STATE OF WEST BENGAL Vs. ANAL KUMAR GHOSH

JUDGEMENT

(1.) Leave granted.

(2.) Admittedly, the respondents were initially appointed as Peons in the Excise Department of the West Bengal government. Thereafter, their posts were converted into Excise Constables and they continued as Excise Constables. In the year 1970, consequent to the revision of scale of pay, the government by its Memorandum No. 10606-F dated 25/9/1978, while classifying all the employees as Groups 'a' to 'd', have enumerated in respect of Group 'c' that those employees drawing the pay or a scale of pay with a maximum of Rs. 500. 00 but above Rs. 230. 00 would be Group 'c' employees. The options have been called for from them including the respondents and they had opted for the above conditions. Consequently, they were drawing a scale of pay above Rs. 230. 00. When the respondents reached the age of superannuation of 58 years, notice of retirement was given to them. On receipt thereof, they approached the High court of Calcutta under Article 226 of the Constitution. Learned Single Judge and the division bench, on appeal, held that by operation of para 2 of the memo of the governor issued on 19-2-1985, they are entitled to be retained in service up to the age of 60/65 years, as the case may be under Rule 76 of the West Bengal Service Rules Part I and that, therefore, the notice of retirement was invalid and illegal. They were quashed.

(3.) Feeling aggrieved, the present appeals were filed. Shri Santosh Hegde, learned Senior Counsel for the appellant, contended that by operation of the conditions imposed while effecting revision of scale of pay in 1971, as opted by the respondents, they ceased to be in Group 'd' service with effect from 1971. Therefore, they cannot fall back upon the clarification issued by the governor in the aforesaid 1985 memo. It would apply only to such of the employees in Group 'd' service (sic) and continued to be so on the date, the West Bengal (Revision of Pay and Allowances) Rules, 1981 came into force. The respondents have not been continuing in Group 'd' service from 1971 and are not entitled to the benefit of the above memo. We find force in the contention. Learned counsel for the respondents has sought to justify the order on the ground that there is a distinction between scale of pay and the pay. As on 1/4/1971, the respondents were drawing their pay below Rs. 230. 00 and that, therefore, they continued to draw even after 1981 revision of scale of pay and,therefore, they are entitled to be retained in service till the completion of the age of 60 years. We find no force in the contention. It is seen that Ch. X of the West Bengal Service Rules (Part 1 provides with the heading "compulsory retirement". Rule 76 (a) says that except as otherwise provided in these Rules a government employee shall retire from service. . compulsorily w. e. f. the afternoon of the first day of the month in which he attained the age of 58 years. The proviso and other notes are not relevant for the purpose of this case. Rule 76 provides that subject to the provisions of sub-rule (b) a government employee in Group 'd' service would ordinarily be (sic required) by the appointing authority to retire from service w. e. f. the afternoon of the last day of the month of which he attains the age of 60 years. . Note 2 says that government employees who, consequent upon the introduction of the West Bengal Services (Revision of Pay and Allowances) Rules, 1981 have become Group 'c' employees although prior to such revision of pay scale they were in Group 'd', may be treated as belonging to Group 'd' employees for the purpose of age of retirement who had retained in service up to the age of 65 years or 62 years, in accordance with the provisions of sub-rule (a) or sub-rule (h) of this Rule. For all other purposes as for example disciplinary matters such government employees shall howsoever be treated as belonging to Group 'c'.