Sanjib Naskar v. State Of West Bengal & ORS

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction Appellate Side W.P.A. 11956 of 2019 Sanjib Naskar VS The State of West Bengal & Ors.

Ms. Seba Roy Mr. B. Sengupta ..... for the petitioner Mr. Amal Kumar Sen Mr. Gourav Das .... For respondent Nos. 1-4 This is a hearing matter upon affidavits.

Court No. 22 05.02.2024 (Item No. 17) (AB) On the prayer of Ms. Seba Roy, learned senior counsel appearing for the writ petitioner, time to file exception in the form of affidavit stands extended till today. The exception affirmed on January 15, 2024 filed in Court today is taken on record.

The petitioner claimed that in 2002 the petitioner was appointed as an Assistant Teacher after qualifying the selection process held by the West Bengal School Service Commission. The petitioner then resigned from the said employment and on August 2, 2006 joined as a Technical Assistant of Indian Association for Cultivation of Science. The petitioner claimed Pro rata Gratuity for the period he served as an Assistant Teacher. The claim of the petitioner was initially rejected by school education department, State of West Bengal.

This led the petitioner to apply in the first round of writ litigation being W.P. 10565 (W) of 2018. By an order dated August 21, 2018 the co-

ordinate bench had set aside the two orders of rejection dated April 7, 2016 and August 9, 2016 by which the claim of the petitioner were denied. The coordinate bench directed the Secretary of the School Education Department to decide the issue by passing a reasoned order in the manner as directed in the order dated August 21, 2018, Annexure P-28 at page 82 to the writ petition.

Pursuant to the said direction of the coordinate bench the Secretary, School Education Department considered the case of the petitioner and rejected it by its impugned order dated January 3, 2019, Annexure P-29 at page 90 to the writ petition. The sole plea for rejection was the relevant provision of the D.C.R.B. Scheme, 1981 does not permit the petitioner to receive the Pro rata Gratuity as claimed by the petitioner. However, in the last paragraph of the said impugned order the Secretary, School Education Department referred the matter before the Finance Department, State of West Bengal for Further Consideration.

From Annexure R-1 at page 10 to the said report in the form of affidavit affirmed on behalf of respondent Nos. 1 to 4 on December 15, 2023, it reveals that, the Assistant Secretary of the Finance Department by its communication dated September 17, 2019 also rejected the claim of the petitioner being in agreement with the view taken by the

Secretary of the School Education Department as referred to above. In this circumstance, the instant writ petition was filed by the petitioner challenging the said impugned decision of the Secretary, School Education Department dated January 3, 2019 and with a prayer for granting Pro rata Gratuity as claimed in prayers (a) and (b) to the writ petition. Ms.

Seba Roy, learned senior counsel appearing for the petitioner referring to Clause 20(b) from the D.C.R.B. Scheme, 1981 submits that, the petitioner is entitled and eligible in law to receive Pro rata Gratuity as claimed by the petitioner.

Mr. Amal Kumar Sen, learned Additional Government Pleader being ably assisted by Mr. Gourav Das, learned State Counsel appearing for respondent Nos. 1 to 4 submits that, the said provision under Clause 20(b) of the D.C.R.B.

Scheme, 1981 shall not apply to the petitioner as the petitioner has joined as a Central Government employer and the relevant D.C.R.B. Scheme, 1981 shall only apply for the State employee. Referring to Clause 5(b) from the D.C.R.B. Scheme, 1981 Mr. Sen submits that, the expression Educational Institution as defined therein shall not include the Central Government Educational Institute in which the petitioner is presently working at.

Mr. Sen further submits that, the moment petitioner has resigned his State service and joined

the Central Government service, it amounted to forfeiture of his past service as mentioned in Clause 7(k) under Chapter III of the D.C.R.B. Scheme 1981. Mr. Sen in support of his contention has relied upon a judgment of the Hon'ble Supreme Court In the matter of:

Senior Divisional Manager, Life Insurance Corporation of India and Others Vs. Shree Lal Meena reported at (2019) 4 Supreme Court Cases 479.

In reply Ms. Seba Roy, learned senior counsel for the petitioner, at the outset, has denied and disputed the submissions made by Mr. Sen. She refers to the said previous order of the co-ordinate bench dated August 21, 2018 and submits that, the issue raised by the State that the Indian Association for Cultivation of Science is not an Educational Institution has already been decided by the said coordinate bench and since no appeal has been carried out there from, the State has accepted the said order dated August 21, 2018 and in pursuance thereof the Secretary to the School Education Department has passed the impugned order dated January 3, 2019 after being acted thereupon. She submits that, this point cannot be raised again in deciding the issue. After considering the rival contentions raised by the parties and upon perusal of the materials on record it appears to this Court that, while passing the impugned order dated January 3,

Secretary, School Education Department specifically referred the issue before the Finance department for consideration once more. The said communication of the Finance department dated September 17, 2019 does not contain any reason save and except a simpliciter acceptance of the view of the Secretary of the School Education department. The moment it was sent before Finance department for consideration, it would automatically be presumed and implied that, the Finance department shall apply its mind and thereafter by showing its reason shall express its opinion on the issue. However, no such reason is available in the said communication of the Finance department dated September 17, 2019.

In as much, as to consider the issue by the Finance Department several factual elements may have to be gone into, which is not the job of a Writ Court at this stage.

For those foregoing reasons and discussions the decision of the Finance department in the communication dated September 17, 2019 stands set aside and quashed.

To sub-serve justice the Secretary, Finance department, State of West Bengal shall decide the issue afresh by applying its independent mind in the light of the Rules and Law prevailing on the subject and without being influenced by any observation made by this Court or by the Secretary of the School

Education department in its impugned order dated January 3, 2019 as referred to above by passing a reasoned order in accordance with law.

The Secretary, Finance department shall issue a prior hearing notice of at least seven days on the petitioner and then after granting an opportunity of hearing to the petitioner shall pass its reasoned decision strictly in accordance with law.

The petitioner shall be entitled to participate in said hearing through its duly authorized representative also.

The jurisdictional District Inspector of Schools (SE), District - South 24-Parganas and the Secretary, School Education department shall transmit and produce all the relevant records before the Secretary of the Finance department positively within a period of two weeks from the date of communication of this order to them by the learned advocate on record for the petitioner.

The Secretary to the Finance department then upon issuing a notice of hearing as directed above shall commence the hearing and conclude the same positively within a period of six weeks from the date of the records to be produced before him as directed above.

The said Secretary then communicate its reasoned order to the petitioner and the jurisdictional District Inspector of Schools positively within a period

of further two weeks from the date of the said reasoned order to be passed.

It is made clear that, this Court has not gone into the merits of the claim of the petitioner in any manner and the petitioner shall be at liberty to urge whatever points he wishes to urge by relying upon whatever records and documents he wishes to rely upon before the Secretary, Finance department. The petitioner shall be also at liberty to file a written notes before the Secretary, Finance department.

In the event, reasoned decision goes in favour of the petitioner, the jurisdictional District Inspector of Schools shall immediately give consequential effect thereto by releasing the benefit in favour of the petitioner positively within a period of three weeks from the date of communication of the said reasoned order to him.

In the event, reasoned order goes in favour of the petitioner the impugned decision of the Secretary, Educational department dated January 3, 2019 would automatically stand set aside.

On the above terms this writ petition being W.P.A. 11956 of 2019 stands disposed of, without any order as to costs.

Urgent certified photo copy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities.

(Aniruddha Roy, J.)