Calcutta High Court (Appellete Side)
Swapan Kumar Chakraborty vs The State Of West Bengal & Ors on 15 April, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
15.04.2024
Court No.13
Item Nos.21 to 115
AP
WPA 2889 of 2024
Swapan Kumar Chakraborty
-Versus-
The State of West Bengal & Ors.
With
WPA 2366 of 2024
Sitaram Adhikary
-Versus-
The State of West Bengal & Ors.
With
WPA 2372 of 2024
Ranajit Kumar Mandal
-Versus-
The State of West Bengal & Ors.
With
WPA 2379 of 2024
Gaurhari Chandra
-Versus-
The State of West Bengal & Ors.
With
WPA 2381 of 2024
Aloke Nath Goswami
-Versus-
The State of West Bengal & Ors.
With
WPA 2382 of 2024
Anil Kumar Maji
-Versus-
The State of West Bengal & Ors.
With
WPA 2384 of 2024
Sk. Mokbul Rahaman
-Versus-
The State of West Bengal & Ors.
With
WPA 2386 of 2024
Mira Chakraborty
-Versus-
The State of West Bengal & Ors.
With
WPA 2387 of 2024
Mohanlal Ghosh
-Versus-
The State of West Bengal & Ors.
With
WPA 2388 of 2024
Kasinath Pal
-Versus-
The State of West Bengal & Ors.
With
WPA 2392 of 2024
Mohanlal Das
2
-Versus-
The State of West Bengal & Ors.
With
WPA 2394 of 2024
Rabindra Nath Marik
-Versus-
The State of West Bengal & Ors.
With
WPA 2398 of 2024
Parula Mudi
-Versus-
The State of West Bengal & Ors.
With
WPA 2401 of 2024
Krishna Pada Panchhal
-Versus-
The State of West Bengal & Ors.
With
WPA 2402 of 2024
Jubaraj Dalui
-Versus-
The State of West Bengal & Ors.
With
WPA 2405 of 2024
Lakshan Chandra Pramanik
-Versus-
The State of West Bengal & Ors.
With
WPA 2406 of 2024
Pallabi Jati (Dhara)
-Versus-
The State of West Bengal & Ors.
With
WPA 2409 of 2024
Hrishikes Mandal
-Versus-
The State of West Bengal & Ors.
With
WPA 2410 of 2024
Namita Santra
-Versus-
The State of West Bengal & Ors.
With
WPA 2412 of 2024
Samatul Chandra Ghosh
-Versus-
The State of West Bengal & Ors.
With
WPA 2413 of 2024
Sanat Kumar Das
-Versus-
The State of West Bengal & Ors.
With
WPA 2415 of 2024
Nirmal Chandra Santra
3
-Versus-
The State of West Bengal & Ors.
With
WPA 2418 of 2024
Kamala Mal
-Versus-
The State of West Bengal & Ors.
With
WPA 2422 of 2024
Samarendra Nath Panja
-Versus-
The State of West Bengal & Ors.
With
WPA 2426 of 2024
Jagannath Meur
-Versus-
The State of West Bengal & Ors.
With
WPA 2430 of 2024
Prasad Chandra Das
-Versus-
The State of West Bengal & Ors.
With
WPA 2431 of 2024
Siba Ram Chandra
-Versus-
The State of West Bengal & Ors.
With
WPA 2434 of 2024
Dharanidhar Chakrabarti
-Versus-
The State of West Bengal & Ors.
With
WPA 2437 of 2024
Rebarani Mondal
-Versus-
The State of West Bengal & Ors.
With
WPA 2439 of 2024
Rekha Chakraborty
-Versus-
The State of West Bengal & Ors.
With
WPA 2520 of 2024
Arabinda Chongdar
-Versus-
The State of West Bengal & Ors.
With
WPA 2522 of 2024
Sambhunath Samji
-Versus-
The State of West Bengal & Ors.
With
WPA 2525 of 2024
Arati Ghosh (Kauri)
4
-Versus-
The State of West Bengal & Ors.
