Shortfall In Pensionable Service Caused By State's Delay In Absorption Can't Defeat Pension Claim : Calcutta High Court

A division bench of the Calcutta High Court comprising of Justice Madhuresh Prasad and Justice Supratim Bhattacharya held that the delay by the State in absorbing an employee cannot be used to deny pension benefits if such delay alone causes shortfall in qualifying service. Background Facts The petitioner was appointed in the Calcutta Homeopathic Medical College and Hospital on 15th October, 1981. The State Legislature with a view to promoting public health enacted the Calcutta Homeopathic Medical College and Hospital (taking over of management and subsequent acquisition) Act, 1983 (1983 Act). The enactment was made to provide initially for taking over the management; and subsequent acquisition of the college. After the acquisition of the college, petitioner approached the court claiming his regularization in the college. The Court issued a direction on 22nd February, 2005 upon the respondent authorities to absorb him against the next available vacancy in the post of Medical Officer in the college. Further it was held by the court that the petitioner would be entitled to all consequential benefits. In spite of such order being passed in petitioner's favour the authorities did not issue any order absorbing the petitioner as a State Government employee in the college. Thus, petitioner filed a contempt application. Then as per direction of the court, the respondents appointed the petitioner as a State Government employee. However, there was delay of five years in appointment of the petitioner. After his retirement on 31st December, 2018, the petitioner was not given the benefit of pension. Therefore, he approached the West Bengal Administrative Tribunal (SAT) which rejected the petitioner's claim by its order dated 2nd September, 2024. The assigned reason was that the petitioner did not fulfil the requisite qualifying service of 10 years for the purposes of grant of pension. The petitioner served for only 8 years 7 months and 15 days of service as a State Government employee. Aggrieved by the same, the petitioner filed the writ petition challenging the SAT order. It was contended by the petitioner that as per the 1983 Act, the petitioner who was earlier already working as Medical Officer in the college became a State Government employee from the date of acquisition of the college on 2nd January, 1992. Therefore, the period after 2nd January, 1992 should be counted as qualifying service for the purpose of grant of pension. It was further submitted that respondents had taken 5 years to issue the order of appointment. If this 5 years period of delay was to be considered as qualifying service, then the petitioner would very well cross the 10 years requisite qualifying service for the purposes of grant of pension. On the other hand, it was contended by the respondent that the appointment order was issued in 2010 but the petitioner has procrastinated to raise this issue earlier, therefore, relief should not be granted. It was further submitted that the petitioner has already accepted the various retiral dues including the double gratuity in lieu of pension. Since he had accepted these benefits, he cannot now be permitted to raise the issue regarding grant of pension. Findings of the Court It was observed by the court that there was no lack of diligence on the part of the petitioner and he had continuously been pursuing the issue of his absorption and grant of consequential benefits. It was observed that the petitioner had the right to absorption on 22.02.2005. Further, it was found by the court that the shortage of qualifying service for the purposes of grant of pension to the petitioner is 1 year 4 months and 15 days, which was made a ground for denying the pension. It was observed that the respondent authorities in spite of a specific directions to absorb the petitioner, have delayed compliance of the same by more than 5 years. Therefore, the petitioner cannot be made to suffer for such lapse and delay on the part of the respondents. And the respondents cannot be permitted to rely on such non-performance on their part to justify the non-grant of pension to the petitioner. It was further observed that the delay in petitioner's appointment in between 22.02.2005 to 20.04.2010 is attributable to the respondent authorities. The case of Kusheshwar Prasad Singh v. State of Bihar was relied upon by the court wherein the Supreme Court has held that one cannot be permitted to take undue and unfair advantage of one's own wrong. He who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. It was held by the court: “Sustaining such a deprivation would amount of saddling the petitioner with civil consequences such as deprivation of minimum pensionary benefit, for the fault/ delay on the part of the respondents”. Further, it was held by the court that the petitioner cannot ...

Shortfall In Pensionable Service Caused By State's Delay In Absorption Can't Defeat Pension Claim : Calcutta High Court

Namdev Singh

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