Biswanath Somadder, J.@mdashA common question of law is involved in these writ petitions. Therefore, all the matters are taken up together and
disposed of by the judgment and order that follows :
The writ petitioners are all serving as teachers in various schools. All these schools are recognized by the State of West Bengal as Non-
Government Aided Educational Institutions.
Some time in the year 1985, the State of West Bengal promulgated a scheme. The scheme was called, West Bengal Recognised Non-Government
Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981. In the said scheme, option was given to the existing
employees, either to continue to be governed by the existing Rules at that point of time, which governed retirement benefits for existing employees
(which was Contributory Provident Fund-cum-Gratuity), or to come under the new 1981 Scheme (Pension-cum-Family Pension-cum-Gratuity).
2. In all these cases, the writ petitioners initially opted for the earlier retired scheme, i.e. Contributory Provident Fund-cum-Gratuity Scheme.
However, after coming into effect of a subsequent Memorandum dated 16th December 1991, issued by the Government of West Bengal
Education (Budget Branch) Department, an option to change from Contributory Provident Fund-cum-Gratuity Scheme to Pension, including
Family Pension-cum-Gratuity Scheme, was provided for, by the State Government. The said Memorandum dated 16th December 1991 is set out
herein below:
GOVERNMENT OF WEST BENGAL EDUCATION (BUDGET BRANCH) DEPARTMENT WEITERS'' BUILDING, CALCUTTA - 700
001
496-EDN.(B)
No. -------------------
IM-39/91
Dated, Calcutta the 16th December, 1991
MEMORANDUM
Sub: Change of option in terms of Memo No. 136-End)(B) dated 15.5.85.
1. The undersigned is directed by order of the Governor to say that after careful reconsideration of the matter the Governor has been pleased to
allow, in relaxation of the privision contained in para 5(a) of the Memo No. 136 Edn. (B) dated 15.05.85 and in partial modification of the Memo
No. 148-Edn. (B) dated 31.05.90 the approved teaching and non-teaching employees of aided non-govt. educational institutions who opted for
Contributory Provident Fund/cum/Gratuity, to exercise revised option for Pension including Family Pension-cum-Gratuity subject to the condition
that employer''s share of contribution together with interest and additional interest shall be refunded to the Government forthwith.
2. The revised option as per this memo will have to be exercised within 90 days from the date of issue of this memo. The fresh option so exercised
shall be final and no further change of option will be allowed.
3. This order issues with the concurrence of Finance Department vide their U.O. No. Group J. (Pen.) 823 dated 31.10.91.
4. All concerned are being informed accordingly.
Sd/- H. P. Mukhopadhyay
Joint Secretary to the
Government of West Bengal
3. All the writ petitioners, it appears, decided to avail the revised option as per the aforesaid Memorandum. According to the learned advocate for
the writ petitioners, all of them, within the 90 days period, as stipulated in the aforesaid Memorandum, duly exercised their revised option by
submitting their applications to that effect, to their respective Heads of Institution.
4. The writ petitioners have approached this court by filing these writ application, for the purpose of appropriate order/orders, so as to ensure
preservation of their right under law, as it stood crystalised on the date when they submitted their revised options, in terms of the Memorandum
dated 16th December 1991, to their respective Heads of Insitution.
5. While making submissions on behalf of the writ petitioners, the learned advocate has drawn this court''s attention to serveral orders passed by
this High Court in similar matters earlier. He submits that in view of the earlier orders passed by this court, similar order may be passed in respect
of these writ applications.
6. The learned advocate appearing on behalf of the writ petitioners, during course of his submission, has also given up insisting on prayer (b) of the
writ petition which is as follows :
Prayer (b) : A writ in the nature of Mandamus declaring that in view of the options exercised by the petitioner under ROPA Rules-1990 and 1988
and in view of revision of pay under the said Rules, the petitioner is entitled to get the pensionary benefits including dearness relief at par with State
Government employees;
7. He submits, the reason for giving up aforementioned prayer is due to the fact that presently the same issue is being considered by the Hon''ble
Court of Appeal.
8. Since I propose to decide these writ petitions on an entirely different issue, I do not find it necessary for me to consider the said prayer (b) at all.
