Swapan Kumar Santra vs State Of West Bengal & Ors

Samapti Chatterjee, J

Affidavit-of-service and the copy of the notice dated 18th September, 2019 filed in court be kept on record.

In spite of service of notice, none appears on behalf of the State respondents. No adjournment has been sought for.

After hearing the learned Advocates for the parties, it does appear at page 18 of the writ petition (Annexure-P3) that the writ petitioner was appointed as an Assistant Teacher of Rasikpur Municipal Free Primary School with effect from 16th August, 1996 against the sanctioned vacant post. However, subsequently he transferred to Dubrajdighi M.F.P. School in the interest of Municipal service, which reflects from Annexure - P4 at page - 19 of the writ petition. He retired on 31st August, 2013. His grievance is that he has not been paid his pension and other retiral benefits.

In that view of the matter, I allow this writ application passing an order in terms of prayer (a) of the writ petition which is set out herein below:

"(a) A writ in the nature of Mandamus commanding the respondents, their men, agents and servants, more particularly the respondent nos. 2 and 6 and/or the respondent no. 7, Director of Local Bodies, Government of West Bengal and Chairman and/or the Sub-Divisional Officer being the Administrator, Burdwan Municipality to give post facto approval on appointment of the petitioner in the post of an Assistant Teacher under Dubrajdighi Municipal Free Primary School, Burdwan Municipality who retired on 31.08.2013 and thereby the Chairman and/or the Sub-Divisional Officer, being the Administrator of Burdwan Municipality shall release the pension and other retiral dues of the petitioner forthwith."

Mr. Sarkar, learned advocate appearing for the petitioner submits that the name of the petitioner sponsored by the District Employment Exchange, Burdwan and accordingly, he appeared in the selection/written test held on 4.6.1994 for the post of an Assistant Teacher of a free primary school under Burdwan Municipality and he succeeded in the written test. Accordingly, he was called for an interview/viva-voce test held on 3.9.1994 and finally he was selected to the said post. The Chairman, Burdwan Municipality, by a Memo No. 275/XII-2 dated 5.8.1996 issued an appointment letter to the petitioner and appointed him in the sanctioned vacant post in Rasikpur Municipal Free Primary School in the vacancy caused by retirement of one Kamala Kanta Bose, with effect from 16.8.1996 in the scale of Rs. 980-25-1230-30-1500-35-1675-40-1755/- plus other admissible allowances. However, by a resolution dated 24.3.1998 of the Board of Councillors, Burdwan Municipality, the service of the petitioner was confirmed with effect from 1.3.1997.

He further submits that though the petitioner superannuated on 31.08.2013 but till date the pensionary and other retiral benefits have not been given, however, on the similar circumstanced person are getting pension and other benefits because of the post-facto approval has already been given to them by the Director of Local Bodies.

Mr. Sarkar also submits that under section 54(3) of the West Bengal Municipal Act 1993 in respect of appointment of all other officers and employees, the prior approval of the State Government is required with effect from 01.10.2003. However, in the instant case, the petitioner was appointed on 5.8.1996 and the service was confirmed with effect from 1.3.1997 against the sanctioned vacant post Therefore, no approval is required. He further submits that under Rule 31 of the West Bengal Municipal (Employee's Death-cum-Retirement Benefits) Rules, 2003, the pension shall be paid by the Municipality or Notified Area Authority from its own fund. Therefore, the Director of Local Bodies has no function regarding payment of pension.

Mr. Sarkar draws the attention of this Court that by an order of the Governor, the Special Secretary to the Government of West Bengal, Municipal Affairs Department issued an order under number 207/MA/O/C-4/1A-7/2000 dated 7th May 2009 which runs as follows:

"Whereas it appears that a considerable number of appointments/promotions were made in a number of Municipalities against sanctioned vacancies holding erstwhile Scale of Pay of Rs. 380-910/-, since revised to Rs. 4000-8850/- and below between the period from the 14th day of July 1994 to the 15th day of October, 2000 (hereinafter referred to as the aforesaid period).

And whereas in absence of approval of the State Government the Municipalities are facing difficulties relating to the finalization of pension cases of the retired employees.

And whereas proceeding of such cases by the Director of Local Bodies, with the approval of this Department, taking considerable time.

Now, therefore, the Governor, for quick disposal of all pending cases is pleased hereby to authorize the Director of Local Bodies, West Bengal to issue orders according post-facto approval of appointments/promotions made by the Municipalities against sanctioned vacancies holding erstwhile Scale of Pay of Rs. 380-910/- since revised to Rs. 4000-8850/- and below within the aforesaid period on case to case basis after due examination/enquiry."

Mr. Sarkar further draws the attention of this Court that the Special Secretary to the Government of West Bengal by an order vide number 422/MA/O/C-4/1A-7/2000 dated 19th August, 2009 amended this Department order no. 207/MA/O/C-4/1A-7/2000 dated 7th May, 2009 in the following manner:

"The Governor is pleased hereby to make the following amendment to this Department order no. 207/MA/O/C-4/1A-7/2000 dated 7th day of May, 2009 (hereinafter referred to as the said order):

(1) In the last para for the words "Scale of Pay of Rs. 380-910/-, since revised to Rs. 4000-8850/- and below," the words "scales of pay from Scale of Pay, of Rs. 380-910/- since revised to Rs. 4000-8850/- to the Scale of pay of Rs. 245-455/-, since revised to Rs. 2850-4650/- shall be substituted.

(2) After the last para the following new paragraph shall be inserted.

"The Governor is further pleased to direct that no approval of the State Government is required in the cases of appointments/promotions made by the Municipalities within the aforesaid period against sanctioned vacancies holding erstwhile scales of pay from Scale of Pay of Rs. 230-414/-, since revised to Rs. 2700-4400/- to the Scale of Pay of Rs. 220-338/-, since revised to Rs. 2600-4150/- (hereinafter referred to as the said Scales of Pay), or in the cases where the resolutions adopted by the Board of Councilors of the Municipalities for making appointments/promotions against the sanctioned vacant posts holding the aforesaid Scales of Pay but implementation of such resolution has been kept pending till obtaining Government approval during the aforesaid period."

Mr. Bandopadhyay, learned advocate appearing on behalf of the Municipality submits that the petitioner was appointed against the sanctioned vacant post of an Assistant Teacher of a Free Primary School under Burdwan Municipality.

Considering the submissions as advanced by the learned advocates for the parties and after perusing the record, I direct the respondent no. 2, the Director of Local Bodies, Government of West Bengal to give post facto approval with effect from 1.3.1997 on the appointment of the petitioner for the post of an Assistant Teacher of Dubrajdighi M.F.P. School in view of the order dated 16.8.1996 issued by the Chairman, Burdwan Municipality and thereby the respondent no. 4, the Director of Pension, Provident Fund & Group Insurance will issue Pension Payment Order in favour of the petitioner and thereafter the Chairman/Administrator Burdwan Municipality will disburse the pension and other retiral benefits of the petitioner by 10th October 2019.

With the direction, this writ petition is disposed of.

Since this writ petition is disposed of without calling affidavits, all allegations made in this writ petition are not deemed to have been admitted.

However, there will be no order as to costs.

Let the instruction submitted by Mr. Bandopadyay be kept on the record.

Urgent photostat certified copy of this order be given to the parties, if applied, upon compliance of necessary formalities.