The Calcutta High Court has held that delay on the part of the Government in absorbing an employee cannot be a ground to deny pensionary benefits, and such delayed period must be counted as qualifying service. The Division Bench of Justice Madhuresh Prasad and Justice Supratim Bhattacharya passed the judgment while allowing a petition filed by Dr. Satinath Samanta, a retired Medical Officer from Calcutta Homeopathic Medical College and Hospital.
Background
Dr. Satinath Samanta approached the Court challenging the order dated September 2, 2024, passed by the West Bengal Administrative Tribunal (WBAT) in O.A. No. 810 of 2023. The Tribunal had upheld the Government’s rejection of his pension claim, stating that he lacked the minimum 10 years of qualifying service, having served from May 17, 2010, to December 31, 2018 — only 8 years, 7 months, and 15 days.
The petitioner was first appointed to the college in 1981. After the Calcutta Homeopathic Medical College and Hospital (Taking Over of Management and Subsequent Acquisition) Act, 1983 came into force, the college was taken over by the State on January 2, 1992. Though similarly placed employees were absorbed in State service, Dr. Samanta’s case faced prolonged delay.
Despite a High Court order on February 22, 2005 (in W.P.S.T. No. 803 of 2001) directing his absorption with consequential benefits, the State issued the actual appointment order only on April 20, 2010. Even then, the order was not given retrospective effect.
Submissions
Counsel for the petitioner argued that his right to be absorbed had crystallized with the 2005 High Court order. Therefore, the delay of five years in issuing the appointment order—attributable solely to the Government—must be counted as qualifying service for pension. It was submitted that denying pension on account of this delay would result in grave injustice.
The State, on the other hand, contended that since the petitioner never challenged the non-retrospective nature of the 2010 appointment order and had accepted retirement benefits, he could not now claim pension based on service not formally recorded.
Court’s Findings
The Bench held that there was “no lack of diligence” on the part of the petitioner and that the delay from 2005 to 2010 was entirely due to the inaction of the State. Referring to the Supreme Court decision in Kusheshwar Prasad Singh v. State of Bihar, (2007) 11 SCC 447, the Court reiterated that:
“He who prevents a thing from being done shall not avail himself of the non-performance he has occasioned.”
The High Court stated:
“Sustaining such a deprivation would amount to saddling the petitioner with civil consequences such as deprivation of minimum pensionary benefit, for the fault/ delay on the part of the respondents. The law does not permit the same.”
It was further clarified that although the petitioner cannot claim salary for the period between February 22, 2005, and April 20, 2010, under the principle of ‘no work, no pay,’ he is entitled to have this period counted as qualifying service for pension.
Directions
The Court set aside the Tribunal’s order and directed the State to treat the period from February 22, 2005, to April 20, 2010, as part of the petitioner’s qualifying service. The respondents were instructed to reconsider and process Dr. Samanta’s pension claim accordingly and release the consequential dues within eight weeks, along with a detailed calculation for transparency.
