Amal Kanti Chakraborty and Others vs The State of West Bengal and Others

Debangsu Basak, J.—198 retired teachers claim that they should be paid pensions with Revision of Pay and Allowances (ROPA) benefits from the date of their respective retirement.

The writ petitioners were working as teachers when ROPA, 1981 had come into effect. The writ petitioners had opted for contributory provident fund scheme. Pursuant to the public notice issued by the State Government in terms of the judgment and order dated July 16, 2013 passed by the Special Bench reported in District Inspector of Schools (SE) and Others Vs. Abhijit Baidya and Others etc. etc., the writ petitioners had applied for switch over to Pension-cum-Gratuity. They were allowed to do so. They claim that they should be paid Pension-cum-Gratuity from the respective dates of their retirement and not from the date of refund of employer''s share of Contributory Provident Fund. They found their claim on the basis of their impleadment in a Special Leave Petition.

It is contended on behalf of the writ petitioners that, they were added as parties to the Special Leave Petition directed against the judgment and order rendered by the Division Bench in State of West Bengal and Others Vs. Biswanath Koley, . The special leave petition was subsequently dismissed by the Hon''ble Supreme Court. Biswanath Koley (supra) was considered by a Special Bench in Abhijit Baidya & Ors. (supra). The writ petitioners were not parties in Abhijit Baidya & Ors. (supra). Although the writ petitioners had exercised their option in terms of a notification issued pursuant to Abhijit Baidya & Ors. (supra) as the writ petitioners were not parties in Abhijit Baidya & Ors. (supra) they are to be governed by the ratio laid down in Biswanath Koley (supra). They are entitled to receive pensionary benefits from the date of their retirement and not from the date of refund.

On the issue that 198 writ petitioners can maintain one writ petition, reliance has been placed on Parul Debnath and Others Vs. Union of India (UOI) and Others, . Referring to All India Reporter Mrinal Kanti Das and Others Vs. The State of West Bengal and Others, it is submitted on behalf of the writ petitioners that, the ratio laid down therein is not attracted to the facts of this case.

The State authorities are represented. It is submitted on behalf of the State that, 198 persons cannot maintain one writ petition as the petition does not show the existence of jural relationship between writ petitioners. Relying upon Mota Singh and Others Vs. State of Haryana and Others, it is submitted that, existence of jural relationship amongst the writ petitioners is a must for maintaining one writ petition. Smt. Parul Debnath & Ors. (supra) did not consider Mota Singh & Ors. (supra). This fact has been pointed out in Mrinal Kanti Das & Ors. (supra). In such circumstances the present writ petition at the behest of 198 writ petitioners is not maintainable.

Without prejudice to the question of maintainability, it is submitted on behalf of the State that, the writ petitioners are not entitled to the relief as sought for. The writ petitioners had acted in terms of Abhijit Baidya & Ors. (supra). The writ petitioners had applied and exercised their option in terms of the notification issued pursuant to Abhijit Baidya & Ors. (supra). The writ petitioner having accepted such notification cannot be permitted to contend otherwise.

The principal issue that arises for consideration in the present writ petition is as follows:-

Whether the writ petitioners are entitled to receive pension from the respective dates of retirement, after having exercised the option to switch over in terms of Abhijit Baidya & Ors. (supra)?

Death cum Retirement Benefit Scheme governing primary teachers had come into effect from April 1, 1966. In 1981 revision of pay scales was effected by way of Revision of Pay and Allowances, 1981. In 1985 Death cum Retirement Benefit Scheme, 1981 was framed. Two options were given under the Death cum Retirement Benefit Scheme, 1981. One of such option was contributory provident fund cum gratuity and the other was Pension-cum-Gratuity. Revision of pay and Allowances, 1990 had come into being on the basis of recommendations of a pay commission. Paragraph 17 of ROPA, 1990 had allowed revised pay with certain consequences flowing from exercise of option. In 1998 Revision of pay and Allowances, 1998 was introduced. Provisions of paragraph 17 of ROPA, 1990 were amended.

Various writ petitions were filed with regard to the schemes and the ROPA benefits. One of such petitions was disposed of by the Division Bench in Biswanath Koley (supra). A Special Leave Petition was filed challenging Biswanath Koley (supra). The writ petitioners herein were added as parties in such Special Leave Petition. The Special Leave Petition directed against Biswanath Koley (supra) was dismissed by the Supreme Court.

