Calcutta High Court
District Inspector Of Schools (Se) vs Abhijit Baidya & Ors on 16 July, 2013
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE/CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL/APPELLATE SIDE
APO 94 OF 2009
GA 665 of 2013
WITH
WP 694 of 2008
DISTRICT INSPECTOR OF SCHOOLS (SE), KOLKATA & ANR.
VS.
ABHIJIT BAIDYA & ORS.
APO 120 of 2009
GA 659 of 2013
WITH
WP 521 of 2008
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
ASWINI KUMAR GHOSAL & ORS.
APO 121 of 2009
GA 662 of 2013
WITH
WP 902 of 2008
THE DIRECTOR OF TREASURES & ACCOUNTS, WEST BENGAL & ORS.
VS.
ARUN KUMAR MUKHERJEE & ORS.
APO 122 of 2009
GA 660 of 2013
WITH
WP 725 of 2008
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL AND ORS.
VS.
SUJOY KUMAR DATTA & ORS.
APO 135 of 2009
GA 657 of 2013
WITH
WP 901 of 2008
THE DIRECTOR OF TREASURES & ACCOUNTS, W.B. & ORS.
VS.
DULAL CHANDRA KAR & ORS.
APO 136 of 2009
GA 658 of 2013
WITH
2
WP 726 of 2008
DIRECTOR OF TREASURIES & ACCOUNTS, W.B. & ORS.
VS.
SUNIL KUMAR JANA & ORS.
WITH
APO 52 of 2010
GA 655 of 2013
WITH
WP 785 of 2008
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
SHYAMALI GHOSH (ROY) & ORS.
APO 53 of 2010
GA 661 of 2013
WITH
WP 611 of 2008
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
JAGANNATH DUTTA & ORS.
APO 54 of 2010
GA 656 of 2013
WITH
WP 650 of 2008
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
SANTI NATH SIL & ORS.
APO 469 of 2005
GA 683 of 2013
WITH
WP 1019 of 2004
STATE OF W.B. & ORS.
VS.
CHHABI ROY (SOM)
APO 119 of 2007
WITH
WP 1527 of 2002
STATE OF W.B. & ORS.
VS.
SK. ABDUR RASHID
APO 120 of 2007
WITH
WP 1322 of 2002
STATE OF W.B. & ORS.
VS.
SK. IDRIS MOHAMMED & ORS.
APO 121 of 2007
WITH
WP 1528 of 2002
3
STATE OF W.B. & ORS.
VS.
MD. ABDUL GHANI & ORS.
APO 122 of 2007
WITH
WP 1401 of 2002
STATE OF W.B. & ORS.
VS.
JAYNAL MULLICK
APO 474 of 2007
WITH
WP 1420 of 2002
STATE OF W.B. & ORS.
VS.
TAYEB ALI PURKAIT
APO 207 of 2008
WITH
WP 1904 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
ANIL KUMAR GHOSH & ORS.
APO 208 of 2008
WITH
WP 2106 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
ANIL KUMAR ROY & ORS.
APO 209 of 2008
WITH
WP 1925 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
SULTAN SALAUDDIN SARKAR & ORS.
APO 210 of 2008
WITH
WP 2036 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
NANDA KISHORE DAS & ORS.
APO 211 of 2008
WITH
WP 2038 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
NARAYAN CHANDRA MODAK & ORS.
APO 212 of 2008
WITH
WP 1898 of 2004
4
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
NIRMAL KUMAR GHOSH & ORS.
APO 213 of 2008
WITH
WP 1903 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
GOPAL DAS GHOSH & ORS.
APO 230 of 2008
GA 223 of 2013
WITH
WP 2049 OF 2002
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
DIPALI CHATTERJEE & ANR.
APO 270 of 2008
WITH
WP 2434 of 2003
STATE OF WEST BENGAL & ORS.
VS.
ANANTA KUMAR BHUNIA
APO 298 of 2008
GA 263 of 2013
WITH
WP 1563 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
LAKSHMI KANTA DAS & ORS.
APO 299 of 2008
GA 261 of 2013
WITH
WP 2163 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
ROSAYED ALI MULLICK & ORS.
APO 300 of 2008
WITH
WP 1686 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
SWAPAN KUMAR SAMANTA & ORS.
APO 301 of 2008
GA 262 of 2013
WITH
WP 2162 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
TAPAN KUMAR MAITY & ORS.
5
APO 302 of 2008
GA 292 of 2013
WITH
WP 1687 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
KANTI RANJAN SAMANTA & ORS.
APO 303 of 2008
WITH
WP 1710 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
SUBHASH CHANDRA MAITY & ORS.
APO 304 of 2008
GA 293 of 2013
WITH
WP 2214 of 2005
DIRECTOR OF SCHOOL EDUCATION & ORS.
VS.
DEBASIS CHAKRABORTY & ORS.
APO 305 of 2008
WITH
WP 2216 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
RAMENDRA NATH KANRAR & ORS.
APO 93 of 2009
WITH
WP 782 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
JITENDRA NATH CHATTERJEE & ORS.
APO 95 of 2009
WITH
WP 54 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
GOPAL MAJUMDAR & ORS.
APO 96 of 2009
WITH
WP 59 of 2005
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
RAJIB LOCHAN SARKAR & ORS.
APO 23 of 2010
6
WITH
WP 2370 of 2003
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
MD.ENAMUL HAQUE & ORS.
APO 24 of 2010
GA 696 of 2013
WITH
WP 1029 of 2004
DIRECTOR OF SCHOOL EDUCATION, WEST BENGAL & ORS.
VS.
FAIZUDDIN BISWAS & ORS.
With
APO 25 of 2010
WITH
WP 733 of 2008
THE DISTRICT INSPECTOR OF SCHOOLS PASCHIM MEDINIPUR & ORS.
VS.
SANDHYA ROY (MALLICK)
APOT 406 of 2008
WITH
G.A.3240 of 2008
G.A.3360 of 2008
WP 638 of 2008
STATE OF WEST BENGAL & ORS.
VS.
RAM KIRTI JADAV & ORS.
WITH
FMA 425/2005
State of West Bengal & Ors.
v.
Lutfun Nesha Begum & Ors.
With
FMA 762/2008
State of West Bengal & Ors.
v.
Sk. Nure Alam & Ors.
with
FMA 1552/2008
State of West Bengal & Ors.
v.
Somdatta Vijoylakshmi Chakraborty & Anr.
With
FMA 1615/2008
FMA 50/2009
State of West Bengal & Ors.
v.
Manika Das & Anr.
with
WP 19982(W)/2009
7
WP 22401(W)/2005
Pashim Banga Prathamik Sikshak Samity & Anr.
v.
State of West Bengal & Ors.
With
WP 16832(W)/2010
Chandi Charan Ghosh
v.
State of West Bengal & Ors.
With
WP 16830(W)/2010
Naanda Rani Haldar
v.
State of West Bengal & Ors.
With
WP 16831(W)/2010
Usha Jana
v.
State of West Bengal & Ors.
With
WP 16794(W)/2010
Krishna Mandal
v.
State of West Bengal & Ors.
With
WP 23352(W)/2010
Subhasini Sarkar
v.
State of West Bengal & Ors.
With
WP 23353(W)/2010
Biswanath Ray
v.
State of West Bengal & Ors.
With
WP 27441(W)/2008
Smt. Basanti Datta (Hore)
v.
State of West Bengal & Ors.
With
WP 23355(W)/2010
Rabindra Nath Dutta
v.
State of West Bengal & Ors.
With
WP 31357(W)/2008
Tarapada Roy & Ors.
v.
State of West Bengal & Ors.
With
WP 11840(W)/2009
Subhra Sinha (Thakur) & Ors.
v.
State of West Bengal & Ors.
With
WP 13875(W)/2009
8
Rina Sinha Roy
v.
State of West Bengal & Ors.
With
WP 14390(W)/2009
Niranjan Das
v.
State of West Bengal & Ors.
With
WP 16247(W)/2009
Indrani Chakraborty (Dhar)
v.
State of West Bengal & Ors.
With
WP 829(W)/2010
Durga Prasad Mahata
v.
State of West Bengal & Ors.
With
WP 6660(W)/2010
Manik Ratan Chakravorty
v.
State of West Bengal & Ors.
With
WP 5861(W)/2010
Biswanath Pal
v.
State of West Bengal & Ors.
With
WP 16361(W)/2010
Bani Bikash Dube
v.
State of West Bengal & Ors.
With
WP 862(W)/2010
Nisi Kanta Mandal
v.
State of West Bengal & Ors.
With
WP 870(W)/2010
Biswanath Mandal
v.
State of West Bengal & Ors.
With
WP 861(W)/2010
Nirmal Kumar Haldar & Ors.
v.
State of West Bengal & Ors.
With
WP 857(W)/2010
Bibhas Chandra Mahajan
v.
State of West Bengal & Ors.
With
WP 864(W)/2010
Susil Kumar Baidya
v.
9
State of West Bengal & Ors.
With
WP 859(W)/2010
Asit Kumar Haldar
v.
State of West Bengal & Ors.
With
WP 1706(W)/2010
Ristam Ali Seikh
v.
State of West Bengal & Ors.
With
WP 848(W)/2010
Dinesh Chandra Paul & Ors.
v.
State of West Bengal & Ors.
With
WP 1708(W)/2010
Tegendra Nath Mondal
v.
State of West Bengal & Ors.
With
Aruna Banerjee
v.
State of West Bengal & Ors.
With
WP 868(W)/2010
Prafulla Kumar Mondal
v.
State of West Bengal & Ors.
With
WP 855(W)/2010
WP 851(W)/2010
WP 968(W)/2010
Debprasad Gayen
v.
State of West Bengal & Ors.
With
WP 21104(W)/2008
Kanan Das(Bhowmik)
v.
State of West Bengal & Ors.
WP 19469(W)/2007
Somnath Jana
v.
State of West Bengal & Ors.
with
WP 19465(W)/2007
Amalesh Jana
v.
State of West Bengal & Ors.
WP 12934(W)/2008
Panchanan Pal
v.
State of West Bengal & Ors.
With
WP 12903(W)/2008
10
Nurmohammad Mallick
v.
State of West Bengal & Ors.
With
WP 12954(W)/2008
Sanat Kumar Alu
v.
State of West Bengal & Ors.
With
WP 12956(W)/2008
Shamsul Alam Khan
v.
State of West Bengal & Ors.
With
WP 12959(W)/2008
Biswanath Patra
v.
State of West Bengal & Ors.
With
WP 32093(W)/2008
Sukumar Goswami
v.
State of West Bengal & Ors.
With
WP 32098(W)/2008
Anil Kumar Kuila
v.
State of West Bengal & Ors.
With
WP 32096(W)/2008
Bhaskar Chandra Ghosh
v.
State of West Bengal & Ors.
With
WP 32092(W)/2008
Mukul Banerjee
v.
State of West Bengal & Ors.
With
WP 32094(W)/2008
Annapurna Ray
v.
State of West Bengal & Ors.
With
WP 32099(W)/2008
Simitra Karak(Basak)
v.
State of West Bengal & Ors.
With
WP 11051(W)/2006
Putul Bhattacharyya (Batabyal)
v.
State of West Bengal & Ors.
With
WP 19467(W)/2007
WP 21322(W)/2008
Pramila Prava De
11
v.
State of West Bengal & Ors.
With
WP 21324(W)/2008
Sabita Das
v.
State of West Bengal & Ors.
With
WP 21323(W)/2008
Kajallata Das
v.
State of West Bengal & Ors.
With
WP 7254(W)/2008
Asis Kumar Mondal
v.
State of West Bengal & Ors.
With
WP 7255(W)/2008
Sadhan Kumar Mukherjee
v.