9. The learned advocates representing the State, on the other hand, submit that the writ petitioners have approached this court after waiting for
several years and as such no relief can be given by this court for such unexplained delay and laches on their part. Moreover, the learned Advocates
for the State submit, that if such revised option is allowed, it will have an adverse financial impact on the State inasmuch as the writ petitioners
never refunded the employers share of contribution together with interest and additional interest to the Government till date, in terms of the
Memorandum dated 16th December, 1991.
10. Having heard the learned advocates appearing on behalf of the parties and upon perusing the writ petitions, I am of the view that the State of
West Bengal, having once provided an option to change from Contributory Provident Fund-cum-Gratuity Scheme to Pension, including Family
Pension-cum-Gratuity Scheme to the writ petitioners herein, are duty bound under law to honour their commitment, as made in the Memorandum
dated 16th December 1991, provided of course, such revised option has been submitted by the writ petitioners within the stipulated time frame, to
their respective Heads of Institution.
11. The submission made by the learned advocates for the state on the point of delay in filing these writ petitions, to my mind, perhaps, may not be
significant. If the writ petitioners, have in fact, opted for change of option in terms of the Memorandum dated 16th December 1991, the effect of
exercising such option can only be felt by the writ petitioners on the date of superannuation and not before. Admittedly, none of the writ petitioners
herein have yet attained the age of superannuation. Moreover, substantive legal right which has already crystallized and effect of which is yet to
take place, cannot be scuttled only on the ground of delay. In the facts of the instant case, I, therefore, hold that since the effect of benefit to be
availed by the writ petitioners upon exercising their revised option in terms of the Memorandum dated 16th December, 1991, has not yet
percolated down to them, the point of delay in filing these writ petitions, cannot be sustained in law.
12. So far as the submission made by the learned advocates appearing on behalf of the State with regard to adverse financial impact on the State is
concerned, I am of the opinion that there cannot be any financial implication in addition to whatever has been provided for in the Memorandum
dated 16th December, 1991. In the said Memorandum dated 16th December 1991, it has been specifically stated that in order to exercise revised
option of Pension, including Family Pension-cum-Gratuity, the employer''s share of contribution together with interest and additional interest shall
have to be refunded to the Government. I am of the view that the writ petitioners, having once chosen to exercise revised option, are under a legal
obligation to honour their part on their commitment and that is, to refund to the Government, the employer''s share of contribution together with
interest and additional interest. That, in fact, has been provided for in the Memorandum dated 16th December 1991 itself. However, they do so,
the State has to first accept their revised option and only then enforce refund, in terms of the Memorandum dated 16th December, 1991.
13. In the circumstances, I direct the Director of School Education, Government of West Bengal, either himself or through any officer appointed by
him, to conduct an enquiry and ascertain from the respective Educational Institutions as to whether the writ petitioners herein, have in fact exercised
their revised options, in terms of the Memorandum dated 16th December 1991, and submitted their revised options to their concerned Heads of
Educational Institution, within the time frame, as stipulated in the said Memorandum.
14. In the event, upon such enquiry, it comes to the notice of the said authority, that such revised option has not been exercised by any of the writ
petitioners within the time frame as contained in the Memorandum dated 16th December 1991, the same shall not be accepted by the State
Government for the purpose of conversion from Contributory Provident Fund-cum-Gratuity to Pension, including Family Pension-cum-Gratuity.
15. However, if it is found, upon such enquiry, that revised option in terms of the Memorandum dated 16th December 1991 has been exercised
and submitted before the respective Heads of the concerned Educational Institution, within the time frame as stated in the said Memorandum, by
the writ petitioners herein, the said authority shall take immediate steps by directing the respective Heads of the concerned Educational Institution
to forward such revised option form to the concerned authorities as per usual practice and procedure.
16. This enquiry shall be made and completed by the Director of School Education, or by his appointed officer, within a period of three months
from the date of communication of this order and the enure exercise in terms of the directions given herein, shall be completed by all concerned
respondents within a period of two months thereafter.
17. The concerned authorities of the State Government shall also be at liberty to take punitive action against the educational institutions involved
herein, who have not taken steps in terms of the Memorandum dated 16th December 1991, if it is found upon enquiry, that they did not forward
the revised options submitted by the writ petitioners, to the appropriate authority, in spite of receiving the same from them, within the time limit
prescribed in the said Memorandum. Urgent xerox certified copy of this order, if applied for, be given to the parties as early as possible.