Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Sri Ranajit Bar & Ors on 14 February, 2017
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
MAT 1459 of 2016
CAN 8009 of 2016
CAN 8011 of 2016
State of West Bengal & Ors. Vs. Sri Ranajit Bar & Ors.
With
MAT 1877 of 2015
CAN 2332 of 2016
Amal Kanti Chakraborty & Anr. Vs. State of West Bengal & Ors.
Present :
The Hon'ble Rakesh Tiwari, J.
AND The Hon'ble Mir Dara Sheko, J.
For the appellant/State : Mr. Jayanta Mitra, Advocate General
Mr. Joytosh Majunder, Advocate
Mr. Pinaki Dhole, Advocate
For the respondent : Mr. Subir Sanyal, Advocate
Mr. Sakti Pada Jana, Advocate
Mrs. Baishali Ghosal, Advocate
Mr. Subhrangsu Panda, Advocate
Heard on : 22.11.2016
Judgment on : 14.02.2017
RAKESH TIWARI, J.
CAN 8009 of 2016 (for condonation of delay): The appeal is said to be beyond time by 53 days. Ld. Counsel for the parties agree that the matter is of public importance and requires hearing, therefore, the matter may be heard on merits. We find from the arguments of the Ld. Counsels that sufficient cause has been shown and the matter being of public importance the inconsequential delay of 53 days is condoned. Application being CAN 8009 of 2016 is accordingly allowed.
Heard Ld. Counsel for the parties and perused the record. On merits:
The appeals Mat 1459 of 2016 connected with Mat 1877 of 2015 are entwined by same questions of facts and law, hence are being decided by this common judgment.
1. The instant appeal has been filed challenging the order dated 13.05.2016 passed by His Lordship Hon'ble Justice Dipankar Datta in W.P. no. 28844 (w) of 2014 (Ranajit Bar & Ors. Vs. The State of West Bengal & Ors.) whereby and whereunder His Lordship was pleased to direct the office to place writ petition before His Lordship Hon'ble The Chief Justice for constitution of an appropriate Bench or a larger Bench for the purpose of deciding the following issue:-
"Whether in terms of the judgment and order of the Full Bench dated July 16, 2013 passed by a Full Bench of the Hon'ble High Court at Calcutta in the case of District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. Reported in 2013 (3) Cal LJ 178, a willing employee, who exercises option and is otherwise entitled to pension, would be entitled to pension payable from the date of his retirement or pension payable from the date he makes refund of the amount received by him on account of employer's share of provident fund with interest and additional interest."
2. The writ petitioners were in service in various non-government aided educational institutions of West Bengal. They had exercised option under the West Bengal Recognised Non-Government Educational Institution Employees (Death-Cum-Retirement Benefit) Scheme, 1981 herein referred to as the 1981 Scheme to come under Contributory Provident Fund Scheme after their retirement from service. Thereafter, Revision of Pay & Allowance Rules (ROPA), 1990 came into effect. The writ petitioners exercised option to come under the revised scale. Subsequently, ROPA, 1998 also came into effect and the writ petitioners opted to come under the same. Subsequently, a memo was issued by the Secretary, School Education Department, Government of West Bengal, being no. 155- SE(B)/1M-102/98 dated 13.07.1999 wherein it was envisaged that the employees will get terminal benefits as per the option exercised by them at the time of coming under the 1981 Scheme.
3. The memorandum was challenged in the writ jurisdiction before the High Court, and owing to conflicting decisions of the Court, several writ petitions and appeals were got referred before the Full Bench of this High Court presided over by His Lordship the then Chief Justice Arun Mishra, with Their Lordship Justice Dipankar Datta and Justice Joymalya Bagchi, the Full Bench was pleased to pass a comprehensive judgment upon reference in the matter of District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. reported in 2013 Volume 3 Calcutta High Court Notes (Cal) Page 711 (District Inspector of Schools (SE), Kolkata v. Abhijit Baidya & Ors.) Answering the reference, "whether the petitioners being the teachers of recognised non-government educational institutions are entitled to avail an opportunity to switch over to the Pension-cum-Gratuity Scheme from the CPF- cum- Gratuity Scheme in view of the change made in para 17(3) of Revision of Pay and Allowances Rules (ROPA), 1990 and in paragraph 13 of the Revision of Pay and Allowances Rules (ROPA), 1998", the Full Bench vide judgment dated 16.06.2013 held:-
"(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 provision 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 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, 1981. As in the option exercised earlier in terms of the DERB Scheme, 1981was 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 option 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."