State of West Bengal & Ors.
With
WP 7256(W)/2008
WP 7257(W)/2008
Jitendra Nath Mondal
v.
State of West Bengal & Ors.
With
WP 7253(W)/2008
Hiranmoy Maji
v.
State of West Bengal & Ors.
With
WP 4870(W)/2010
Satish Chandra Bera
v.
State of West Bengal & Ors.
With
WP 4872(W)/2010
Kshudiram Giri
v.
State of West Bengal & Ors.
With
WP 4873(W)/2010
WP 4900(W)/2010
Chittaranjan Shit
v.
State of West Bengal & Ors.
With
WP 4902(W)/2010
Dipti Das
v.
State of West Bengal & Ors.
With
WP 4903(W)/2010
Kamala Kanta Roy
12
v.
State of West Bengal & Ors.
With
WP 2585(W)/2011
Sima Sengupta
v.
State of West Bengal & Ors.
With
WP 2586(W)/2011
Maya Sengupta
v.
State of West Bengal & Ors.
With
WP 2587(W)/2011
Kalpana Dutta
v.
State of West Bengal & Ors.
With
WP 2588(W)/2011
Sumita Bhattacharjo
v.
State of West Bengal & Ors.
With
WP 2589(W)/2011
Shibani Chakraborty
v.
State of West Bengal & Ors.
With
WP 20939(W)/2008
WP 20940(W)/2008
WP 21076(W)/2008
Sati Ghosh
v.
State of West Bengal & Ors.
With
WP 21079(W)/2008
Sarbani Mukherjee
v.
State of West Bengal & Ors.
With
WP 21077(W)/2008
Subrata Mukherjee
v.
State of West Bengal & Ors.
With
WP 20296(W)/2008
Arati Mahapatra
v.
State of West Bengal & Ors.
With
WP 20298(W)/2008
Gita Mukhopadhyay (Chakraborty)
v.
State of West Bengal & Ors.
With
WP 20744(W)/2008
Bholanath Hazra
13
v.
State of West Bengal & Ors.
With
WP 20300(W)/2008
Dipak Chandra Das
v.
State of West Bengal & Ors.
With
WP 20299(W)/2008
Uttam Kumar De
v.
State of West Bengal & Ors.
With
WP 20687(W)/2008
Smt. Bulu Ray Chaudhury (Palai)
v.
State of West Bengal & Ors.
With
WP 20743(W)/2008
Bibhas Kumar Roy
v.
State of West Bengal & Ors.
With
WP 20936(W)/2008
Puspendu Bikas Das
v.
State of West Bengal & Ors.
With
WP 20938(W)/2008
Bithika Nayar
v.
State of West Bengal & Ors.
With
WP 20223(W)/2008
Sri Ashok Kumar Mondal
v.
State of West Bengal & Ors.
With
WP 20225(W)/2008
Amulya Kumar Sarkar
v.
State of West Bengal & Ors.
With
WP 20226(W)/2008
Bhahmapada Hazra
v.
State of West Bengal & Ors.
With
WP 20292(W)/2008
Malaya Banerjee
v.
State of West Bengal & Ors.
With
WP 20228(W)/2008
Sri Dhruba Pada Dhar
v.
State of West Bengal & Ors.
14
With
WP 20294(W)/2008
Sutapa Das
v.
State of West Bengal & Ors.
With
WP 21446(W)/2008
Smt. Malati Mandal
v.
State of West Bengal & Ors.
With
WP 21445(W)/2008
Gour Chandra Ghosh
v.
State of West Bengal & Ors.
With
WP 18631(W)/2008
Purna Chandra Bera
v.
State of West Bengal & Ors.
With
WP 4294(W)/2006
Amiya Kundu & Ors.
v.
State of West Bengal & Ors.
With
WP 16090(W)/2009
Chittaranjan Karmakar Ors.
v.
State of West Bengal & Ors
With
WP 16088(W)/2009
Safiuddin Ahamed.
v.
State of West Bengal & Ors
With
WP 16094(W)/2009
Kajallata Mohanta.
v.
State of West Bengal & Ors.
With
WP 16095(W)/2009
Dinendra Nath Das.
v.
State of West Bengal & Ors
With
WP 16096(W)/2009
Jamiruddin Mia.
v.
State of West Bengal & Ors
With
WP 16097(W)/2009
Shrimati Praatibha Saha.
v.
State of West Bengal & Ors
With
WP 4772(W)/2008
15
Sucheta Chaki.
v.
State of West Bengal & Ors
With
WP 1767(W)/2010
Sunil Kumar Das.
v.
State of West Bengal & Ors
With
WP 1760 (W)/2010
Asimoddin Ahamed.
v.
State of West Bengal & Ors
With
WP 1779(W)/2010
Sushen Chandra Sarkar.
v.
State of West Bengal & Ors
With
WP 1765(W)/2010
Md. Abdul Zalil.
v.
State of West Bengal & Ors
With
WP 1776(W)/2010
Manindra Nath Sarkar
v.
State of West Bengal & Ors
With
WP 16147(W)/2009
Mosleuddin Miah.
v.
State of West Bengal & Ors
With
WP 16092(W)/2009
Makhan Chanra Mahanta
v.
State of West Bengal & Ors
With
WP 16098(W)/2009
Abdul Hamid.
v.
State of West Bengal & Ors
With
WP 16102 (W)/2006
Naresh Chandra Majumdar.
v.
State of West Bengal & Ors
With
WP 16103(W)/2009
Sandhya Karmakar (Dhar)
v.
State of West Bengal & Ors
With
WP 16923(W)/2009
Alauddin Ahmed
v.
16
State of West Bengal & Ors
With
WP 16091(W)/2009
Shrimati Malati Rani Sarkar
v.
State of West Bengal & Ors
With
WP 16089(W)/2009
Tapati Roy (Biswas)
v.
State of West Bengal & Ors
With
WP 4769(W)/2008
Sandhya Sarkar (Das)
v.
State of West Bengal & Ors
With
WP 4767(W)/2008
Probir Kumar Ray.
v.
State of West Bengal & Ors
With
WP 1763(W)/2010
Upendra Nath Barman
v.
State of West Bengal & Ors
With
WP 1769(W)/2010
Samser Ali
v.
State of West Bengal & Ors
With
WP 24877(W)/2008
Subhas Chandra Pradhan.
v.
State of West Bengal & Ors
With
WP 23207(W)/2008
Radha Krishna Praharaj.
v.
State of West Bengal & Ors
With
WP 23210(W)/2008
Basanta Kumar Das.
v.
State of West Bengal & Ors
With
WP 16046(W)/2008
Sukes Chandra Mondal.
v.
State of West Bengal & Ors
With
WP 23217(W)/2008
Girija Sankar Bera.
v.
State of West Bengal & Ors
With
17
WP 23219(W)/2008
Najrul Haque.
v.
State of West Bengal & Ors
With
WP 23221(W)/2008
Bijoy Gobinda Das.
v.
State of West Bengal & Ors
With
WP 23223(W)/2008
Md. Amiruddin.
v.
State of West Bengal & Ors
With
WP 23225(W)/2008
Nimai Roy Chowdhury.
v.
State of West Bengal & Ors
With
WP 22066(W)/2008
Amalesh Kumar Manna
v.
State of West Bengal & Ors
With
WP 24883(W)/2086
Subhra Chatterjee (Sen)
v.
State of West Bengal & Ors
With
WP 15679(W)/2008
Pares Nath Maiti.
v.
State of West Bengal & Ors
With
WP 14386(W)/2008
Jaydeb Ghosh.
v.
State of West Bengal & Ors
With
WP 15721(W)/2008
Tapan Kumar Bhattacharya.
v.
State of West Bengal & Ors
With
WP 15716(W)/2008
Jagadish Chandra Bala.
v.
State of West Bengal & Ors
With
WP 15693(W)/2008
Radha Krishna Das
v.
State of West Bengal & Ors
With
WP 24880(W)/2008
Ashapurna Chatterjee.
18
v.
State of West Bengal & Ors
With
WP 16034(W)/2008
Surendra Nath Bhunia.
v.
State of West Bengal & Ors
With
WP 16036(W)/2008
Sibsankar Mishra.
v.
State of West Bengal & Ors
With
WP 16039(W)/2008
Sukumar Chandra Giri.
v.
State of West Bengal & Ors
With
WP 16043(W)/2008
Prafulla Kr. Nayak.
v.
State of West Bengal & Ors
With
WP 23214(W)/2008
Khagendra Nath Das
v.
State of West Bengal & Ors
With
WP 24882(W)/2008
Shipra Goswami Chatterjee
v.
State of West Bengal & Ors
With
WP 6299(W)/2010
Mahitosh Roy
v.
State of West Bengal & Ors
With
WP 18604(W)/2010
Bibhuti Kumar Mridha
v.
State of West Bengal & Ors
With
WP 21181(W)/2010
Bimala Dey (Rakshit)
v.
State of West Bengal & Ors
With
WP 21185(W)/2010
Swapan Kumar Chakraborty
v.
State of West Bengal & Ors
With
WP 2252(W)/2011
Chandana Chakraborty
v.
State of West Bengal & Ors
19
With
WP 14455(W)/2011
Kalyani Parui
v.
State of West Bengal & Ors
With
WP 2824(W)/2011
Bimalendu Choudhury
v.
State of West Bengal & Ors
With
WP 11004(W)/2009
Karuna Kanta Das
v.
State of West Bengal & Ors
With
WP 11154(W)/2009
Aloka Das (Roy)
v.
State of West Bengal & Ors
With
WP 12372(W)/2009
Firoza Begum
v.
State of West Bengal & Ors
With
WP 18160(W)/2009
Sukchand Sardar
v.
State of West Bengal & Ors
With
WP 23565(W)/2009
Md. Elias Ali
v.
State of West Bengal & Ors
With
WP 21417(W)/2008
Sarada Prosad Mondal
v.
State of West Bengal & Ors
With
WP 23212(W)/2008
Ananta Kumar Seth
v.
20
State of West Bengal & Ors
With
WP 23209(W)/2008
Anil Kumar Das
v.
State of West Bengal & Ors
With
WP 23211(W)/2008
Md. Sagiruddin
v.
State of West Bengal & Ors
With
WP 23216(W)/2008
Md. Maquimuddin
v.
State of West Bengal & Ors
With
WP 16101(W)/2009
Hagan Chandra Sarkar
v.
State of West Bengal & Ors
With
WP 13111(W)/2009
Shrimati Krishna Sarkar (Mondal)
v.
State of West Bengal & Ors
BEFORE:
The Hon'ble CHIEF JUSTICE MR. ARUN MISHRA
The Hon'ble JUSTICE DIPANKAR DATTA
The Hon'ble JUSTICE JOYMALYA BAGCHI
Heard on : January 17, February 7, 12, 20, 21 & 28, and March 7 & 14, 2013
Judgement on : July 16, 2013
For Appellant, State
and for respondents in Writ
Petitions : Mr. Bimal Chatterjee, Advocate General
Mr. Ashoke Banerjee, Govt. Pleader
Mr. Joytosh Majumder,
Mr. Avratosh Majumder,
Mr. Sakya Sen,
Mr. Sushovan Sengupta, Advocates
For Respondents in appeal
And for Petitioners in
Writ Petition : Mr. Bikash Ranjan Bhattacharya,Sr. Advocate
Mr. Shaktipada Jana,
Mr. Kamal Mishra,
Mr. Tamal Taru Panda and
Ms. Sabita Khutiya, Advocates
21
Mr. Rabilal Mitra with
Mr. Asim Haldar,
Mr. Pradip Kumar Neogi and
Mr. T.D. Maity, Advocates
Mr. S. S. Arefin with
Mr. S. Jana, Advocates
Mr. P.S. Bhattacharya,
[ Mr. Raju Bhattacharya, Advocates
Mr. Tulsi Das Maity,
Mr. Sudip Ghosh,
Mr. Pradip Kr. Ghosh,Advocates
Mr. Biswajit Banerjee, Advocate
Arun Mishra, C. J:
1) The appeals and also the writ petitions involve identical questions. All such
similar matters have been listed for analogous hearing. Hence, these are
being decided by this common judgment and order.
