Niti Chandra Mondal v. State Of West Bengal And ORS.
15.04.2024 Court No.13 Item Nos.21 to 115 AP WPA 2889 of 2024 Swapan Kumar Chakraborty -VersusThe State of West Bengal & Ors.
With WPA 2366 of 2024 Sitaram Adhikary -VersusThe State of West Bengal & Ors.
With WPA 2372 of 2024 Ranajit Kumar Mandal -VersusThe State of West Bengal & Ors.
With WPA 2379 of 2024 Gaurhari Chandra -VersusThe State of West Bengal & Ors.
With WPA 2381 of 2024 Aloke Nath Goswami -VersusThe State of West Bengal & Ors.
With WPA 2382 of 2024 Anil Kumar Maji -VersusThe State of West Bengal & Ors.
With WPA 2384 of 2024 Sk. Mokbul Rahaman -VersusThe State of West Bengal & Ors.
With WPA 2386 of 2024 Mira Chakraborty -VersusThe State of West Bengal & Ors.
With WPA 2387 of 2024 Mohanlal Ghosh -VersusThe State of West Bengal & Ors.
With WPA 2388 of 2024 Kasinath Pal -VersusThe State of West Bengal & Ors.
With WPA 2392 of 2024 Mohanlal Das
-VersusThe State of West Bengal & Ors.
With WPA 2394 of 2024 Rabindra Nath Marik -VersusThe State of West Bengal & Ors.
With WPA 2398 of 2024 Parula Mudi -VersusThe State of West Bengal & Ors.
With WPA 2401 of 2024 Krishna Pada Panchhal -VersusThe State of West Bengal & Ors.
With WPA 2402 of 2024 Jubaraj Dalui -VersusThe State of West Bengal & Ors.
With WPA 2405 of 2024 Lakshan Chandra Pramanik -VersusThe State of West Bengal & Ors.
With WPA 2406 of 2024 Pallabi Jati (Dhara) -VersusThe State of West Bengal & Ors.
With WPA 2409 of 2024 Hrishikes Mandal -VersusThe State of West Bengal & Ors.
With WPA 2410 of 2024 Namita Santra -VersusThe State of West Bengal & Ors.
With WPA 2412 of 2024 Samatul Chandra Ghosh -VersusThe State of West Bengal & Ors.
With WPA 2413 of 2024 Sanat Kumar Das -VersusThe State of West Bengal & Ors.
With WPA 2415 of 2024 Nirmal Chandra Santra
-VersusThe State of West Bengal & Ors.
With WPA 2418 of 2024 Kamala Mal -VersusThe State of West Bengal & Ors.
With WPA 2422 of 2024 Samarendra Nath Panja -VersusThe State of West Bengal & Ors.
With WPA 2426 of 2024 Jagannath Meur -VersusThe State of West Bengal & Ors.
With WPA 2430 of 2024 Prasad Chandra Das -VersusThe State of West Bengal & Ors.
With WPA 2431 of 2024 Siba Ram Chandra -VersusThe State of West Bengal & Ors.
With WPA 2434 of 2024 Dharanidhar Chakrabarti -VersusThe State of West Bengal & Ors.
With WPA 2437 of 2024 Rebarani Mondal -VersusThe State of West Bengal & Ors.
With WPA 2439 of 2024 Rekha Chakraborty -VersusThe State of West Bengal & Ors.
With WPA 2520 of 2024 Arabinda Chongdar -VersusThe State of West Bengal & Ors.
With WPA 2522 of 2024 Sambhunath Samji -VersusThe State of West Bengal & Ors.
With WPA 2525 of 2024 Arati Ghosh (Kauri)
-VersusThe State of West Bengal & Ors.
With WPA 2527 of 2024 Prahlad Chandra Bodak -VersusThe State of West Bengal & Ors.
With WPA 2553 of 2024 Swapan Kumar Dhara -VersusThe State of West Bengal & Ors.
With WPA 2560 of 2024 Ramsadaya Chongder -VersusThe State of West Bengal & Ors.
With WPA 2748 of 2024 Sabera Khatun -VersusThe State of West Bengal & Ors.
With WPA 2866 of 2024 Sushil Kumar Mukherjee -VersusThe State of West Bengal & Ors.
With WPA 2895 of 2024 Ratna Rani Datta -VersusThe State of West Bengal & Ors.
With WPA 2899 of 2024 Bharati Sanyal (Siddhanta) -VersusThe State of West Bengal & Ors.
