Aruna Chatterjee (Dutta) vs State Of West Bengal & Others

Tapabrata Chakraborty, J

The present writ petition has been preferred challenging inter alia an order dated 20th May, 2019 passed by the respondent no.2.

Mr. Bhattacharya, learned senior advocate appearing for the petitioner prays for leave to implead the Commissioner of School Education as party respondent to the present writ petition. Such prayer is considered and allowed. The learned advocate-on-record of the petitioner is directed to effect necessary correction in the cause title of the writ petition. As Mr. Chattopadhyay, learned advocate appearing for the State respondents can also appear on behalf of the added respondent no.9, fresh service of a copy of the writ petition upon the said added respondent is dispensed with.

Mr. Bhattacharya submits that the petitioner was appointed to the post of an assistant teacher in a primary school by an order dated 28th January, 1978. Subsequent thereto, a show-cause notice was issued to the petitioner on 27th June, 1989. The petitioner challenged the said show-cause notice before this Court and by an order dated 11th September, 2009 passed in W.P. 8665(W) of 1989, the said show-cause notice was set aside. Challenging the said order, the respondent no. 5 preferred an appeal, being MAT 1091 of 2009. In the said appeal an interim order was passed on 28th January, 2010 observing inter alia that the " order impugned to the extent where show cause notice dated June 27, 1989 was set aside, is stayed. The other part of the order permitting the respondent no.1 to join her duty, would abide by the result of the appeal."

The petitioner was thereafter allowed to join as an Assistant Teacher at Bhalagora Primary School under Adra circle on 30th March, 2010 on the basis of an order passed by the Council on 22nd March, 2010, subject to the result of the pending appeal. The said appeal was dismissed as "not pressed" by an order dated 16th August, 2011 and the petitioner continued her service thereafter and retired from the post on 31st May, 2012. However, as the pensionary benefits were not settled, the petitioner again approached this Court by a writ petition, being W.P 36119(W) of 2013. The same was disposed of by an order dated 19th July, 2018 directing the respondent no.2 therein to consider and decide the claim of the petitioner for pensionary benefits. Pursuant to the same, the respondent no.2 passed an order on 12th September, 2018. Aggrieved by the said order, the petitioner again preferred a writ petition, being W. P. 20324(W) of 2018 and by an order dated 2nd April, 2019 the impugned order passed by the respondent no.2 was set aside and the said respondent was directed to revisit the issue. Pursuant to that order the respondent no.2, passed an order on 23rd May, 2019 which is impugned in the present writ petition.

Mr. Bhattacharya submits that it would be explicit from the order impugned itself that the petitioner joined the post on 31st January, 1978 as an assistant teacher at Arrah Harijan Primary School and worked there till 18th June, 1989. The subsequent period from 19th June, 1989 to 29th March, 2010 stood regularised since the petitioner was allowed to join on 30th March, 2010 on the basis of an interim order dated 28th January, 2010 passed by the Hon'ble Appeal Court subject to the result of the appeal and since the said appeal was ultimately dismissed as "not pressed" on 16th August, 2011.

Mr. Chattopadhyay, learned advocate appearing for the State respondents denies such contention of the petitioner and submits that the petitioner did not serve in the said school during the period from 19th June, 1989 to 29th March, 2010 and as such, the petitioner's claim for salaries pertaining to the said period is not sustainable.

Indisputably the petitioner joined the said school as an assistant teacher and worked till 18th June, 1989. Thereafter, she was absent from her duties from 19th June, 1989 to 29th March, 2010. Pursuant to the interim order of the Hon'ble Appeal Court dated 30th March, 2010 she was allowed to join on 30th March, 2010 and thereafter she worked till the date of her superannuation on 31st May, 2012. She was duly paid her salaries during the period from 30th March, 2010 to 31st May, 2012.

The impugned order dated 23rd May, 2019 passed by the respondent no.2 is not sustainable since in the said order the respondent no.2 has proceeded on the basis as if the petitioner had never worked in the said school from the date of her appointment in the year 1978 till the date of her joining on the basis of the Hon'ble Appeal Court's interim order dated 29th March, 2010. There is no dispute that the petitioner was appointed by a letter dated 28th January, 1978 and she discharged her services till 18th June, 1989 and by virtue of such service she has acquired the qualifying service required for availing the pensionary benefits. In view thereof, the impugned order dated 23rd May, 2019 passed by the respondent no.2 observing that the petitioner is only eligible for getting gratuity for the service period from 30th March, 2010 to 31st May, 2012, is not sustainable and the same is, accordingly, set aside.

However, in the writ petition no document has been annexed to establish that the petitioner's period of absence during the period from 19th June, 1989 to 29th March, 2010 was regularised.

In view thereof, this Court directs the added respondent no.9 to consider the issue as to whether the period from 19th June, 1989 to 29th March, 2010 can be regularised, upon granting an opportunity of hearing to the petitioner and to take a decision, in accordance with law and to communicate such decision to the petitioner. The petitioner would be at liberty to produce all relevant documents at the time of hearing.

It is made clear that in the event the said issue is decided against the petitioner, the respondent no.9 shall issue necessary order towards grant of pensionary benefits to the petitioner treating her period of service from the date of appointment i.e. 31st January, 1978) till 18th June, 1989 as qualifying service.

The above exercise shall be completed within a period of six weeks from the date of communication of this order to the added respondent no.9 along with a copy of the writ petition. Needless to observe, immediately after issuance of the said order by the added respondent no.9 all follow up steps shall be taken by all the respondents towards actual disbursement of pensionary benefits to the petitioner, forthwith.

With the above observations and directions the writ petition is disposed of.

There shall, however, be no order as to costs.