- (1.) This writ petition was filed in July, 2005. It is alleged by the petitioner that by a letter dated November 10, 1993, the Chairman, Birbhum District Primary School Council directed the petitioner to appear at his office on December 01, 1993 and to submit his mark-sheet certificates and other relevant documents for considering his name in preparing a panel for the post of Assistant Primary Teacher in a school within the jurisdiction of the said Council. According to the petitioner on December 01, 1993 he submitted all the necessary documents at the office of the Chairman, Birbhum District Primary School Council but the respondent authorities did not prepare the panel for the said post of Assistant Teacher within one month from December 01, 1993. On April 4, 2003, the Chairman, Birbhum District Primary School Council issued a Memo bearing No. 645-SC/P (hereinafter referred to as the said "Memo dated April 04, 2003") whereby the petitioner was provisionally appointed as an Assistant Teacher of Ahmedpur C.D.P. PRI/J.B. School, Ahmedpur Circle (hereinafter referred to as "the said school") with effect from the date the petitioner actually joins the post. Admittedly, the petitioner joined the said school on April 08, 2003. On April 30, 2004 the petitioner reached the age of superannuation and he retired from service of the said school. By a Memo dated August 10, 2004, the District Inspector of School (P.E.), Birbhum forwarded some papers, as the pension papers of the petitioner, to the Director of Pension, Provident Fund and Group Insurance at Purta Bhavan, Salt Lake City, Kolkata for necessary action. After receipt of the said Memo dated August 10, 2004, the Assistant Director Pension, Provident Fund and Group Insurance, West Bengal issued a communication dated September 20, 2004 to the said District Inspector of School and pointed out that while the upper age limit for appointment to the said post of Assistant Teacher in a Primary School has been fixed at 40 years vide Government Order No. 768 dated November 22, 1991, the petitioner was appointed when he was beyond 40 years of age. By the said Memo, the Assistant Director Pension, Provident fund and Group Insurance, West Bengal requested the District Inspector of School, Birbhum to clarify the matter. The District Inspector of School failed to clarify the matter as requested by the Assistant Director Pension, Provident fund and Group Insurance, West Bengal, nor any pensionary benefit has been granted to the petitioner.
(2.) In the background of the aforesaid facts, the petitioner filed the writ petition in July, 2005 claiming a writ mandamus commanding the state respondents to give him, the service benefits admissible for the said post of Assistant Teacher of a Primary School with effect from January 01, 1994 and for cancellation/setting aside/quashing of the said Memo dated September 28, 2004 issued by the Assistant Director Pension, Provident fund and Group Insurance, West Bengal. From the records it appears that on August 31, 2005 when the writ petition was taken up for hearing by a learned Single Judge of this Court, the learned advocate for the respondent no. 5 Birbhum District Primary School Council submitted that the said council does not wish to file any affidavit. However, when the writ petition was taken up for hearing on February 11, 2015 no one appeared to represent the respondent no. 5 Primary School Council or any other state respondents.
(3.) Mr. Ashis Kumar Chowdhury, the learned Advocate appearing in support of the writ petition strenuously contended that the petitioner had submitted the necessary documents at the office of the Chairman, District Primary School Council on December 01, 1993 and as such the council was duty bound to give effect to the panel after one month from December 01, 1993 and for no fault of the writ petitioner the appointment letter was issued by the Chairman, Birbhum District Primary School Council after long delay, on April 4, 2003. According to Mr. Chowdhury it is a fit case that the petitioner should be granted all service benefits admissible for the said post of Assistant Teacher of the said school with effect from January 01, 1994 including the pensionary benefits. In support of such contention Mr. Chowdhury relied on an unreported decision dated March 28, 2008 of a learned Single Judge of this Court in W.P. 24728 (W) of 2005. From the said unreported decision dated March 28, 2008 it appears in that case a panel was prepared disclosing the names of the successful candidates, including the writ petitioners to the posts of Assistant Teacher on January 01, 1994. However, due to some pending litigations in connection with the said panel, the panel could not be given effect to until 2003. In other words, the said panel prepared on January 01, 1994 was given effect to only in 2003 and thereafter, the writ petitioners were allowed to join their services as Assistant Teachers of the respective schools. In that case the writ petitioners claimed that since the panel was finalized on January 01, 1994, they became entitled to be appointed in January 1994 and as such they claimed to be treated to have joined the service on January 01, 1994. After recording the submissions of the writ petitioners, on March 28, 2008, the learned Single Judge disposed of the writ petition being W.P. 24728(W) of 2005 by passing the following order: "It is made clear that the petitioner will be entitled to his retiral benefits and fixation of his pay on the basis of his approval of appointment as on 1st January, 1994." 3. From the said order dated March 28, 2008 it is evident that by the said order the writ petition itself was disposed of on the very first day, without giving any opportunity to the state respondents even to file any affidavit opposition. The said order dated March 28, 2008 only recorded the submissions made on behalf of the writ petitioners and the aforesaid direction passed by the learned Single Judge. In the said order dated March 28, 2008 there is no reason for allowing the prayer of the petitioners in the said writ petition. Thus, I have my doubt if the said unreported decision dated March 28, 2008 can be claimed to be a binding precedent. However, Mr. Chowdhury submitted that an appeal being FMA No. 689 of 2009 was filed against the said order dated March 21, 2008 and by an order dated July 20, 2009 the Division Bench of this Court did not interfere with the said order of the learned Single Judge. He could not produce the order dated July 20, 2009 passed by the Division Bench but produced an office report dated September 17, 2009 of the Registrar Administration recording the dismissal of the said appeal being FMA No. 689 of 2009 by the said order dated July 20, 2009.;