With WPA 2902 of 2024 Biva Rani Dey (Basu) -VersusThe State of West Bengal & Ors.
With WPA 2908 of 2024 Bhaskar Chandra Panda -VersusThe State of West Bengal & Ors.
With WPA 2914 of 2024 Brahamananda Patra -VersusThe State of West Bengal & Ors.
With WPA 2916 of 2024 Krishna Pada Pal
-VersusThe State of West Bengal & Ors.
With WPA 2919 of 2024 Harendra Nath Pramanik -VersusThe State of West Bengal & Ors.
With WPA 2921 of 2024 Mamata Manna -VersusThe State of West Bengal & Ors.
With WPA 2925 of 2024 Durgesh Kumar Singha Roy -VersusThe State of West Bengal & Ors.
With WPA 2943 of 2024 Sandhyarani Kaity (Karmakar) -VersusThe State of West Bengal & Ors.
With WPA 2945 of 2024 Niti Chandra Mondal -VersusThe State of West Bengal & Ors.
With WPA 2946 of 2024 Sris Chandra Kundu -VersusThe State of West Bengal & Ors.
With WPA 2949 of 2024 Malati Koley -VersusThe State of West Bengal & Ors.
With WPA 2951 of 2024 Tarun Acharya -VersusThe State of West Bengal & Ors.
With WPA 2953 of 2024 Kshitish Mandal -VersusThe State of West Bengal & Ors.
With WPA 2957 of 2024 Sitima Saha -VersusThe State of West Bengal & Ors.
With WPA 2961 of 2024 Rabindranath Bhattacharya
-VersusThe State of West Bengal & Ors.
With WPA 2962 of 2024 Ranjit Kumar Mallick -VersusThe State of West Bengal & Ors.
With WPA 2963 of 2024 Gita Ghosh -VersusThe State of West Bengal & Ors.
With WPA 2965 of 2024 Manick Chandra Charchari -VersusThe State of West Bengal & Ors.
With WPA 2967 of 2024 Satyaban Khan -VersusThe State of West Bengal & Ors.
With WPA 2968 of 2024 Arati Bera -VersusThe State of West Bengal & Ors.
With WPA 2969 of 2024 Sudhir Chandra Majhi -VersusThe State of West Bengal & Ors.
With WPA 2971 of 2024 Usha Gupta Bhaya -VersusThe State of West Bengal & Ors.
With WPA 2972 of 2024 Nimai Chandra Samanta -VersusThe State of West Bengal & Ors.
With WPA 2975 of 2024 Malati Rani Sarkar -VersusThe State of West Bengal & Ors.
With WPA 2979 of 2024 Hemlata Barla -VersusThe State of West Bengal & Ors.
With WPA 2982 of 2024 Krishna Sarka (Mondal)
-VersusThe State of West Bengal & Ors.
With WPA 2984 of 2024 Taraknath Chakraborty -VersusThe State of West Bengal & Ors.
With WPA 2986 of 2024 Susil Kumar Pati -VersusThe State of West Bengal & Ors.
With WPA 3062 of 2024 Nilima Bhattacharjee -VersusThe State of West Bengal & Ors.
With WPA 3068 of 2024 Minati Bej -VersusThe State of West Bengal & Ors.
With WPA 3140 of 2024 Dhiren Chandra Mandal -VersusThe State of West Bengal & Ors.
With WPA 3353 of 2024 Gopal Chandra Bandyopadhyaya -VersusThe State of West Bengal & Ors.
With WPA 3361 of 2024 Nanigopal Chakraborty -VersusThe State of West Bengal & Ors.
With WPA 3370 of 2024 Rekha Dutta -VersusThe State of West Bengal & Ors.
With WPA 3378 of 2024 Moslehuddin Ahmed -VersusThe State of West Bengal & Ors.
With WPA 3382 of 2024 Basanti Parui -VersusThe State of West Bengal & Ors.
With WPA 3385 of 2024 Nilima Roy
-VersusThe State of West Bengal & Ors.
With WPA 3387 of 2024 Debi Adhikari -VersusThe State of West Bengal & Ors.
With WPA 3396 of 2024 Naryan Chandra Roy -VersusThe State of West Bengal & Ors.
With WPA 3400 of 2024 Upendra Nath Ekka -VersusThe State of West Bengal & Ors.
With WPA 3405 of 2024 Altaf Hossain -VersusThe State of West Bengal & Ors.
