MOHAN KUMAR HALDER Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The present writ petition has been preferred challenging, inter alia, an order dtd. 19/2/2024 passed by the learned Tribunal in the original application (in short, OA), being OA 69 of 2023. By the said order, the learned Tribunal directed the respondents to consider the petitioner's claim for condonation of the deficiency in qualifying service and for disbursement of pension.

(2.) Shorn of unnecessary details, the facts are that the petitioner was provisionally selected for appointment to the post of Excise Constable on the basis of the recommendation of the Recruitment Committee under the respondent no. 8 herein, vide a memo dtd. 4/4/1995 but he was not appointed to the said post due to pendency of a criminal proceeding against him. After he was exonerated from the said proceedings by the competent criminal court, he submitted a representation for appointment to the concerned post. As his claim was not considered, he preferred OA 1468 of 2006 which was disposed of by an order dtd. 15/6/2006 directing the competent authority to consider his claim. The respondent no. 8 thereafter passed an order dtd. 7/1/2009, rejecting the petitioner's claim as he had crossed the age bar. Aggrieved thereby, the petitioner filed OA 754 of 2009 but the same was dismissed by an order dtd. 8/2/2010. Challenging the said order, the petitioner preferred a writ petition being WPST 91 of 2010 which was disposed of by an order dtd. 9/4/2010 directing the respondents to issue appropriate order for petitioner's appointment positively within a period of three weeks from date of communication of the said order. Upon obtaining the certified copy of the said order, the petitioner's learned advocate communicated the same to respondent no. 8 on 4/5/2010. Though the period of three weeks expired thereafter on 25/5/2010, the appointment letter was issued on 22/11/2010. Thus, there was a delay of 5 months and 27 days on the part of the respondents in issuing the letter of appointment. The petitioner joined the said post on 22/11/2010 itself and rendered continuous service till the date of his superannuation on 31/5/2020, as notified vide memo dtd. 7/11/2017. In the midst thereof, he was granted MACP benefit on 21/11/2018. The petitioner was released on 31/5/2020 vide memo dtd. 29/5/2020. Thereafter, the respondents disbursed the petitioner's gratuity and provident fund but his pension was withheld on a purported plea that he had rendered less than 10 years of qualifying service. In reply to a petitioner's application under the Right to Information Act it was intimated vide memo dtd. 16/12/2020 that the petitioner's service was of 9 years 6 months 9 days. Aggrieved thereby and citing the provisions of the West Bengal Services (Death-cum-Retirement) Benefit Rules 1971 (in short, the 1971 Rules), the petitioner preferred OA 66 of 2022 which was disposed of by an order dtd. 7/6/2022 directing the State respondents to consider the petitioner's representation, if submitted, as regards condonation of deficiency of about 5 months and 27 days in qualifying service and to dispose of the same within three months. Upon communication of the said order, the respondent no. 5 referring to a memo dtd. 20/10/2022 issued by the respondent no. 3, intimated vide memo dtd. 16/11/2022 that the petitioner's claim was considered by the Pension Cell, Finance Department and was denied. Challenging inter alia the said decision, the petitioner preferred OA 69 of 2023 which was disposed of by the order impugned in the present writ petition, directing the respondent no. 5 to submit a fresh proposal for condonation of deficiency in qualifying service, placing reliance upon an order passed in WPST 81 of 2014 and observing inter alia that 'it is opinion of this Tribunal that the Hon'ble Court has in WPST 81 of 2014 passed an order, which was quoted above, that the Notes appended to a Rule cannot take away the right of an applicant'.

(3.) Mr. Biswas, learned advocate appearing for the petitioner submits that having arrived at a finding that the note appended to Rule 36 of the 1971 Rules cannot take away the right of the petitioner towards condonation of deficiency of qualifying service, the learned Tribunal ought not to have delegated its duty to an executive authority and such delegation of power apart from being illegal and unconstitutional amounts to avoidance of constitutional duties and functions to decide such disputes which are exclusively entrusted to the learned Tribunal by law.