4. Further, directions were issued upon the State Government to provide 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 wide circulation in this state. Three months time period was also allowed to them to exercise option and to specify the amount of each and every employee who elects to switch over to Pension-cum- Gratuity, for depositing the same with employer's share of contribution with interest, in additional to interest which is required to be refunded to the Government within the period specified.
5. It was specifically directed in paragraph no. 77 of the said judgment that "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."
6. Being aggrieved by the said judgment, the State Government preferred a Special Leave Petition before the Apex Court but the same was dismissed affirming the judgment passed by the Full Bench of this Court.
7. In due compliance with the aforesaid order dated 16.06.2013 passed by the Full Bench of this Court, the Secretary, Government of West Bengal issued a notification dated 13.06.2014 directing the teaching and non-teaching staff to exercise their option for switching over from CPF-cum-Gratuity Scheme to Pension-cum- Gratuity Scheme within a period of three months. It was specifically mentioned in clause 3(x) of the said notification that "the said employees shall be entitled to pension in accordance with law with effect from the date refund is made as per direction of the Hon'ble High Court". Reliance has been placed by the counsel upon paragraph 2 - 5, 7, 9, 74, 77 of the judgment rendered in the case of the District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. reported in 2013 (3) Cal LJ 178. The words "in accordance with law" refer the entitlement of the employees in terms of the directions of the Hon'ble High Court in the case of the District Inspector of Schools (SE), Kolkata & Anr. (Supra). Wherein the Court in the aforesaid paragraph noted that a large number of cases have been referred to the full bench because of the conflict of opinion of judgments. Wherein the question involved was 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.
8. Before the full bench the facts noted in paragraph 3, 4 & 5 are thus:
i) 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 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.
ii) 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 fresh option under DCRB Scheme, 1981 on 16th December, 1991 and not thereafter.
iii) 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.
9. The stand of the government noted in paragraph 7 by the Court was 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."
10. The Court noticing the fact that petition had been filed highly beyond the time to change options exercised in terms of DCRB Scheme 1981 as such no case for its interference was made out and that it also cannot enlarge time to file option. The rights of the petitioner having been taken away the petition deserves to be dismissed and the appeals by the state ought to be allowed. Further the Court framed the following issues in the matters:
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 Institution Employees DCRB Scheme, 1981, particularly in view of the amendment effected in paragraph 17(2) vide G.O. 226-SE (B)/IM-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?
11. The aforesaid issues were considered by the Court in paragraph no. 74 to 77 thus:
i) 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 1791) 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.
ii) 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 accrued to an employee. So as to validate provisions of para 1792) 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.
iii) 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.
iv) 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, 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.
v) 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 the Pension-cum- Gratuity.
a) 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.
b) 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 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.
c) 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.
12. Pursuant to the aforesaid notification dated 13.06.2014 the writ petitioners refunded the government contribution of provident fund, and accordingly, they were paid pension from the date of their refund.
13. Now, the writ petitioners have come up by filing W.P. no. 28844 (w) of 2014 (Ranajit Bar & Ors. Vs. The State of West Bengal & Ors.) specifically challenging clause 3(x)of the aforesaid notification dated 13.06.2014, seeking pensionary benefits with effect from the dates of their respective retirements and not from the dates of their respective refund of government share of CPF.
14. The writ petition was contested by the State Government by filing affidavit-in-opposition, and in the said writ petition His Lordship Dipankar Datta was pleased to pass an order on 13.05.2016 whereby the Court was pleased to refer the writ petition before the Hon'ble Chief Justice for constitution of an appropriate Bench or a larger Bench for the purpose of deciding the issue as reproduced above.
15. The said Writ Petition was heard and dismissed by the Court vide judgment and order dt. 07.12.2015 holding that primarily the writ petitioners do not have any locus standi in the facts and circumstances of that case.
