State Of West Bengal & Ors vs Dr. Subhash Chandra Pratihar

Aggrieved by the judgment of the Division Bench of the High Court

dated 14.12.2001 passed in W.P.S.T. No. 861 of 2000, the State has come up

in appeal by filing this Special Leave Petition. The respondent, Dr.

Subhash Chandra Pratihar, was appointed temporarily as Medical Officer in

the cadre of West Bengal Health Services w.e.f. the date he joined the post.

The respondent was placed under suspension on 31.3.1995, in contemplation

of departmental proceedings. Thereafter, on completion of the enquiry, he

was compulsorily retired from service w.e.f. 22.7.1996.

The Government of West Bengal framed Rules called the West

Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 (hereinafter

referred to as 'Rules') in exercise of the powers conferred by the proviso to

Article 309 of the Constitution of India, thereby giving weightage of five

years to the service qualifying for superannuation for the purpose of

computing pensionary benefits. Relevant Rule, for the present purpose, is

Rule 27. It is extracted:

" Rule 27. Concession of adding to qualifying service.

An officer appointed to service or post may add to his service

qualifying for superannuation (but not for any other class or

pension) the actual period not exceeding five years by which his

age at the time of recruitment exceeds twenty-five years if the

service or pose is one –

(a) for which post-graduate research or specialist qualification

or experience in scientific, technological or professional field is

essential, and

(b) to which candidates of more than twenty-five years of age

are normally recruited.

Provided that this concession shall not be admissible to any

such officer unless his actual qualifying service at the time he

quits government service is not less than 10 years."

Thereafter, by Notification No. 555-F (Pen) dated 29.3.1994, an

amendment has been brought out by inserting serial No. 126 in Appendix 5

extending the benefit to Medical Officers (direct recruits in the basic grade),

other than specialists, of the West Bengal Service. Subsequent to the

amendment, the Government issued Circular dated 30.12.1994 and extended

benefit to the Medical Officers (Direct Recruits in the basic grade) of the

West Bengal Health Services to add to their qualifying services towards

pension the actual period not exceeding 5 years by which the age at the time

of direct recruitment exceeds 25 years. The respondent claimed the benefit

under Circular dated 30.12.1994. The West Bengal Administrative Tribunal

by its order dated 28th July, 2000 dismissed his claim. The High Court, on

appeal, reversed the decision of the Tribunal and allowed the claim of the

respondent by extending the benefit of Circular dated 30.12.1994. The High

Court, inter-alia, held:

"On a clear reading of the Circular dated 30th December, 1994,

it is available that at the beginning the benefit of five years

qualifying service in addition to the service actually rendered

was extended to Medical Officers who were specialised in their

respective fields, but, subsequently this benefit was extended to

all members of West Bengal Health Service irrespective of their

being appointed as specialists or otherwise."

The sole question revolves around for determination is as to whether

the respondent, who was compulsorily retired w.e.f. 22.7.1996, is entitled to

claim benefit of Rule 27 of the Rules and Circular dated 30.12.1994 giving

weightage of five years of service to his qualifying service for

superannuation for the purpose of pensionary benefits?

The High Court seems to have failed to take notice the condition

precedent being required to be fulfilled for availing such benefit in both Rule

27 of the Rules, as noticed above, as well as in Circular dated 30.12.1994.

The condition precedent being the officer must complete qualifying service

for superannuation for availing the concession. Undisputedly, the

respondent, as noticed above, was compulsorily retired w.e.f. 22.7.1996 and

he did not fulfil the eligibility criteria of being completing qualifying service

for superannuation, on the basis of which alone the concession was

extendable.

Mr. Nageshwar Rao, learned Senior counsel, appearing for the

respondent has brought to our notice an order dated 17.12.1998 containing a

list of Govt. Employees (Retired) (Gr. 'A') in which the name of the

respondent – Dr. Subash Chandra Pratihar appeared in serial No. 2 and

against his name the remarks are 'superannuated on 22.07.96'. Learned

counsel, therefore, contended that the document shows that the respondent

was retired on superannuation. Apparently, it is a mistake. Similarly this,

by itself, would not alter the factual position of the respondent.

In the premises aforesaid, the appeal is allowed. The order of the

High Court, under challenge is set aside and the order of the Tribunal is

restored.

Parties are asked to bear their own costs.