Sanchayita Lahkar

The High Court of Calcutta Division Bench of Justice Reetobroto Kumar Mitra and Justice Tapabrata Chakraborty directed that notional benefits be granted to a retired employee for the purpose of pension, treating him to be in service for the qualifying period of ten years. The Court ordered that the pension file be processed to ensure disbursement of pension benefits at the earliest. The Principal Secretary, School Education Department, Government of West Bengal, was specifically directed to condone the deficiency in qualifying service. The Bench further extended the timeline fixed by the Single Judge by an additional four months from the date of communication of the order. The appeal and connected stay application were disposed of with no order as to costs.

The present appeal was filed by the State of West Bengal and its functionaries challenging an order dated 5th August 2024 passed by a Single Judge in a writ petition. The writ petition was filed by an employee seeking relief against the refusal of the authorities to condone the deficiency in his qualifying service, thereby denying him pension under the West Bengal Recognised Non–Government Educational Institutions Employees (Death–cum–Retirement Benefit) Scheme (Pension Scheme).

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The writ petitioner, Bansi Badan Kole, had challenged an order dated 18th April 2012 issued by the Principal Secretary, School Education Department, Government of West Bengal. That order refused to condone the deficiency in his qualifying service on the ground that he had served less than ten years, thereby disqualifying him from receiving pensionary benefits under the Pension Scheme.

According to the State appellants, the shortage in qualifying service was of more than three years. The State contended that the Single Judge erred in considering past unapproved service for the purpose of condonation of deficiency. It was further submitted that the writ petitioner had accepted approval of service with effect from 8th June 2005 and continued until superannuation on 6th October 2011, and thereby waived his right to claim condonation. The State argued that such a claim could not be revived after the cessation of the employer–employee relationship.

Attention was drawn to Ground No. VII in the memorandum of appeal, wherein it was stated that the appellant no.4 was not competent to condone the deficiency in qualifying service, and therefore the appellants were not in a position to comply with the Single Judge’s order.

The respondent’s counsel opposed the State’s contentions. It was submitted that the writ petitioner’s name had been sponsored by the Employment Exchange in the year 1986-87 against vacancies notified for Assistant Teacher posts. However, due to a series of Court cases, he could not be appointed earlier. Ultimately, pursuant to orders of the Court, a separate panel was prepared and approved. It was argued that the delay in approval and consequent loss of qualifying service was attributable to the authorities, and not to the writ petitioner. Hence, the writ petitioner could not be deprived of pensionary benefits for no fault of his own.

The respondent further submitted that pension is a retirement benefit that partakes of the character of a regular payment in consideration of past service rendered. It was argued that such a right is in the nature of property in the hands of the employee, which cannot be denied merely on the ground of delay. Restricting the condonation period would amount to discrimination.

The records revealed that while others similarly situated had received approval in the year 1993, the writ petitioner’s approval was granted only in 2005, after more than a decade’s delay. The Court noted that this delay was not attributable to the writ petitioner. It was also observed that the petitioner had suffered injury by being deprived of approval and resultant benefits for more than ten years.

The appellants also contended that the writ petitioner’s delay in approaching the Court should disentitle him to relief. However, reliance was placed by the Single Judge on the Supreme Court decision in Union of India v. Tarsem Singh (2008) 8 SCC 648, which recognized the principle of continuing wrong and continuous source of injury in cases involving pensionary claims.

Based on these facts and submissions, the Single Judge had directed the authorities to grant notional benefits to the writ petitioner by treating him to be in service for the requisite qualifying period of ten years. The State challenged this order before the Division Bench, leading to the present appeal.

The Division Bench recorded that “indisputably, Bansi’s approval was withheld due to a series of litigation and was ultimately granted in the year 2005, when in respect of others it was issued in the year 1993.” The Bench further stated that “though such delay is not attributable to Bansi, he had suffered the injury for having been deprived of approval for more than 10 years and that as such the State cannot set up any defensive doctrine of estoppel.”

The Court observed that “the beneficent scheme would be thrown out of gear in the event, a restrictive meaning is applied and benefits are not extended to Bansi.” The Bench noted that any restrictive interpretation would defeat the object of the Pension Scheme.

Regarding the State’s argument on delay, the Court recorded that “delay on the part of Bansi in approaching the Court, as urged by the appellants, was rightly discounted placing reliance upon the judgment delivered in the case of Union of India and others versus Tarsem Singh, reported in (2008) 8 SCC 648.” It was observed that this was a case involving a continuing wrong creating a continuous source of injury. The Court further noted that grant of pension upon condonation of deficiency in service would not in any manner affect the settled rights of third parties.

The Court directed that notional benefit be granted to the writ petitioner by treating him to be in service for the qualifying period of ten years. It ordered that the pension file be processed without delay and that the writ petitioner must receive his pension at the earliest.

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The Bench directed that “as under the Pension Scheme, the Principal Secretary, School Education Department, Government of West Bengal is the authority competent to condone the deficiency of service, we direct the said appellant to take steps towards condonation of such deficiency of service.” It was further ordered that the said appellant, along with other appellants including the appellant no.4, being the pension sanctioning authority, must take all follow up steps for disbursement of benefits.

The Court extended the timeline fixed by the Single Judge, directing that the process be completed within four months from the date of communication of the order.

Finally, the Division Bench disposed of the appeal and the connected stay application with the modification that the time limit was extended. The Court made it clear that “there shall, however, be no order as to costs.”

Advocates Representing the Parties

For the Appellants: Mr. Biswabrata Basu Mallick, Learned Additional Government Pleader, Ms. Parna Roy Choudhury.

For the Respondents: Mr. (Dr.) Debabrata Karan, Ms. Sabita Khutia (Bhunya), Ms. Ria

Case Title: The State of West Bengal & Ors. v. Bansi Badan Kole & Anr.

Case Number: MAT 665 of 2025 with IA No. CAN 1 of 2025 and IA No. CAN 2 of 2025

Bench: Justice Reetobroto Kumar Mitra, Justice Tapabrata Chakraborty