BIRENDRA NATH MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE petitioner is a District Social education Officer in the West Bengal Educational Service and is at present posted at Jaljaiguri. According to the petitioner, it is a Class I, Civil Service post of Gazetted rank. He is an M. A. B. T. and claims to be a political sufferer. According to him he was sentenced to different terms of imprisonment during the British regime and was also interned for sometime. He had also to suffer imprisonment in East Pakistan (now Bangladesh) in 1951 along with some well known freedom fighters like Satin Sen and others due to his protest against the activities of the then Pakistan Administration. As a political sufferer he joined the West Bengal Government Education department on 23. 12. 57 as Social Education Organiser and was gradually promoted to the present post of District social Education Officer. He claimed to have given a merited service to the State Government where he secured appreciation also for his dedication to the cause of spreading education. However at the instance of some of his colleagues, there was disciplinary proceeding against him leading to his suspension in march 1972, as a result whereof he had to invoke the writ jurisdiction of this hon'ble Court in Civil Rule No. 17930 (W)Of 1975 and on the basis of the judgment passed by this Hon'ble Court, later on the suspension Was withdrawn in 1979. Out of four criminal proceedings started against him, he was absolved of the charges in respect of two of them which stood quashed by this Hon'ble Court and the remaining two were withdrawn by the State Government. Disciplinary proceeding initiated in 1964 against him, however continued against him It is the claim of the petitioner that he was aged 33 years, 9 months and 22 days when he joined the government service on 23. 12. 57, his date of birth as per records being first of March 1924. This date of birth was subsequently corrected to 1st March, 1926 by the Calcutta University on the basis of his school records.

(2.) THE Finance Department of the Government of West Bengal issued an order bearing No. 5235-F dated 31. 12. 69 by which a political sufferer who entered government service after the age of 30 years became entitled to get extension of service beyond the normal age of superannuation until he attains the age of 65 years or completes 30 years of service, whichever is earlier, on fulfillment of certain circumstances and on certain conditions mentioned therein. A copy of the said circular dated 31st December, 69 is annexure 'a' to the writ application. The circular reads specifically that only such government servants who had suffered, imprisonment on political grounds (including terms spent in detention or conviction or as under trial prisoner or internment) for a period of not less than two years and who had entered government service after the age of 30 years, could continue beyond the normal date of superannuation (53 or 60 years of age, as the case may be) until they attain the age of 65 years or complete 30 years of service, whichever is earlier. Their retirement benefits would be calculated after taking into account the extended period under the normal rules. The order would take effect from 18. 12. 1969. However, before issue of an order in individual cases, administrative department will have to satisfy itself that the detention was due to taking part in the struggle for freedom of the country and the officer continues to be physically fit and mentally alert. There was later circular issued by the Government of West Bengal, Finance Department, Audit Branch, bearing No. 2031-F, dated 18. 3. 80 in modification of the earlier circular bearing No. 5235-F dated 31-12-1969. The latter circular dated 18. 3. 80 gave out inter alia that the Government took a decision that such government servants who are eligible for extension of service in terms of Memo no. 52s5-F dated 31. 12. 1969 may be retained, even when they had suffered imprisonment on political grounds for a period of six months or more, subject to the fulfillment of other conditions as have been laid down from time to time in this regard. This order however was made effective from 1. 4. 80 and it was directed in the said circular that the past cases decided otherwise need not be reopened. By Memo No. 5590-F dated 24. 7. 81, there was yet another circular which stated that in continuation of the Finance Department letter No. 7436 (30) F dated 25-7-74, it was decided that in case of non-availability of official records or co-prisoner's certificates, certificates from, prominent freedom fighters who had themselves undergone imprisonment for 5 years or more and are holders of Freedom Fighters' Pension (now termed as swatantra Sainik Samman Pension Scheme) shall also be acceptable as proof of political suffering not only in cases of abscondence, internment and / or externment but also in cases of imprisonment where it is not possible to furnish documentary evidence for the purpose of grant of extension of service in terms of g. O. No. 5235-F dated 31. 12. 69 read with g. O. No. 2031-F dated 18. 3. 80. A copy of this circular was forwarded to the education Department where the petitioner was employed. On 23rd September, 1981, the petitioner made an application addressed to the Deputy Secretary (Appointment), Education Department, Government of West Bengal, praying for extension of his service beyond the normal age of superannuation in terms of the aforesaid circulars and claim-ted that he might continue till he completed 30 years of service.

(3.) IT is the petitioner's contention that he would complete 30 years of government service on 22. 12. 87 and would attain the age of 65 years on 1. 3. 39, if his matriculation Certificate as it originally stood is taken into consideration and he would attain the age of 65 years on 1. 3,91 if his corrected Matriculation Certificate is taken as the basis of his date of birth. In any view, the petitioner's specific case is that he could not be retired on any date prior to 22. 12. 87. A copy of the petitioner's representation dated 23. 9. 81 is annexure 'd' to the writ application. Having received no reply to the said representation, the petitioner sent another representation dated 11. 1281 to the respondent no. 1, State Government, through the Deputy Secretary, Education Department, inter alia seeking a decision of the government regarding the date on which he would attain his normal age of superannuation and also wanted a decision of the government on the basis of his representation dated 23. 9. 81 as earlier referred to, claiming extension of service on the basis of his political sufferings. If the petitioner is held not entitled to the extension of service on the ground of his political sufferings on the basis of the aforesaid circulars and according to his initial Matriculation Certificate, he was to retire on 1. 3. 82 and if the corrected Matriculation, certificate is taken into consideration he was to retire on 1. 3. 84. Since the petitioner did not get any specific decision from the government regarding his exact date of superannuation in the context of his claim as to extension in service an the basis of circulars pertaining to political sufferers as earlier referred to, the petitioner had to file the present writ application on 19. 2. 82 which en being moved on 23. 2. 82 before the Hon'ble mr. Justice G. N. Ray, the petitioner was granted interim, order to continue in the cost he was holding at the relevant time "until further orders". His writ application was heard by a single judge of this Hon'ble Court for three consecutive dates in 1984 but ultimately the matter was not treated as heard in part by the said learned judge.