Asit Baran Saha vs State Of West Bengal & Ors.

This writ petition has been filed assailing the order dated September 13, 2018 (for short, the impugned order) passed by the West Bengal

Administrative Tribunal, Kolkata, (for short, the Tribunal) in OA 1113 of 2014 (Asit Baran Saha vs. The State of West Bengal & Ors.) [for short,

Original Application], whereunder, the Original Application filed by the writ petitioner was dismissed.

The petitioner was employed as a Mohurreir, under one Sri. Durga Pada Saha, Tahasildar at Block No. 16 attached to Haroa for ten years. Then

pursuant to a scheme framed by the Land & Land Reforms department for absorption of casual workers who worked for more than five years, the

petitioner was appointed on regular basis on the post of night guard on May 6, 2002 in the Office of the third respondent. His service was confirmed

on June 29, 2007. Subsequently on November 19, 2009 the petitioner was promoted to the post of Amin under BL&LRO, Baduria w.e.f. July 1, 2008.

The petitioner then superannuated on September 30, 2010. The petitioner was reappointed as Amin under the BL&LRO, Basirhat on purely

contractual basis and had served at such post till March 5, 2013.

As the petitioner had served the State employer less than ten years he was not qualified to receive pensionary benefit. The petitioner was granted

his gratuity in terms of The West Bengal Services (Death-cum- Retirement Benefit) Rules, 1971 (for short, the 1971 Rules).

The petitioner made representations before his State employer for considering and granting him the pensionary benefit. Ultimately the petitioner's

claim for grant of pensionary benefit was rejected.

Being aggrieved by such rejection the petitioner applied before the Tribunal for the following reliefs:

a) to direct the respondent to grant minimum pension to the applicant in terms of W.B.S.(D.C.R.B.) Rules, 1971 as amended from time to time till

date thereby considering the qualifying service of the applicant as 10 years instead of 8 years 4 months 24 days for giving belated appointment after

PVR & medical fitness certificate from the date of his retirement on superannuation i.e. 01.10.2010 without any further delay;

b) to deal with and/or dispose of the representations of the applicant dated 29.08.2013 as contained in Annexure ""A-B"" herein in its correct

perspective;

c) to direct the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of the issues involved herein;

d) And to pass such further or other order or orders as to this Hon'ble Tribunal may deem fit and proper"".

By the impugned order the said Original Application was dismissed.

Mr. Nirbanesh Chatterjee appearing with Mr. Anjan Banerjee, Advocates for the petitioner submitted that, the petitioner had diligently served the

State employer without any complaint. To grant pensionary benefit to an employee of the State amounts to provide some social security to such a

State employee. It was submitted that, on August 29, 2013 the petitioner submitted his representation before his State employer and the same was not

dealt with. The Learned Advocate for the petitioner further submitted that, the relevant Rules of the 1971 Rules though provide for a continuous

service of ten years, the petitioner had served more than eight years and the short fall may be considered by taking into account the period of service

spent on casual basis. It was also submitted that, the petitioner is entitled to a minimum pension by notionally fixing his pay from the year 2000, as

appointment letter was issued to him belatedly in the year 2002 without any valid or cogent reason. In support of his contention Mr. Chatterjee,

appearing for the petitioner relied upon a judgment of the Coordinate Bench In the matter of: Pastu Deb Singha vs. State of West Bengal, reported at

2014(4) CHN(CAL) 32.

Mr. Joytosh Majumder, Learned Government Pleader, with Ms. Sucharita Paul and Mr. Sayan Ganguly, Advocates appearing for the State

submitted that, the relevant Rules dealing with pensionary benefit of a State employee specifically state that minimum service of ten years is required

for being entitled to receive the pension. So the primary condition is service for not less than ten years to become eligible for   pensionary benefit.

He further submitted that, such Rule must be construed and considered strictly. The State employer cannot travel beyond the Rules established in law

and grant pensionary benefit to a State employee. Thus, in the present case the Tribunal had rightly passed the impugned order rejecting the claim of

the petitioner. In support of his contention Mr. Majumder placed reliance on couple of judgments, namely, In the matter of: State of Odisha & Ors. vs.

Manju Naik, reported at (2020)11 SCC 809; In the matter of: W.P.S.T. No. 102 of 2017, The State of West Bengal & Ors. vs. Ram Chandra Pal; In

the matter of : W.P.S.T. No.64 of 2018, Smt. Gouri Sen Mallick vs. The State of West Bengal & Ors. and In the matter of: W.P.S.T. No. 176 of

2019, Pranab Kr. Sarkar vs. State of West Bengal & Ors.

After considering the submissions made on behalf of the parties and upon perusal of the material before this Court, it appears that while passing the

impugned order the Tribunal had considered all the relevant facts and material before it. The petitioner failed to prove that he was in continuous

regular service of not less than ten years. As per Rule to be eligible for grant of pension one has to serve the State for a minimum period of ten year

on regular service.

