Delay In Appointment, Employee Entitled For Qualifying Service For Pension, But No Wages: Calcutta HC

Background

Dr. Satinath Samanta was a medical officer in the Calcutta Homeopathic Medical College since 15 October 1981. In 1983, the state legislature enacted the Calcutta Homeopathic Medical College and Hospital (taking over of management and subsequent acquisition) Act, and acquired the college. The management was taken over in 1982, while the college was fully taken over in 1992.

Through a writ petition, Dr. Samanta approached the Calcutta High Court in 1998 and sought to be regularised in the college. Despite the court's orders, the authorities failed to issue any regularisation order. Aggrieved, Dr. Samanta approached the Court again and filed a second writ petition.

The Division Bench then noted that Dr. Samanta's case was similar to that of one Dr. Das, and others who had already been regularised and absorbed as government employees. Thus, in 2005, the court directed the authorities to absorb Dr. Samanta against the next vacancy available, along with all consequential benefits. Despite this, no order was issued. Dr. Samanta initiated contempt proceedings, which finally led to her absorption. The regularisation order was only passed more than five years after the Court's direction.

After Dr. Samanta joined the service, he raised concerns about the lack of retrospective effect in his appointment. Further, he was denied pension benefits after his retirement because his service as a State Government employee was only for about 8.5 years, less than the required 10 years for pension eligibility. Aggrieved, Dr. Samanta again approached the State Administrative Tribunal. However, the Tribunal rejected his claim. Aggrieved, he filed the present writ petition challenging this order.

Arguments

Representing Dr. Samanta, Mr. Chittaranjan Chakraborty argued that as per the 1983 Act, Dr. Samanta became a State Government employee from 2 Jan 1992, the date of the acquisition of the college. Thus, he argued that the period beyond this should be counted as the qualifying service for pension purposes. He further submitted that if the five years of delay caused by the authorities in implementing the court order was counted, Dr. Samanta would cross the 10 years benchmark and qualify for pension benefits.

Representing the State, Mr. Tapan Mukherjee argued that the appointed order was issued in 2010 without any retrospective effect. He further submitted that if Dr. Samanta was aggrieved by this, he should have challenged it promptly. Mr. Mukherjee claimed that Dr. Samanta had already purposely delayed raising this issue, and has already accepted other retirement benefits including 'double gratuity'. Thus, it was submitted that Dr. Samanta coud not now also claim pension.

Court's Reasoning

Firstly, the court rejected the state's argument on delay. It found that Dr. Samanta had always been diligently pursuing his claim since 1988. The court noted that his right to absorption came into existence since 22 Feb 2005; however, the authorities took another 5 years to implement this order. The court did not find any lack of diligence on the part of Dr. Samanta.

Secondly, the court held that the alleged shortage in Dr. Samanta's qualifying service was only about 1.5 years, while the delay in appointment caused by the authorities was over 5 years. The court ruled that the authorities could not rely on their own non-performance to justify not granting pension benefits to Dr. Samanta.

Thirdly, citing the Supreme Court case of Kusheshwar Prasad Singh v. State of Bihar (Appeal (civil) 7351 of 2000), the court noted that one cannot be permitted to take undue advantage of one's own wrong. The court explained that the delay in appointment was wholly attributable to the authorities failing to comply with the court's directions. Thus, the court held, that the authorities cannot use this period to deny Dr. Samanta's pension.

Lastly, the court clarified that based on the "no work no pay" principle, Dr. Samanta could not claim wages for the five years of delay. However, the court ruled that this period should count for qualifying service.

Thus, the court directed the authorities to count the five years as qualifying service for pension and allowed the writ petition. The court set aside the Tribunal's order and directed the payment of all dues within eight weeks.

Decided on: 17 April 2025

Case No.: W.P.S.T. 210 of 2024

Counsel for the Petitioner: Mr. Chitta Ranjan Chakraborty, Mr. Sumit Banerjee, Ms. Puspa Rani Jaiswara

Counsel for the Respondents: Mr. Tapan Kr. Mukherjee, Ld. AGP, Ms. Sangeeta Roy

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