With
WPA 2527 of 2024
Prahlad Chandra Bodak
-Versus-
The State of West Bengal & Ors.
With
WPA 2553 of 2024
Swapan Kumar Dhara
-Versus-
The State of West Bengal & Ors.
With
WPA 2560 of 2024
Ramsadaya Chongder
-Versus-
The State of West Bengal & Ors.
With
WPA 2748 of 2024
Sabera Khatun
-Versus-
The State of West Bengal & Ors.
With
WPA 2866 of 2024
Sushil Kumar Mukherjee
-Versus-
The State of West Bengal & Ors.
With
WPA 2895 of 2024
Ratna Rani Datta
-Versus-
The State of West Bengal & Ors.
With
WPA 2899 of 2024
Bharati Sanyal (Siddhanta)
-Versus-
The State of West Bengal & Ors.
With
WPA 2902 of 2024
Biva Rani Dey (Basu)
-Versus-
The State of West Bengal & Ors.
With
WPA 2908 of 2024
Bhaskar Chandra Panda
-Versus-
The State of West Bengal & Ors.
With
WPA 2914 of 2024
Brahamananda Patra
-Versus-
The State of West Bengal & Ors.
With
WPA 2916 of 2024
Krishna Pada Pal
5
-Versus-
The State of West Bengal & Ors.
With
WPA 2919 of 2024
Harendra Nath Pramanik
-Versus-
The State of West Bengal & Ors.
With
WPA 2921 of 2024
Mamata Manna
-Versus-
The State of West Bengal & Ors.
With
WPA 2925 of 2024
Durgesh Kumar Singha Roy
-Versus-
The State of West Bengal & Ors.
With
WPA 2943 of 2024
Sandhyarani Kaity (Karmakar)
-Versus-
The State of West Bengal & Ors.
With
WPA 2945 of 2024
Niti Chandra Mondal
-Versus-
The State of West Bengal & Ors.
With
WPA 2946 of 2024
Sris Chandra Kundu
-Versus-
The State of West Bengal & Ors.
With
WPA 2949 of 2024
Malati Koley
-Versus-
The State of West Bengal & Ors.
With
WPA 2951 of 2024
Tarun Acharya
-Versus-
The State of West Bengal & Ors.
With
WPA 2953 of 2024
Kshitish Mandal
-Versus-
The State of West Bengal & Ors.
With
WPA 2957 of 2024
Sitima Saha
-Versus-
The State of West Bengal & Ors.
With
WPA 2961 of 2024
Rabindranath Bhattacharya
6
-Versus-
The State of West Bengal & Ors.
With
WPA 2962 of 2024
Ranjit Kumar Mallick
-Versus-
The State of West Bengal & Ors.
With
WPA 2963 of 2024
Gita Ghosh
-Versus-
The State of West Bengal & Ors.
With
WPA 2965 of 2024
Manick Chandra Charchari
-Versus-
The State of West Bengal & Ors.
With
WPA 2967 of 2024
Satyaban Khan
-Versus-
The State of West Bengal & Ors.
With
WPA 2968 of 2024
Arati Bera
-Versus-
The State of West Bengal & Ors.
With
WPA 2969 of 2024
Sudhir Chandra Majhi
-Versus-
The State of West Bengal & Ors.
With
WPA 2971 of 2024
Usha Gupta Bhaya
-Versus-
The State of West Bengal & Ors.
With
WPA 2972 of 2024
Nimai Chandra Samanta
-Versus-
The State of West Bengal & Ors.
With
WPA 2975 of 2024
Malati Rani Sarkar
-Versus-
The State of West Bengal & Ors.
With
WPA 2979 of 2024
Hemlata Barla
-Versus-
The State of West Bengal & Ors.
With
WPA 2982 of 2024
Krishna Sarka (Mondal)
7
-Versus-
The State of West Bengal & Ors.
With
WPA 2984 of 2024
Taraknath Chakraborty
-Versus-
The State of West Bengal & Ors.