2) Large number of cases have been referred to us by a Division Bench of this
Court because of conflict of opinion. One such order has been passed on 16th
January, 2008 by the said Division Bench in APO No.119/2007. In view of
the conflicting decisions of this Court, the cases have been referred in entirety
to the larger Bench. Question involved in these matters is, whether employees
have to be given an opportunity to switch over to the Pension-cum-Gratuity
Scheme, in view of change made in para 17(3) of Revision of Pay and
Allowances 1990 and in para 13 of Revision of Pay and Allowances 1998.
3) The facts, in short, are that the petitioners are teachers of recognised non-
government educational institutions in the State of West Bengal. From time to
22
time various service benefits have been conferred on the employees of such
institutions and revision of pay rules have revised their salary with rider of
reduction in age of superannuation and revised higher benefit on retirement.
Before 20th September, 1967, the teaching and non-teaching staff of the
Secondary Schools were only entitled to the benefit of Contributory Provident
Fund by way of retiral benefit.
4) Earlier Death-cum-Retirement Scheme came into force with effect from 1st
April, 1966. In the year 1981, revision of pay scales was effected by way of
Revision of Pay and Allowances, 1981 (in short ROPA 1981). In the year 1985,
Death-cum-Retirement Benefit Scheme, 1981 was framed (in short DCRB
Scheme, 1981). In that scheme, either of the two benefits was available, CPF-
cum-Gratuity or Pension-cum-Gratuity. Age of retirement was 65 years at the
relevant time with certain riders. Then came another Revision of Pay and
Allowances, 1990 (in short ROPA 1990) on the basis of the recommendation
of a Pay Commission. On opting for revised pay, consequences followed as to
the age of superannuation to be 60 years and no right of extension upto 65
years with right to receive pension at par with government employees and
enhanced gratuity as provided in para 17 of ROPA 1990. Then came Revision
of Pay and Allowances, 1998 (in short ROPA 1998). Para 13 of ROPA 1998
was substituted to make the basis of option furnished under DCRB Scheme,
1981 for receipt of benefit of Pension-cum-Gratuity or CPF-cum-Gratuity. The
provisions of para 17 of ROPA 1990 were amended to accord with para 13 of
ROPA 1998 retrospectively in the year 2007. The State Government invited
23
fresh option under DCRB Scheme, 1981 on 16th December, 1991 and not
thereafter.
5) Petitioners have filed various petitions submitting that once they had
exercised options under ROPA 1990, by virtue of the provisions contained in
para 17 thereof they became automatically entitled to the benefit of pension
at par with the State Government employees as well as enhanced amount of
gratuity. They have also questioned substitution of para 17(2) under ROPA
1990 with retrospective effect. In addition they have also questioned the
legality of the amendment of ROPA 1998 made on 13th July, 1999 whereby
provisions of para 13 of ROPA 1998 were substituted. They also submitted
that the Memo dated 16th December, 1991 inviting the revised option under
DCRB Scheme, 1981 was not applicable and moreover it was not widely
circulated, as such they were not aware of the same.
6) Some of them have contended that in spite of prayer made to clarify the
amount of CPF to be refunded by them, they were not informed how much
amount was required to be deposited by them towards employer's share of
contributory fund along with interest and additional interest. It was also
submitted that once they had opted under ROPA 1990, they automatically
became entitled to benefit of Pension-cum-Gratuity and in some cases,
petitioners have applied and opted for revised pay scale under ROPA 1998
upto June, 1999, before substitution of para 13 on 13th July, 1999. In spite of
that, they are being deprived of the benefit of Pension-cum-Gratuity in illegal
and arbitrary manner.
24
7) The stand of the State Government, in short, is that it was necessary to
express option under DCRB Scheme, 1981. After introduction of ROPA 1990
opportunity was given to exercise fresh option, which was not availed of by
the petitioners. The provisions of para 17 of ROPA 1990 did not confer right
to claim pension at par. That depended upon option exercised under DCRB
Scheme, 1981. The substitution of para 13 of ROPA 1998 and para 17 of
ROPA 1990 was within its competence. The petitions have been filed belatedly
to change option exercised in terms of DCRB Scheme, 1981. No case for
interference is made out. The Court cannot enlarge time to file option.
Petitioners' accrued right has not been taken away. The petitions deserve to
be dismissed. Thus, appeals filed by the State ought to be allowed.
8) It is admitted fact that no option had been invited by the State Government
after substitution of para 13 of ROPA 1998 w.e.f. 13th July, 1999 and after
amendment made on 16th May, 2007 retrospectively w.e.f. 6th March, 1990 in
para 17 of ROPA 1990.
9) Considering various issues involved in the matters, we framed the following
questions for our determination:
i) Whether a person who has opted for revised pay scale under ROPA,
1990 becomes entitled to pension by virtue of operation of para 17 of
ROPA 1990?
ii) Whether an incumbent who has exercised an option under ROPA
1990 can still be conditioned to the rider of option to be exercised
under West Bengal Recognised Non-Government Educational
25
Institution Employees DCRB Scheme, 1981, particularly in view of
the amendment effected in paragraph 17(2) vide G.O. 226-SE
(B)/1M-102/98, dated 16th May, 2007 and whether the amendment
made in paragraph 17(2) can be said to be valid law; that too with
retrospective effect?
iii) Whether para 13 of Revision of Pay & Allowance Rules 1998, as
amended by Notification dated 13th July, 1999 relating to the
employees of West Bengal Recognized Non-Government Aided
Institutions can be said to be valid in law?
iv) Whether after amending the para 13 of ROPA 1998 on 13.07.1999
and para 17 of ROPA 1990 in 2007, it was necessary to give fresh
opportunity to employees to revise option under West Bengal
Recognized Non-Government Educational institution Employees
(Death-cum-Retirement Benefit) Scheme, 1981?
v) Whether the time-limit fixed under the DCRB Scheme, 1981 to
submit option can be extended in suitable cases?
10) It was submitted by the learned Advocate General that opportunity was given
in the year 1991 to revise option under DCRB Scheme, 1981 and option once
exercised was final and Government has made an effort from time to time to
bring the pensionary benefits admissible to such employees at par with the
Government employees by issuing memoranda. The view taken by a Division
Bench of this Court in State of West Bengal & Ors. vs. Biswanath Koley,
2008 (3) CHN 358, is not correct, while laying down to the effect that option
26
exercised under ROPA 1990 is enough to avail benefit of Pension-cum-
Gratuity notwithstanding the option exercised under DCRB Scheme, 1981
and by virtue of Memo dated 16th December, 1991, the employees cannot be
deprived of the benefit of para 17 of ROPA 1990 as they have opted for
reduced age of superannuation.
11) Learned Advocate General also submitted that it was open to an employee
under DCRB Scheme, 1981 either to opt for the benefit of CPF-cum-Gratuity
or for Pension-cum-Gratuity. Once option is exercised the same is final and
cannot be altered and that has been precisely reflected in the retrospective
amendment made in 2007 in para 17 of ROPA 1990 and substituted para 13
of ROPA 1998 with effect from 13th July, 1999. Thus, the petitioners cannot
be said to be entitled to any relief having failed to exercise revised option as
per Memo dated 16th December, 1991 within a period of three months to
switch over to Pension-cum-Gratuity. The period specified in the
memorandum cannot be extended by the Court. It was finally contended by
the learned Advocate General that the petitioners cannot be said to be
entitled to any relief.
12) It was submitted by learned counsel on behalf of the employees that the view
taken by the Division Bench of this Court in Biswanath Koley (supra) has
been affirmed by the Hon'ble Supreme Court and the decision of a Division
Bench of this Court in Bijoli Bhattacharya vs. State of West Bengal, 2004
(3) CHN 169, has also been set aside by the Hon'ble Supreme Court in SLP
No.4928 of 2003 decided on 6th August, 2004. It has been held there that
27
further opportunity to exercise option ought to have been given as the
appellant was not keeping well and as such could not exercise an option. It
was further submitted that the decision dated 25th March, 2007 in Chhabi
Roy vs. State of West Bengal by a Division Bench of this Court has been set
aside by the Hon'ble Supreme Court and the case has been remitted to this
Court for consideration in the light of the decision of the Hon'ble Supreme
Court in Bijoli Bhattacharya (supra) decided on 6th August, 2004. Thus the
very basis on which various reference orders have been passed stands wiped
off.
13) It was further submitted by learned counsel for the employees that there was
material change in service conditions brought about by ROPA 1990. The age
of superannuation was reduced from 65 years to 60 years without right to
avail extension of service upto 65 years once having opted for revised pay
scale. However, there was accrual of the benefit to receive pension at par with
the State Government employees and enhanced amount of gratuity as per
provisions in para 17 of ROPA 1990 which automatically followed. It was not
open to amend, vide Memo dated 16th May, 2007, provisions contained in
para 17 with retrospective effect from 6th March, 1990. Automatically right
accrued to the petitioners once they opted for revised pay to obtain Pension-
cum-Gratuity as envisaged in para 17 at par with Government employees
under ROPA 1990. Such accrued right could not have been taken away as the
petitioners had changed their position and acted to their detriment by
accepting the reduced age of superannuation of 60 years with waiver of right
28
to avail extension in service upto 65 years. While maintaining reduced age of
superannuation, other benefits could not have been taken away and it was
also not open to the State Government to relegate them to the option
exercised under the DCRB Scheme, 1981. Provisions in para 17 (2) of ROPA
1990 could not have been amended with retrospective effect in a manner that
would affect their accrued rights. Before substitution of para 13 of ROPA
1998 on 13th July, 1999, similar benefits were available which have been
taken away by substituted provision. The substitution so made in para 13 of
ROPA 1998 was also in derogation to the rights conferred as per provisions of
para 17 of ROPA 1990.
14) It was also submitted that it was necessary to invite revised option under
DCRB Scheme, 1981, after the amendment was made by substitution of para
13 of ROPA 1998 and para 17 of ROPA 1990 in the years 1999 and 2007
respectively, which was not invited, particularly when the amendments were
drastic in nature. The well-reasoned view taken by this Court in Biswanath
Koley (supra) has been affirmed by the Supreme Court. Similar grounds were
raised in the SLP filed before the Hon'ble Supreme Court. They cannot
therefore be raised now before this Court.
15) It was also submitted that the Memo dated 16th December, 1991 inviting
revised option under DCRB Scheme, 1981 was not applicable to those who
had opted for ROPA 1990, and even if it were applicable, it was not widely
circulated amongst the incumbents and as such they could not come to know
of the same and consequently could not exercise options. Some of them had
29
exercised option but it had not been acted upon. It was also contended that
in spite of prayer made they were not intimated how much amount was
required be refunded to the Government towards employer's share of
contributory provident fund along with interest and additional interest. Hence
they cannot be deprived of the benefit as envisaged in para 17 of ROPA 1990
for availing Pension-cum-Gratuity. Thus they had been illegally deprived of
seeking Pension-cum-Gratuity.
16) It was also submitted that once options had been exercised in the manner
prescribed under ROPA 1990, therefore, even if they had not furnished
options in terms of the Memorandum dated 16th December, 1991, they could
not be deprived of the benefits as envisaged under para 17(2) of ROPA 1990.
