State of West Bengal vs Purnendu Sen

S.K. Datta, J.—This is an appeal from the judgment and order of Hazra J. dated July 26, 1974, whereby the Rule obtained by the Petitioner Respondent on his application under Article 226 was made absolute. At the material time on or about December 30, 1957, the Respondent, who was an entomologist in the Directorate of Health Services, West Bengal, was working in the post of Professor of Medical Entomology, School of Tropical Medicine, Calcutta, on foreign service terms. The Government of West Bengal on the said date issued the following letter to the Director, the School of Tropical Medicine:

Dated Calcutta, the 30th Decr. 1957

No. PH/6199/IM-32/56.

Sir,

I am directed to refer to your letter No. 7876 dated the 24th July, 1957 and to say that Government are pleased to, allow Dr. P. Sen, Ph.D. (Lond.), D.I.C. (Lond.), Entomologist, Directorate of Health Services, West Bengal, to continue in the post of Professor of Medical Entomology, School of Tropical Medicine, Calcutta, on foreign service terms as specified in Govt. Order No. PH/2868/IM/32/56/1(1) dated the 3rd August, 1956, for a further period upto 15th March, 1958, i.e. the date prior to the date on which Dr. Sen will attain the age of superannuation.

A separate order will issue regarding his continuance in the post beyond superannuation for the period upto 8th August, 1960.

A copy of the said letter was sent to the Petitioner Respondent.

This letter was followed by the following letter dated May 13, 1959, issued by the Government of West Bengal to the Director of the Tropical Medicine:

Sub:

Appointment of Dr. P. Sen, Ph.D. (Lond.), D.I.C. (Lond.)

as Professor of Medical Entomology,

School of Tropical Medicine, Calcutta.

Sir,

In continuation of this department letter No. P.H/6199/IM-32/56 dated 30th December, 1957, on the above subject I am directed, by order of the Governor, to say that the Governor was pleased to permit Dr. P. Sen, Ph.D. (Lond.), D.I.C. (Lond.), last employed as Entomologist, Directorate of Health Services, West Bengal, under Article 531B of the C.S.R. to accept employment as Professor of Entomology at the School of Tropical Medicine, Calcutta, after superannuation for the period upto 8th August, 1960, on pay and allowances last drawn by him on the day prior to the date of his superannuation (exclusive of deputation allowance at one-fifth of pay) less pension equivalent of retiring gratuity, his pension being held in abeyance during the said period.

The Accountant-General, West Bengal, is being informed. To this letter was added the following note by the Director of the School of Tropical Medicine in forwarding the copy of the said letter to the Respondent.

Dr. P. Sen, Professor of Entomology, School of Tropical Medicine, Calcutta, for information. He is requested to please arrange for refund to the School Fund a sum of Rs. 2,880.44 as statement per enclosed being the excess amount drawn by his since 16th March, 1958, by way of deputation allowance and consequent increased D.A. as also pension equivalent of retiring gratuity at a very early date but not later than 30th June, 1959.

The Respondent initiated a writ proceeding in the appellate side of this Court being C.R. No. 947(W) of 1965 for issuance of a writ in the nature of mandamus forbearing the Government from demanding Rs. 2,880-44 and directing them to give benefit of the revised pay scale from April 1, 1950, instead of May 14, 1953. At the hearing of the Rule, it is recorded that a representation was made by the learned Government Pleader to the effect that the Government had agreed not to enforce the demand for refund of deputation allowance. As to pay revision, the learned Judges held that there was no satisfactory explanation why for the Respondent a date other than April 1, 1950, (when the revision of pay rules came into effect) was selected. The Rule was, accordingly, made absolute by order dated January 10, 1967, cancelling the demand for Rs. 2,880-44 and directing the Government to give to the Respondent the benefit of the revised pay scale from April 1, 1950.

The Respondent''s case in this Rule is that, on the basis of the letters quoted above, he was to be deemed to be in continuous service holding the same post even after the date of superannuation on March 15, 1958, till June 26, 1959, when he left the service of his own. This period from August 16, 1958, till June 26, 1959, should be taken into account in determining the amount of his pension.

Before Hazra J. the only question for consideration was whether the service of the Respondent for the aforesaid period from March 16, 1958, to June 26, 1959, should be taken as extension of service or re-employment. In deciding the controversy, the learned Judge passed the following order:

Mrs. Archana Sen Gupta, the learned Advocate for the State of West Bengal, submitted before me that the normal rule is that there is re-employment after the period of superannuation. The learned senior Advocate for the State of West Bengal Mr. P.K. Sen Gupta and the learned Junior Mrs. Archana Sen Gupta, however, had to admit that under the special facts of this case the Petitioner Dr. Sen may be treated as continuing in service and/or re-employed. The special facts of this case are that by letter dated December 30, 1957, the service of the Petitioner was to continue. Further, the service of the Petitioner cannot be treated as re-employment, because, the Government of West Bengal wanted refund of the pension from the Petitioner and made a demand for Rs. 2,880-44 in terms of the letter dated May 13, 1959. The said demand for Rs. 2,880-44 was cancelled by this Court by the judgment and order dated January 10, 1957, in Civil Rule No. 947(W) of 1965. In view of the said judgment and order, the Respondents are not entitled to contend that the continuation of the service of the Petitioner beyond the age of superannuation is re-employment. So under the special facts and circumstances of this case the Rule obtained by Dr. P. Sen shall be made absolute.

