Pension: Calcutta High Court Says Employee Can't Be Penalised For Shortfall In Service Due To Delay By Authority In Making Appointment

In allowing the petitioner’s prayer, single-bench of Justice Hiranmay Bhattacharya held that the ‘deficiency in service’ that had accrued to the detriment of the petitioner had been due to the delay caused by the State authorities in making his appointment. It ordered,

“The petitioner cannot be held responsible for the time taken by the authorities starting from taking decision to forward the name of the petitioner till the date of such appointment. The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.”

The petitioner in this case was a retired school teacher, who had been appointed on the 15^th of March 2011, after considerable litigation, which was disposed of on 6^th February 2010, directing the school authorities to issue an appointment letter in his favour.

It was submitted that on 31^st August 2020, after a service of 9 years 5 months and 17 days, the petitioner retired from service, falling short of the 10-year mark for being eligible to receive pension, by 6 months and 13 days.

It was argued by the petitioner that the deficiency in service had not been due to his own misgivings, but that the delay was attributable to the authorities in appointing him.

On the other hand, it was submitted by the State-respondents that a Statutory Authority was powerless, unless the same is conferred on it by the Death-Cum-Retirement Benefit Rules, 1981 ( “the DCRB Rules”), which did not allow them to condone any delay in excess of 6 months.

Upon hearing both parties, the Court looked at the circumstances surrounding the appointment of the petitioner, and observed that in 2010, the petitioner had approached the Court though a writ petition upon finding out that although he had successfully cleared the recruitment process, but had not been selected.

The Court further observed that when the aforesaid petition had come for final hearing on 6^th February 2010, the State authorities had submitted that the petitioner had been selected, and that his name had been sent to the Director of State's School Education Department for approval, and that further directions were passed for the issuance of a letter of appointment and to take appropriate steps, on the same day.

In attributing the delay in appointment of the petitioners to the inaction of the authorities, the Court held that while the DCRB rules do indeed contain a statutory cap, a petitioner could not be penalised for “lack of promptness by authorities.” It opined:

Thus, it is evident from the order dated 06.12.2010 that the petitioner was selected for appointment to the post of Primary School Teacher but the action of the respondent authorities resulted in the delay in issuing appointment letter to the petitioner. The petitioner cannot be held responsible for the time taken by the authorities starting from taking decision to forward the name of the petitioner till the date of such appointment.

The right of the petitioner to be appointed to the post of Primary School Teacher, however, got crystalised when a decision was taken to forward the name of the petitioner to the Director of School Education for approval. Such delay is solely attributable to the conduct of the respondent authorities and it ultimately led to the shortfall in the qualifying service period for pensionary benefit. The petitioner cannot be penalised for the delay caused by the respondent authorities in appointing the petitioner to the post in question. It is not in dispute that the DCRB Rules 1981 has a statutory favour. It is also well settled that in the absence of any power to condone the shortfall in qualifying service beyond the outer cap, no mandamus can be issued directing the authorities to act contrary to the statutory provisions. It is equally well settled that the petitioner should not be penalized for the lack of promptness in taking action by the concerned authorities.

Case: Goalbadan Mandal v State of West Bengal & ors.

Coram: Justice Hiranmay Bhattacharyya

Citation: 2023 LiveLaw (Cal) 212