MIR DARA SHEKO,J. - (1.) In the tune of the text of the writ petition Mr. Milan Bhattacharya, learned Senior Counsel representing the writ petitioners submitted that for the welfare and benefit of the writ petitioners as a class, they being the Special Assistants, shortly to be called on as S.As. and the Confidential Assistants, shortly to be called on as C.As. to the Ministers of the State, the earlier Government on taking opinion of different departments including concurrence of the Finance Department issued Notification No. 160 Home (Cons) CE/N/R/-2R- 2P- 3/94 dated Calcutta, the 2nd March, 1996 namely the West Bengal Special Assistants and Confidential Assistants to Ministers (Pension) Rules 1996, shortly to be called on hereafter as the Pension Rules 1996 to introduce pension scheme to those S.As. and C.As. who served with the "Minister" for a minimum period of two years after 1st January, 1985. Inviting attention to subsequent notifications No. 66- Home dated 19th March, 1999, 181 dated 2nd July, 2003, 21st July, 1999 (Labour Department), No. 9444-F dated 24th November, 2005, No. 247 dated 18.08.2006 and No. 179 dated 10.08.2009, Mr. Bhattacharya further submitted that said pension scheme was also re-considered and amended time to time by giving a moderate shape as far as it would had been practicable for the welfare and benefit of those pensioner S.As. and C.As. served to the Ministers.
(2.) Criticizing the impugned order No. 131 dated Kolkata the 21st February, 2013 and Notification No. 135 dated 22nd February, 2013 suddenly rescinding said pensionary benefit vis-a-vis the family pension in respect of those S.As. and C.As. issued by the Additional Chief Secretary in the name of Government of West Bengal as unconstitutional, Mr. Bhattacharya argued that while the previous Government created said Pension Rule 1996 in exercise of power under Article 309 of the Constitution of India the subsequent Government could have modified or amended said Rule, but would not altogether rescind.
(3.) Mr. Bhattacharya argued further that since any administrative power was not codified in the Rule, far to speak of vesting power of rescinding, and since on receipt of application for pension benefit only its entitlement or admissibility would have to be interpreted in terms of said pension rules, and thereby, the right of pension already having been accrued and vested the S.As. and C.As. should not be deprived of merely by the impugned administrative order or Notification, the same should be struck down as it was arbitral and not supported by reason. In support of above submissions Mr. Bhattacharya except the compiled decisions on constitutional principles referred to and relied specifically upon the following cases:- 1. Sukhdev Singh and Ors. Vs. Bhagatram Sardar Singh Raghuvanshi and Another reported in AIR 1975 Supreme Court 1331 (Five Judges Bench). (Paragraph-22) 2. Narendra Kumar Maheshwari Vs. Union of India and Ors. reported in AIR 1989 Supreme Court 2138. (Paragraph-54) 3. U. Raghavendra Acharya and Ors. State of Karnataka and Ors. reported in AIR 2006 Supreme Court 2145. Paragraphs- 25,26,28,29. 4. State of Tamil Nadu and Ors. Vs. K. Shyam Sunder and Ors. reported in AIR 2011 Supreme Court 3470 (Three Judges Bench).Paragraph- 20 5. State of Bihar and Ors. Vs. Bihar M.S.E.S.K.K. Mahasangh and Ors. reported in AIR 2005 Supreme Court 1605. Paragraph-64 6. State of Bihar and Another Vs. Sunny Prakash and Ors. reported in (2013) 3 Supreme Court Cases 559. (Paragraphs-19 and 20) 7. Bijitaswa Rout and Ors. Vs. State of West Bengal and Ors. reported in (2013) 1 Cal LT 652 (HC). 8. Krishena Kumar Vs. Union of India and Ors. reported in AIR 1990 Supreme Court 1782 (Paragraph 18, on doctrine of precedent.) ;