With
WPA 2986 of 2024
Susil Kumar Pati
-Versus-
The State of West Bengal & Ors.
With
WPA 3062 of 2024
Nilima Bhattacharjee
-Versus-
The State of West Bengal & Ors.
With
WPA 3068 of 2024
Minati Bej
-Versus-
The State of West Bengal & Ors.
With
WPA 3140 of 2024
Dhiren Chandra Mandal
-Versus-
The State of West Bengal & Ors.
With
WPA 3353 of 2024
Gopal Chandra Bandyopadhyaya
-Versus-
The State of West Bengal & Ors.
With
WPA 3361 of 2024
Nanigopal Chakraborty
-Versus-
The State of West Bengal & Ors.
With
WPA 3370 of 2024
Rekha Dutta
-Versus-
The State of West Bengal & Ors.
With
WPA 3378 of 2024
Moslehuddin Ahmed
-Versus-
The State of West Bengal & Ors.
With
WPA 3382 of 2024
Basanti Parui
-Versus-
The State of West Bengal & Ors.
With
WPA 3385 of 2024
Nilima Roy
8
-Versus-
The State of West Bengal & Ors.
With
WPA 3387 of 2024
Debi Adhikari
-Versus-
The State of West Bengal & Ors.
With
WPA 3396 of 2024
Naryan Chandra Roy
-Versus-
The State of West Bengal & Ors.
With
WPA 3400 of 2024
Upendra Nath Ekka
-Versus-
The State of West Bengal & Ors.
With
WPA 3405 of 2024
Altaf Hossain
-Versus-
The State of West Bengal & Ors.
With
WPA 3407 of 2024
Sunity Ray
-Versus-
The State of West Bengal & Ors.
With
WPA 3411 of 2024
Chabi Rani Rang
-Versus-
The State of West Bengal & Ors.
With
WPA 3414 of 2024
Rashmani Panja
-Versus-
The State of West Bengal & Ors.
With
WPA 3419 of 2024
Ashalata Kar
-Versus-
The State of West Bengal & Ors.
With
WPA 3422 of 2024
Swapan Chatterjee
-Versus-
The State of West Bengal & Ors.
With
WPA 3424 of 2024
Md. Kalimuddin
-Versus-
The State of West Bengal & Ors.
With
WPA 3426 of 2024
Kamala Rani Parua
9
-Versus-
The State of West Bengal & Ors.
With
WPA 3429 of 2024
Mahadev Mukhopadhyay
-Versus-
The State of West Bengal & Ors.
With
WPA 3431 of 2024
Nupur Roy
-Versus-
The State of West Bengal & Ors.
With
WPA 3434 of 2024
Saraswati Mondal
-Versus-
The State of West Bengal & Ors.
With
WPA 3437 of 2024
Kishori Mohon Chowhdury
-Versus-
The State of West Bengal & Ors.
With
WPA 3464 of 2024
Nural Islam
-Versus-
The State of West Bengal & Ors.
With
WPA 3471 of 2024
Bithika Mahapatra
-Versus-
The State of West Bengal & Ors.
With
WPA 3475 of 2024
Dibakar Goswami
-Versus-
The State of West Bengal & Ors.
Mr. Subir Sanyal
Mr. Sakti Pada Jana
Mr. Subhajyoti Das
Mr. Sourojit Mukherjee
...for the petitioners.
Ms. Sabita Khutia (Bhunya)
Mr. Krishna Pada Santra
Ms. Arpita Saha
...for the petitioners in Item Nos.22 to 58,
89 to 91 and 114 to 115.
Mr. Kishore Dutta, Ld. Advocate General
Mr. Jayanta Samanta
Mr. Rajaram Banerjee
...for the State in WPA 2889 of 2024,
WPA 2434 of 2024, WPA 2951 of 2024
and WPA 3140 of 2024.
10
Mr. Mohammed Masood
...for the State in WPA 2366 of 2024.
Mr. Jayanta Samanta
Mr. Sasthi Charan Dhara
Ms. Paromita Malakar (Dutta)
...for the State in WPA 2372 of 2024.