In the matter of: Pastu Deb Singha (supra) it was not in dispute that the petitioners therein were initially appointed on temporary basis. That

service was followed, without a break, by permanent service. The petitioners continued to work as such till they reached the age of superannuation.

The fact in the instant cases is not such, the petitioner had re-employment when he was employed at the Office of BL&LRO.

In the matter of: Manju Naik (supra) the Hon'ble Supreme Court held as under:

An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard

and long for the employer. The Pension Rules provide for qualifying service of 10 years for such entitlement. When the question arises as to how

certain provisions of the Pension Rules are to be understood, it would be appropriate to read the provision in its context which would mean reading the

statute as a whole. In other words, a particular provision of the statute should be construed with reference to other provisions of the same statute so

as to construe the enactment as a whole. It would also be necessary to avoid an interpretation which will involve conflict with two provisions of the

same statute and effort should be made for harmonious construction. In other words, the provision of a Rule cannot be used to defeat another rule

unless it is impossible to effect reconciliation between them. Pension as already stated is earned by stint of continuity and longevity of service and

minimum qualifying service should therefore be understood as the requirement for invalid pension as well. The Pension Rules can be harmoniously

construed in this manner and in that event, there shall be no clash between provisions in the said Rules.

The condition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made

to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do

not appeal to us. The respondent's husband who had served for lesser years that the 10 years qualifying service, was found entitled by his employers

to service gratuity only, because of his premature retirement on the ground of mental incapacitation and this is what is prescribed by the Pension

Rules. The dues toward service gratuity was paid accordingly. The Pension Rules definitely envisaged that there could be a situation where an

employee may not be eligible for pension benefits for not satisfying the prescribed qualifying service of 10 years. For those with less than 10 years'

service, the Pension Rules provide for gratuity payment and therefore, it is difficult for us to conclude that for invalid pension, qualifying years of

service, can be ignored"".

In the matter of: Pranab Kr. Sarkar (supra) a Coordinate Bench of this Court had held as under:

Be that as it may, at the time the petitioner was absorbed on July 26, 2007, he accepted the appointment without any demur. On behalf of the

petitioner, learned advocate had drawn the attention of the tribunal to two decisions of coordinate Benches of this Court, the first being a unreported

decision dated February 16, 2015 in W.P.S.T. 81 of 2014 : Sk. Golam Zikria vs. State of West Bengal & Ors. and the other decision reported in 2014

(4) CHN (Cal.) 32 : Pastu Deb Singha vs. State of West Bengal & Ors.

The tribunal took into consideration the decisions in Sk. Golam Zikria (supra) and Pastu Deb Singha (supra) and rendered a finding that there was

nothing on record to establish that the petitioner, while working as a Tahasil Mohurrior had been in continuous engagement, in the sense that he had

been engaged for a perennial nature of job and that he rendered service throughout the year; accordingly, the tribunal held the decisions to be

distinguishable on facts. This was followed by the following observations:

........In the present case, we have already observed that there was no continuity of service of the applicant during the period from March 2, 1985 to

July 30, 2007 and the  applicant rendered service in a permanent post for about six months only......

In view of our above observation, we are constrained to hold that the applicant is not entitled to get pension in terms of the provisions of the DCRB

Rules of 1971.""...... We are of the considered opinion that the tribunal was right in concluding that the petitioner had failed to prove that he was in

continuous service during the period he was engaged as a Tahasil Mohurrior. The distinction that has been drawn by the tribunal while not relying on

the decisions in Sk. Golam Zikria (supra) and Pastu Deb Singha (supra) is fine but real

Rule 67(B) of the 1971 Rules stipulates that, to become entitle to receive pensionary benefit a permanent government employee must complete no

less than ten years of continuous service. In the present case, the petitioner in 2002 became a permanent/ a regular employee of the State employer

which was confirmed in 2007 and finally he was superannuated on September 30, 2010. So, the tenure of the petitioner as a permanent employee of

the State employer was little more than eight years and not ten years of a continuous employment. Prior to 2002 the petitioner was employed as casual

workers and he failed to show that he was in a continuous employment even before 2002, when he was appointed on regular basis. On interpretation

of the relevant rules to receive pensionay benefit in various judgments discussed above, the law is now well settled.

In view of our fore going discussions and the reasons stated, this Court is of the considered opinion that there is no infirmity in the order of the

Tribunal. The Tribunal while arriving at its conclusion in the impugned order had correctly appreciated the applicable statutory rules   and the law

prevailing on the subject and the Tribunal did not commit any jurisdictional error. Thus, the impugned order stands.

The present writ petition being W.P.S.T. 9 of 2019 being devoid of any merit, stands dismissed.

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