With WPA 3407 of 2024 Sunity Ray -VersusThe State of West Bengal & Ors.
With WPA 3411 of 2024 Chabi Rani Rang -VersusThe State of West Bengal & Ors.
With WPA 3414 of 2024 Rashmani Panja -VersusThe State of West Bengal & Ors.
With WPA 3419 of 2024 Ashalata Kar -VersusThe State of West Bengal & Ors.
With WPA 3422 of 2024 Swapan Chatterjee -VersusThe State of West Bengal & Ors.
With WPA 3424 of 2024 Md. Kalimuddin -VersusThe State of West Bengal & Ors.
With WPA 3426 of 2024 Kamala Rani Parua
-VersusThe State of West Bengal & Ors.
With WPA 3429 of 2024 Mahadev Mukhopadhyay -VersusThe State of West Bengal & Ors.
With WPA 3431 of 2024 Nupur Roy -VersusThe State of West Bengal & Ors.
With WPA 3434 of 2024 Saraswati Mondal -VersusThe State of West Bengal & Ors.
With WPA 3437 of 2024 Kishori Mohon Chowhdury -VersusThe State of West Bengal & Ors.
With WPA 3464 of 2024 Nural Islam -VersusThe State of West Bengal & Ors.
With WPA 3471 of 2024 Bithika Mahapatra -VersusThe State of West Bengal & Ors.
With WPA 3475 of 2024 Dibakar Goswami -VersusThe State of West Bengal & Ors.
Mr. Subir Sanyal Mr. Sakti Pada Jana Mr. Subhajyoti Das Mr. Sourojit Mukherjee ...for the petitioners.
Ms. Sabita Khutia (Bhunya) Mr. Krishna Pada Santra Ms. Arpita Saha ...for the petitioners in Item Nos.22 to 58, 89 to 91 and 114 to 115.
Mr. Kishore Dutta, Ld. Advocate General Mr. Jayanta Samanta Mr. Rajaram Banerjee ...for the State in WPA 2889 of 2024, WPA 2434 of 2024, WPA 2951 of 2024 and WPA 3140 of 2024.
Mr. Mohammed Masood ...for the State in WPA 2366 of 2024.
Mr. Jayanta Samanta Mr. Sasthi Charan Dhara Ms. Paromita Malakar (Dutta) ...for the State in WPA 2372 of 2024.
Mr. Anand Farmania Mr. Manoj Mondal ...for the State in WPA 2381 of 2024.
Mr. Somraj Dhar ...for the State in WPA 2382 of 2024.
Mr. Biswajit Dutta ...for the State in WPA 2384 of 2024.
Ms. Sucharita Roy Mr. Soumik Dey ...for the State in WPA 2386 of 2024.
Mr. Md. Mansoor Alam Mr. Saikat Sen ...for the State in WPA 2394 of 2024.
Mr. Vimal Kumar Shahi Mr. Vijay Agarwal ...for the State in WPA 2398 of 2024.
Mr. K.N. Nabi Ms. Tuli Sinha ...for the State in WPA 2401 of 2024.
Mr. Suman Dey Mr. Sabyasachi Bhattacharjee ...for the State in WPA 2402 of 2024.
Mr. Chittaranjan Ghosh ...for the State in WPA 2409 of 2024.
Mr. Manwar Ali Mr. Rajsekhar Basu ...for the State in WPA 2410 of 2024.
Ms. Sulagna Bhattacharya Mr. Soumyajit Ghosh ...for the State in WPA 2412 of 2024.
Mr. Jahar Dutta Mr. Sandip Chattopadhyay ...for the State in WPA 2413 of 2024.
Ms. Nilanjana Dasgupta ...for the State in WPA 2415 of 2024.
Ms. Saswati Chatterjee ...for the State in WPA 2418 of 2024.
Mr. S.M. Hassan Ms. Anupama Yasmin ...for the State in WPA 2422 of 2024.
Mr. Avirup Mondal Ms. Anima Das Chakraborty ...for the State in WPA 2430 of 2024.
Mr. Sanat Kumar Biswas ...for the State in WPA 2431 of 2024.
Mr. Arindam Mitra ...for the State in WPA 2437 of 2024.
Mr. Rabindra Nath Chakraborty ...for the State in WPA 2520 of 2024.
Mr. Md. Z. Rahaman ...for the State in WPA 2522 of 2024.
