JUDGMENT :   

MADHURESH PRASAD, J.

1. The petitioner was the applicant before the West Bengal Administrative Tribunal (Tribunal for short). He retired from service as a Work Assistant under the Public Works Department on 31.08.2021. He has served the Government for nine years eight months and twenty days. There was thus a short-fall of three months and ten days in the requisite qualifying service for the purposes of grant of benefit of pension. The petitioner sought relaxation of the qualifying service in terms of Rule 36 of the West Bengal Services (Death cum Retirement Benefit) Rules, 1971 (hereinafter referred to as the DCRB Rules). The same was disallowed on 14.07.2023 by a reasoned order passed by the Chief Engineer (Head Quarter) in terms of an earlier order passed in O.A. 667 of 2022. It is this order passed by the Chief Engineer which was the subject matter of consideration before the Tribunal in O.A. No. 613 of 2023 filed by the petitioner. The Tribunal taking note of the fact that the matter has been considered by the Chief Engineer and a reasoned order has been passed thereupon in consultation with the competent authority being the Finance Department, refused to interfere with the reasoned order. The Original Application has been disposed of thus without passing any order.

2. The learned Counsel for the petitioner submits that the Tribunal has misdirected itself by relying upon the order passed by the Chief Engineer in consultation with the Finance Department. The power of the Government to condone deficiency in service is specified in Rule 36 of the DCRB Rules. Since the petitioner has placed reliance on this Rule we propose to reproduce the same herein, which reads as follows:

“36. Power of Government to condone deficiency in service – Upon any condition which it may think fit to impose, Government may condone a deficiency of six months in the qualifying service of a Government servant.

Note – The deficiency should not be condoned with a view to make up the minimum prescribed qualifying service for the purpose of death gratuity or family pension. In other cases power should be restricted to Government servant drawing pay not exceeding Rs.425/- per month at the time of retirement on invalid or compensation pension.”

3. Referring to the provision, it is submitted that the Rule contemplates condoning the deficiency in qualifying service of a Government servant up to six months. The exceptions are contained in the note below the Rule. The petitioner’s case does not come within any of the exceptions curbed out in the note below of the Rule 36 of DCRB Rules and therefore, the decision of the Chief Engineer, as affirmed by the Tribunal is unsustainable.

4. The petitioner’s case is neither a claim for compensation pension, nor invalid pension. It is a claim for a pension simpliciter and therefore the note appended below Rule 36 will have no application in the case of the petitioner. It is submitted that rejection of a claim under similar circumstance of one Uday Kumar Pore was considered by this Court in the writ proceeding arising out of W.P.S.T. 125 of 2022. The coordinate Bench of this Court has set aside such consideration leading to rejection of his claim. The learned Counsel for the petitioner has also relied on the case of one Asoke Bhakat. It is submitted that the said Asoke Bhakat had moved this Court under similar circumstances by filing a Writ Petition bearing W.P.S.T. No. 37 of 2022. The deficiency in his case was condoned by a direction of a coordinate Bench of this Court in his favour. The Court has directed that the petitioner shall be treated as having completed the qualifying service under the scheme and be paid all admissible consequential benefits. It is submitted that the petitioner’s claim is also fit to be allowed in terms of the said Judgment.

5. Mr. Mukherjee, for the State submits that the coordinate Bench in the case of Uday Kumar Pore after setting aside the rejection of condonation of qualifying servic