Mr. Anand Farmania
Mr. Manoj Mondal
...for the State in WPA 2381 of 2024.
Mr. Somraj Dhar
...for the State in WPA 2382 of 2024.
Mr. Biswajit Dutta
...for the State in WPA 2384 of 2024.
Ms. Sucharita Roy
Mr. Soumik Dey
...for the State in WPA 2386 of 2024.
Mr. Md. Mansoor Alam
Mr. Saikat Sen
...for the State in WPA 2394 of 2024.
Mr. Vimal Kumar Shahi
Mr. Vijay Agarwal
...for the State in WPA 2398 of 2024.
Mr. K.N. Nabi
Ms. Tuli Sinha
...for the State in WPA 2401 of 2024.
Mr. Suman Dey
Mr. Sabyasachi Bhattacharjee
...for the State in WPA 2402 of 2024.
Mr. Chittaranjan Ghosh
...for the State in WPA 2409 of 2024.
Mr. Manwar Ali
Mr. Rajsekhar Basu
...for the State in WPA 2410 of 2024.
Ms. Sulagna Bhattacharya
Mr. Soumyajit Ghosh
...for the State in WPA 2412 of 2024.
Mr. Jahar Dutta
Mr. Sandip Chattopadhyay
...for the State in WPA 2413 of 2024.
Ms. Nilanjana Dasgupta
...for the State in WPA 2415 of 2024.
11
Ms. Saswati Chatterjee
...for the State in WPA 2418 of 2024.
Mr. S.M. Hassan
Ms. Anupama Yasmin
...for the State in WPA 2422 of 2024.
Mr. Avirup Mondal
Ms. Anima Das Chakraborty
...for the State in WPA 2430 of 2024.
Mr. Sanat Kumar Biswas
...for the State in WPA 2431 of 2024.
Mr. Arindam Mitra
...for the State in WPA 2437 of 2024.
Mr. Rabindra Nath Chakraborty
...for the State in WPA 2520 of 2024.
Mr. Md. Z. Rahaman
...for the State in WPA 2522 of 2024.
Mr. Ovik Sengupta
...for the State in WPA 2525 of 2024.
Mr. Debashish Chakraborty
...for the State in WPA 2527 of 2024.
Mr. Durga Bhusan Mukhopadhyay
...for the State in WPA 2560 of 2024.
Mr. Anis Datta Sarma
...for the State in WPA 2748 of 2024.
Mr. Partha Sarathi Sen Sharma
...for the State in WPA 2895 of 2024.
Mr. Ranjit Rajak
...for the State in WPA 2899 of 2024.
Mr. Rajsekhar Basu
...for the State in WPA 2902 of 2024.
Mr. Manas Kumar Sadhu
...for the State in WPA 2908 of 2024.
Ms. Moushumi Chowdhury
Mr. Sabyasachi Bhattacharjee
...for the State in WPA 2916 of 2024.
Mr. Dewabrata Banerjee
Mr. Prashant Kumar Tripathi
...for the State in WPA 2921 of 2024.
12
Mr. Biplab Majumder
...for the State in WPA 2943 of 2024.
Mr. Nirmalya Biswas
Mr. Chandan Kumar Mandal
...for the State in WPA 2945 of 2024.
Mr. Nabajit Prasad Basu
Mr. Arindam Mitra
...for the State in WPA 2946 of 2024.
Mr. Tarun Kumar Ghosh
Ms. Suvasree Ghose
...for the State in WPA 2949 of 2024.
Mr. Hemanta Kr. Das
...for the State in WPA 2957 of 2024.
Ms. Mousumi Choudhury
Mr. Biswajit Das
...for the State in WPA 2961 of 2024.
Mr. Durga Bhusan Mukhopadhyay
...for the State in WPA 2963 of 2024.
Mr. Vimal Kumar Shahi
Mr. Vijay Agarwal
...for the State in WPA 2965 of 2024.
Mr. K.N. Nabi
Ms. Tuli Sinha
...for the State in WPA 2968 of 2024.