Mr. Ovik Sengupta ...for the State in WPA 2525 of 2024.
Mr. Debashish Chakraborty ...for the State in WPA 2527 of 2024.
Mr. Durga Bhusan Mukhopadhyay ...for the State in WPA 2560 of 2024.
Mr. Anis Datta Sarma ...for the State in WPA 2748 of 2024.
Mr. Partha Sarathi Sen Sharma ...for the State in WPA 2895 of 2024.
Mr. Ranjit Rajak ...for the State in WPA 2899 of 2024.
Mr. Rajsekhar Basu ...for the State in WPA 2902 of 2024.
Mr. Manas Kumar Sadhu ...for the State in WPA 2908 of 2024.
Ms. Moushumi Chowdhury Mr. Sabyasachi Bhattacharjee ...for the State in WPA 2916 of 2024.
Mr. Dewabrata Banerjee Mr. Prashant Kumar Tripathi ...for the State in WPA 2921 of 2024.
Mr. Biplab Majumder ...for the State in WPA 2943 of 2024.
Mr. Nirmalya Biswas Mr. Chandan Kumar Mandal ...for the State in WPA 2945 of 2024.
Mr. Nabajit Prasad Basu Mr. Arindam Mitra ...for the State in WPA 2946 of 2024.
Mr. Tarun Kumar Ghosh Ms. Suvasree Ghose ...for the State in WPA 2949 of 2024.
Mr. Hemanta Kr. Das ...for the State in WPA 2957 of 2024.
Ms. Mousumi Choudhury Mr. Biswajit Das ...for the State in WPA 2961 of 2024.
Mr. Durga Bhusan Mukhopadhyay ...for the State in WPA 2963 of 2024.
Mr. Vimal Kumar Shahi Mr. Vijay Agarwal ...for the State in WPA 2965 of 2024.
Mr. K.N. Nabi Ms. Tuli Sinha ...for the State in WPA 2968 of 2024.
Mr. Ratul Biswas Mr. Saikat Sen ...for the State in WPA 2969 of 2024.
Mr. Pradip Kr. Mandal Ms. Debalina Dasgupta ...for the State in WPA 2971 of 2024.
Mr. Dwarika Nath Mukherjee Mr. Manik Lal De ...for the State in WPA 2972 of 2024.
Mr. Ranajit Chatterjee Mr. Manoj Kr. Mondal ...for the State in WPA 2979 of 2024.
Mr. Syed Nazmul Hossain Ms. Kalpita Pal ...for the State in WPA 2982 of 2024.
Ms. Saheli Sen
Mr. Sandip Chattopadhyay ...for the State in WPA 2984 of 2024.
Ms. Sangeeta Roy Ms. Indrani Nandi ...for the State in WPA 2986 of 2024.
Mr. Debashish Chakraborty ...for the State in WPA 3062 of 2024.
Mr. Md. Manuwar Ali Ms. Dipa Bhattacharya ...for the State in WPA 3068 of 2024.
Mr. Kushal Das ...for the State in WPA 3361 of 2024.
Mr. Durga Bhusan Mukhopadhyay ...for the State in WPA 3370 of 2024.
Mr. Biswajit Dutta ...for the State in WPA 3382 of 2024.
Mr. Biplab Majumder ...for the State in WPA 3385 of 2024.
Mr. Bhakti Prasad Das ...for the State in WPA 3387 of 2024.
Mr. Sanatan Panja ...for the State in WPA 3396 of 2024.
Mr. Sanjay Mandal Mr. Sanatan Panja ...for the State in WPA 3405 of 2024.
Mr. Debashish Chakraborty ...for the State in WPA 3414 of 2024.
Mr. Md. Mansoor Alam Mr. Ziaul Haque ...for the State in WPA 3419 of 2024.
Mr. Anubrata Santra ...for the State in WPA 3422 of 2024.
Mr. Md. Ziaur Rahaman ...for the State in WPA 3424 of 2024.
Ms. Rupsha Chakraborty ...for the State in WPA 3426 of 2024.
Mr. Sasthi Charan Dhara ...for the State in WPA 3431 of 2024.
Mr. Jaydip Basu ...for the State in WPA 3437 of 2024.
Mr. Sanatan Panja ...for the State in WPA 3471 of 2024.
Mr. Avirup Mondal Ms. Anima Das Chakraborty ...for the State in WPA 3475 of 2024.
1.
Mr.
Kishore Dutta, learned Advocate General has made submissions in reply to the point of res judicata.