17) Before dilating upon various submissions, it is appropriate to take note of
provisions prevailing as to conditions of service, retirement and revision of
pay scales, so as to find out the effect of ROPA, 1990 and ROPA 1998 and
whether it was necessary to invite fresh options after substitution of para 17
and para 13 respectively of the aforesaid provisions.
18) The Government of West Bengal in terms of the Finance Department
resolution introduced the Death-cum-Retirement Benefit Scheme. The retiral
benefits of teaching and non-teaching staff of the schools were governed as
per the scheme which came into force w.e.f. 1st April, 1966.
19) The Government of West Bengal, Education Department accorded approval to
the recognised Non-Government Secondary Institutions Pension Rules. The
said rules were introduced vide Memo dated 18th July, 1968.
30
20) Finance Department, Government of West Bengal set up a Second Pay
Commission to examine the structure of emoluments and conditions of
service of the teaching and non-teaching staff of the secondary schools
resulting in revision of pay and allowance in 1981 vide Memo dated 31st July,
1981.
21) On the basis of the recommendation of the Second Pay Commission, revised
pay was made applicable as per ROPA 1981. Those who were in service on
31st March, 1981 had an option either to retain their prevailing scale of pay
and existing terms and conditions of service or to opt for the revised scales of
pay together with the revised terms and conditions of service, as may be
determined by the State Government.
22) In the year 1985, the DCRB Scheme, 1981 was introduced by the
Government of West Bengal. It was made applicable to the whole time
approved teaching and non-teaching employees of the non-
Government/Sponsored/Aided Institutions who were in active service on or
after 1st April, 1981. It was not applicable to the incumbents who retired from
service prior to 1st April, 1981. Provisions for family pension were also made.
Persons who were in service on 1st April, 1981 had an option either to
continue to be governed by the existing rules governing retiral benefits or to
come under the DCRB Scheme, 1981.
23) As per clause 5 of the DCRB Scheme, 1981, option was to be exercised by 90
days from the date of issue of the same. It was also provided as per clause 5
(c) that if any employee does not opt or fail to opt within the prescribed time
31
limit, the pensionary benefits as admissible prior to 1st April, 1981 would be
applicable in his case.
24) As per clause 5 of the DCRB Scheme, 1981, from date of notification i.e. 15th
May, 1985, option was required to be exercised within 90 days. Clause 5 (c)
of the DCRB Scheme, 1991 provided that :
"5(c) If any employee does not opt or fail to opt within prescribed time
limit, the pensionary benefits as admissible prior to 1.4.81 would be
applicable in their case."
25) As per para 4 Chapter I of the DCRB Scheme, 1981, the employees were
entitled to either Pension-cum-Gratuity or CPF-cum-Gratuity as per option
exercised by them. Provisions contained in para 4 of Chapter I is quoted
below :
"4 The following retirement benefits shall be admissible under this Scheme:
Either Pension (including Family Pension)-cum-Gratuity at rates as laid
down in this Scheme or Contributory Provident Fund at the rate of 8.33%
(from 1.4.81)-cum-Gratuity according to option".
26) It is significant to mention that at the time when the DCRB Scheme, 1981
was brought into force, the age of retirement was 65 years and dispute was
going on whether the employees of such institutions could be retired at the
age of 60 years. This Court had restrained the Government from retiring
some employees at the age of 60-62 years. Hence, it was decided by the
Government of West Bengal vide Memo dated 31st March, 1986 that
employees of Government and non-Government Primary and Secondary
Schools including Madrasahs will retire at the age of 60 years but they will be
allowed extension of service on year to year basis upto the age of 65 years,
32
subject to the conditions that they are physically fit and mentally alert. It is
apparent from the order of the State Government that employees could
continue in the service before opting for ROPA 1990 upto 65 years, subject to
the conditions that they were physically fit and mentally alert. Such
extension of service was subject to sanction/approval by the competent
authorities and would be subject to the ultimate result of the appeal(s)
pending before this Court.
27) Thus, the employees as per the said Memo dated 3rd March, 1986 were having
right to continue up to 65 years subject to their physical fitness and mental
alertness in case of opting for the revised pay scale with effect from 1st April,
1981 as per recommendation made by the Pay Commission established in the
year 1977.
28) The pay and conditions of service underwent revision in 1990 when the State
Government on the basis of the recommendation of the Third Pay
Commission made in the year 1987 framed revised scales of pay for teaching
and non-teaching employees. The scales of pay were revised with effect from
1st April, 1981. The Government of West Bengal vide Memo dated 7th March,
1990 issued ROPA 1990. The options were to be exercised within 90 days as
per para 5 of ROPA 1990 to avail the benefit of revised pay scale. Significant
changes were brought about by ROPA 1990. Options once exercised to avail
benefits of the revised pay scale, conditions of service necessarily would
stand changed as provided in para 17. Thus:-
33
(1) The age of superannuation of all categories of teaching and non-
teaching employees who elect to come over to revised scales of pay
shall be fixed at 60 years, as recommended by the Third Pay
Commission.
(2) Para 17 (2) of ROPA 1990 further provided that the teaching and
non-teaching employees of an aided/sponsored educational
institution or organization who will opt for the revised scales of pay
shall be allowed to enjoy pensionary benefits including dearness
relief at par with the State Government employees. Maximum
amount of gratuity shall be raised from Rs.36,000/- to Rs.60,000/-.
29) Thus, an employee opting for revised scale of pay under ROPA 1990 would
enjoy the pensionary benefit at par with the State Government employees and
due to availing the revised scale of pay, the concerned employee shall have to
retire at the age of 60 years and he had to undertake in terms of option that
he would not claim any extension to continue in service upto the age of 65
years, which benefit was otherwise available as per memo dated 3rd March,
1986.
30) Option form which was part of ROPA 1990 as Annexure VIII-B was required
to be filed by an employee to avail benefit of revised pay scale as per para 5(3)
of ROPA 1990 and he had to undertake that he will not apply for extension of
age of superannuation. An employee who opted under ROPA 1990 lost the
benefit of retiring at 65 years of age, which was otherwise available on
extension. The form of option is quoted below:
34
" ANNEXURE VIII-B
Form of Option
[To be used by those governed by the first proviso to para 5(2) of the order]
I...............have read carefully the contents of G.O. No.33-Edn. (B) dated
7.3.1990 and I agree to abide by the terms and conditions stipulated
therein and I will not apply for extension of my service on attaining the age
of superannuation prescribed in para 17 of the Order.
(i) I....................hereby elect for the revised scale of Rs.............of my
substantive/officiating/temporary post with effect from 1st January,
1986.
(ii) I.....................hereby elect to continue in the existing scale of
..........pay of Rs...........of ...........my substantive/officiating/temporary
post mentioned below till..........19.............and to come under the
revised scale of Rs...........with effect from.............19.........
Station Signature
Date : Name
Designation
(substantive/Officiating/Temporary
Name of the Institution
District
Signature
Head of the Institution
Note : This option once exercised is final. The employees should not to come
under the revised scale on any date between 1st January, 1986 and 1st
January, 1990, after reading carefully the provisions of G.O. No.33 Edn. (B)
dated 7.3.1990. No change of option shall be allowed under any
circumstances."
(emphasis supplied by us)
31) The age of superannuation was reduced to 60 years as per recommendation
of the Third Pay Commission and it was also ordered that an employee who
will opt for the revised scale of pay "shall be allowed their pensionary benefits
including dearness relief at par with the State Government employees".
Maximum amount of gratuity shall be raised from Rs.36,000/- to Rs.
60,000/-. Thus, on acceptance of revised scale as per ROPA 1990
consequences automatically followed of reduced age of superannuation of 60
years and also that the employee shall be allowed to enjoy pensionary
35
benefits including dearness relief at par with the State Government
employees along with maximum amount of gratuity to be raised from
Rs.36,000/- to Rs.60,000/-. Para 17 of ROPA 1990 is as follows :
"17. Age of Superannuation and related issues.- (1) Subject to the
provisions of para 5, the age of superannuation of all categories of
teaching and non-teaching employees who elect to come over to
revised scales of pay shall be fixed at 60 years, as per
recommendation of the 3rd Pay Commission
(2) The teaching and non-teaching employees of an aided/sponsored
educational institution or organisation who will opt for the revised
scales of pay shall be allowed to enjoy pensionary benefits including
dearness relief at par with State Government employees. Maximum
amount to gratuity shall be raised from Rs.36,000/- to Rs.60,000/-"
32) Para 17(2) of ROPA 1990 had been retrospectively amended by the notification
dated 16th May 2007 with effect from 7th March, 1990 to provide that the
employees who opt for revised scale of pay shall be allowed to enjoy retirement
benefits as per their option exercised in terms of the DCRB Scheme, 1981.
Similar provision which was introduced in para 13 on 13th July, 1999 in
ROPA 1998 was also introduced in ROPA 1990 also.
33) The reason given for amendment/substitution is that para 17(2) is still in
existence, though the general principle is that if a provision/benefit extended
by an order is amended on a later date, the same provision/benefit extended
by a similar order made earlier stands amended automatically on that date, as
para 13 of ROPA 1998 has been amended on 13th July, 1999. This was cited
as the reason for substitution of Para 17(2) of ROPA 1990 w.e.f. 7.3.1990. The
notification dated 16th May, 2007 is quoted below :
"Government of West Bengal
School Education Department
Budget Branch Bikash Bhavan
36
Bidhannagar, Kolkata- 700 091
No. 226-SE (B)/IM-102/98(Part-III) Dated 16th May 2007.
It has been brought to the notice of this Department that Para 13 of G.O.
No. 25-SS (B) dated 12.02,1999 has been amended vide G.O. No. 155-SF (B)
dated 13.07.1999 whereas the same provision appearing in Para 17(2) of G.
O. No. 33-Edn.(B) dated 07.02.1990 is still existence, though the general
principle is that if a provision/benefit extended by an order is amended on
a later date, the same provision/benefit extended by a similar order made
earlier stands amended automatically on that date.
However, under those circumstances the Government is pleased to take the
following amendment in G.O. No. 33-Edn. (B) dated 07.03.1990.
Amendment
In sub-para (2) of Para 17 for the existing entry substitute the
following entry :-
" The teaching and non-teaching staff of an aided-sponsored
educational institution or organization who will opt for the revised scales
of pay as per memo No. 33-Edn (B) dated 07.03.1990 shall be allowed to
enjoy the retirement benefits as per revised pension order of the
Department vide Memo NO. 136-Edn (B) dated 15.05.1985 according to the
option exercised by them under the West Bengal Recognized Non-Govt.
Educational Institution Employees (D.C.R.B.) Scheme, 1981".
2.This order should be deemed to have taken effect from 07.03.1990.
3. This order issues with the concurrence of Finance Department vide U.O.
No. 339 dated 26.04.2007.
4. The Accountant General (A&B), West Bengal and other concerned are
being informed.
Sd/- S.K. Mahapatra
Joint Secretary."
34) As the benefits were increased in ROPA 1990, it appears that to extend benefit
to others who had still not opted for ROPA 1990, the State Government vide
Memo dated 16th December, 1991 permitted the incumbents who have
exercised options under the DCRB Scheme, 1981 promulgated as per Memo
dated 15th May, 1985 to change options to Pension-cum-Gratuity. Para 5(a) of
the Scheme gave an opportunity to the employees to switch over to revised
Pension including Family Pension-cum-Gratuity, subject to the condition that
37
the employer's share of contribution together with interest and additional
interest be refunded to the Government forthwith.
35) The term 'forthwith' has been explained in the order dated 5th February, 1996
to mean a 'maximum of 60 days from the date of submission of revised option'
but it was observed there that the Government may not be very rigid in this
regard and allow such refund, only if the employee has submitted revised
option in terms of the Memo dated 16th December, 1991 with interest plus
additional interest, before the date of superannuation.
