IMPORTANT POINT
The delay in appointing the petitioner is solely attributable to the conduct of the respondent authorities, and the date of appointment should be treated notionally for computing the period of qualifying service for pensionary benefits.

JUDGMENT :

Hiranmay Bhattacharyya, J.

1. The writ petitioner has challenged the order of the Principal Secretary to the Government of West Bengal School Education Department dated 24.02.2022 and has prayed for condonation of deficiency in the qualifying service period for grant of pension.

2. The writ petitioner claims that he was appointed as an Assistant Teacher of a primary school on 15.03.2011 after a protracted litigation. He ultimately retired from service on superannuation on 31.08.2020. The petitioner rendered service for a period of 9 years 5 months and 17 days. The qualifying period for receiving pension as per the service rules is 10 years. As there was a shortfall in qualifying service for a period of about 6 months and 13 days the petitioner has been held to be not entitled to retiring pension. The petitioner by a representation dated 28.09.2020 applied before the District Inspector of Schools (for short “DI”), Murshidabad praying for condonation of deficiencies in the service period. Alleging inaction on the part of the respondent authorities in considering the prayer for condonation of deficiency in the qualifying service, a writ petition being WPA 6632 of 2021 was filed which was disposed of by an order dated 13.12.2021 by directing the Secretary, Department of Primary Education to take a decision with regard to the prayer of the petitioner for condoning the deficiencies in his service period in the light of an order passed in the matter of Aparesh Chandra Dutta within a specified time frame.

3. The prayer for condonation of the shortfall in the qualifying service was, however, rejected by the order of the Principal Secretary dated 24.02.2022. Being aggrieved by the said order dated 24.02.2022, the writ petitioner has filed the instant writ petition.

4. Mr. Biswas, learned advocate representing the petitioner submitted that the authorities were responsible for the delay in the matter of appointment which led to the shortfall in the qualifying service for retiring pension. He, therefore, contended that the petitioner cannot be deprived of the pensionary benefits and the respondent authorities should be directed to treat the petitioners as notionally appointed with effect from an earlier date for the purpose of pensionary benefits. In support of such contention Mr. Biswas placed reliance upon a Division Bench decision of this Court in the case of State of West Bengal and Ors. vs. Sumohan Mondal and Ors. delivered on 11.04.2022 in MAT 1211 of 2019 heard along with MAT 382 of 2019. He also referred to an order dated 08.09.2022 in WPA 12444 of 2017 (Niharendu Som vs. State of West Bengal and Ors.) in support of his contention that the shortfall in the period of qualifying service should be condoned. He further relied upon a decision of the Hon’ble Division Bench of this Court in the case of State of West Bengal vs. Aparesh Chandra Datta reported at (2016) 2 CHN 494.

5. Mr. Amal Kumar Sen learned Additional Government Pleader seriously disputed the contention raised by Mr. Biswas. He contended that the authorities cannot do anything unless the power is conferred by the statutes or the rules framed thereunder. He further contended that the Death-Cum-Retirement Benefit Rules, 1981 (for short “the DCRB Rules) do not confer any power upon the authority to condone the delay beyond six months in the qualifying service. He, therefore, submitted that since there is a shortfall in the qualifying service for a period in excess of 6 months, the authority cannot condone such deficiency in the period of qualifying service. In support of his contention Mr. Sen placed reliance upon an order dated 02.05.2022 passed by the Hon’ble Division Bench in MAT 288 of 2022 (Shri Samar Nath Pal and Ors. vs. State of West Bengal and Ors.). He also referred to the decisions of the Hon’ble Supreme Court in the case of P. Bandopadhyay and Ors. vs. Union of India and Ors. reported at (2019) 13 SCC 42 and in the case of Senior Divisional Manager, Life Ins