Mansura Begam vs State Of West Bengal & Ors.

Pursuant to my earlier order Mr. Dhole assisted by Mr. Abhisek Prosad is appearing on behalf of the State of West Bengal. Mr. Dhole has produced

today a copy of the Calcutta Gazette Extraordinary. In it the notification has been published bearing no. 749-SE (L)/SL/5S-56/13(Pt-V) dated June 13,

2014. The judgment of the Hon’ble Special bench has also been quoted in the said notification. In the case of District Inspector of Schools (SE),

Kolkata Vs. Abhijit Baidya and others reported in (2013)3 CLJ 178, their Lordships in the Special Bench were inter alia pleased to directed as follows:

“(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-cumGratuity 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 Pensioncum-Gratuity in accordance with law with effect from the date refund is made.â€

Pursuant thereto the State of West Bengal issued the above Government Order (G.O.) where at paragraph 3(ii) the following has been mentioned:-

“The said employees shall exercise their options in the prescribed form and submit the same to the Headmaster/Headmistress/Teacher-inCharge/in

case of Secondary Schools (herein after referred to as the said Head of the Institution), to the Sub-Inspector of Schools in case of Primary Schools, as

the case may be, within 3 months from the first date of publication of the said public notice in newspapers. In case of schools already abolished or

derecognized, the option shall be submitted to District Inspector of Schools/Additional District Inspector of Schools/Assistant Inspector of Schools in

charge of the Sub-Division, as the case may be. However, in case of amalgamated schools, the said employees shall submit option to the said Head of

the Institution of the school with which the erstwhile school has been amalgamated or to the said Head of the Institution to which he was shifted. The

said Head of the Institution shall submit his option to the Secretary or Administrator or DDO of the school (hereinafter referred to as the Secretary).

The received copy of the said option is to be submitted to the District Inspector of Schools/Additional District Inspector of Schools/ Assistant

Inspector of Schools in charge of the sub-Division within 15 days from the date of exercise of such option.â€​

It is the case of the writ petitioner that her husband who was superannuated from service on September 30, 2013 exercised the said option by signing

the treasury challan form on October 30, 2014. Thereafter, her husband died, yet she complied with the order of the Hon’ble Special Bench and

the circular by depositing the amount by way of refund equivalent to the employer’s share of contribution with interest and additional interest to

avail of the benefit of conversion from Contributory Provident Fund to Pension-cum-Gratuity.

The petitioner claims that by the order at page 33 the Assistant Director of Pension, Provident Fund and Group Insurance, rejected her prayer for

being given the benefit of Pension-cum-Gratuity only because according to the said respondent no.5, the option form was furnished beyond the

prescribed period, id-est, on September 17, 2014 (not October 30, 2014 as stated by the writ petitioner) which was beyond three months from the date

of the Government Order dated June 13, 2014. Thus, according to the respondent no.5, the petitioner’s claim was barred by four days of delay in

her husband’s submitting the option.

Paragraph 3(ii) of the Government Order dated June 13, 2014 speaks of the period of three months from the first date of publication before

advertisement in terms of the judgment of the Hon’ble Special bench. In order to come to a finding that the option was not within the period of the

said three months, the respondent no.5 was required to specify the date of the first advertisement with sufficient particulars as to where it was

published before coming to the conclusion that the option was barred in terms of the above notification and the judgment of the Hon’ble Special

Bench. This he has not done.

Consequentially, the finding that the option was time barred is based on no material on record. It, therefore, is perverse and suffers from

Wednesbury’s unreasonableness and does not require deep scrutiny. Accordingly, in exercise of my powers under Article 226 of the Constitution

of India I set aside and quash the said order at page 33 of the writ petition by way of judicial review of the decision making process of the 5th

respondent.

The 5th respondent shall, therefore, consider the matter afresh and pass a reasoned order in the light of my above judgment. In case he relies upon

any document other than those referred to in the order, which is to be being quashed, he shall give a further opportunity of being heard to the writ

petition. Logical effect is given to the decision as taken by the respondents. The entire process must be completed within a period of three months

from June 23, 2018 or from communication of this order, whichever is later. After he has taken a reasoned decision, he shall communicate the order to

the writ petitioner within a fortnight thereafter. Since the writ petition is being disposed of without calling for affidavits (according to my earlier order)

on question of law the allegations of fact in the writ petition are not admitted. The writ petition is, thus, allowed. There will be no order as to costs.

Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.