16. The reasons for dismissing the writ petition was also that Full Bench Decision of this Court in the case of the District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. reported in 2013 (3) Cal LJ 178, having been affirmed by the Supreme Court in appeal preferred by the State Government, holding in paragraph 77 that "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."
17. The writ petitioners having submitted to the directions as contained in the order of the Full Bench, by exercising their option in terms of notification pursuant thereto and are actually receiving their pension on and from the date of their respective refund of government share of CPF, are not entitled to question the same subsequently.
18. It is urged that it is a settled principal of law that Single Bench sitting in writ jurisdiction cannot supplement or clarify or modify an order passed a Division Bench of High Court being beyond the legal discipline. It is pointed out that the writ petitioners who have accepted and acted in terms of the Full Bench judgment and order passed in the case of District Inspector of Schools (SE), Kolkata & Anr. Vs. Abhijit Baidya & Ors. reported in 2013 (3) Cal LJ 178 and receiving pension pursuant to thereof, cannot now challenge a part of direction contained in the said order.
19. Our attention has been drawn to the fourth proviso to Rule 1 under Chapter II of the Appellate Side Rules of the Calcutta High Court Rules, it provides that where at any stage of the hearing of an Appeal, application or other matter, it appears to the Judge that it involves a substantial question of law as to the interpretation of the Constitution of India, he shall send the appeal, application or other matter to the Division Bench taking such cases for disposal. However, in the instant case, the Court of Single Bench has referred the writ petition before the Hon'ble Chief Justice for constitution of an appropriate Bench or a larger Bench for the purpose of deciding a question which is not a substantial question of law involving interpretation of the Constitution of. It is stated that in fact appeals that court of Single Bench has referred the writ petition only due to his non-agreement with the directions contained in the Full Bench judgment opined wherein he himself was one of the Judges constituting the Full Bench.
20. It is urged by the Ld. Counsel for the petitioner that a matter for reference to Full Bench of the High Court is guided by Chapter VII of the Appellate Side Rules of this Hon'ble Court. In terms of Rule 1 under Chapter VII, whenever one Division Bench differs from any other Division Bench or a Special Division Bench constituted before 1st April, 1953 upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench, unless the point has since been decided by a pre-Constitution decision of the Judicial Committee of the Privy Council or of the Federal Court of India or by a decision of the Supreme Court of India or of a Full Bench of this High Court. Thus it is only within the ambit of the Division Bench of this Court to send a point of law or usage having the force of law for reference to a Full Bench if such Division Bench seeks to differ from any judgment of a Division Bench or Full Bench on such point. Hence, the Single Bench is not vested with the power to refer a point of law or usage having the force of law for reference to a Full Bench if such Single Bench seeks to differ from any judgment of the Division Bench or Full Bench on such point. Particularly in view of Rule 8 under Chapter VII of the Appellate Side Rules of the High Court. According to the rules every decision of a Full Bench shall be treated as binding on all Division Benches and Judges sitting singly upon a point of law or usage having the force of law decided by the Full Bench of this Court, unless it be subsequently reversed by a Bench specially constituted consisting of such number of Judges as in each case shall have been fixed by the Chief Justice or unless a contrary Rule have since been laid down in a pre-Constitution decision of the Judicial Committee of the Privy Council or of the Federal Court of India or in a decision of the Supreme Court of India.
21. In view of the above position of Rules and Law the Single Judge Court in the instant case was bound by the Full Bench judgment and there was no scope for him to melee any further reference for decision by a Full Bench.
22. In this regard, reference was drawn by him to the decision of the Apex Court rendered in Ahamed Hossain Vs. The State of West Bengal & Ors. reported in 200192) Cal HCN page no. 762 wherein the Court in paragraph no. 30 of the said judgment has been pleased to hold that:
"30. The principles that emerge from the decisions, cited supra, are that the decisions of the Supreme Court are binding on all the Courts, Article 141 of the Constitution embodies the rule of precedent. A Full Bench / Full Bench judgment of that High Court is binding on the question of law decided by it and despite the same if any Division Bench holds to the contrary then a Division Bench has the authority to differ with the Division Bench which has taken a view contrary to the Full Bench judgment. A single judge of a High Court is bound by the judgment of another single Judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of two judges of High Court is bound by judgments of another Division Bench of two Judges and Full Bench. A single Judge or Benches of High Courts cannot differ from the earlier judgments of coordinate jurisdiction merely because they hold a different view. When a Division Bench of two Judges differs from the judgment of another Division Bench of two Judges, it has to refer the case to a Full Bench. A single Judge cannot differ from a decision of a larger Bench except when that decision or a judgment relied upon in that decision is specifically overruled by a Full Bench or the Supreme Court. However, if the decision of the larger Bench is inconsistent with the law laid down by a Full Bench or the Supreme Court, the proper course to the single Judge would be to refer the mailer to the Division Bench. In my considered view, therefore, it is only within the narrowest field that a judgment of a larger Bench can be referred for reconsideration."