2.
Mr. Subir Sanyal's submission as to why res judicata is not a bar in the instant proceedings or for that matter even Order 2 Rule 2 of the Code of Civil Procedure, is sought to be answered by the learned Advocate General on the following terms: 3.
It is submitted that the 5th Explanation to Section 11 of the CPC is required to be understood to prevent multiplicity of judicial proceedings and discourage frivolous and illegal claims already decided by and between the parties. The parties in the instant case are in fact similar.
4.
In the Md. Abdul Ghani Vs. State of West Bengal and Ors. decision, which was rendered on 30th September, clarifying that notwithstanding a subsequent date of refund of employer share of provident fund, the employees
would be entitled pension from the date after the date of retirement. The petitioner could have raised the payment of interest thereafter which they did not.
5.
Para 48 of the Md. Abdul Ghani (supra) is specifically referred by the Learned Advocate General. It is submitted that the petitioners had specifically conceded any claim of interest on the arrears of pension.
6.
The petitioners cannot, therefore, make any further claims of interest post the date of refund till the date of actual payment.
7.
Mr. Dutta has then referred to the pleadings in WPA 28559 of (Swapan Kumar Chakraborty Vs. The State of West Bengal & Ors.), similar to all other writ petitions particularly Para 16 to 18 and 20 to 22.
8.
It is submitted that prayer (c) of the said WPA 28559 of 2015 (supra) read with aforesaid paragraphs would thereunder indicate that the petitioners claim for interest on the period after the date of refund also has been made in the said writ petition and not considered in the order dated 9th February, 2022. The prayer for interest is
therefore, barred under the 5th Explanation to Section 11 of the Code of Civil Procedure, 1908. 9.
The petitioners having been issued PPO on 9th March, 2023 and paid arrears on 27th March, 2023 are, therefore, not entitled to claim any interest, not only on the principle of res judicata but also by applying the Order 2 Rule 2 of the Code of Civil Procedure. No leave has been reserved to the petitioners under Order 2 Rule 2 of the Code by any Court in any of the earlier proceedings.
10.
This Court has carefully considered the arguments advanced by Mr. Sanyal on behalf of the petitioners and Mr. Dutta, learned Advocate General for the State.
11.
Indeed as pointed out by the learned Advocate General there has been an erroneous recording in Para 4(a) of the order dated 10th April, 2024. The Md. Abdul Ghani (supra) decision was rendered on 30th September, 2019 much before the decision of a Coordinate Bench dated 9th February, 2022. Para 4(a) of the order dated 10th April 2024 shall stand deleted.
12.
This Court notices that a plain reading of Paragraphs 20 to 22 of WPA 28559 of 2015
(supra), which is set out hereunder, would indicate that the prayer was for interest from the date after the date of retirement:
"20.
Your petitioner submits that the petitioner retired from service on 30.04.2010. He has received the CPF amount together with interest calculated upto the date of his retirement. Now, as per the Notification dated 13th June, 2014, he had returned the employer's share of the said CPF amount with interest and additional interest upto the date of exercising option.
Accordingly, the petitioner has exercised option as per the said notification on 07.07.2014 and returned the employer's share with interest calculated upto 31.07.2014, but he has not been allowed to enjoy the pensionary benefit with effect from the date of his retirement which is unreasonable and unsustainable in law.
21.
Your petitioner submits that the petitioner retired from service on 30.04.2010 on attaining the age of superannuation after rendering about 33 years of service as Assistant Teacher in a primary school but by the impugned decision of the State authorities, the petitioner has been deprived from getting pension-cum-gratuity from the date of refund of the employers'
share i.e.
22.08.2014, although, he is entitled to get pension from the date following the date of his retirement. Such decision of the State authorities is totally bad, illegal and unlawful and contrary to the relevant provisions of the Death-Cum-Retirement Benefit Scheme, 1981.
22.
Your petitioner submits that considering the facts and circumstances of the case as stated above unless an appropriate order and/or direction is passed by this Hon'ble Court in exercising in its writ jurisdiction by directing the respondent State authorities to sanction the pension and gratuity in favour of the petitioner from the date following the date
of his retirement as per the Death-CumRetirement Benefit Scheme, 1981 and release all arrears pension in accordance with law, your petitioner will suffer irreparable loss, injury and prejudice."
13.
