Calcutta High Court (Appellete Side)
In Re: Joydeb Nayak vs The State Of West Bengal And Others on 4 June, 2013
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
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25 04.06.13
rp Ct. No.07 W. P. 5801(W) of 2007
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CAN No.1282 of 2013
In Re: Joydeb Nayak
Vs.
The State of West Bengal and Others
Mr. Ekramul Bari
Mr. Syed Mansur Ali
.... For the Petitioner
Mr. Amit Prakash Lahiri
Mr. Pinaki Dhole
... for the State
The writ petitioner is aggrieved against the refusal of the
Respondents/State Authorities to grant him continuity of
service which he has rendered in a school of Steel Authority of India Limited (SAIL). The fact remains that the writ petitioner was appointed in a higher secondary school, ran and managed by SAIL and SAIL Authorities published a Voluntary Retirement Scheme (VRS) for the teachers to apply and/or opt for it with certain conditions. The petitioner opted such Scheme and he was allowed to have the benefit of the VRS. At the time of taking VRS, he also asked for No Objection Certificate (NOC), as prescribed in Voluntary Retirement Circular and he also made an application for the post of Head Master in the concerned school which was forwarded by the SAIL Authorities to the Respondents. Subsequently, the writ petitioner was selected by the School Service Commission and he was employed as a Head Master of Beghut Jahnabi High School. At that point of time, neither the District Inspector of Schools (S.E.), Burdwan nor any other authority objected such appointment of the writ petitioner as Head Master, who opted and got voluntary retirement from SAIL. It appears that the approval of such appointment was given by the concerned 2 District Inspector of Schools without any objection and/or asking the writ petitioner to refund the amount of VRS to the SAIL Authority or any other authority. The writ petitioner, having been approved as Head Master of the concerned school, served the school till before his retirement.
Mr. Bari, learned Counsel appearing for the writ petitioner submits that the writ petitioner moved this application in 2007 for a direction upon the Respondents to allow the writ petitioner to have continuity of service of the petitioner which has to be taken care for calculating the pensionary benefits. It was submitted that the writ petitioner is not claiming any monetary benefit for such continuation. However, he is asking for notional benefit of past service rendered by him under SAIL. Mr. Bari further submitted that it is for computation of pensionary benefit of the writ petitioner and he further submitted that there is a Circular being 180- Edn (B)/IM-83/88 dated 20th May, 1988 which read as follows:
"In supersession of G,O. No.31-Edn (B) dt. 1.2.88 the undersigned is directed by order of the Governor to say that the Governor has been pleased to direct that service rendered by teaching or non-teaching employee in unaided Institution or Institutions shall be counted towards pensionable service provided at the time of retirement / death / superannuation of the employee concerned the Institution or Institutions in which the incumbent served received aid from the Government or any other 3 body authorised by the Government for the purpose."
Mr. Bari submitted as per the Government Circular the writ petitioner is entitled to get the benefit of continuity in service notionally and for fixation of his retiral dues. He submitted that the Circular clearly envisaged that the teacher concerned who has worked in aided or unaided institution is entitled to have such benefit. Mr. Bari further submits that in an unreported decision the Hon'ble Court has decided holding that the Circular is applicable in case of assistant teachers. The decision was given in W.P. No.14242 (W) of 2006 (Dr. Subrata Kumar Panja Vs. The State of West Bengal & Others). Mr. Bari submitted that this Hon'ble Court has already decided that in such a case the writ petitioner who has served the other Institution for a long period of time should be considered as his continuity in service and he also be given notional benefit for calculation of his retiral dues or pensionary benefits.
Mr. Lahiri, learned Counsel appearing on behalf of the Respondents-Authorities submits that the writ petitioner had taken VRS under SAIL. He has received some benefits under this Scheme i.e., salary and provident fund dues. Since he has obtained VRS under SAIL he is not entitled to get continuity in service as prayed by the writ petitioner in this writ petition. He further submits that the case of the writ petitioner is guided as per the VRS and under the VRS he is not entitled to get any employment. However, he submits that the writ petitioner under no circumstances will be allowed to have such 4 continuity in service which would be in violation of VRS as well as in the violation of the Rules applicable.
Mr. Bari, learned Counsel submits, in reply that the VRS floated by the SAIL Authority is totally different thing and that Scheme is separate and have no manner of application in the instant case specially when the above referred Circular clearly stipulates that the concerned teacher, who has served in an aided or an unaided institution even if its is managed by a private body, is entitled to get such continuity of service. According to Mr. Bari all formalities were performed before such selection and appointment. Mr. Bari also reiterates that the SAIL Authority had issued NOC and forwarded the application of the writ petitioner to the concerned Authority. For that post the School Service Commission held examination and selected the writ petitioner and appointed him as the Head Master of the concerned school. Mr. Bari submits that on 31st June, 2002 the writ petitioner opted for VRS and on 1st July, 2002 the writ petitioner was given appointment. According to him, there is no break up service.
Heard the learned Counsel appearing for the parties and considering there submissions very carefully and from the material available on record it appears that the SAIL Authority published VRS which was opted by the writ petitioner and the writ petitioner was allowed to get the benefit of VRS. The writ petitioner's application for re-employment was forwarded by the SAIL Authorities. The writ petitioner was also given no objection certificate. The Respondents-Authorities are aware of the same. In case, the writ petitioner was not entitled to 5 have any employment then and there the Respondents- Authorities could have refused his prayer for absorption or rejected his selection, instead the Respondents-Authorities have allowed the writ petitioner to be appointed as the Head Master of the concerned school and allowed him to continue till the date of his retirement. At this stage, the Respondents- Authorities cannot say that the writ petitioner is not covered under the above mentioned Circular, which clearly stipulates that the assistant teacher concerned in an aided or an unaided institution is entitled to get the benefit of continuity of service. In my view, even if it is a private school and unaided institution, the writ petitioner concerned is entitled to get continuity of service and he is not entitled to get any monetary benefit but the notional benefit should be given to him for calculation and/or computation of his pensionary benefits which he is lawfully entitled. Therefore, the impugned order of the Joint Director of Accounts (Education), Burdwan dated 19th October, 2012 is set aside and the Respondent-Authority concerned is directed to taken into account the continuity of the past service of the writ petitioner under SAIL and to assess the pensionary benefit and retiral dues. This writ petition is, thus, allowed. There will be no order as to costs.
Respondent no.3 is directed to prepare the pension papers and to send them to the appropriate authorities for releasing pensionary benefits. All such actions are to be taken within a period of six weeks from the date of communication of this order.
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The application being, CAN No.1282 of 2013, is also accordingly disposed of.
, (Ashoke Kumar Dasadhikari, J.)