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2024 Supreme(Cal) 823
IN THE HIGH COURT AT CALCUTTA
M.V. MURALIDARAN, J.
Minu Ghosh – Petitioner
Versus
The State of West Bengal & Ors. – Respondents
W.P.A. No.299 of 2016
Decided On : 21-02-2024
For the Petitioner: Mr. Subhrangsu Panda, Mrs. Ina Bhattacharya, Mrs. Mithu Singha Mahapatra.
For the State : Mr. Joytosh Majumder, Mr. Pinaki Dhole.
The main legal point established in the judgment is the entitlement of the petitioner to exercise the option under the Death cum Retirement Benefit Scheme, 1981, and the respondent authorities' obligation to consider her representation in accordance with law.
Headnote:
Mandamus - Death cum Retirement Benefit Scheme - West Bengal Board of Secondary Education Act, 1963, West Bengal Rules of Payment and Allowances (ROPA) - 1981, 1990, 1998 - The court directed the respondent authorities to consider and pass orders on the representation of the petitioner dated 8.8.2014 in accordance with law, after affording opportunity to the petitioner, within a period of four months from the date of receipt of a copy of this order.
Fact of the Case:
The petitioner sought a writ of mandamus to direct the respondents to consider her representation dated 8.8.2014 for exercising the option under the Death cum Retirement Benefit Scheme, 1981, on behalf of her deceased husband who was a teacher and had opted for various benefits under the West Bengal Board of Secondary Education Act, 1963 and the West Bengal Rules of Payment and Allowances (ROPA) during his service. The petitioner's husband died while in service, and the petitioner claimed that the authorities had refused to allow her to exercise the option under the scheme.
Finding of the Court:
The court found that the respondent authorities had not allowed the petitioner to exercise the option under the Death cum Retirement Benefit Scheme, 1981, and had not considered her representation dated 8.8.2014, despite several opportunities and orders from the court to do so. The court directed the respondent authorities to consider and pass orders on the petitioner's representation in accordance with law.
Issues: The issues involved in the case were the petitioner's right to exercise the option under the Death cum Retirement Benefit Scheme, 1981, on behalf of her deceased husband, and the respondent authorities' refusal to consider her representation dated 8.8.2014.
Ratio Decidendi: The court's decision was based on the petitioner's entitlement to exercise the option under the scheme and the respondent authorities' failure to consider her representation, which was found to be in violation of principles of natural justice and equity.
Final Decision: The court directed the respondent authorities to consider and pass orders on the representation of the petitioner dated 8.8.2014 in accordance with law, after affording opportunity to the petitioner, within a period of four months from the date of receipt of a copy of this order.
JUDGMENT :
M.V. Muralidaran, J.
Heard Mr.Subharangsu Panda, learned counsel for the petitioner. None appears for the respondents.
2. The petitioner has filed the writ petition for issuance of a writ of mandamus directing the respondents to consider the representation of the petitioner dated 8.8.2014 and to forthwith allow him to exercise the benefit and/or option in terms of Memo No.749-SE(L)/SL/5S-56/13(Pt-V) dated 13.6.2014 under the Death cum Retirement Benefit Scheme, 1981.
3. The case of the petitioner is that her husband Nikhil Kumar Gosh was initially appointed as Assistant Teacher of Bongaon Kabi Keshablal Vidyapith, P.O. Bongaon, District – North 24 Parganas on 13.3.1986 and the post of the petitioner’s husband was subsequently approved by the Inspector of Schools with effect from 13.3.1986. The petitioner’s husband after duly appointed in the said school has been opted all the benefits as specified in the West Bengal Board of Secondary Education Act, 1963 and the West Bengal Rules of Payment and Allowances (ROPA) as amended from time to time. Unfortunately, the petitioner’s husband died on 19.9.2009 while in service, leaving behind the petitioner and two sons.
4. According to the petitioner, during the continuance of the service of the petitioner’s husband, he was opted the scheme of West Bengal Non-Government recognized Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981, which was promulgated by giving an option to the employees either to continue to be governed by the existing rules governing retirement benefit (Contributory Provident Fund-cum-Gratuity) or to come under the pension scheme (Pension-cum-Family Pension-cum-Gratuity). Initially, the petitioner’s husband exercised the option to avail the benefit of CPF-cum-Gratuity and, accordingly, the scale of pay was revised.
5. Further case of the petitioner is that ROPA 1990 was promulgated on 7.3.1990, wherein a teaching and non-teaching staff can exercise his/her option to come under the revised scale of pay and accordingly the husband of the petitioner opted the option in the pension including family pension-cum-gratuity and the same had been accepted by the concerned school authority and pursuant to such option, the scale of pay was revised. The petitioner’s husband opted various benefit of ROPA during the subsistence of his service and only gratuity has been sanctioned to the petitioner in the year 2012.
6. According to the petitioner, the school authority calculated the amount which has been refunded for government share of the husband of the petitioner and the petitioner is ready to refund the government share which was created to the husband of the petitioner at his service period. The petitioner came to understand that the Government of West Bengal issued a Circular dated 13.6.2014 thereby revising the scale of pay and based upon the said Circular, the petitioner has submitted a representation dated 8.8.2014 to the school authority inter alia praying to allow her to exercise the said option on behalf of her late husband, as the husband of the petitioner will do the same, if he will be alive. Despite the submission of application to the concerned authority, the concerned authority has refused to switch over the pension including Family Pension-cum-Gratuity Scheme. The authority concerned cannot deny to give the beneficiary scheme for exercising the option of revised scale of pay to the petitioner on the ground that the employee vis-à-vis her husband is dead at the time of exercising the option. The action on the part of the respondent authorities by not giving the petitioner such opportunity to avail the option is not only bad in law, but arbitrary and gross injustice upon the petitioner. Hence, the writ petition.
7. Despite several opportunities granted to the respondents, no affidavit-in-opposition is filed and the matter is pending since 2016.
8. The learned counsel for the petitioner submitted that the action on the part