Prayer (c) of writ petition is also set out hereunder:- "c) A writ in the nature of Mandamus directing the respondent no.4 viz. the Director of Pension, Provident Fund & Group Insurance, West Bengal to release the arrear pension in reference to the Pension Payment Order dated 6.5.2015 for the period from 01.5.2010 till 21.08.2014 together with interest @10% per annum till the date of such payment is made;"
14.
In other words, the interest was being prayed for in 2015, on the period from the date of superannuation. The writ petition was filed prior to the decision of Md. Abdul Ghani (supra). It has been argued by the State that prayer for post refund interest must also be deemed to have been made.
15.
It is however noticed by this Court that Categorization of any post or pre-refund interest as argued by the State was not made in the said writ petition. The petitioners made an omnibus prayer for interest after superannuation.
16.
However, it is important to notice the stand of the petitioners before the Special Bench in Md. Abdul Ghani (supra). They specifically conceded
that they were not claiming interest on the arrears from the date after the date of superannuation till the date of refund. It was this concession, which has been recorded by the Special Bench in Md. Abdul Ghani (supra).
17.
This would, therefore, cast an automatic responsibility on the State to immediately after the clarification on 30th September, 2019 in Md.
Abdul Ghani (supra) to issue PPO and pay arrears within a reasonable time i.e. a month or two at best after the said decision. This was not done. PPOs were issued only in March, 2023 and payment made soon thereafter.
18.
The decision in WPA 28559 of 2015 (supra) followed another decision of a Coordinate Bench in WPA 964 of 2022 (Sitala Mandal (Chaudhuri) Vs. The State of West Bengal & Ors.) dated 8th February, 2022. It would be relevant for the purpose of this decision to set out two paragraphs placed by the learned Advocate General of the said decision:
"According to the petitioner, pension ought to have been released on and from the next date of retirement and not from the date of refund of the employer's share of contribution.
In support of the aforesaid stand the petitioner has relied upon the judgement
delivered by the Court in District Inspector of Schools (S.E.), Kolkata -vs- Abhijit Baidya reported in 2013 (3) CHN (CAL) 711 and the judgement delivered on 30th September, 2019 by the Special Bench of this Court in the matter of Md. Abdul Ghani -vs- State of West Bengal & Ors.
(GA No.64 of 2018, APOT No.104 of 2006, APO No.121 of 207, GA No.627 of 2006, WP No.1528 of 2002)."
19.
A conjoint reading of the prayers of the petitioners of the pleadings in WPA 28559 of 2015 (supra) and the prayer (c) thereunder read with the order dated 9th February, 2022 in the said writ petition and the paragraph of the decision of Sitala Mandal (Chaudhuri) (supra) hereinabove would indicate as follows.
20.
The writ petition by Swapan Kumar Chakraborty (supra) was filed in the year 2015 even before the decision of Md. Abdul Ghani (supra). The writ petition was disposed of on 9th February, 2022 after the clarification decision of Md. Abdul Ghani (supra).
21.
Even the decision in the writ petition in the case of Sitala Mandal (Chaudhuri) (supra) which is filed in the year 2022, (portions of the order set out hereinabove) were rendered after the decision of Md. Abdul Ghani (supra).
22.
The writ petitioners must have been under severe financial distress i.e. having made the
refund for switch over from CPF to GPF in the year 2014 and were waiting for five long years firstly until the clarification in Md. Abdul Ghani (supra) and thereafter for three more years until the decision of Sitala Mandal (Chaudhuri) (supra) and Swapan Kumar Chakraborty (supra) were rendered. They were desperate. They just wanted release of arrears of pension. A large number of writ petitioners might have had to borrow sums of money for the aforesaid refund made in the year 2014 long after the retirement.
23.
One cannot but take judicial notice of the fact that a lot of writ petitioners must have either marriageable daughters or children seeking higher education on which they may have spend their CPF amounts. The spiraling cost of living has not even otherwise spared the petitioners from the date of their retirement.
They must have exhausted their little savings under the CPF by the time they were required to make refund in the year 2014.
24.
It is now well-settled that provisions of the Code of Civil Procedure are not applicable in letter and word to writ petitions under Article 226 and 32 of the Constitution of India.
25.
The principle of res judicata has been applied to writ petitions as held by the Hon'ble Supreme Court in paragraphs 8 to 11 in P.
Bandopadhyay vs. Union of India reported in (2019) 13 SCC 42.
26.