Mr. Ratul Biswas
Mr. Saikat Sen
...for the State in WPA 2969 of 2024.
Mr. Pradip Kr. Mandal
Ms. Debalina Dasgupta
...for the State in WPA 2971 of 2024.
Mr. Dwarika Nath Mukherjee
Mr. Manik Lal De
...for the State in WPA 2972 of 2024.
Mr. Ranajit Chatterjee
Mr. Manoj Kr. Mondal
...for the State in WPA 2979 of 2024.
Mr. Syed Nazmul Hossain
Ms. Kalpita Pal
...for the State in WPA 2982 of 2024.
Ms. Saheli Sen
13
Mr. Sandip Chattopadhyay
...for the State in WPA 2984 of 2024.
Ms. Sangeeta Roy
Ms. Indrani Nandi
...for the State in WPA 2986 of 2024.
Mr. Debashish Chakraborty
...for the State in WPA 3062 of 2024.
Mr. Md. Manuwar Ali
Ms. Dipa Bhattacharya
...for the State in WPA 3068 of 2024.
Mr. Kushal Das
...for the State in WPA 3361 of 2024.
Mr. Durga Bhusan Mukhopadhyay
...for the State in WPA 3370 of 2024.
Mr. Biswajit Dutta
...for the State in WPA 3382 of 2024.
Mr. Biplab Majumder
...for the State in WPA 3385 of 2024.
Mr. Bhakti Prasad Das
...for the State in WPA 3387 of 2024.
Mr. Sanatan Panja
...for the State in WPA 3396 of 2024.
Mr. Sanjay Mandal
Mr. Sanatan Panja
...for the State in WPA 3405 of 2024.
Mr. Debashish Chakraborty
...for the State in WPA 3414 of 2024.
Mr. Md. Mansoor Alam
Mr. Ziaul Haque
...for the State in WPA 3419 of 2024.
Mr. Anubrata Santra
...for the State in WPA 3422 of 2024.
Mr. Md. Ziaur Rahaman
...for the State in WPA 3424 of 2024.
Ms. Rupsha Chakraborty
...for the State in WPA 3426 of 2024.
Mr. Sasthi Charan Dhara
...for the State in WPA 3431 of 2024.
14
Mr. Jaydip Basu
...for the State in WPA 3437 of 2024.
Mr. Sanatan Panja
...for the State in WPA 3471 of 2024.
Mr. Avirup Mondal
Ms. Anima Das Chakraborty
...for the State in WPA 3475 of 2024.
1. Mr. Kishore Dutta, learned Advocate
General has made submissions in reply to the
point of res judicata.
2. Mr. Subir Sanyal's submission as to why res
judicata is not a bar in the instant proceedings or
for that matter even Order 2 Rule 2 of the Code of
Civil Procedure, is sought to be answered by the
learned Advocate General on the following terms:
3. It is submitted that the 5th Explanation to
Section 11 of the CPC is required to be understood
to prevent multiplicity of judicial proceedings and
discourage frivolous and illegal claims already
decided by and between the parties. The parties in
the instant case are in fact similar.
4. In the Md. Abdul Ghani Vs. State of West
Bengal and Ors. decision, which was rendered on
30th September, 2019 clarifying that
notwithstanding a subsequent date of refund of
employer share of provident fund, the employees
15
would be entitled pension from the date after the
date of retirement. The petitioner could have
raised the payment of interest thereafter which
they did not.
5. Para 48 of the Md. Abdul Ghani (supra) is
specifically referred by the Learned Advocate
General. It is submitted that the petitioners had
specifically conceded any claim of interest on the
arrears of pension.
6. The petitioners cannot, therefore, make any
further claims of interest post the date of refund
till the date of actual payment.
7. Mr. Dutta has then referred to the pleadings
in WPA 28559 of 2015 (Swapan Kumar
Chakraborty Vs. The State of West Bengal &
Ors.), similar to all other writ petitions
particularly Para 16 to 18 and 20 to 22.