Before us Mr. P.K. Sen Gupta as also Mrs. Archana Sen Gupta, Learned Counsel for the Government, submitted that no such concession was made by them as recorded, but in the memorandum, of appeal no ground has been taken impugning the recording of concession. Even so, the learned Judge has examined the position on merits and was of the opinion that in view of the judgment in C.R. No. 947(W) of 1965, it was no longer possible to contend that the continuation of service of the Respondent beyond age of superannuation was re-employment. The Rule in the aforesaid circumstances was made absolute.

The order in C.R. No. 947(W) of 1956 does not in terms decide that the Respondent''s service was continued beyond the date of superannuation on August 15, 1958. Mr. P.R. Roy, Learned Counsel for the Respondent, contended that it should be deemed to be a finding to that effect, for unless the Respondent was in his substantive service, he could not be entitled to deputation allowance for his office as Professor of Entomology which was all through considered as a deputation post. It was further submitted that no question of deputation allowance would arise if the Respondent''s service after the date of his superannuation was considered as one by re employment.

In the above Civil Rule the claim for refund of deputation allowance made on the Respondent was given up by the Government and the order in Rule cancelling the demand was passed on this concession and not on consideration of the merits of the claim. There was thus no decision of the Court which could have any binding force as Res judicata or otherwise. If we now consider the letter of December 30, 1957, issued by the Government, it will be seen that the Respondent''s continuation in the post as Professor of Medical Entomology till the date of superannuation was on foreign service terms which made him entitled to the deputation allowance. In the said letter it was further stated that a separate order would issue regarding his continuance in the post beyond superannuation till August 8, 1960. There was no indication that such continuance in the post beyond superannuation would be on different terms exclusive of deputation allowance as on foreign service. Accordingly, though in the subsequent order of May 13, 1959, it was stated that his pay and allowance would be exclusive of deputation allowance, the Government might have thought fit to give up the claim for refund of deputation allowance in view of the fact that no such provision was made in the earlier order which appears to be the basis of the Respondent''s continuance in the post beyond superannuation. It thus appears to us that the fact that the claim for refund of deputation allowance was given up did not by itself establish that the Respondent''s continuance in the post after the date of superannuation was by way of extension of service and not re employment.

As to the alleged concession by the Government counsel before Hazra J. all that was conceded, as appearing for the terms of order, was that in the facts of the case the Respondent''s continuance in the post might be treated as continuance in service and not as one of re-employment. This is not a firm concession on the basis whereof the Court could act and in fact the Court did not elect to do so. Further, the question relates to the interpretation of the letter of December 30, 1957, whereby the Respondent was to continue in the post beyond superannuation till the issue of the separate order by the Government. Any concession, if made at all, which is disputed as a case of misunderstanding, by any Government counsel on the interpretation of the letter, as a question of law will not be binding on the Government and when the controversy comes before the Court, it will always be open to the Court to interpret a Government order and to arrive at its decision as was observed by P.B. Mukharji J. in P.H. Avari Vs. State of West Bengal and Others, in discussing the principles involved with reference to earlier decisions. We, accordingly, proceed to consider the letter of December 30, 1957, in the attending circumstances in the context of West Bengal Service Rules framed u/s 241 of the Government of India Act and amended upto 1948 as applicable to the Petitioner.

It has been pointed out by Mr. Sen Gupta that even though the time for retirement of a Government servant under Rule 75(a) of the extant West Bengal Service Rules is the date when he attains 55 years, he may be retained in service beyond that date upto attainment of 60 years with the sanction of the Government on public grounds which should be recorded in writing. It is not the case that there was any such sanction by the Government for extension of the period of the service of the Respondent. In the letter of December 30, 1957, referred to above, it appears that the Respondent was informed that a separate order for his continuance in the post beyond superannuation upto August 8, 1960, would issue. It is significant that there is no statement therein of continuance or extension of the service of the Respondent, but only continuance in the post he was holding beyond superannuation. If it was a case of extension of service, the words ''continuance beyond superannuation'' would not have been used at all, as ''superannuation'' itself means retirement from service and continuance in the post thereafter cannot but be re-employment. The claim for higher pension on the credit of the service rendered after superannuation cannot, therefore, be entertained.

The appeal in the circumstances succeeds and is allowed and the judgment and order under appeal are set aside. All interim orders, if any, are vacated. There will be no order for costs in the appeal in the circumstances.

We are told by Mr. Roy that even after a lapse of over twenty years, the Government has not settled the pension of the Respondent. This is really unfortunate and we direct that necessary steeps for payment of the pension to the Respondent be taken by the Government as early as possible latest within four months from this day.

Sankar Prasad Mitra, C.J.

I agree.