36) On the basis of recommendation of the Pay Commission, again, the revision of
scale of pay of teaching and non-teaching staff was effected vide Memo dated
12th February, 1999 by ROPA 1998. The word 'employee' as defined in para
3(e) of ROPA 1998 means a member of the teaching and non-teaching staff of
the non-Government/Sponsored/Aided educational institutions and other
organisations who have opted for the scale of pay as revised in terms of ROPA
1990 and who is enjoying that scale of pay on the 1st January, 1996.
37) Para 13 of ROPA 1998 as notified on 12th February, 1999 provided that the
incumbents who will opt for the revised scales of pay shall be allowed to enjoy
pensionary benefits including dearness relief at par with the State
Government employees. Maximum amount of gratuity was raised from
Rs.60,000/- to Rs. 2,50,000/-. The aforesaid provision was substituted on
13th July, 1999. The provisions of para 13 which remained in force with effect
from 12th February, 1999 till its substitution on 13th July, 1999 was the same
as para 17(2) of ROPA 1990.
38
38) Provisions of para 13 had been substituted with effect from 13th July, 1999 to
the effect that the teaching and non-teaching employees who will come under
the revised scale of pay will be allowed to enjoy the retirement benefit
according to the option exercised by them under the DCRB Scheme, 1981,
whereas as per para 13 of ROPA 1998 before its substitution the option
exercised under DCRB Scheme, 1981 was not relevant for accrual of the
retiral benefit of pension and gratuity.
39) Option was required to be exercised, within 180 days from the date of issue of
ROPA 1998, as per provision contained in para 6 and option once exercised
shall be final. If an employee, who was in service on 31st December, 1995 and
to whom the order applies, does not exercise option under the proviso to para
5 of this order, shall be deemed to have elected to be governed by the revised
scales of pay with effect from the 1st January, 1996. Para 13 of ROPA 1998 as
contained in the Memo dated 12th February, 1999 was similar to the provision
contained in para 17 of ROPA 1990. Para 13 of ROPA 1998 before substitution
read as follows:
"13. The teaching and non-teaching employees of aided/sponsored
educational institutions who will opt for the revised scales of pay shall be
allowed to enjoy pensionary benefit including dearness relief at par with
the State Government employees. Maximum amount of gratuity shall be
raised from Rs.60,000/- to Rs.2,50,000/- (Rupees Two lakhs Fifty thousand
only)" .
40) Para 13 has been substituted with effect from 13th July, 1999. The substituted
provision reads as follows :
"13. The teaching and non-teaching employees of Aided/Sponsored
Educational Institutions who will come under the revised scale of pay as
39
per memorandum no.25-SE(B) dated 12.2.1999 will be allowed to enjoy the
retirement benefit as per revised pension order of this Department
according to the option exercised by them under West Bengal Recognised
Non-Govt. Educational Institutions Employees (Death-cum-Retirement
Benefit) Scheme, 1981".
41) It is apparent from the provisions made in para 13 before substitution that
an incumbent who would opt for revised scale of pay shall be allowed
pensionary benefits including dearness relief at par with the State
Government employees and entitled to the enhanced amount of gratuity from
Rs.60,000/- to Rs.2,50,000/-. It is significant to mention that the age of
retirement had already been reduced to 60 years under ROPA 1990.
42) Considering the aforesaid provisions, it is clear that ROPA 1990 brought
about significant changes. When we interpret provisions of para 17 of ROPA
1990, a bare reading of the unsubstituted provisions contained in para 17 of
ROPA 1990 make it clear that once option is exercised as per para 5(a) of
ROPA 1990 consequences would follow of the reduced age of superannuation
and as mentioned in the form of option; at the same time, an optee had to
declare that he would not apply for extension of service upto the age of 65
years as envisaged in the order dated 31st March 1986 on attaining age of
superannuation of 60 years. In the backdrop of the aforesaid drastic
provisions contained in para 17(1) of ROPA, 1990, the beneficial provisions
contained in para 17(2) were to the effect that once option was exercised, an
employee shall be allowed to enjoy pensionary benefit including dearness
relief at par with government employees and enhanced amount of gratuity.
The word 'shall be allowed' makes conferral of benefit mandatory sequel to
40
the exercise of option in terms of ROPA 1990. It did not depend upon option
exercised under the DCRB Scheme, 1981.
43) When the DCRB Scheme, 1981 was notified in 1985, the provisions of ROPA
1990 were not in force and an employee had the option to continue to draw
benefit before introduction of such scheme. He had option to remain out of
ROPA 1990 also. In our opinion, the Memo dated 16th December, 1991
was applicable to the incumbents who had not opted for the benefit of ROPA
1990 and wanted to continue in service upto the age of 65 years and
continue to draw existing benefit and once option had been exercised under
ROPA 1990 as per provisions contained in para 17(1) of ROPA 1990, age of
superannuation was reduced to 60 years without any right to apply for
extension upto the age of 65 years and there was forfeiture of right to apply
for extension of age of superannuation also in view of the option form
appended to ROPA 1990. The right had also accrued to the petitioners by
submitting option as per para 17(2) of ROPA 1990 for pension at par with
Government employees and gratuity, and flowing of the benefit mandatorily
is apparent from the expression 'aforesaid benefits shall follow'. The
unsubstituted provisions contained in para 13 of ROPA 1998 rightly
protected existing rights, provided similar benefits in tune with benefits
conferred under ROPA 1990 which could not have been taken away.
However, the provisions were substituted with effect from 13th July, 1999.
Firstly, the provisions could not have been changed so as to take away the
accrued or vested right. Secondly, the substituted provisions cannot
41
withstand judicial scrutiny and test of reasonableness under Articles 14 and
16 of the Constitution of India. Moreover, when the provisions of para 13
have been substituted with effect from 13th July, 1999 and enjoyment of the
benefit of Pension-cum-Gratuity was made dependent on the basis of option
exercised under the DCRB Scheme 1981, in the circumstances, it was
absolutely necessary to invite options for switching over from CPF-cum-
Gratuity to Pension-cum-Gratuity. Without doing so, the provisio.s cannot be
said to be outcome of reasonable exercise of power and obviously require to
be stru#k down.
44) In similar manner, wh%n the provisions contained in 17(2) of ROPA 1990,
had been amended on 16th May, 2007 retrospect)vely with effect from 7th
March, 1990, substitution was obviously made so as to take away vested
right with retrospective effec4. The amendments so made cannot be said to
be valid piece of law and cannot be termed to be a reasonable one and
without giving fresh opportunity to the employ%es to switch over to Pension-
cum-Gratuity, the provisions are rendered oppressive in operation.
45) Memo dated 13th July, 1999 subs4ituting para 13 of the ROPA 1998 had the
effect of taking away benefit of right accrued under p!ra 17 of the ROPA
1990. However, in respect of para 17 of ROPA 1990 no such
amendment/substitution was made before 2007 and it )s also clear that large
number /f employees had exercised the option upto June 1999 and before
provision of para 13 was substit5ted on 13th July, 1999. Till su"stitution,
42
they were entitled to benefit of pension at par with the State Government
employees !s well as enhanced amount of gr!tuity.
46) In our opinion, by way of amendment/substitution of provisions, rights
which have accru%d cannot be taken away, that to/ with retrospective effect.
A benefit that has accrued under the existing para 17(2) of ROPA 1990
cannot be taken away by an am%ndment with retrospective effect or by
provisions as contained in substituted para 13 of ROPA 1998.
47) In our considered opinion, though it is open to the Government to change its
policy but change in policy must be in conform)ty with reasonableness and
prin#iples of natural justice. With the substitution of para 13 of ROPA 1998
and para 17(2) of ROPA 1990 with retrospective effect, the provisions entailed
adverse civil consequences and were derogatory to the accrued rights of the
employees. The option exercised under the DCRB Scheme, 1981 could not
have been made the basis for determining whether the employees were
entitled to benefit of either CPF-cum-Gratuity or Pension-cum-Gratuity. They
were made to accept the reduced age of superannuation at 60 years but were
granted the benefit of higher pay scale with an assurance that they would be
entitled to pension at par with State Government employees and enhanced
amount of gratuity. Those who opted for the revised pay scale agreed to retire
at the age of 60 years with the impression that their winter years of life would
be taken care of with pension at par with the Government employees. The
employees having been made to change their position, the Government acted
in an arbitrary manner by reversion of the employees to the position that was
43
prevailing before they opted for the revised scale in relation to pension. In
order to save such provisions from the vice of arbitrariness, it was necessary
to give an opportunity to exercise fresh option for switching over from CPF-
cum-Gratuity to Pension-cum-Gratuity, which benefit was otherwise
available and had accrued in favour of the employees once they exercised
option for revised scale of pay as per provisions contained in para 17(2) of
ROPA 1990 and para 13 of ROPA 1998, as the same existed before
substitution.
48) It was submitted by the learned Advocate General that by way of substitution
of para 13 of ROPA 1998, the Government attempted to re-emphasize
provisions of the DCRB Scheme, 1981 which were otherwise in vogue even
after framing of ROPA 1990 and it did not take away the vested right.
49) We are unable to accept the submission. Considering the various provisions,
we are constrained to hold that the respondents acted arbitrarily in not giving
opportunity for submitting fresh option to switch over to Pension-cum-
Gratuity while substituting para 13 with effect from 13th July, 1999 and also
when substituting para 17(2) of ROPA 1990 on 16th May, 2007 making the
option under the DCRB Scheme, 1981 as relevant. An opportunity was
required to be given to the employees to change the option to Pension-cum-
Gratuity which benefit was available under 17(2) of ROPA 1990 and even
under the provisions of para 13 of ROPA 1998 before substitution. When
conditions of service depending on option were changed substantially and the
benefit of pension at par and enhanced gratuity were to be taken away and
44
made dependant on option exercised in terms of the DCRB Scheme, 1981, it
was necessary to invite fresh option as the benefits conferred and accrued
were sought to be taken away. It could not have been so done unless the
Government had invited all the employees to submit fresh options so as to
avoid the provisions from being termed as oppressive and arbitrary.
50) The only other point that remains for our consideration is the version of the
employees that they were not made aware of the amendments effected in
para 13 of ROPA 1998 and para 17 of ROPA 1990 with effect from 13th July,
1999 and 16th May, 2007 respectively.
51) In this connection, it would be profitable to refer to the decision of the
Supreme Court reported in B. K. Srinivasan and anr. v. State of Karnataka
and ors., AIR 1987 SC 1059. Paragraph 15 of the said decision being
relevant is quoted below:
"15. There can be no doubt about the proposition that where a law,
whether Parliamentary or Subordinate, demands compliance, those that
are governed must be notified directly and reliably of the law and all
changes and additions made to it by various processes. Whether law is
viewed from the standpoint of the 'conscientious good man' seeking to abide
by the law or from the' standpoint, of Justice Holmes's 'Unconscientious bad
man' seeking to avoid the law, law must be known, that is to say, it must
be so made that it can be known. We know that delegated or subordinate
legislation is all pervasive and that there is hardly any field of activity
where governance by delegated or subordinate legislative powers is not as
important if not more important, than governance by Parliamentary
legislation. But unlike Parliamentary legislation which is publicly made,
delegated or subordinate legislation is often made unobtrusively in the
chambers of a Minister, a Secretary to the Government or other official
dignitary. It is, therefore, necessary that subordinate legislation, in order
to take effect, must be published or promulgated in some suitable manner,
whether such publication or promulgation is prescribed by the parent
statute are not. It will then take effect from the date of such publication or
promulgation. Where the parent statute prescribes the mode of publication
or promulgation that mode must be followed. Where the parent statute is
silent, but the subordinate legislation itself prescribes the manner of
45
publication, such a mode of publication may be sufficient, if reasonable. If
the subordinate legislation does not prescribe the mode of publication or if
the subordinate legislation prescribes a plainly unreasonable mode of
publication, it will take effect only when it is published through the
customarily recognised official channel namely, the Official Gazette or
some other reasonable mode of publication. There may be subordinate
legislation which is concerned with a few individuals or is confined to
small local areas. In such cases publication or promulgation by other
means may be sufficient. See Narayana Reddy v. State of Andhra Pradesh,
1969 (1) Andh WR 77."