8. It is submitted that prayer (c) of the said
WPA 28559 of 2015 (supra) read with aforesaid
paragraphs would thereunder indicate that the
petitioners claim for interest on the period after
the date of refund also has been made in the said
writ petition and not considered in the order dated
9th February, 2022. The prayer for interest is
16
therefore, barred under the 5th Explanation to
Section 11 of the Code of Civil Procedure, 1908.
9. The petitioners having been issued PPO on
9th March, 2023 and paid arrears on 27th March,
2023 are, therefore, not entitled to claim any
interest, not only on the principle of res judicata
but also by applying the Order 2 Rule 2 of the
Code of Civil Procedure. No leave has been
reserved to the petitioners under Order 2 Rule 2 of
the Code by any Court in any of the earlier
proceedings.
10. This Court has carefully considered the
arguments advanced by Mr. Sanyal on behalf of
the petitioners and Mr. Dutta, learned Advocate
General for the State.
11. Indeed as pointed out by the learned
Advocate General there has been an erroneous
recording in Para 4(a) of the order dated 10th April,
2024. The Md. Abdul Ghani (supra) decision was
rendered on 30th September, 2019 much before
the decision of a Coordinate Bench dated 9th
February, 2022. Para 4(a) of the order dated 10th
April 2024 shall stand deleted.
12. This Court notices that a plain reading of
Paragraphs 20 to 22 of WPA 28559 of 2015
17
(supra), which is set out hereunder, would
indicate that the prayer was for interest from the
date after the date of retirement:
"20. Your petitioner submits that the
petitioner retired from service on
30.04.2010. He has received the CPF
amount together with interest calculated
upto the date of his retirement. Now, as per
the Notification dated 13th June, 2014, he
had returned the employer's share of the
said CPF amount with interest and
additional interest upto the date of
exercising option. Accordingly, the
petitioner has exercised option as per the
said notification on 07.07.2014 and
returned the employer's share with interest
calculated upto 31.07.2014, but he has not
been allowed to enjoy the pensionary
benefit with effect from the date of his
retirement which is unreasonable and
unsustainable in law.
21. Your petitioner submits that the
petitioner retired from service on
30.04.2010 on attaining the age of
superannuation after rendering about 33
years of service as Assistant Teacher in a
primary school but by the impugned
decision of the State authorities, the
petitioner has been deprived from getting
pension-cum-gratuity from the date of
refund of the employers' share i.e.
22.08.2014, although, he is entitled to get
pension from the date following the date of
his retirement. Such decision of the State
authorities is totally bad, illegal and
unlawful and contrary to the relevant
provisions of the Death-Cum-Retirement
Benefit Scheme, 1981.
22. Your petitioner submits that
considering the facts and circumstances of
the case as stated above unless an
appropriate order and/or direction is
passed by this Hon'ble Court in exercising
in its writ jurisdiction by directing the
respondent State authorities to sanction the
pension and gratuity in favour of the petitioner from the date following the date 18 of his retirement as per the Death-Cum- Retirement Benefit Scheme, 1981 and release all arrears pension in accordance with law, your petitioner will suffer irreparable loss, injury and prejudice."
13. Prayer (c) of writ petition is also set out hereunder:-
"c) A writ in the nature of Mandamus directing the respondent no.4 viz. the Director of Pension, Provident Fund & Group Insurance, West Bengal to release the arrear pension in reference to the Pension Payment Order dated 6.5.2015 for the period from 01.5.2010 till 21.08.2014 together with interest @10% per annum till the date of such payment is made;"
14. In other words, the interest was being prayed for in 2015, on the period from the date of superannuation. The writ petition was filed prior to the decision of Md. Abdul Ghani (supra). It has been argued by the State that prayer for post refund interest must also be deemed to have been made.
15. It is however noticed by this Court that Categorization of any post or pre-refund interest as argued by the State was not made in the said writ petition. The petitioners made an omnibus prayer for interest after superannuation.
