STATE OF WEST BENGALversusHARESH C. BANERJEE AND ORS.

                     STATE OF WEST BENGAL                                A
                                   v.
                 HARESH C. BANERJEE AND ORS.

                            MAY 26, 2004

                                                                         B
   [RAJENDRA BABU, CJ. AND P. VENKATARAMA REDDI, J.]

     Service Law :

     West Bengal Services (Death-cum-Retirement Benefit) Rules :
                                                                         c
      Constitutional validity of-On appeal, Held: Since the question
involving validity of Rule 10(1) affecting large number of employees, it has
to be examined by a larger Bench-However, State Government to comply
with the High Court's direction for making payment of arrears-West
Bengal (Classification, Control & Operation) Rules, 1971; sub-rule (1) of D
Rule JO.

     The question which arose for consideration in this appeal was
regarding constitutional validity of Rule 10(1) of the West Bengal
Services (Death-cum-Retirement Benefit) Rules. High Court held the E
same ultra vires the Constitution. Hence the present appeal. This Court
while granting leave made it clear that even if appeal succeeds the
benefit available to respondent No. I-retired employee in accordance
with the impugned order of the High Court would not be recalled and
the State Government was directed to make payment of arrears, if any. F

     Referring the matter to a larger Bench, the Court

     HELD : The sole question for consideration is the constitutional
validity ofRule 10(1) of the West Bengal Services (Death-cum-Retirement
Benefit) Rules. The same involves larger question arising as to the G
operation of the West Bengal (Classification, Control and Operation)
Rules. Since, the question may often arise affecting a large number of
employees, the matter is referred to a larger Bench. (782-F)

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2579of1998. H
                                  781
    782                 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A        From the Judgment and Order dated 6.5.1996 of the Calcutta High
    Court in F.M.A.T. No. 1202 of 1~98.

          Tapas Ray and S.K. Nandy for the Appellant.

B         Amlan Kumar Ghosh for the Responde,nts.

          The Judgment of the Court was delivered by

          RAJENDRA BABU, CJ. : In this matter, the constitutional validity
C ofRule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit)
    Rules (for short 'the Rules') is involved and the High Court has held that
    the same is utra vires the Constitution and that conducting the departmental
    enquiry against the respondent after his retirement was also held to be ultra
    vires the Constitution.

D         This Court, by an order made on 1.5.1998, while granting leave on
    the question of vires of Rule 10 of the Rules, directed that even if this
    appeal succeeds the benefit available to respondent No. I in accordance
    with the judgment of the High Court will not be recalled and the appellant
    shall make available to respondent No. 1 all the arrears, if any, payable
E   as per the impugned order of the High Court within the stipulated time.

          Now the sole question for consideration is the validity of Rule 10(1)
    of the Rules. The same involves larger question arising as to the question
    of the West Bengal (Classification, Control and Operation) Rules, 1971 and
F   sub-rule ( 1) of Rule 10 of the said Rules. As such questions may often arise
    affecting a large number of employees, we think it appropriate to refer this
    matter to a larger bench.                          ·

    S.K.S.                                       Referred to the Larger Bench