Views of different Division Benches apparently contrary to that expressed in Biswanath Koley (supra) gave rise to a reference resulting in Abhijit Baidya & Ors. (supra). The Special Bench in Abhijit Baidya & Ors. (supra) had formulated five questions for consideration. Such questions were as follows:-

i) Whether a person who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension by virtue of operation of para 17 of ROPA 1990?

ii) Whether an incumbent who has exercised an option under ROPA 1990 can still be conditioned to the rider of option to be exercised under West Bengal Recognised Non-Government Educational Institution Employees DCRB Scheme, 1981, particularly in view of the amendment effected in paragraph 17(2) vide G.O. 226-SE (B)/1M-102/98, dated 16th May, 2007 and whether the amendment made in paragraph 17(2) can be said to be valid law; that too with retrospective effect?

iii) Whether para 13 of Revision of Pay & Allowance Rules 1998, as amended by Notification dated 13th July, 1999 relating to the employees of West Bengal Recognized Non-Government Aided Institutions can be said to be valid in law?

iv) Whether after amending the para 13 of ROPA 1998 on 13.07.1999 and para 17 of ROPA 1990 in 2007, it was necessary to give fresh opportunity to employees to revise option under West Bengal Recognized Non-Government Educational institution Employees (Death-cum-Retirement Benefit) Scheme, 1981?

v) Whether the time-limit fixed under the DCRB Scheme, 1981 to submit option can be extended in suitable cases?

The Special Bench in Abhijit Baidya & Ors. (supra) had answered such questions as follows:-

"74) Thus, we answer the five questions in the following manner:

1) An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was not necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had not opted for ROPA 1990. Benefit of Pension-cum-Gratuity was conferred due to acceptance of reduced age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right for Pension-cum-Gratuity so accrued could not have been taken away retrospectively by substitution of the provisions of para 17 in 2007 or by substitution of para 13 of ROPA 1998 in 1999.

2) Once option has been exercised under ROPA 1990, a person cannot be subjected to the rider of the option exercised under the DCRB Scheme, 1981 as the invitation of the option under the said Scheme was with respect to the employees who elected to continue in service till the age of 65 years and to have the benefit of the old scheme. For such employees, opportunity was given to submit fresh options as per Memo dated 16th December, 1991.

The amendment made in para 17(2) of ROPA 1990 on May 16, 2007 cannot be said to be valid piece of law as such provisions cannot be substituted with retrospective effect to take away the rights already accrued to an employee. So as to validate provisions of para 17(2) of ROPA 1990, as substituted, it was necessary to invite option for switching over to Pension-cum-Gratuity from CPF-cum-Gratuity when the substitution of para 17(2) of ROPA 1990 was made on 16th May, 2007 with retrospective effect.

3) Para 13 of the ROPA 1998 as amended on 13th July, 1999 cannot be said to be valid in the eye of law as it has the effect of taking away benefit conferred by para 17(2) of ROPA 1990, as the ROPA 1998 was made applicable to the employees who had opted for ROPA 1990 and the benefit conferred could not have been taken away by substitution of provisions contained in para 13 of ROPA 1998. It was clearly arbitrary and an unreasonable exercise of power and to treat it as valid and legal, it was necessary to invite fresh option under the DCRB Scheme, 1981 for switching over to Pension-cum-Gratuity as the provisions had been amended drastically which could not operate to the prejudice of the employees in whose favour right to claim Pension-cum-Gratuity had accrued. The substituted provisions of para 13 of ROPA 1998 fail to qualify Wednesbury principles of reasonableness. The action was in utter violation of fair play and justice.

4) In our opinion, after substitution of para 13 of ROPA 1998 on 13th July, 1999 and para 17 of ROPA 1990 on 16th May, 2007, in order to save the provisions from the vice of arbitrariness, it was necessary to give an opportunity to the employees to submit fresh option under DCRB Scheme, 1981. As the option exercised earlier in terms of the DCRB Scheme, 1981 was made applicable, it was necessary to give fresh opportunity to exercise an option for switching over to Pension-cum-Gratuity and the State could not have acted to the detriment of the employees opting for ROPA 1990 who chose the rider of reduced age of superannuation i.e. 60 years under para 17(1) of ROPA 1990.

5) In our opinion, as there was drastic change of provisions of para 17(2) of ROPA 1990 made by way of substitution in 2007, and ROPA 1998 also interfered with the rights conferred upon the employees under para 17(2) of ROPA 1990, all the employees who opted for ROPA 1990 ought to be given fresh opportunity to submit the option to switch over to Pension-cum-Gratuity.