23. Our attention is also drawn to the decision of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multi-purpose Cold Storage Pvt. Ltd. &Ors. reported in 2001(2) Cal HCN page no. 762 wherein the Apex Court in paragraph no. 19 has been pleased to hold that:
"19. Our aforestated view has also been buttressed by the view expressed by this Court in the case of Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. [(2005) 2 SCC 673], wherein a question had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal strength. After considering a number of judgments, a five-Judge Bench of this Court, finally opined as under:
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi."
24. Reference was also made by the Ld. Counsel to the judgment of the Hon'ble Supreme Court in Mahadeolal Kanodia Vs. The Administrator General of West Bengal reported in 1960 AIR (SC) 1960 wherein the Hon'ble Apex Court has been pleased to hold in paragraph no. 19 of the said judgment that:
"19. Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan's Case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."
25. The judgment of the Apex Court in Subnath Koley & Ors. reported in 2007(3) Cal HN 192 has been cited wherein the Court pleased to hold that the Single Judge while deciding similar issues could not have ignored the judgment which was subsequently affirmed by Division Bench. It was held in paragraph no. 17 of the said judgment thus:
"17. Since the issues relating to the circulars were duly considered and decided by the earlier Division Bench we are of the opinion that non-mentioning of a particular circular in the earlier judgment of the Division Bench cannot render the said judgment per incuriam. When the issue has been specifically decided by the learned Single Judge as well as the Division Bench of this Hon'ble Court in the case of Biswajit Das (supra), the question of sub silentio cannot and does not arise."
26. In support of his contention the judgment in the case of Smt. Debleena Ghosh Vs. State of West Bengal &Ors. reported in 2013(3) Cal. H.C.N 746 has also been relied upon, wherein the Single Judge doubted the correctness of the ratio laid down by the Full Bench of this Court in case of Gobindo C. Mondal Vs. Rabindra Mahavidyalaya and Ors. reported in 2013 (1) CHN(Cal) 9. It was held by the Division Bench therein that the ratio laid down by the Full Bench in the aforesaid case of Gobindo C. Mondal (Supra) is a reasonable one which has been consistently endorsed by the Supreme Court in its various decisions, and for this reason also, there is no reason at all to refer the issue for consideration by a Larger Bench as the ratio laid down in is binding upon the Single Judge. The matter was accordingly remitted to the Single Judge in light of the law declared by the aforesaid Full Bench wherein in paragraphs 18 and 19 of the judgment it was held that:
"18. In view of the aforesaid dicta and as we are of the opinion that the ratio laid down by the Full Bench of this Court in Gobinda C. Mondal (supra) is a reasonable one which has been consistently endorsed by the Supreme Court in various decisions (supra), we find no reason to refer the issue for reconsideration by a Large Bench.
19. Accordingly, we are of the opinion that the ratio laid down in Gobinda C. Mondal (supra) is binding upon the learned Single Judge. The matter is remitted to the learned Single Judge to decide the case in the light of the law declared by the aforesaid Full Bench."
27. It is argued that the principle applied in the aforesaid case appears to squarely applies to the writ petitioners herein, who have come to challenge the notification dated 13.06.2014 issued on the basis of the order of the Full Bench of this Court passed on 16.07.2013, particularly after submitting to notification, and after acting upon the terms of the aforesaid notification, even after receiving pension in terms of the aforesaid notification.
