it was held that in cases where delay in appointment is attributable to authorities, the affected person should not lose benefits when others have received them promptly, the Court directed the petitioner to be notionally appointed on the date when the decision was taken to forward the petitioner’s name to the Director of School Education, West Bengal, for approval of appointment.
Court’s Verdict
While setting aside the impugned order of the Principal Secretary, the Court allowed the petitioner’s writ petition and directed the authorities to consider the petitioner’s claim for pensionary benefits based on the notional appointment date, which was attributed to the delay caused by the authorities in appointing the petitioner to the post of Primary School Teacher.
[Goalbadan Mandal v. State of W.B., 2023 SCC OnLine Cal 2267, order dated 03-08-2023]
*Judgment by Justice Hiranmay Bhattacharyya
Advocates who appeared in this case :
Mr. Biswarup Biswas, Counsel for the Petitioner;
Mr. Amal Kr. Sen, A.G.P. and Mr. Lal Mohan Basu, Counsel for the Respondent/State.
An worthy verdict.