52) The amendments in ROPA 1998 and ROPA 1990 sought to take away the
accrued rights of the employees, who had opted for the revised scales of pay.
By introducing such amendments, the Government intended to bind the
employees by the options exercised by them in terms of the DCRB Scheme,
1981 instead of their automatic entitlement to Pension-cum-Gratuity on
opting for the revised scales of pay and acceptance of reduced age of
superannuation. There has been no endeavour on the part of the State
Government to counter the version of the petitioners that they were not made
aware of such amendments. On the authority of the decision in B. K.
Srinivasan (supra), the amendments could be given effect if the same were
published through reasonable mode of publication. Once the State
Government decided that provisions in para 13 of ROPA 1998 and para 17 of
ROPA 1990 required amendments, the employees who were to be governed by
such amendments ought to have been notified directly and reliably of all
changes and additions made to the original provisions by various processes
so as to enable them exercise their option for Pension-cum-Gratuity, if they
so wished, instead of binding them down to the option exercised under the
DCRB Scheme, 1981. On this ground too, the submissions advanced on
46
behalf of the State Government seeking to deny the employees the benefit of
Pension-cum-Gratuity cannot be accepted.
53) It has been noticed that ROPA 1990 and ROPA 1998 were not published in
the official gazette. However, since the same concerns revision of pay and
allowances of employees, it would not be unreasonable to presume that the
employees as part of normal human conduct would have taken special
interest to ascertain its contents since their pay and allowances were bound
to increase by reason of the same, although the same may not have been
suitably published in the manner required by law. In our considered view,
any argument that ROPA 1990 and ROPA 1998, in its original forms, were
not published and hence, there was no requirement to publish the
amendments (although not raised before us) would not be worthy of
credence.
54) In R.S. Ajara & ors. vs. State of Gujarat & ors., (1997) 3 SCC 641, it has
been held that a benefit accrued under the existing rules cannot be taken
away by an amendment with retrospective effect and no statutory rule or
administrative order can whittle down or destroy any right which has become
crystalized and no rule can be framed under the proviso to Article 309 of the
Constitution which affects or impairs the vested rights. The Apex Court has
laid down thus :
"16. The resolution dated 31.1.1992 has been assailed by the
promotee officers on the ground that it is retrospective in operation
and affects their rights. The law in this field is well settled by the
decisions of this Court. A benefit that has accrued under the existing
rules cannot be taken away by an amendment with retrospective
effect and no statutory rule or administrative order can whittle down
47
or destroy any right which has become crystalized and no rule can be
framed under the proviso to Article 309 of the Constitution which
affects or impairs the vested rights. [see : State of Gujarat v. Raman
Lal Keshav Lal Soni; K.C. Arora (Ex.Capt) v. State of Haryana; T.R.
Kapur v. State of Haryana; Uday Pratap Singh v. State of Bihar].***"
Can it be said that the resolution dated 31.1.1992 makes any change in the
existing provision governing the seniority so as to take away or deprive the
respondents of a right which has accrued to them or which has crystallized?
As noticed earlier, the 1981 Rules do not contain any principle governing the
seniority of Assistant Conservators of Forests appointed under the said
Rules. Shri P.P. Rao has invited our attention to the Handbook for Personnel
Officers issued by the General Administration Department of the Government
of Gujarat. In para 1 of Chapter V, dealing with Seniority, it is stated:
'In the case of direct recruits appointed on probation, the seniority would be
determined ordinarily with reference to the date of their appointment on
probation while in the case of the promotees, seniority would be determined
with reference to the date of their promotion to long-term vacancies".
55) In P. Tulsi Das & ors. vs. Govt. of A.P., (2003) 1 SCC 364, it has been held
that no exception could be taken to the prospective exercise of powers
thereunder without infringing the rights already acquired by the appellants
and the persons similarly situated whether they approached the courts or not
seeking relief individually. It is permissible for the State to make provisions in
exercise of its powers under Article 162 which is coextensive with its
legislative powers laying conditions of service, and rights accrued to or
acquired by any citizen would be as much rights acquired under law and
protected to that extent. The Apex Court has laid down thus :
"On a careful consideration of the principles laid down in the above
decisions in the light of the fact situation in these appeals we are of
the view that they squarely apply on all fours to the cases on hand in
favour of the appellants. The submissions on behalf of the
respondent State that the rights derived and claimed by the
appellants must be under any statutory enactment or rules made
under Article 309 of the Constitution of India and that in other
respects there could not be any acquisition of rights validly, so as to
disentitle the State to enact the law of the nature under challenge to
48
set right serious anomalies which had crept in and deserved to be
undone, does not merit our acceptance. It is by now well settled that
in the absence of rules under Article 309 of the Constitution in
respect of a particular area, aspect or subject, it is permissible for
the State to make provisions in exercise of its executive powers under
Article 162 which is coextensive with its legislative powers laying
conditions of service and rights accrued to or acquired by a citizen
would be as much rights acquired under law and protected to that
extent. The orders passed by the Government, from time to time
beginning from February, 1967 till 1985 and at any rate upto the
passing of the Act, to meet the administrative exigencies and cater to
the needs of public interest really and effectively provided sufficient
legal basis for the acquisition of rights during the period when they
were in full force and effect. The orders of the High Court as well as
the Tribunal also recognised and upheld such rights and those
orders attained finality without being further challenged by the
Government, in the manner known to law. Such rights, benefits and
perquisites acquired by the teachers concerned cannot be said to be
rights acquired otherwise than in accordance with law or brushed
aside and trampled at the sweet will and pleasure of the
Government, with impunity. Consequently, we are unable to agree
that the legislature could have validly denied those rights acquired
by the appellants retrospectively not only depriving them of such
rights but also enact a provision to repay and restore the amounts
paid to them to the State. The provisions of the Act, though can be
valid in its operation 'in futuro' cannot be held valid insofar as it
purports to restore status quo ante for the past period taking away
the benefits already available, accrued and acquired by them. For all
the reasons stated above the reasons assigned by the majority
opinion of the Tribunal could not be approved in our hands. The
provisions of Sections 2 and 3(a) insofar as they purport to take
away the rights from 10.2.1967 and obligate those who had them to
repay or restore them back to the State are hereby struck down as
arbitrary, unreasonable and expropriatory and as such are violative
of Articles 14 and 16 of the Constitution of India. No exception could
be taken, in our view, to the prospective exercise of powers
thereunder without infringing the rights already acquired by the
appellants and the category of the persons similarly situated
whether approached the courts or not seeking relief individually. The
provisions contained in Section 2 have to be read down so as to make
it only prospective, to save the same from the unconstitutionality
arising out of its retrospective application".
56) In N.C. Singhal vs. Director General, Armed Forces Medical Services New
Delhi & anr., AIR 1972 SC 628, it has been laid down that Government has
49
no power to alter or modify the conditions of service of a Government servant
with retrospective effect to his prejudice.
57) In Col. B.K. Akkara vs. Government of India & ors., (2006) 11 SCC 709, it
has been laid down by the Apex Court that when clarificatory circulars are
issued subsequent circular in effect will modify or amend the earlier
notification, and that whenever a circular or clarificatory circular is issued it
is necessary to give opportunity to the optees who had opted for the same.
Thus in the instant case, it was necessary to give opportunity to the
incumbents to submit fresh option for switching over from CPF-cum-Gratuity
to Pension-cum-Gratuity.
58) In D.S. Nakara vs. Union of India, AIR 1983 SC 130, it has been laid down
by the Apex Court that the impugned memorandum violates Articles 14 and is
unconstitutional and is liable to be struck down. It is incumbent upon the
State Government to look after the interest of an employee in the post retiral
phase when employee has served in the hey-days of his life. In our opinion,
the State Government could not deprive an incumbent of the pensionary
benefit and gratuity acting in an unreasonable and arbitrary manner by
inserting the amendment with retrospective effect, as has been done in the
instant case.
59) In Dakshin Haryana Bijli Vitran Nigam & ors. vs. Bachan Singh, (2009) 14
SCC 793, the circulars were issued twice inviting options from employees for
being governed under the pension scheme but the incumbent was not
informed of the same. It has been held that any discriminatory action on the
50
part of the Government would be liable to be struck down. The Apex Court
has held thus :
"28. In view of the law as has been articulated in a large number of cases
where this Court has observed that any discriminatory action on the part
of the Government would be liable to be struck down. Hence, in this case, it
would be totally unreasonable and irrational to deny the respondent the
pensionary benefits under the scheme particularly when the appellants
have failed to produce any record showing that the instructions dated
6.8.1993 and 9.8.1994 were actually got noted in writing by the
respondent. In the absence of any such material it can well be inferred that
the respondent had no knowledge about the options called by the
appellants. "
60) When the effect of the exercise of the power is to vary the contractual settled
relations between the employer and the employees, it cannot be done without
consulting the interests concerned, as has been laid down in State of Assam
& anr. vs. Bharat Kala Bhandar Ltd. & ors., AIR 1967 SC 1766. There, the
Apex Court held thus :
"27. We have already set out sub-r. (4) and a perusal of its language will
show that there is nothing in the words themselves which plainly and
unambigously indicates that the power exercised thereunder depends
purely on the subjective satisfaction of Government. It is true that sub-r. (4)
so far as it applies to employments other than those of Government is
consequential on a notification under sub-r. (1). But that does not mean in
the absence of express words in sub-r. (4) that the power exercised
thereunder depends purely on the subjective satisfaction of Government. We
have already indicated that the power under sub-r. (4) is analogous to the
power of industrial tribunals to decide disputes between employers and
employees. The result of the exercise of the power under sub-r. (4) is to vary
the contractual relations between employers and employees concerned in
employments with respect to which a notification under sub-r. (1) has been
issued. The effect of the exercise of such power is to unsettle settled
relations between employers and employees which may be existing for a
long time and which may be the outcome either of contractual relations or
even of industrial awards. Sub-rule (4) not only deals with wages but also
with other conditions of service and thus in a real emergency may
practically supersede all industrial adjudication. The power conferred is
thus a far-reaching nature in the field of industrial relations and may have
the effect of disturbing all such relations for the duration of a real
emergency. The question therefore arises whether in the absence of express
51
words in sub-r. (4) to indicate that the power is to be exercised purely on
the subjective satisfaction of Government we should hold that an order
passed under sub-r.(4) can be passed purely on subjective satisfaction.
When the effect of orders passed under sub-r. (4) can be so far-reaching and
so wide in its impact we would be loath to hold that such wide and far-
reaching powers were conferred on Government to be exercised purely on
its subjective satisfaction without even consulting the interests concerned
specially when the language is not plain and unambiguous and there is no
indication in the sub-rule itself that the power can be exercised purely on
the subjective satisfaction of Government. We are not unmindful of the fact
that the power under sub-r. (4) has to be exercised in a real emergency. But
the ambit of the power therein is analogous to the power of industrial
courts. The power under sub-r. (4) may be exercised instead of referring
industrial disputes relating to wages and other conditions of service to
industrial tribunals. We are also not unmindful of the fact that in a real
emergency, decision may have to be taken quickly and delay inevitable in
the elaborate procedure provided for resolution of industrial disputes by
industrial tribunals may not be desirable. Even so in the absence of express
words in sub-r. (4) to show that the power thereunder depends for its
exercise entirely on the subjective satisfaction of Government we would not
be prepared to hold that that is what sub-r. (4) indicates. We have already
said that the effect of sub-r. (4) is to disturb settled industrial relations
whether based on contracts or on industrial awards, and it seems to us
that before Government exercises the power under sub-r. (4) it should even
in a real emergency consult the interests concerned before taking action
thereunder.".
