Utpal Das vs State Of West Bengal & Ors.

Rajarshi Bharadwaj, J

The present writ petition has been preferred challenging the inaction of the State of West Bengal (hereinafter referred to as the respondent no.1) in not sanctioning the petitioner’s pensionary benefits.

The facts in a nutshell are that pursuant to Order No. 1213-A. R read in conjunction with Order No. 1214-A. R dated August 8, 1978, issued by the Department of Home (C&E), administrative departments were vested with the authority to designate Confidential Assistants to Ministers/Ministers of State within their respective Ministry/Department. The notifications explicitly delineated that these Confidential Assistants were eligible to receive remuneration on a monthly basis for their services. In addition to the consolidated payment, incumbents of the aforementioned positions were entitled to residential telephone services, reimbursement for electricity expenses, coverage of two government-subsidized gas cylinders per month, medical benefits commensurate with those provided to Ministers/Ministers of State and travel allowances equivalent to the highest rate permissible for a government employee. However, it was expressly stipulated that such appointment would terminate concomitantly with the conclusion of the Ministers'/Ministers of State's term in office.

The petitioner was appointed or recruited at the discretion of the Ministers of State in the capacity of a Confidential Assistant to Sri Dr. Srikumar Mukherjee, the then Minister of State overseeing the Home (Civil Defence) Department. This appointment was effective from September 1, 2004, to May 17, 2006 and subsequently, from May 18, 2006, to March 31, 2007. Furthermore, the petitioner continued in this role from April 1, 2007, to February 4, 2011, as evident by Memo No. 472-Home (Cons.) dated August 19, 2004 and Memo No. 599-Home (Cons.) dated November 25, 2004. Additionally, the appointments are supported by the orders issued on June 29, 2006, bearing No. 178-Home (Cons)/R13A-7/2006 and May 8, 2007, with Order No. 551-CD/2e-13/2007.

However, the petitioner resigned from the post on 4th February 2011 and to that effect an order was passed by the Assistant Secretary on 28th February 2011 under memo no. 370-CD/1E-03/2011.

Subsequently the petitioner on 5th February 2011, joined Krishnapur Free Primary School, Bindole under Raiganj North Circle under District Primary School Council Uttar Dinajpur, as an assistant teacher and after approximately a year, on 19th March 2012 tendered his resignation from the post of assistant teacher which the authorities duly accepted. Thus, from 20th March the petitioner was not employed and was eligible for the pension as per the pension Rule 4 of the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules, 1996 framed for confidential Assistant.

The matter of pension entitlement was deliberated by the relevant authorities, leading to the determination that the Petitioner, along with similarly situated individuals, was eligible to receive pension benefits. Consequently, the implementation of the West Bengal Pension Rules for Special Assistants and Confidential Assistants to Ministers 1996 was effectuated. In light of the petitioner's eligibility for pension, pertinent documents were submitted to the respective department for the disbursement of pensionary benefits. Regrettably, to date, no response has been forthcoming from the said department regarding the disbursement of the aforementioned pension.

In light of the respondents' failure to act, the present petition has been preferred, with the petitioner expressing grievance and seeking redress for the perceived inaction.

Petitioner appears in person and submits that the pensionary entitlements were expressly committed to the petitioner during his tenure of service, thereby establishing the said benefits as vested rights safeguarded by pertinent State herein respondent No.1 and democratic legal frameworks. A vested benefit is the one that matures into an irrevocable contractual right which cannot be withheld or impaired without the member’s consent. In accordance with the democratic ethos, regulations are envisioned to be formulated in favour of the public good. In the present matter, the compensatory aspects of retirement benefits constitute a form of deferred entitlement. In light of this, the norms and guidelines stipulated by the respondent authorities necessitate compliance, ensuring that individuals appointed as Confidential Assistants shall receive pensionary relief in accordance with the rules established by the legislative. Any deviation from these prescribed norms would contravene the existing regulatory framework. The decision of the respondents to withhold the petitioner's pensionary benefits exceeds its jurisdiction and substantially infringes upon his rights and contentions.

It is contended additionally that subsequent to the filing of the petitioner's pension application, the Government of West Bengal, herein respondent No.1 through legislative action, invalidated the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules of 1996, with effect from March 1, 2013. Notwithstanding, this legislative intervention transpired subsequent to the initiation of the petitioner's pension claim, during which the governmental authorities annulled the roles of Confidential Assistant and Special Assistant.

Additionally, it has been asserted that six individuals, former Confidential Assistants in analogous circumstances, were either in receipt of pension or had received pension until their demise. The petitioner has further presented a current bank statement of one Alok Basu, an employee who continued to receive pension until his demise on 29th November, 2023, as substantiation for the asserted entitlement.

In representation of respondent nos. 1-2 and 5-7, the Learned Counsel for the respondent authorities submit that the Government of West Bengal, through Order No.131- Home (Cons.)/RIM(cons.) - 88/2012 dated 21st February, 2013, nullified the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules of 1996. The abrogation of this rule took effect from 01st March, 2013. Subsequent to this legislative action, individuals holding the positions of Special Assistant or Confidential Assistant are no longer entitled to pension benefits as per the aforementioned Rules. Presently, no former Special Assistants or Confidential Assistants are receiving pensions under the rescinded Rules but the petitioner retired much earlier to 21st February, 2013.

The respondent authorities contend that the petitioner's pension application could not be duly considered due to the rescission of the aforementioned rule, rendering individuals in the capacities of Special Assistant or Confidential Assistant ineligible for pensionary benefits. Consequently, the legal landscape dictates that, in light of the rule's annulment, the petitioner's claim for pension lacks a valid basis according to the extant legal framework.

On perusal of the documents brought to the Court and considering the submissions made on behalf of the parties, this Court is of the view that it is an outdated concept that a pension is bestowed as a gift, an unobligated payment subject to the employer's benevolence and not legally enforceable as an entitlement. It has been invalidated by the ruling of the Constitutional Bench in the case of Deoki Nandan Prasad v. State of Bihar reported in 1971 (Supp) SCR 634: (AIR 1971 SC 1409). The Court unequivocally established that a pension is indeed a legally recognized entitlement. The disbursement of pension is not subject to the discretionary authority of the Government; rather, it is governed by established regulations. A government employee falling within the purview of these regulations has the rightful entitlement to claim their pension.

The Supreme Court in B.S. Yadav v. State of Haryana reported in 1980 Supp SCC 524 held that:

"Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. However, the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules”

Therefore, the absence of a legal nexus between the annulment of the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules, 1996 and its retrospective enforcement from 1st March 2013 renders any amendment with retrospective applicability, leading to the deprivation of benefits already earned, vested, or accessible to an employee under the prevailing rule at the time of retirement, or aiming to restrict and diminish that entitlement, as unreasonable, arbitrary, discriminatory and in contravention of the constitutionally protected rights enshrined under Articles 14 and 16.

The Supreme Court reiterated in K. Narayana v. State of Karnataka reported in 1994 Supp (1) SCC 44 the expressions "vetted rights" or "accrued rights” are used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. Such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee herein the petitioner under the existing rule is arbitrary, discriminatory and violative of rights guaranteed under Articles 14 and 16 of the Constitution.

For the foregoing reasons the writ petition is, accordingly, allowed directing the respondent authorities to effectuate the disbursement of pension to the petitioner. Furthermore, they are directed to settle the arrear payments commencing from the 1st of March, 2011, with an annual interest rate of 6%, within a stipulated timeframe of six months.

All pending applications are accordingly disposed of. There will be no order as to costs.

Urgent certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.