07.07.2026 SL No.32 Court No.12 (gc) MAT 454 of 2025 CAN 2 of 2025 Malay Roy Vs. The State of West Bengal & Ors. Mr. Kallol Basu, Mr. Atreya Chakraborty …for the Appellant. Mr. D.N. Roy, Ld. G.P. Ms. Susmita Saha Dutta, A.G.P., Ms. Tanusree Ghosh …for the State. 1. Despite several opportunities to the municipality to come back with proper papers and calculations, the municipality has failed to take steps. Today, none appears. We are informed that the Board has been superseded. We propose to dispose of the appeal. 2. The appeal is directed against a judgment and order dated February 5, 2025, passed in WPA 18159 of 2023. By the order impugned, the learned Judge held that the deceased wife of the appellant was not a regular employee of the municipality and was not appointed against a sanctioned post. The State of West Bengal also, did not approve the appointment of the deceased wife of the appellant. Under such circumstances, the municipality could not be directed to pay pensionary benefits or other terminal benefits of the deceased wife of the appellant. His Lordship held that, grant of retirement benefits to an employee who was appointed against an unsanctioned post, would 2 strain the municipality of its resources and would negatively affect public service. 3. Facts reveal that, the deceased wife of the appellant was appointed as an assistant teacher at Mohanbati Free Primary School under Raiganj Municipality in the year 1985. Her Service was confirmed by a resolution of the Board of Councillors of the municipality, which was communicated to her by a letter dated May 9, 1996. Subsequently, the appellant’s wife was transferred with other teaching and non-teaching staff to the Assessment Department of the municipality, by an order dated August 31, 2001. The wife of the appellant rendered her service to the municipality for about 33 years. The municipality declined to release the death-cum-retirement benefits of the deceased, that is, the family pension, gratuity, provident fund and other dues. The appellant filed WPA 6918 of 2019 and sought for release of all those benefits. By an order dated August 14, 2019, a learned Single Judge directed the municipality to release the terminal dues, in the event it was found that the appellant’s wife was entitled to the same. In compliance of the order of the High Court, an order was passed on April 27, 2023, and an amount of Rs.5,76,947/- was released towards accumulation of the provident fund and unpaid salary. The family pension was declined on the ground that the post in which the appellant’s wife had been appointed, had not been sanctioned by the State. 3 4. Mr. Atreya Chakraborty, learned Advocate appearing for the appellant submits that the learned Single Judge and the Chairman of the Municipality erred in holding that the appellant was not entitled to gratuity and family pension pursuant to the death of his wife, as she was not a regular employee of the municipality. Reference is made to a decision of a learned Single Judge in WP No. 24018(W) of 2009, by which the municipality was directed to communicate its order and/or decision, regularizing the service of the appellant’s wife within five weeks from the date of the order. The ordering portion is quoted below:- “By this writ petition the petitioner seeks regularization of her service form the date of her initial appointment. The issue came up for consideration in W.P.13828(W) of 2001. The order that was passed on the writ petition was challenged in F.M.A. 856 of 2006 and while disposing of the appeal the Division Bench on the submissions made by counsel for the municipality that the petitioner’s service had been regularized in accordance with law directed it to communicate the order passed or to be passed to the appellant. Accordingly the municipality is directed to communicate the order within five weeks from the date of receipt of this order, as without knowing the contents of the order it will not be proper to pass any order in this writ petition. With the aforesaid directions, this writ petition is disposed of.” 5. Mr. Chakraborty also submits that the pay granted to the appellant’s wife was at par with the regular employees of the municipality. 4 6. Pursuant to a direction of the High Court, the following communication was received by the appellant’s wife which is quoted below:- “With reference to the compliance of the order dt.12.5.2010 of the W.P.24018(W) of 2019 in the matter of Smt. Sanchita Das Vs. The State of West Bengal & Others this is to inform you that you have been confirmed as Assistant Teacher, Municipal Free Primary School, Raiganj Municipality. The confirmation letter already has been issued to you by the undersigned through this Office memo no.51A/(23)/RM/G dated 09.5.1996 a copy of which is annexed herewith for your information and ready reference. Annexure : Xerox copy of confirmation letter (1 sheet). Chairman, Raiganj Municipality.” 7. We find that in another writ petition, being WP 13828(W) of 2001, the High Court had directed that the absence of the appellant’s wife should be regularized by granting extraordinary leave, so that there was no break in service. This order was challenged in FMA 856 of 2006. 