of West Bengal & Ors Vs. Dr. Subhash Chandra Pratihar
 Insc 355 (5
Variava & H.K. Sema.
out of SPECIAL LEAVE PETITION © NO. 10114 OF 2002 Sema, J.
by the judgment of the Division Bench of the High Court dated 14.12.2001 passed
in W.P.S.T. No. 861 of 2000, the State has come up in appeal by filing this
Special Leave Petition. The respondent, Dr. Subhash Chandra Pratihar, was
appointed temporarily as Medical Officer in the cadre of West Bengal Health
Services w.e.f. the date he joined the post.
respondent was placed under suspension on 31.3.1995, in contemplation of
departmental proceedings. Thereafter, on completion of the enquiry, he was
compulsorily retired from service w.e.f. 22.7.1996.
Government of West Bengal framed Rules called the West Bengal Services
(Death-cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as 'Rules')
in exercise of the powers conferred by the proviso to Article 309 of the
Constitution of India, thereby giving weightage of five years to the service
qualifying for superannuation for the purpose of computing pensionary benefits.
Relevant Rule, for the present purpose, is Rule 27. It is extracted:
27. Concession of adding to qualifying service.
officer appointed to service or post may add to his service qualifying for
superannuation (but not for any other class or pension) the actual period not
exceeding five years by which his age at the time of recruitment exceeds
twenty-five years if the service or pose is one –
which post-graduate research or specialist qualification or experience in
scientific, technological or professional field is essential, and
which candidates of more than twenty-five years of age are normally recruited.
that this concession shall not be admissible to any such officer unless his
actual qualifying service at the time he quits government service is not less
than 10 years." Thereafter, by Notification No. 555-F (Pen) dated
29.3.1994, an amendment has been brought out by inserting serial No. 126 in
Appendix 5 extending the benefit to Medical Officers (direct recruits in the
basic grade), other than specialists, of the West Bengal Service. Subsequent to
the amendment, the Government issued Circular dated 30.12.1994 and extended
benefit to the Medical Officers (Direct Recruits in the basic grade) of the
West Bengal Health Services to add to their qualifying services towards pension
the actual period not exceeding 5 years by which the age at the time of direct
recruitment exceeds 25 years. The respondent claimed the benefit under Circular
dated 30.12.1994. The West Bengal Administrative Tribunal by its order dated 28th July, 2000 dismissed his claim. The High
Court, on appeal, reversed the decision of the Tribunal and allowed the claim
of the respondent by extending the benefit of Circular dated 30.12.1994. The
High Court, inter-alia, held:
a clear reading of the Circular dated 30th December, 1994, it is available that
at the beginning the benefit of five years qualifying service in addition to
the service actually rendered was extended to Medical Officers who were specialised
in their respective fields, but, subsequently this benefit was extended to all
members of West Bengal Health Service irrespective of their being appointed as
specialists or otherwise." The sole question revolves around for
determination is as to whether the respondent, who was compulsorily retired w.e.f.
22.7.1996, is entitled to claim benefit of Rule 27 of the Rules and Circular
dated 30.12.1994 giving weightage of five years of service to his qualifying
service for superannuation for the purpose of pensionary benefits? The High
Court seems to have failed to take notice the condition precedent being
required to be fulfilled for availing such benefit in both Rule 27 of the
Rules, as noticed above, as well as in Circular dated 30.12.1994.
condition precedent being the officer must complete qualifying service for
superannuation for availing the concession. Undisputedly, the respondent, as
noticed above, was compulsorily retired w.e.f. 22.7.1996 and he did not fulfil
the eligibility criteria of being completing qualifying service for
superannuation, on the basis of which alone the concession was extendable.
Rao, learned Senior counsel, appearing for the respondent has brought to our
notice an order dated 17.12.1998 containing a list of Govt. Employees (Retired)
(Gr. 'A') in which the name of the respondent – Dr. Subash Chandra Pratihar
appeared in serial No. 2 and against his name the remarks are 'superannuated on
22.07.96'. Learned counsel, therefore, contended that the document shows that
the respondent was retired on superannuation. Apparently, it is a mistake.
Similarly this, by itself, would not alter the factual position of the
premises aforesaid, the appeal is allowed. The order of the High Court, under
challenge is set aside and the order of the Tribunal is restored.
are asked to bear their own costs.