16. However, it is important to notice the stand of the petitioners before the Special Bench in Md. Abdul Ghani (supra). They specifically conceded 19 that they were not claiming interest on the arrears from the date after the date of superannuation till the date of refund. It was this concession, which has been recorded by the Special Bench in Md. Abdul Ghani (supra).
17. This would, therefore, cast an automatic responsibility on the State to immediately after the clarification on 30th September, 2019 in Md. Abdul Ghani (supra) to issue PPO and pay arrears within a reasonable time i.e. a month or two at best after the said decision. This was not done. PPOs were issued only in March, 2023 and payment made soon thereafter.
18. The decision in WPA 28559 of 2015 (supra) followed another decision of a Coordinate Bench in WPA 964 of 2022 (Sitala Mandal (Chaudhuri) Vs. The State of West Bengal & Ors.) dated 8th February, 2022. It would be relevant for the purpose of this decision to set out two paragraphs placed by the learned Advocate General of the said decision:
"According to the petitioner, pension ought to have been released on and from the next date of retirement and not from the date of refund of the employer's share of contribution.
In support of the aforesaid stand the petitioner has relied upon the judgement 20 delivered by the Court in District Inspector of Schools (S.E.), Kolkata -vs- Abhijit Baidya reported in 2013 (3) CHN (CAL) 711 and the judgement delivered on 30th September, 2019 by the Special Bench of this Court in the matter of Md. Abdul Ghani -vs- State of West Bengal & Ors. (GA No.64 of 2018, APOT No.104 of 2006, APO No.121 of 207, GA No.627 of 2006, WP No.1528 of 2002)."
19. A conjoint reading of the prayers of the petitioners of the pleadings in WPA 28559 of 2015 (supra) and the prayer (c) thereunder read with the order dated 9th February, 2022 in the said writ petition and the paragraph of the decision of Sitala Mandal (Chaudhuri) (supra) hereinabove would indicate as follows.
20. The writ petition by Swapan Kumar Chakraborty (supra) was filed in the year 2015 even before the decision of Md. Abdul Ghani (supra). The writ petition was disposed of on 9th February, 2022 after the clarification decision of Md. Abdul Ghani (supra).
21. Even the decision in the writ petition in the case of Sitala Mandal (Chaudhuri) (supra) which is filed in the year 2022, (portions of the order set out hereinabove) were rendered after the decision of Md. Abdul Ghani (supra).
22. The writ petitioners must have been under severe financial distress i.e. having made the 21 refund for switch over from CPF to GPF in the year 2014 and were waiting for five long years firstly until the clarification in Md. Abdul Ghani (supra) and thereafter for three more years until the decision of Sitala Mandal (Chaudhuri) (supra) and Swapan Kumar Chakraborty (supra) were rendered. They were desperate. They just wanted release of arrears of pension. A large number of writ petitioners might have had to borrow sums of money for the aforesaid refund made in the year 2014 long after the retirement.
23. One cannot but take judicial notice of the fact that a lot of writ petitioners must have either marriageable daughters or children seeking higher education on which they may have spend their CPF amounts. The spiraling cost of living has not even otherwise spared the petitioners from the date of their retirement. They must have exhausted their little savings under the CPF by the time they were required to make refund in the year 2014.
24. It is now well-settled that provisions of the Code of Civil Procedure are not applicable in letter and word to writ petitions under Article 226 and 32 of the Constitution of India.
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25. The principle of res judicata has been applied to writ petitions as held by the Hon'ble Supreme Court in paragraphs 8 to 11 in P. Bandopadhyay vs. Union of India reported in (2019) 13 SCC 42.
26. However, in M. Nagabhushana vs. State of Karnataka reported in (2011) 3 SCC 408, it has been held at paragraphs 13, 17 and 24 as follows:-
"13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.
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17. It may be noted in this context that while applying the principles of res judicata the court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that:
"... the application of the rule by courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law."
