Narayan Chandra Ghosh vs The State Of West Bengal & Ors.

Amrita Sinha, J.:-

The reasoned order dated 13^th January, 2023 passed by the Director of Public Instruction (for short ‘DPI’) rejecting the petitioner’s prayer to take into account his past service in the temporary post for the purpose of granting pensionary benefit is impugned in the instant writ petition.

The facts of the case are that the petitioner joined as whole-time temporary lecturer in the H.S unit of a college on 15^th July, 1976. His service was approved by the competent authority with a proper scale of pay with effect from the same date i.e., 15^th July, 1976.

Vide GO No. 19-Edn (CS) dated 6^th January, 1981, the State Government introduced the graded scale of pay for teachers who could not be absorbed into regular lecturer posts with effect from 1^st December, 1980. The service of the petitioner stood confirmed under the said scheme with effect from 1^st December, 1980.

The petitioner retired from service on attaining his normal age of superannuation on 1^st August, 2009. The petitioner has received his pensionary benefits upon taking into consideration his period of service from 1^st December, 1980.

The petitioner submits that at the time of calculating his terminal dues, the period of service rendered by him in his temporary post should also have been taken into consideration by the authority.

DPI rejected the prayer of the petitioner for considering his past service on and from 15^th July, 1976 on the ground that the service rendered by the petitioner prior to his confirmation on 1^st December, 1980 was a temporary one. There was no proper scale of pay according to which the benefit may be calculated.

To controvert the stand taken by DPI, learned advocate for the petitioner relies on the judgment delivered by the Hon’ble Division Bench of this Court in the matter of Nemai Ch. Chatterjee & Ors. Vs. State of West Bengal & Ors. reported in 2014 3 CHN 608 wherein the Court took into consideration the DCRB Rules and, inter alia, held that the period of service rendered by a government servant on a temporary basis must be reckoned for the purpose of qualifying service and consequently payment of pension, provided the temporary service is followed immediately without a break by permanent service.

It has been submitted that there has not been any break of service of the petitioner. When his service stood confirmed on and from 1^st December, 1980, the service of the petitioner was continuous and the authority ought to take into consideration his previous service prior to confirmation for the purpose of granting all pensionary benefit.

Reliance has also been placed on the judgment delivered by the Hon’ble Division Bench of this Court on 16^th February, 2015 in WP.ST No. 81 of 2024 in the matter of Sk. Golam Zikria Vs. State of West Bengal & Ors. wherein the Court was of the opinion that the temporary service rendered by the employee cannot be altogether ignored and the government should condone the deficiency in the qualifying service for the purpose of granting regular pension.

The order passed by the Hon’ble Division Bench in Sk. Golam Zikria (supra) was carried in appeal by the State and vide order dated 17^th July, 2017, the Special Leave to Appeal (C) No. 16532/2015 stood dismissed by the Hon’ble Supreme Court.

Learned advocate representing the State respondents opposes the prayer of the petitioner. It has been submitted that as the initial appointment of the petitioner in the year 1976 was a temporary one, in the Higher Secondary unit of a college, which is separate from the main college, accordingly, the said period cannot be taken into consideration for the purpose of granting full pensionary benefit.

It has been submitted that the Government Order of 1981, relying on which the service of the petitioner stood confirmed, was a onetime benefit which was granted to lecturers who could not be absorbed in the regular posts. For the purpose of granting this benefit, the government introduced the graded scale of pay and the petitioner’s service was confirmed under such scheme with effect from 1^st December, 1980.

It has also been contended that the State has applied this principle uniformly in respect of all the employees who got the benefit under the scheme with effect from 1^st December, 1980. There is no reason for adopting a different stand in respect of the petitioner.

It has been argued that as the scheme pursuant to which the petitioner’s service stood confirmed came into effect from 1^st December, 1980, the service of the petitioner rendered prior thereto would not grant him any special advantage or else the same would amount to discrimination in respect of other similarly circumstanced employees.

Prayer has been made to dismiss the writ petition by not interfering with the impugned order.

I have heard the submissions made on behalf of both the parties and have perused the materials placed before this Court.

The fact that the petitioner rendered service as whole-time lecturer in the Higher Secondary unit of a college since 15^th July, 1976 is not disputed. It is also not disputed that the service of the petitioner stood confirmed with effect from 1^st December, 1980 and the service of the petitioner was all along continuous, without any break.

The issue as to whether past service of an employee is required to be considered for the purpose of calculating and granting the pensionary benefit has been conclusively decided by the Court in the matter of Nemai Ch. Chatterjee (supra). In the said matter the submission of the State that, the service of employees appointed temporarily against unsanctioned posts cannot be taken into consideration for grant of pensionary benefit, was duly addressed by the Hon’ble Division Bench.

In the present case, the petitioner was receiving pay from the government for the period during which he was in temporary service. At the time of confirmation of service in the regular post with effect from 1^st December, 1980, the petitioner was directed to refund the provident fund amount that he received during his temporary service period, which the petitioner did.

The direction to refund the provident fund amount received during the temporary service period and to merge the same with the provident fund amount received during his permanent service implies that the State intended to maintain the continuity of service of the petitioner.

Learned counsel for the State respondents has tried to distinguish the facts of Nemai Ch. Chatterjee (supra) with the facts of the present case. It has been submitted that Nemai Ch. Chatterjee (supra) took into consideration the DCRB Rules, which is not applicable in the present case.

It appears that though the DCRB Rules may not be applicable in the present case, but the ratio of the decision in the matter of Nemai Ch. Chatterjee (supra) appears to be completely applicable in the facts of the present case.

In Sk. Golam Zikria (supra) the Hon’ble Division Bench reiterated the principles laid down in the matter of Nemai Ch. Chatterjee (supra).

Full pensionary benefit is allowed if the employee renders thirty-three years of service. If the period from 1976 till 1980 is taken into consideration, then he would be eligible to receive full pensionary benefit.

As it appears that the petitioner has rendered continuous uninterrupted service from 15^th July, 1976 till his superannuation in the year 2009 and he had been paid his salary by the State on and from the first date of his appointment in July 1976 and he has also been paid his provident fund on and from July 1976, there is absolutely no reason as to why pensionary benefit cannot be extended taking into consideration his first date of appointment on 15^th July, 1976.

DPI is, accordingly, directed to calculate the pensionary benefit of the petitioner on and from his first date of appointment, that is, 15^th July, 1976 and issue revised Pension Payment Order at the earliest but positively within a period of eight weeks from the date of communication of this order.

All additional financial benefit along with arrears shall be disbursed in favour of the petitioner soon thereafter.

The impugned order of DPI stands set aside.

The writ petition stands disposed of.

Parties to act on the basis of the server copy of this judgment duly downloaded from the official website of this Court.

Certified server copy of this judgment, if applied for, be supplied to the parties upon compliance of all requisite formalities.