8. At pages 83 and 84 of the CAN application, we find the decision of the Hon’ble Division Bench which records that, the municipality had regularized the service of the appellant’s wife in accordance with, and in terms of the directions of the Single Bench, has been annexed. The decision of the Division Bench and the observations are quoted below:- 5 “It is true that the Division Bench at the time of admission of the appeal made some observations with regard to payment of salary. We would also find that the same Division Bench by a subsequent order also asked the Municipality to regularise her service in accordance with law which would obviously include entitlement of salary. With deepest regard we have for Their Lordships and with all humility may we say that those observations were prima facie in nature and are not strictly binding upon us when we hear the appeal finally and dispose of the same accordingly. Writ Court is a Court of equity. We are taking up the Writ Appeal exercising our jurisdiction as a Court of equity. For ends of justice and to do complete justice we have to mould the relief taking into account the events subsequent to filing of the writ petition and/or the appeal, otherwise we would be failing in our duty and leave the litigants in the midst of protracted litigation. Hence we sincerely feel that we should take into account all the factual aspects uptill date to do complete justice in the mater and to resolve the controversy once for all. Mr. Das on instruction submits that the Municipality has already regularised her service in accordance with law and in terms of the direction of His Lordship. We hope that the Municipality will pass appropriate order in this regard, if nor (sic not) already passed and communicate the same to the appellant for her perusal. With regard to arrear salary we feel that considering the backdrop it would not be proper to allow the appellant back wages for the period prior to August 11, 2003. The appellant joined the non-teaching post on August 13, 2003 as appears 6 from page 73 of the paper book. She must be entitled to pecuniary benefits available to her from that date including the maternity leave during the period when she was in the family way. In this regard the appellant would cooperate with the Municipality by making appropriate application for maternity leave along with supporting documents. The financial benefit must be extended within a period of six weeks from the date of communication of this order. The reasoned order to be passed as directed above should also reach the appellant within the said stipulated period.” 9. Under such circumstances, the contentions of the municipality that the appellant’s wife was not a regular employee of the municipality and was appointed against an unsanctioned post, does not have any legs to stand on. The specific submission of the municipality that the service of the appellant’s wife had been regularized in accordance with law, has found mention in various orders of the High Court, both by the learned Single Judges as also the Division Bench. With regard to the other contention of the municipality that the regularization of the appellant’s wife was not approved by the State Government, we are of the view that, the municipality had already regularized the appellant’s wife as per law, and the Division Bench had taken care of such situation earlier. This objection is frivolous. Moreover, we find that the appointment of the appellant’s wife as an assistant teacher was confirmed on and from May 9, 7 1996. Thus, subsequent change in the appointment rules could not have been binding on her. 10. Under such circumstances, the appeal and the application are allowed, upon setting aside the order impugned. 11. The competent person in-charge of the affairs of the municipality shall forthwith reconstruct the service book of the appellant’s wife on the basis of the orders passed by the High Court and the other documents that may be available. Such reconstruction shall be completed within a month. Immediate steps to ensure release of family pension in accordance with the provisions of law shall be taken. The service book shall be forwarded to the Director of Pension, Provident Fund and Group Insurance, Government of West Bengal. Thereafter, the gratuity and family pension shall be released in favour of the appellant, upon the authority being satisfied that the appellant is the sole eligible heir of the deceased to receive such benefit. 12. For the purpose of reconstruction of the service book, the appellant shall render assistance and the appeal papers shall be forwarded to the municipality. The entire exercise shall be completed within four months from date of communication of this order. 13. Accordingly, the appeal and the connected application are disposed of. 14. However, there shall be no order as to costs. 8 15. Urgent Xerox certified copy of this order, if applied for, be given to the parties upon compliance of all necessary formalities. (Shampa Sarkar, J.) (Smita Das De, J.)