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24. In coming to the aforementioned finding, this Court relied on The Supreme Court Practice, 1995 published by Sweet & Maxwell (p. 344). The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows:
(K.K. Modi case, SCC p. 592, para 43) "43. ... 'This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a 23 proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.' "
27. In Dwarka Nath vs. ITO reported in (1965) 3 SCR 536 at paragraph 4, it was held as follows:
"4. ...This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
28. It follows from the aforesaid decisions that grant of a relief is a deserving case under Article 226 is not restricted by technicalities. The writ Court could, in a given case, grant relief notwithstanding the principles of res judicata to deserving and bona fide weak litigants against the State. The bar must, however, be applied to unscrupulous litigants seeking to abuse the process of law. Vexations and harassive litigation must also be discouraged by applying the 24 principle of res judicata. Rich and oppressive litigants must be discouraged from harassing the State and the opponents by stringent application of the principles of res judicata.
29. In the instant case, it is firstly seen that the prayer for interest in the arrear of pension post the refund has not been specifically made by the retired teachers in any of the writ petitions that have been disposed of. The said teachers have already given up a claim for interest from the date of superannuation till the date of refund of the portion of CPF. The State on the contrary has been unfair and arbitrary in not issuing PPOs and making payment, for 4 long years after the date of refund, causing immense hardship to the petitioners.
30. Therefore, even assuming though not admitting that the principles of res judicata may be applicable, this Court views the same as a technicality and a mere procedural hindrance, which should not stand in the way of granting deserving relief to weak and oppressed retired teachers in the State.
31. Order 2 Rule 2 of the Code of Civil Procedure, 1908 would not be applicable to writ 25 petitions. This has been decided in the case of Brahma Singh vs. Union of India reported in (2020) 12 SCC 762. At paragraph 10, it has been held as follows:
"10. In relation to applicability of Order 2 Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of U.P. as follows: (AIR p. 1337, para 12) "12. ...The bar of Order 2 Rule 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Article 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
Placing reliance on Devendra Pratap Narain Rai Sharma, this Court in Gulabchand Chhotalal Parikh v. State of Gujarat in relation to Order 2 Rule 2 held as follows: (AIR p. 1159, para 26) "26. ... By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit." "
32. The aforesaid dicta therefore, clearly spells out that relief under Article 226 to deserving litigants cannot be restricted or circumscribed by technicalities of procedure.
33. In the backdrop of the above and the casual attitude of the State in compelling the petitioners to approach Court either by way of fresh writ petitions or revival of their earlier filed wit petitions post the decision in Md. Abdul Ghani (supra) must be addressed with appropriate relief.
A retired person has no other source of income except his pension. No pension amount in this 26 country, is enough or commensurately address the spiraling rate of inflation and cost of living.
34. This Court, therefore, holds that the State was obliged to at least within a period of one month from 30th September, 2019 pay all arrears of pension from the date after the date of retirement till September, 2019, which they did not. The writ petitions have conceded in the Md. Abdul Ghani (supra) decision that they are not claiming interest on the arrears of pension from the date after the date of retirement till the date of actual refund.
35. The State was given a concession and the writ petitioners were already put to a disadvantage. The disadvantage being the State having user of the funds of the writ petitioners from 2014 (the date of refund) till the year 2019, and the writ petitioners being deprived of the same.
36. In the backdrop of the above, and the discussion on the right of interest on the delayed payment of arrear pension, available in this Court's order dated 10th March, 2024, this Court holds that writ petitioners and each of them shall be entitled to interest at the rate of 8% per 27 annum, for the period from 1st November 2019 (one month after the decision of Md. Abdul Ghani (supra) i.e. 30th September, 2019) till the date of issuance of PPO, on all arrears of pension (from the date of superannuation).
37. It is ordered that such interest be paid within 2 months from date. In default, the rate of interest shall stand increased to 11 %.
38. Accordingly, the writ petitions shall stand allowed and disposed of.
39. After the order is dictated and as already indicated by the learned Advocate General on 10th April, 2024, the State makes a prayer for stay of operation of the aforesaid order. The prayer is considered and declined.
40. There shall be no order as to costs.
41. All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)