However, in M. Nagabhushana vs. State of Karnataka reported in (2011) 3 SCC 408, it has been held at paragraphs 13, 17 and 24 as follows:- "13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. x x x
17. It may be noted in this context that while applying the principles of res judicata the court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that:
"... the application of the rule by courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law."
x x x
24. In coming to the aforementioned finding, this Court relied on The Supreme Court Practice, 1995 published by Sweet & Maxwell (p. 344). The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows: (K.K. Modi case, SCC p. 592, para 43) "43. ... 'This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a
proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.' "
27.
In Dwarka Nath vs. ITO reported in (1965) 3 SCR 536 at paragraph 4, it was held as follows: "4. This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs.
It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
28.
It follows from the aforesaid decisions that grant of a relief is a deserving case under Article 226 is not restricted by technicalities. The writ Court could, in a given case, grant relief notwithstanding the principles of res judicata to deserving and bona fide weak litigants against the State. The bar must, however, be applied to unscrupulous litigants seeking to abuse the process of law. Vexations and harassive litigation must also be discouraged by applying the
principle of res judicata. Rich and oppressive litigants must be discouraged from harassing the State and the opponents by stringent application of the principles of res judicata.
29.
In the instant case, it is firstly seen that the prayer for interest in the arrear of pension post the refund has not been specifically made by the retired teachers in any of the writ petitions that have been disposed of. The said teachers have already given up a claim for interest from the date of superannuation till the date of refund of the portion of CPF. The State on the contrary has been unfair and arbitrary in not issuing PPOs and making payment, for 4 long years after the date of refund, causing immense hardship to the petitioners.
30.
Therefore, even assuming though not admitting that the principles of res judicata may be applicable, this Court views the same as a technicality and a mere procedural hindrance, which should not stand in the way of granting deserving relief to weak and oppressed retired teachers in the State.
31.
Order 2 Rule 2 of the Code of Civil Procedure, 1908 would not be applicable to writ
petitions. This has been decided in the case of Brahma Singh vs. Union of India reported in (2020) 12 SCC 762. At paragraph 10, it has been held as follows:
"10. In relation to applicability of Order 2 Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of U.P. as follows: (AIR p. 1337, para 12) "12. ...The bar of Order 2 Rule 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Article of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court."
Placing reliance on Devendra Pratap Narain Rai Sharma, this Court in Gulabchand Chhotalal Parikh v. State of Gujarat in relation to Order 2 Rule 2 held as follows: (AIR p. 1159, para 26) "26. ... By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit." "
32.
The aforesaid dicta therefore, clearly spells out that relief under Article 226 to deserving litigants cannot be restricted or circumscribed by technicalities of procedure.
33.
In the backdrop of the above and the casual attitude of the State in compelling the petitioners to approach Court either by way of fresh writ petitions or revival of their earlier filed wit petitions post the decision in Md. Abdul Ghani (supra) must be addressed with appropriate relief. A retired person has no other source of income except his pension. No pension amount in this
country, is enough or commensurately address the spiraling rate of inflation and cost of living. 34.
This Court, therefore, holds that the State was obliged to at least within a period of one month from 30th September, 2019 pay all arrears of pension from the date after the date of retirement till September, 2019, which they did not. The writ petitions have conceded in the Md. Abdul Ghani (supra) decision that they are not claiming interest on the arrears of pension from the date after the date of retirement till the date of actual refund.
35.
The State was given a concession and the writ petitioners were already put to a disadvantage. The disadvantage being the State having user of the funds of the writ petitioners from 2014 (the date of refund) till the year 2019, and the writ petitioners being deprived of the same.
36.
In the backdrop of the above, and the discussion on the right of interest on the delayed payment of arrear pension, available in this Court's order dated 10th March, 2024, this Court holds that writ petitioners and each of them shall be entitled to interest at the rate of 8% per
annum, for the period from 1st November 2019 (one month after the decision of Md. Abdul Ghani (supra) i.e. 30th September, 2019) till the date of issuance of PPO, on all arrears of pension (from the date of superannuation).
37.
It is ordered that such interest be paid within 2 months from date. In default, the rate of interest shall stand increased to 11 %.
38.
Accordingly, the writ petitions shall stand allowed and disposed of.
39.
After the order is dictated and as already indicated by the learned Advocate General on 10th April, 2024, the State makes a prayer for stay of operation of the aforesaid order. The prayer is considered and declined.
40.
There shall be no order as to costs.
41.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
(Rajasekhar Mantha, J.)