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2016 Supreme(Cal) 916
IN THE HIGH COURT OF CALCUTTA
GIRISH CHANDRA GUPTA, ASHA ARORA, JJ.
The State of West Bengal & Ors. – Appellants
Vs
Smt. Jharna Bhattacharya & Ors. – Respondents
R.V.W.No.68 of 2016, CAN No.2663 of 2016 and CAN No.2667 of 2016
Decided on : 28-06-2016
Advocate Appeared:
For the Appellant :Mr. L.K. Gupta, Additional Advocate-General, Ms. Chaitali Bhattacharya
For the Respondents: Mr. Subir Sanyal, Mr. Saktipada Jana, Mr. Subhrangsu Panda, Ms. Ujani Pal (Samanta)
A teacher who opts for revised pay under ROPA 1990 is entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990, and no further option is required to be exercised.
Headnote:
PENSION AND GRATUITY - ROPA 1990 - ROPA 1998 - OPTION FOR REVISED SCALE OF PAY - ENTITLEMENT TO PENSION AND GRATUITY - INTERPRETATION OF LARGER BENCH JUDGMENT - FURTHER OPTION NOT REQUIRED - RETIREMENT AT AGE 60 - CONSIDERATION FOR PENSION AND GRATUITY - STATE CANNOT DENY BENEFIT - REVIEW APPLICATION DISMISSED.
Fact of the Case:
The State of West Bengal filed a review application seeking to review the order passed by the Division Bench on December 9, 2015, in MAT No.1598 of 2015, wherein it was held that a teacher who opted for revised pay under ROPA 1990 automatically became entitled to pensionary benefits.
Finding of the Court:
The court held that the review application filed by the State of West Bengal was not maintainable as the Division Bench's order was in consonance with the answers given by the larger Bench to questions 1, 2, and 3, which were in favor of the teachers.
Issues: Whether a teacher who opted for revised pay under ROPA 1990 is entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990?
Ratio Decidendi: The court held that the teachers who opted to accept the revised scale of pay under ROPA 1990 and ROPA 1998 automatically became entitled to pension and gratuity benefits in consideration of agreeing to have their age of superannuation reduced from 65 to 60 years.
Final Decision: The court dismissed the review application filed by the State of West Bengal and also dismissed the stay application filed by the State.
1. After hearing learned advocates for both the parties and the case stated in the section 5 application, we have condoned the delay in filing the review application and have taken up the review application for hearing. Accordingly, CAN No.2663 of 2016 is allowed.
2. The application for review has been filed by the State of West Bengal. The order sought to be reviewed was passed on December 9, 2015 in MAT No.1598 of 2015. It was an appeal preferred by the State which was disposed of after hearing the learned advocates appearing for both sides.
3. The operative part of the order dated December 9, 2015 in MAT No.1598 of 2015 sought to be reviewed is as follows:–
“In the case before us the teacher concerned died on 15th October, 2005. It is not in dispute that he had opted for revised pay under ROPA 1999. It is also not in dispute that by virtue of his opting for revised pay under ROPA 1999 he automatically became entitled to pensionary benefit.”
4. Mr Gupta, learned Additional Advocate-General appearing in support of the review application, submitted that the learned advocate, who appeared for the State at the hearing of the appeal, was under a misapprehension as regards the meaning and purport of the judgment of the larger Bench of this court in the case of District Inspector of Schools (SE), Kolkata –vs- Abhijit Baidya reported in 2013(3) CHN (Cal) 711. That was a judgment by which a large number of appeals were disposed of.
The following questions of law were formulated for decision:–
“Considering various issues involved in the matters, we framed the following questions for our determination:
(i) Whether a person who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension by virtue of operation of para 17 of ROPA 1990?
(ii) Whether an incumbent who has exercised an option under ROPA 1990 can still be conditioned to the rider of option to be exercised under W. Ben. Recognised Non-Government Educational Institution Employees DCRB Scheme, 1981, particularly in view of the amendment effected in paragraph 17(2) vide G.O. 226-SE(B)/1M-102/98, dated 16th May, 2007 and whether the amendment made in paragraph 17(2) can be said to be valid law; that too with retrospective effect?
(iii) Whether para 13 of Revision of Pay & Allowance Rules 1998, as amended by Notification dated 13th July, 1999 relating to the employees of W. Ben. Recognized Non-Government Aided Institutions can be said to be valid in law?
(iv) Whether after amending the para 13 of ROPA 1998 on 13.07.1999 and para 17 of ROPA 1990 in 2007, it was necessary to give fresh opportunity to employees to revise option under W. Ben. Recognized Non-Government Education institution Employees (Death-cum-Retirement Benefit) Scheme, 1981?
(v) Whether the time-limit fixed under the DCRB Scheme, 1981 to submit option can be extended in suitable cases?”
The aforesaid questions were answered in the said judgment as follows:–
“(1) An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was not necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had not opted for ROPA 1990. Benefit of Pension-cum-Gratuity was conferred due to acceptance of reduced for age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right for Pension-cum-Gratuity so accrued could not have been taken away retrospectively by substitution of the provisions of para 17 in 2007 or by substitution of para 13 of ROPA 1998 in 1999.
(2) Once option has been exercised under ROPA 1990, a person cannot be subjected to the rider of the option exercised under the DCRB Scheme, 1981 as the invitation of the option under the said Scheme was with respect to the employees who elected to continue in service till the age of 65 years and to have the benefit of the old scheme. For such employees, opportunity was given to submit fr