61) In K.I. Shephard & ors. vs. Union of India & ors., (1987) 4 SCC 431, it has
been laid down that principles of natural justice are applicable to
administrative actions and compliance with at least minimum requirements of
natural justice is required. It is necessary to grant opportunity before taking
any action which has adverse civil consequences.
62) Similar view is taken in Neelima Misra vs. Harinder Kaur Paintal, AIR 1990
SC 1402, wherein it has been held that an administrative order which
involves civil consequences must be made consistently with the rule expressed
in the Latin maxim audi alteram partem.
52
63) In Shimnit Utsch India Private Limited & anr. vs. West Bengal Transport
Infrastructure Development Corporation Ltd. & ors., (2010) 6 SCC 303, it
has been laid down that though it is open to the Government to change policy
with changing circumstances and only on the ground of change, policy cannot
be vitiated, but change in policy must be in conformity with Wednesbury
reasonableness and free from arbitrariness, irrationality, bias and malice. The
Apex Court has held thus:-
"52. We have no justifiable reason to take a view different from the High
Court insofar as correctness of these reasons is concerned. The courts have
repeatedly held that the government policy can be changed with changing
circumstances and only on the ground of change, such policy will not be
vitiated. The Government has a discretion to adopt a different policy or
alter or change its policy calculated to serve public interest and make it
more effective. Choice in the balancing of the pros and cons relevant to the
change in policy lies with the authority. But like any discretion exercisable
by the Government or public authority, change in policy must be in
conformity with Wednesbury reasonableness and free from arbitrariness,
irrationality, bias and malice. "
64) The learned Advocate General has relied upon Rajasthan SRTC vs.
Rajasthan Roadways Union, (2012) 11 SCC 561, wherein question arose
for consideration whether the widow of an employee is entitled to get family
pension under the Employees' Family Pension Scheme, 1971. It was
submitted that an employee was not informed of his right to exercise option.
Question also arose for consideration whether the appellant had opted for the
benefit of the scheme which came into force in the year 1971 and whether
there was failure on the part of the appellant Corporation in promptly
informing the employees of the existence in such a Scheme their right to
exercise option for family pension. On facts, it was held that the Corporation
53
had issued notification on 30th July, 1971 seeking necessary option from the
employees. In pursuance of that notification, several employees had exercised
their option for the Scheme and a few did not opt for that, since they were
keen on getting the provident fund under the Central Provident Fund
Scheme. Thus, the Apex court found that the above notification was sent to
all the employees of the appellant Corporation for information with a request
that they should give wide publicity to the Scheme and the notification was
issued from the office of the Regional Provident Fund Commissioner. Thus,
finding on facts was recorded. The Apex Court had no reason to think that
the employees were unaware of the notification issued by the Regional
Provident Fund Commissioner as well as the Corporation.
65) Submissions advanced by Mr. Chatterjee, learned Advocate General, though
attractive at first blush, is not considered by this Court to be worthy enough
to hold in his favour, having regard to the factual matrix of the case and law
laid down in Rajasthan SRTC vs. Rajasthan Roadways Union (supra). In the
instant case, substitution of provisions of ROPA 1990 and ROPA 1998 has
been made with retrospective effect. Therefore, the decision in Rajasthan
SRTC (supra) is distinguishable.
66) Krishna Kumar vs. Union of India, (1990) 4 SCC 207, has been referred to
in order to contend that in matters entailing financial implications, the
Supreme Court would be loath to pass any order or directions. Those who did
not opt for the pension scheme had ample opportunity to choose between the
two viz. the PF scheme or the pension scheme. Each option was given for
54
stated reason relating to the options. On each occasion time was given not
only to the persons in service on the date of the Railway Board's letter but
also to persons who were in service till the stated anterior date but had
retired in the meantime. The period of validity of option was extended in all
the options except a few. Therefore, the cut-off dates were not arbitrarily
chosen but had nexus with the purpose for which the option was given. There
cannot be any dispute with the aforesaid proposition. However, in the instant
case, policy has been changed to depend on option without extending
opportunity to submit option for Pension-cum-Gratuity and hence this
decision does not advance the case of the Government.
67) Reliance has also been placed on Pepsu Road Transport Corporation vs.
Mangal Singh & ors., (2011) 11 SCC 702, wherein it has been held that the
regulations made under a statute laying down the terms and conditions of
service of the employees, including the grant of retirement benefits, have the
force of law. The statutory bodies as well as general public are bound to
comply with the terms and conditions laid down in the regulations as a legal
compulsion. Even in the case of non-statutory regulations, specifically
providing for the grant of pensionary benefits to the employee qua his
employer shall be governed by the terms and conditions encapsulated in such
non-statutory regulations. It was further held that pension is in the nature of
a right which an employee has earned by rendering long service to the
employer but the employee failed to refund the amount of advance taken from
55
the employer's contribution of CPF within six months from the date of issue
of the Regulations. The facts of the instant cases are different.
68) A Division Bench of this Court in Biswanath Koley (supra), and other
connected matters, has laid down that such employees who exercised their
options under ROPA 1990 were not required to exercise fresh option under
the DCRB Scheme, 1981 and Memo dated 16th December 1991 was
applicable to the teachers who had not opted under ROPA 1990 and for those
who opted to continue in service upto the age of 65 years. The Division Bench
of this Court has considered the various provisions contained in ROPA 1990
and ROPA 1998 and the form of option. The Division Bench of this Court has
laid down thus :
"25. We are not at all impressed with the arguments of the learned Counsel
appearing for the appellants. We have carefully perused the judgments of
the learned Single Judge and were of the opinion that the learned Judge
was correct when he came to the conclusion that, in the facts of these
cases, the petitioners having exercised their options under the relevant
ROPA Rules, they were entitled to the benefits thereunder upon refund of
the employers' contribution together with interest at the rate prescribed by
the Government. We say so because the petitioners were all in service when
the relevant ROPA Rules of 1990 came into force enabling persons like the
petitioners to act in terms of either para 17 of the ROPA Rules of 1990 or
para 5/6 of the ROPA Rules of 1998. We have noticed that in all these
cases, the petitioners/respondents filled up and exercised their options in
the manner prescribed under the relevant ROPA Rules and therefore, even if
they had not acted in terms of the earlier Memorandums, they would still
be deemed to have become entitled to the benefits as envisaged under the
relevant ROPA Rules under which they applied respectively.
26. The ROPA Rules of 1990 was published on the basis of Memorandum
dated 7th March, 1990 under Memo No.33-Edn. (B.) Under para 5 of these
Rules, and as is evident from the said para 5 quoted above it is clearly laid
down that a teacher or non-teaching employee who had not reached the
age of superannuation as prescribed in para 17 on the day of issuance of
the said ROPA Rules of 1990 (i.e. 7.3.1990), and who had not attained the
age of superannuation as prescribed in para 17 thereof, could, within 90
days from the date of the issuance of the said Order (i.e. 7.3.1990), come
over to the revised scale of pay together with the terms and conditions as
may be revised and determined by the Government and on coming over to
56
the revised scale of pay, such teacher shall retire on attaining the age of
superannuation as prescribed in para 17 (i.e. 60 years).
28. The learned Single Judge, after considering all the aspects involved in
the cases including the fact that other persons had been given the benefits
of exercising their options, finally came to the conclusion, in Biswanath
Koley's case and correctly so, that having opted under the ROPA Rules, it
was not necessary for the petitioner to exercise his option under the 1991
Memorandum referred to above as the same was applicable only to those
teachers who had not opted under the ROPA Rules and for those who had
opted to continue to serve upto 65 years of age. We uphold this view and
make it applicable in the other two appeals also.
29. The learned Counsel for the appellants have referred to an unreported
judgment of this Court passed in MAT No.1352 of 2004 (State of West
Bengal & ors. vs. Madan Mohan Ghosh & ors.) in support of their
contention that the petitioners/respondents having not availed of the
opportunity even after the issuance of the Circular dated 16.12.1991,
cannot be allowed to subsequently turn around and take benefit under
ROPA Rules. We have no hesitation in rejecting the aforesaid contention for
the reason that in each of these cases at hand, the petitioners were in
service on the day when the relevant ROPA Rules came into existence which
did not take away the rights of anyone to exercise their options provided
that such option was exercised within time and with an undertaking that
the optees would refund the excess, if any drawn by him and would retire
at the age of 60 years.
69) The view expressed on provisions of para 17 of ROPA 1990 is correct. The
aforesaid decision in Biswanath Koley (supra) has been affirmed by the
Hon'ble Supreme Court. Apart from that, effect of substituted provisions of
ROPA 1990 and 1998 has been considered by us.
70) In Bijoli Bhattacharya (supra), the Division Bench of this Court has opined
that once option had not been given, there was no justification to condone the
delay in submitting option. The decision has been set aside by the Hon'ble
Supreme Court in the year 2004. Apart from that, it was not considered by
the Division Bench of this Court whether fresh option was required to be
given as per Memo dated 16th December, 1991 and whether once option had
been exercised as per para 5 of ROPA 1990, right to obtain pension and
57
gratuity accrued under para 17 of ROPA 1990 as there was reduction of age
of superannuation.
71) Another decision of the Division Bench of this Court in State of West Bengal
& ors. vs. Smt. Chhabi Roy in APO No.469 of 2005 decided on 15.3.2007,
has also been set aside by the Hon'ble Supreme Court. The Hon'ble Supreme
Court has remitted the case to this Court for the same being dealt with in the
light of decision in Bijoli Bhattacharya (supra) dated 6th August, 2004. It
was held by this Court in Chhabi Roy (supra) that the finding of the Apex
Court in Bijoli Bhattacharya (supra) dated 6th August, 2004 that "she be
permitted to opt for the pension in view of the peculiar facts and circumstances
of the case," was relief granted by the Hon'ble Supreme Court under Article
142 of the Constitution of India. The Division Bench also opined that the
prayer to change option was belated. However, questions of taking away
benefit conferred under para 17 of ROPA 1990 and Memo dated 16th
December, 1991 was inapplicable to an employee who had already exercised
option under ROPA 1990, as held by the Division Bench of this Court in
Biswanath Koley (supra), were not considered. The decision has been set
aside by the Hon'ble Supreme Court and the case has been remitted to this
Court vide Civil Appeal No.135 of 2013, for fresh consideration in accordance
with law and having regard to the order passed by the Apex Court in Bijoli
Bhattacharya (supra) dated 6th August, 2004, the same is being decided by
this order.
58
72) A Division Bench of this Court in Sk. Abdur Rashid & ors. vs. State of West
Bengal & ors. (APO No.119/2007) decided on 16th January, 2008,
considering the amendment of para 13 of ROPA 1998, held that there could be
no automatic process of change of option, unless there had been a specific
exercise of option with regard to pensionary benefit within the stipulated
period. Effect of para 17 of ROPA 1990 and whether there was necessity to
invite option after substitution of para 13 of ROPA 1998 were not considered
by the Division Bench of this Court. Moreover, it was not considered whether
Memo dated 16th December, 1991 was applicable and there was need to
exercise option under the Memo dated 16th December, 1991 once option had
been exercised under ROPA 1990. Therefore, the decision in Sk. Abdur
Rashid (supra) and other decisions taking similar view cannot be said to have
been correctly decided and are overruled.