28. Per Contra Ld. Counsel for the respondents contends that the instant appeal has been filed challenging the order dated 07.12.2015 passed by His Lordship Justice Debangsu Basak in W.P. no. 20604 (w) of 2015 (Amal Kanti Chakraborty & Ors. Vs. The State of West Bengal &Ors.) which was dismissed.
29. Reference was drawn to the judgment of the Hon'ble Supreme Court in the case of Mahadeolal Kanodia Vs. The Administrator General of West Bengal reported in 1960 AIR (SC) 1960 wherein the Hon'ble Apex Court has been pleased to hold in paragraph no. 19 of the said judgment that:
"19. Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan's Case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if judges of coordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court."
30. Reference was also drawn to the judgment of the Hon'ble High Court at Calcutta in the case of Smt. Debleena Ghosh Vs. State of West Bengal &Ors. reported in 2013(3) Cal. H.C.N 746 wherein the Single Judge doubted the correctness of the ratio laid down by the Full Bench of this Court in case of Gobindo C. Mondal Vs. Rabindra Mahavidyalaya and Ors. reported in 2013 (1) CHN(Cal) 9, it was held by the Division Bench in that case that the ratio laid down by the Full Bench of this Court in case of Gobindo C. Mondal (Supra) is a reasonable one which has been consistently endorsed by the Apex Court in various decisions, and hence, there is no reason to refer the issue for consideration by a Larger Bench. It was held that the ratio laid down in Gobindo C. Mondal is binding upon the Single Judge and the matter was remitted to the Single Judge in light of the law declared by the aforesaid Full Bench. It was held in paragraphs 18 and 19 of the judgment that:
"18. In view of the aforesaid dicta and as we are of the opinion that the ratio laid down by the Full Bench of this Court in Gobinda C. Mondal (supra) is a reasonable one which has been consistently endorsed by the Supreme Court in various decisions (supra), we find no reason to refer the issue for reconsideration by a Large Bench.
19. Accordingly, we are of the opinion that the ration laid down in Gobinda C. Mondal (supra) is binding upon the learned Single Judge. The matter is remitted to the learned Single Judge to decide the case in the light of the law declared by the aforesaid Full Bench."
31. Reference may also be made to the judgment of the Apex Court in the case of Punjab National Bank Vs. Sahujain Charitable Society and Ors. reported in 2007(3) Cal HN 192, wherein it was held in paragraph nos. 18 and 19 of the judgment that wherein a partition suit, a property was sold to one of the co-sharers who made higher offer and such sale was confirmed by Court in presence of all the co-sharers, such sale cannot be set-aside if there is any higher offer from any co-sharer subsequently.
32. The principle applied in the aforesaid case squarely applies to the writ petitioners herein who have come to challenge the notification dated 13.06.2014 issued on the basis of the order of the Full Bench of this Hon'ble Court passed on 16.07.2013 after submitting to the aforesaid notification and / or after acting in terms of the aforesaid notification and even after receiving pension in terms of the aforesaid notification.
33. Pursuant to the Special Bench decision and notification issued by the government was provided to the concerned employees to exercise fresh option within a stipulated time. The appellants of MAT 1877 of 2015 exercised the option and availed of the financial benefit admissible to them, therefore, they by assailing the impugned Writ Petition No. 20604(W) of 2015 cannot reopen any other part of the financial benefit which was not provided therein while deciding the said writ petition by settling the issues for good without leaving any scope of claiming any other benefits or interpreting the scope provided by the Special Bench in any other. Therefore, the impugned judgment dated 07.12.2015 (SB) delivered by the Single Bench of this court dismissing the writ petition need not be interfered with since the observations in rejecting the writ petition are in absolute in consonance with the Special Bench decision under reference.
34. In view of the above the appeal being MAT 1459 of 2016 is liable to be allowed and is accordingly allowed. As a consequence thereof the application for stay by CAN of 8011 of 2016 is disposed of accordingly.
35. It follows that the MAT 1877 of 2015 filed by appellants/writ petitioners is liable to be dismissed and is hereby dismissed. As a consequence thereof the application for stay being CAN 2322 of 2016 stands rejected.
36. No order as to costs.
37. Urgent certified copies be supplied to the parties, if furnished.
(Rakesh Tiwari, J.) (Mir Dara Sheko, J.)