District Inspector of Schools Secondary Education Vs Satyanaryan Agarwal

Having heard the learned Advocate appearing on behalf of the appellants as also considering the statements made in the said application, this Court is satisfied with the grounds indicated therein, as sufficiently explaining delay of 342 days in preferring the appeal.

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In view of the above, the application for condonation of delay being CAN 1 of 2024 is allowed and disposed of.

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There will be no order as to costs.

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Re: MAT 1875 of 2024 in CAN 2 of 2024

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The instant intra court appeal is directed against the judgment and order dated 19^th September, 2023 passed by a learned Single Judge of this Court in W.P.A. 7469 of 2016.

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The writ petitioner superannuated from service as an Assistant Teacher of one Aruar B. M. D. P. Institution (Secondary) now under Purba Bardhaman District. During his service tenure, he was admittedly absent for long periods of time of more than two years in one period and three years in another period. The absence of the petitioner, according to the records, was on account of illness.

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The writ petitioner after he claimed to have gained proper health, tried to join the School but was prevented by the concerned Headmaster of the said School. The reason for he being so prevented is understandable. His leave of absence was never regularized in any category of leave i.e. Casual Leave, Medical or Extraordinary.

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It is equally an admitted position that no proceedings were drawn up against the petitioner for unauthorized leave. The question of termination of his service at the instance of the employer, therefore, did not and cannot arise.

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The writ petitioner aggrieved by the action of the school in preventing him from joining initiated several proceedings. The first of which was CO 1145 (W) of 1988 in which by an interim order dated 1st

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December, 2004 a Single Bench directed the respondents to be permitted the writ petitioner to join school. It was further recorded in the said writ petition of 5^th March, 2014 by another Single Bench that while there was no termination proceedings against the writ petitioner there is no question of back wages for the period that he was absent from school.

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The said writ petitioner was finally disposed of by another Single Bench vide order dated 9^th April, 2014 directing full back wages to be paid to the writ petitioner for all periods of absence and for the period he served. The writ petitioner admittedly superannuated upon reaching the age of 60 years on 30^th June, 2004.

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After several rounds of writ petitions, the District Inspector of Schools (SE) Burdwan passed an order dated 24^th February, 2015. He found that the writ petitioner was absent several days during his service. The school had sought for sanction in favour of the respondent/writ petitioner from the Board, but the Board had not chosen to reply to the same.

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The writ petitioner was, therefore, asked to submit documents and income tax returns from the year 1981 to 2004 to determine if he was employed any point of time elsewhere during such period.

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The concerned District Inspector of Schools held that since the Board has not sanctioned any leave of the long absence of the writ petitioner towards any

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leave, he was not in a position to pay any back wages for any period of the writ petitioner’s service.

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The Single Bench in the impugned order directed payment of back wages to the writ petitioner together with 6% interest per annum since 10^th April, 2014 till 19^th September, 2023.

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Across the Bar today, Mr. Acharya, learned counsel for the writ petitioner/respondent submits that his client is not entitled to back wages for the period that he was absent from service.

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He further submits that on instruction that his client does not press any claim for back wages as on date. He submits that his client only wants his entire length of service from the joining to superannuation as on 30^th June, 2004 to be considered as the ‘length of service’ for the purpose of pension.

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This Court has carefully considered arguments advanced by the learned counsel for the parties. Indeed, none of the orders passed in CO 1145 (W) of 1988 have been challenged by the State. The said orders have attained finality. The State could have initiated departmental proceedings for unauthorized absence against the writ petitioner which has not done till date.

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In the absence of challenge to any of the interim orders passed in CO 1145 (W) of 1988 and in the absence of any disciplinary proceedings against the writ petitioner, the State is not entitled to deprive the

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writ petitioner in any form at least on an account of terminal benefits.

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Indeed, as fairly conceded by Mr. Acharya, the writ petitioner would have not entitled to back wages for the period which he has not worked. The propriety of the order impugned and other orders in this regard is questionable. The writ petitioner not having been terminated is at best entitled to his terminal benefits including pension to be calculated on the entire length of service from the date of his joining till 30^th June, 2004.

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In the backdrop of the above discussion, the District Inspector of Schools (SE), Purba Burdwan shall notionally calculate the last drawn pay of the writ petitioner as on 30th June, 2004 applying all increments and revisions of pay and salary. Once the last drawn pay that the writ petitioner would have been entitled is calculated notionally by the District Inspector of Schools (SE), Purba Burdwan the pension payable to the writ petitioner shall be arrived at.

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The said pension together with all the revisions thereafter shall be calculated towards payment of arrears to the writ petitioner/respondent.

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The said arrears shall be released to the writ petitioner/respondent within a period of two months from the date of communication of a copy of this order. 23. It is made absolutely clear that the writ petitioner/respondent shall not be entitled to any back wages whatsoever.

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