73) It is apparent that the State Government itself has extended the opportunity
to revise option even with respect to the employees who opted for 65 years of
age of superannuation and had permitted them to revise option to opt for
Pension-cum-Gratuity in the year 1991. Similar treatment has not been meted
out to the employees who had opted for ROPA 1990. Alternatively, even if it
was necessary for them to exercise fresh option as per Memo dated 16th
December, 1991, a legal imbroglio was created due to provision of para 17 of
ROPA 1990 and in any view of the matter, as there was substitution of para
13 of ROPA 1998 on 13th July, 1999 and ROPA 1990 on 16th May, 2007
59
retrospectively, opportunity had to be given for fresh option to opt for Pension-
cum-Gratuity.
74) Thus, we answer the five questions in the following manner :
1) An employee who has opted for revised pay scale under ROPA, 1990
becomes entitled to pension and gratuity by virtue of operation of para 17
of ROPA 1990. It was not necessary for him to exercise fresh option as per
Memo dated 16th December, 1991, which was applicable to employees who
had not opted for ROPA 1990. Benefit of Pension-cum-Gratuity was
conferred due to acceptance of reduced age of superannuation of 60 years
under para 17(1) of ROPA 1990 and his right for Pension-cum-Gratuity so
accrued could not have been taken away retrospectively by substitution of
the provisions of para 17 in 2007 or by substitution of para 13 of ROPA
1998 in 1999.
2) Once option has been exercised under ROPA 1990, a person cannot
be subjected to the rider of the option exercised under the DCRB Scheme,
1981 as the invitation of the option under the said Scheme was with
respect to the employees who elected to continue in service till the age of
65 years and to have the benefit of the old scheme. For such employees,
opportunity was given to submit fresh options as per Memo dated 16th
December, 1991.
The amendment made in para 17(2) of ROPA 1990 on May 16, 2007
cannot be said to be valid piece of law as such provisions cannot be
substituted with retrospective effect to take away the rights already
60
accrued to an employee. So as to validate provisions of para 17(2) of ROPA
1990, as substituted, it was necessary to invite option for switching over
to Pension-cum-Gratuity from CPF-cum-Gratuity when the substitution of
para 17(2) of ROPA 1990 was made on 16th May, 2007 with retrospective
effect.
3) Para 13 of the ROPA 1998 as amended on 13th July, 1999 cannot be
said to be valid in the eye of law as it has the effect of taking away benefit
conferred by para 17(2) of ROPA 1990, as the ROPA 1998 was made
applicable to the employees who had opted for ROPA 1990 and the benefit
conferred could not have been taken away by substitution of provisions
contained in para 13 of ROPA 1998. It was clearly arbitrary and an
unreasonable exercise of power and to treat it as valid and legal, it was
necessary to invite fresh option under the DCRB Scheme, 1981 for
switching over to Pension-cum-Gratuity as the provisions had been
amended drastically which could not operate to the prejudice of the
employees in whose favour right to claim Pension-cum-Gratuity had
accrued. The substituted provisions of para 13 of ROPA 1998 fail to
qualify Wednesbury principles of reasonableness. The action was in utter
violation of fair play and justice.
4) In our opinion, after substitution of para 13 of ROPA 1998 on 13th
July, 1999 and para 17 of ROPA 1990 on 16th May, 2007, in order to save
the provisions from the vice of arbitrariness, it was necessary to give an
opportunity to the employees to submit fresh option under DCRB Scheme,
61
1981. As the option exercised earlier in terms of the DCRB Scheme, 1981
was made applicable, it was necessary to give fresh opportunity to exercise
an option for switching over to Pension-cum-Gratuity and the State could
not have acted to the detriment of the employees opting for ROPA 1990
who chose the rider of reduced age of superannuation i.e. 60 years under
para 17(1) of ROPA 1990.
5) In our opinion, as there was drastic change of provisions of para
17(2) of ROPA 1990 made by way of substitution in 2007, and ROPA 1998
also interfered with the rights conferred upon the employees under para
17(2) of ROPA 1990, all the employees who opted for ROPA 1990 ought to
be given fresh opportunity to submit the option to switch over to Pension-
cum-Gratuity.
75) Coming to the relief to be granted, it is clear that some of the employees are
in service and some of them have retired and averments are on record that
they are ready and willing to repay the amount of employer's share of
contribution in the CPF together with interest and additional interest as
option had not been called from them to switch over to Pension-cum-Gratuity
while substituting para 13 of ROPA 1998 w.e.f. 13th July, 1999 and
retrospective substitution of para 17(2) of ROPA 1990 on 16th May, 2007
w.e.f. 6th March, 1999.
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
62
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-cum-Gratuity 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 Pension-cum-Gratuity
in accordance with law with effect from the date refund is made.
78) Let such exercise be completed within a period of six months from today.
79) The appeals filed by the State Government are hereby dismissed.
80) The writ petitions are allowed to the aforesaid extent.
81) There will be no order as to costs.
Certified photocopy of this judgment and order, if applied for, be furnished to
the applicant at an early date.
(ARUN MISHRA, C.J.)
DIPANKAR DATTA, J.
I entirely agree with the opinion of My Lord the Chief Justice and have nothing to add.
(DIPANKAR DATTA, J.) 63 JOYMALYA BAGCHI, J.
I agree.
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State of West Bengal & Ors With WP 23225(W)/2008 Nimai Roy Chowdhury.
v.
State of West Bengal & Ors With WP 22066(W)/2008 Amalesh Kumar Manna v.
State of West Bengal & Ors With WP 24883(W)/2086 Subhra Chatterjee (Sen) v.
State of West Bengal & Ors With WP 15679(W)/2008 Pares Nath Maiti.
v.
State of West Bengal & Ors 80 With WP 14386(W)/2008 Jaydeb Ghosh.
v.
State of West Bengal & Ors With WP 15721(W)/2008 Tapan Kumar Bhattacharya.
v.
State of West Bengal & Ors With WP 15716(W)/2008 Jagadish Chandra Bala.
v.
State of West Bengal & Ors With WP 15693(W)/2008 Radha Krishna Das v.
State of West Bengal & Ors With WP 24880(W)/2008 Ashapurna Chatterjee.
v.
State of West Bengal & Ors With WP 16034(W)/2008 Surendra Nath Bhunia.
v.
State of West Bengal & Ors With WP 16036(W)/2008 Sibsankar Mishra.
v.
State of West Bengal & Ors With WP 16039(W)/2008 Sukumar Chandra Giri.
v.
State of West Bengal & Ors With WP 16043(W)/2008 Prafulla Kr. Nayak.
v.
State of West Bengal & Ors With WP 23214(W)/2008 Khagendra Nath Das v.
State of West Bengal & Ors With WP 24882(W)/2008 Shipra Goswami Chatterjee v.
State of West Bengal & Ors With WP 6299(W)/2010 81 Mahitosh Roy v.
State of West Bengal & Ors With WP 18604(W)/2010 Bibhuti Kumar Mridha v.
State of West Bengal & Ors With WP 21181(W)/2010 Bimala Dey (Rakshit) v.
State of West Bengal & Ors With WP 21185(W)/2010 Swapan Kumar Chakraborty v.
State of West Bengal & Ors With WP 2252(W)/2011 Chandana Chakraborty v.
State of West Bengal & Ors With WP 14455(W)/2011 Kalyani Parui v.
State of West Bengal & Ors With WP 2824(W)/2011 Bimalendu Choudhury v.
State of West Bengal & Ors With WP 11004(W)/2009 Karuna Kanta Das v.
State of West Bengal & Ors With WP 11154(W)/2009 Aloka Das (Roy) v.
State of West Bengal & Ors With WP 12372(W)/2009 Firoza Begum v.
State of West Bengal & Ors With WP 18160(W)/2009 Sukchand Sardar v.
State of West Bengal & Ors With WP 23565(W)/2009 Md. Elias Ali v.
82State of West Bengal & Ors With WP 21417(W)/2008 Sarada Prosad Mondal v.
State of West Bengal & Ors With WP 23212(W)/2008 Ananta Kumar Seth v.
State of West Bengal & Ors With WP 23209(W)/2008 Anil Kumar Das v.
State of West Bengal & Ors With WP 23211(W)/2008 Md. Sagiruddin v.
State of West Bengal & Ors With WP 23216(W)/2008 Md. Maquimuddin v.
State of West Bengal & Ors With WP 16101(W)/2009 Hagan Chandra Sarkar v.
State of West Bengal & Ors With WP 13111(W)/2009 Shrimati Krishna Sarkar (Mondal) v.
State of West Bengal & Ors BEFORE:
The Hon'ble CHIEF JUSTICE MR. ARUN MISHRA The Hon'ble JUSTICE DIPANKAR DATTA The Hon'ble JUSTICE JOYMALYA BAGCHI Heard on : January 17, February 7, 12, 20, 21 & 28, and March 7 & 14, 2013 Judgement on : July 16, 2013 For Appellant, State 83 and for respondents in Writ Petitions : Mr. Bimal Chatterjee, Advocate General Mr. Ashoke Banerjee, Govt. Pleader Mr. Joytosh Majumder, Mr. Avratosh Majumder, Mr. Sakya Sen, Mr. Sushovan Sengupta, Advocates For Respondents in appeal And for Petitioners in Writ Petition : Mr. Bikash Ranjan Bhattacharya,Sr. Advocate Mr. Shaktipada Jana, Mr. Kamal Mishra, Mr. Tamal Taru Panda and Ms. Sabita Khutiya, Advocates Mr. Rabilal Mitra with Mr. Asim Haldar, Mr. Pradip Kumar Neogi and Mr. T.D. Maity, Advocates Mr. S. S. Arefin with Mr. S. Jana, Advocates Mr. P.S. Bhattacharya, [ Mr. Raju Bhattacharya, Advocates Mr. Tulsi Das Maity, Mr. Sudip Ghosh, Mr. Pradip Kr. Ghosh,Advocates Mr. Biswajit Banerjee, Advocate Delay in filing the applications being No. G.A. 1000 of 2009 in APO 121 of 2009; G.A. 170 of 2009 in APO 135 of 2009; G.A. 701 of 2009 in APO 136 of 2009; G.A. 622 of 2006 in APO 119 of 2007; G.A. 624 of 2006 in APO 120 of 2007; G.A. 626 of 2006 in APO 121 of 2007; G.A. 628 of 2006 in APO 122 of 2007; G.A. 2036 of 2008 in APO 207 of 2008; G.A. 2038 of 2008 in APO 209 of 2008; G.A. 2039 of 2008 in APO 210 of 2008; G.A. 2040 of 2008 in APO 211 of 2008; G.A. 2041 of 2008 in APO 212 of 2008; G.A. 2062 of 2008 in APO 213 of 2008; G.A. 2975 of 2008 in APO 298 of 2008; G.A. 2977 of 2008 in APO 299 of 2008; CAN 8295 of 2004 in FMA 425 OF 2005; CAN 895 of 2005 in FMA 762 OF 84 2008; CAN 7210 of 2008 in FMA 1552 OF 2008; CAN 7208 of 2008 in FMA 1615 OF 2008; G.A. 2979 of 2008 in APO 300 of 2008; G.A. 2989 of 2008 in APO 305 of 2008; G.A. 3482 of 2008 in APO 93 of 2009; G.A. 4089 of 2008 in APO 95 of 2009; G.A. 4091 of 2008 in APO 96 of 2009; G.A. 3211 of 2009 in APO 23 of 2010; G.A. 3213 of 2009 in APO 24 of 2010; G.A. 68 of 2010 in APO 25 of 2010; are condoned and the same are disposed of.
All connected applications in this regard are accordingly disposed of. All applications for early hearing are also disposed of. Judgment pronounced and signed in open Court. (JOYMALYA BAGCHI, J.) (DIPANKAR DATTA, J.) (ARUN MISHRA, C.J.)