RAKESH TIWARI,J. - (1.) CAN 8009 of 2016 (for condonation of delay): The appeal is said to be beyond time by 53 days. Ld. Counsel for the parties agree that the matter is of public importance and requires hearing, therefore, the matter may be heard on merits. We find from the arguments of the Ld. Counsels that sufficient cause has been shown and the matter being of public importance the inconsequential delay of 53 days is condoned. Application being CAN 8009 of 2016 is accordingly allowed. Heard Ld. Counsel for the parties and perused the record. On merits: The appeals Mat 1459 of 2016 connected with Mat 1877 of 2015 are entwined by same questions of facts and law, hence are being decided by this common judgment. 1. The instant appeal has been filed challenging the order dated 13.05.2016 passed by His Lordship Hon'ble Justice Dipankar Datta in W.P. No. 28844 (W) of 2014 (Ranajit Bar and Ors. v. The State of West Bengal and Ors.) whereby and whereunder His Lordship was pleased to direct the office to place writ petition before His Lordship Hon'ble The Chief Justice for constitution of an appropriate Bench or a larger Bench for the purpose of deciding the following issue:- "Whether in terms of the judgment and order of the Full Bench dated July 16, 2013 passed by a Full Bench of the Hon'ble High Court at Calcutta in the case of District Inspector of Schools (SE), Kolkata and Anr. v. Abhijit Baidya and Ors Reported in 2013 (3) Cal LJ 178 , a willing employee, who exercises option and is otherwise entitled to pension, would be entitled to pension payable from the date of his retirement or pension payable from the date he makes refund of the amount received by him on account of employer's share of provident fund with interest and additional interest."
(2.) The writ petitioners were in service in various non-government aided educational institutions of West Bengal. They had exercised option under the West Bengal Recognised Non-Government Educational Institution Employees (Death-Cum-Retirement Benefit) Scheme, 1981 herein referred to as the 1981 Scheme to come under Contributory Provident Fund Scheme after their retirement from service. Thereafter, Revision of Pay and Allowance Rules (ROPA), 1990 came into effect. The writ petitioners exercised option to come under the revised scale. Subsequently, ROPA, 1998 also came into effect and the writ petitioners opted to come under the same. Subsequently, a memo was issued by the Secretary, School Education Department, Government of West Bengal, being No. 155- SE(B)/1M-102/98 dated 13.07.1999 wherein it was envisaged that the employees will get terminal benefits as per the option exercised by them at the time of coming under the 1981 Scheme.
(3.) The memorandum was challenged in the writ jurisdiction before the High Court, and owing to conflicting decisions of the Court, several writ petitions and appeals were got referred before the Full Bench of this High Court presided over by His Lordship the then Chief Justice Arun Mishra, with Their Lordship Justice Dipankar Datta and Justice Joymalya Bagchi, the Full Bench was pleased to pass a comprehensive judgment upon reference in the matter of District Inspector of Schools (SE), Kolkata and Anr. v. Abhijit Baidya and Ors. reported in 2013 (3) Calcutta High Court Notes (Cal) Page 711 Answering the reference, "whether the petitioners being the teachers of recognised non-government educational institutions are entitled to avail an opportunity to switch over to the Pension-cum-Gratuity Scheme from the CPF-cum-Gratuity Scheme in view of the change made in para 17(3) of Revision of Pay and Allowances Rules (ROPA), 1990 and in paragraph 13 of the Revision of Pay and Allowances Rules (ROPA), 1998", the Full Bench vide judgment dated 16.06.2013 held:- "(1) An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had opted for ROPA 1990. Benefit of Pension-cum-Gratuity was conferred due to acceptance of reduced age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right for Pension-cum-Gratuity so accrued could have been taken away retrospectively by substitution of the provision of para 17 in 2007 or by substitution of para 13 of ROPA 1998 in 1999. (2) Once option has been exercised under ROPA 1990, a person cannot be subjected to the rider of the option exercised under the DCRB Scheme, 1981 as the invitation of the option under the said Scheme was with respect to the employees who elected to continue in service till the age of 65 years and to have the benefit of the old scheme. For such employees, opportunity was given to submit fresh options as per Memo dated 16th December, 1991. The amendment made in para 17(2) of ROPA 1990 on May 16, 2007 cannot be said to be valid piece of law as such provisions cannot be substituted with retrospective effect to take away the rights already accrued to an employee. So as to validate provisions of para 17(2) of ROPA 1990, as substituted, it was necessary to invite option for switching over to Pension-cum-Gratuity from CPF-cum-Gratuity when the substitution of para 17(2) of Ropa 1990 was made on 16th May, 2007 with retrospective effect. (3) Para 13 of the ROPA 1998 as amended on 13th July, 1999 cannot be said to be valid in the eye of law as it has the effect of taking away benefit conferred by para 17(2) of ROPA 1990, as the ROPA 1998 was made applicable to the employees who had opted for ROPA 1990 and the benefit conferred could have been taken away by substitution of provisions contained in para 13 of ROPA 1998. It was clearly arbitrary and an unreasonable exercise of power and to treat it as valid and legal, it was necessary to invite fresh option under the DCRB Scheme, 1981 for switching over to Pension-cum-Gratuity as the provisions had been amended drastically which could operate to the prejudice of the employees in whose favour right to claim Pension-cum-Gratuity had accrued. The substituted provisions of para 13 of ROPA 1998 fail to qualify Wednesbury principles of reasonableness. The action was in utter violation of fair play and justice. (4) In our opinion, after substitution of para 13 of ROPA 1998 on 13th July, 1999 and para 17 of ROPA 1990 on 16th May, 2007, in order to save the provisions from the vice of arbitrariness, it was necessary to give an opportunity to the employees to submit fresh option under DCRB Scheme, 1981. As in the option exercised earlier in terms of the DERB Scheme, 1981was made applicable, it was necessary to give fresh opportunity to exercise an option for switching over to Pension-cum-Gratuity and the State could have acted to the detriment of the employees option for ROPA 1990 who chose the rider of reduced age of superannuation i.e. 60 years under para 17(1) of ROPA 1990. (5) In our opinion, as there was drastic change of provisions of para 17(2) of ROPA 1990 made by way of substitution in 2007, and ROPA 1998 also interfered with the rights conferred upon the employees under para 17(2) of ROPA 1990, all the employees who opted for ROPA 1990 ought to be given fresh opportunity to submit the option to switch over to Pension-cum-Gratuity.";