Calcutta High Court
District Inspector Of Schools (Se). ... vs Abhijit Baidya & Ors on 17 June, 2009
ORDER SHEET
APO No.94 of 2009
With
WP No.694 of 2008
In the High Court at Calcutta
Civil Appellate Jurisdiction
Original Side
In the matter of:
District Inspector of Schools (SE). Kolkata & Anr.
Versus
Abhijit Baidya & Ors.
Before:
The Hon'ble Justice Banerjee
And
The Hon'ble Justice Debasish Kar Gupta
Date: 17.06.2009
Appearance:
Mr. Saikat Banerjee Adv., Mr.
Jasojeet Mukherjee Adv. for the
appellants.
Mr. Sakti Pada Jana Adv., Mr.
Pranab Chatterjee Adv. for the
respondents.
The Court:- These appeals involve identical question of fact and law and as such are dealt with by this common judgement and order.
The respondent no.1 approached the learned Single Judge, inter alia, praying for a direction to allow him to switch over from the Contributory Provident Fund Scheme to General Provident Fund cum Pension Scheme. The learned Single 2 Judge considered the writ petitions and allowed the same. While doing so, the learned Single Judge relying on a decision in APO No.451 of 2006 [State of West Bengal & Ors. Vs. Bithika Ghosh(Mondal)], observed that the teachers who opted for ROPA- 1990 were automatically entitled to get the benefits of Rule 17(2) of ROPA-1990 which entitled the incumbent to enjoy General Provident Fund cum Pensionary benefits. Hence this appeal by the State.
During the pendency of these appeals, series of writ petitions were disposed of in the same line following the judgement and order of the learned Single Judge in the case of State of West Bengal & Anr. Vs. Lutfun Nesha Begum & Ors. State also preferred several appeals from the orders allowing the writ petitions of the like nature. One of such appeals, State of West Bengal & Ors. Vs. Smt. Chabi Roy (Som), being APO No.469 of 2005, was disposed of by the Bench presided over by one of us (Ashim Kumar Banerjee, J.) by judgement and order dated March 15, 2007 wherein an identical prayer was allowed by the learned Single Judge relying on the judgement and order in the case of State of West Bengal & Anr. Vs. Lutfun Nesha Begum & Ors. (Supra). We held that Rule 17(2) of ROPA -1990 ipso facto did not entitle an incumbent to avail the benefit of Pension cum Family Pension Scheme irrespective of his or her option once exercised within the due date. The appeal was allowed by us. 3
Series of appeals of the like nature appeared before this Bench being APO No.119-122/2007 and APO No.475/2007. The said appeals were heard and disposed of by us on January 16, 2008. In course of hearing we found that on the identical issue another Division Bench in the case of State of West Bengal Vs. Biswanath Koley & Ors. reported in 2008(3) CHN 358 relying on the said Single Bench decision dismissed the appeal of the State, inter alia, upholding the order of the learned Single Judge as discussed above. After discussing the law on the subject and various precedents cited at the Bar we were unable to accept the view expressed by the other Division Bench in the case of State of West Bengal Vs. Biswanath Koley & Ors.(supra). We rather followed the other Division Bench decision in the case of State of West Bengal & Ors. Vs. Smt. Chabi Roy(Som) (supra). In view of the inconsistent decisions we referred those appeals to the Hon'ble Chief Justice for appropriate assignment before a Larger Bench.
It now appears that the decision in the case of State of West Bengal Vs. Biswanath Koley & Ors.(supra) has been assailed before the Apex Court by the State and the Apex Court in SLP (Civil) No.15644/2008 directed issuance of notice and stayed the operation of the judgement and order impugned therein. The Apex Court also tagged it with an identical petition being SLP (Civil) No.21581/2007.
4
We once again reconsider our own decision and are unable to hold otherwise. We still feel that the decision in the case of State of West Bengal Vs. Biswanath Koley & Ors. (supra) is not the correct law on the subject. However, in view of the inconsistent decisions earlier we also refer this appeal to the Larger Bench.
This appeal be tagged with APO No.119/2007 to be placed before the Larger Bench after disposal of the Special Leave Petition being SLP (Civil) No.15644/2008 & SLP (Civil) No.21581/2007.
This order would, however, not preclude the concerned teachers to accept the Contributory Provident Fund, if they so what, without prejudice to their rights and contentions in these appeals.
There would be no order as to costs.
The order under appeal would remain stayed until the issue is finally decided by the Larger Bench and/or the Apex Court as the case may be.
5Urgent xerox certified copy of this order, if applied for, may be given to the parties.
(Banerjee, J.) (Debasish Kar Gupta, J.) SP/