75) Coming to the relief to be granted, it is clear that some of the employees are in service and some of them have retired and averments are on record that they are ready and willing to repay the amount of employer''s share of contribution in the CPF together with interest and additional interest as option had not been called from them to switch over to Pension-cum-Gratuity while substituting para 13 of ROPA 1998 w.e.f. 13th July, 1999 and retrospective substitution of para 17(2) of ROPA 1990 on 16th May, 2007 w.e.f. 6th March, 1999.

76) We direct the State Government to give opportunity to all the petitioners and other employees similarly situated to submit option to switch over to Pension-cum-Gratuity by issuing public notice in at least four newspapers having wide circulation in this State. Three months'' time period be given to them to exercise option and let the amount be specified to each and every employee who elects to switch over to Pension-cum-Gratuity to deposit the amount of employer''s share of contribution with interest and additional interest which is required to be refunded to the Government within the period specified.

77) If an employee exercises option, he shall be entitled to Pension-cum-Gratuity in accordance with law with effect from the date refund is made."

The Special Bench in Abhijit Baidya & Ors. (supra) had directed issuance of public notice to implement such decision. Acting in terms of Abhijit Baidya & Ors. (supra), the State Government had issued a public notice dated June 13, 2014. In paragraph 77 the Special Bench in Abhijit Baidya & Ors. (supra) had directed that if an employee exercises the option offered he would be entitled to pension cum gratuity scheme in accordance with law with effect from the date of refund being made. The public notice contained various terms and conditions. One of such terms and conditions was that, the employees governed therein would be entitled to pension in accordance with law with effect from the date of refund in terms of the direction of the Hon''ble High Court.

The writ petitioners are employees who are governed by the public notice dated June 13, 2014. The writ petitioners have exercised the option offered to them by such public notice without any reservation as to their alleged entitlement. The writ petitioners are receiving their pension in accordance with law.

Essentially the writ petitioners are seeking that they be paid Pension-cum-Gratuity from a date much prior to the date fixed by the Special Bench for employees who would exercise the option of switch over. They have, however, not traced their so-called entitlement from any judicial order or executive decision.

The writ petitioners need to establish that they should treated separately, amongst retired teachers, who had applied for switch over pursuant to the public notice, for the writ petitioners to succeed. The separate classification is sought to be made on the basis of the writ petitioners being added as parties in the Special Leave Petition directed against Biswanath Koley (supra). In Abhijit Baidya & Ors. (supra) the Special Bench has held that, the view expressed by the Division Bench in Biswanath Koley (supra) is correct. The Special Bench however did not issue any direction exclusively for the parties in Biswanath Koley (supra). The Special Bench decision was rendered subsequent to the dismissal of the Special Leave Petition directed against Biswanath Koley (supra). The writ petitioners have not established any reasonable basis for the classification they seek. The writ petitioners have not placed any material on record evidencing that, they are to be treated as a separate class amongst persons similarly situated. The law governing the field of permission to switch over is the decision rendered by the Special Bench in Abhijit Baidya & Ors. (supra). The writ petitioners had acted in terms of Abhijit Baidya & Ors. (supra). They had accepted the directions contained therein and are deemed to have done so. The writ petitioners while exercising their option in terms of Abhijit Baidya & Ors. (supra) without the reservation that, they are a class apart. Merely because the writ petitioners were added as parties to the Special Leave Petition does not place any of them in a separate category. No extra right had accrued in their favour by such impleadment, in the facts of this case. They cannot receive a better or a separate deal than provided to others governed by Abhijit Baidya & Ors. (supra). In such circumstances I do not find any basis to treat the writ petitioners as a separate class different from similarly situated persons warranting grant of reliefs as sought for by them.

The first issue is answered in the negative and against the writ petitioners.

The other issue raised in course of hearing of the writ petition is not considered as nothing would turn on the decision of such issue in the facts of this case. The writ petitioners have already been found not be entitled to any relief. A decision on the maintainability of the writ petition after hearing the writ petition on merits may not put the parties in any other position than in what they are placed by the decision on the merits.

The claim made in the writ petition being a misadventure I am minded to award costs. However, I refrain from doing so in deference to the nature of services rendered by the writ petitioners during their employment and their present age.

W.P. No. 20604 (W) of 2015 is dismissed.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.