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1995 DIGILAW 433 (CAL)

Basudev Chatterjee v. District Inspector

1995-12-06

Rang Misra

body1995
JUDGMENT S. R. Misra, J. : Petitioner in this Writ application has prayed for issuance of a Writ in the nature of Mandamus directing the respondents to extend their service beyond the age of 60 years and to quash the Memo No. 128 SE(B), dated 18th of September, 1995 and 59-SE(B) dated 17th of April, 1995 and to allow the petitioner to repay the excess money as was drawn prior to 7.8.92 in the monthly instalments as would be payable within 65 years of age. In all the Writ Petitions being C.O. No. 19564(W) of 1995, C.O. 19563(W) of 1995, C.O. 16949(W) of 1995, C.O. 19685(W) of 1995 and C.O. 20313(W) of 1995, the Writ Petition No. C.O.19564(W) of 1995 will be treated as the leading case and the judgment in the said Writ Petition will govern the above mentioned cases, and C.O.21018(W) of 1995. The brief facts giving rise to this Writ petition are as follows: 2. On 7.3.90 Memo No. 33-Edn.(B) was issued inviting application to file option for either revised pay scale accepting the age of superannuation as 60 years without extension of service or pre-1986 scale of pay retaining the rights of consideration for extension of the service upto 65 years of age relating to teachers, Headmaster, Principals and other employees of the Educational Institution. In C.O. 6605(W) of 1990 and C.O. 6606(W) of 1990 applications were moved by the West Bengal Headmasters' Association and others challenging the said Memo No. 33 Edn.(B) dated 7.3.90 by this interim order the court directed to submit option without prejudice and subject to the orders passed by this Court: District Inspector of Schools issued Circular giving option of revised pay scale may be submitted. The option of revised pay scale would entitle to continue in service upto the age of 60 years and those who opted for pre-1986 scale they will be entitled to the extension upto the age of 65. The option of revised pay scale would entitle to continue in service upto the age of 60 years and those who opted for pre-1986 scale they will be entitled to the extension upto the age of 65. The said two writ petitions referred to above• disposed of by a Bench of this Court holding that Memo No.93-Edn.(B) dated 7.3.90 was not ultra vires but fresh opportunity to the teachers who exercised their options during the pendency of the Writ petition without prejudice to their rights and contentions should be given to exercise their options in accordance with para 5(2) in the prescribed form and further held that the persons who opted for revised scale of pay would be deemed that they have waived their rights for further extension of service. On 30th of August, 1991 Memo was issued inviting fresh options as per the judgment of the Division Bench dated 6.8.91. A fresh memo was issued granting benefit of withdrawal of option of revised scale fixing 90 days with effect from 24th of May, 1992. An interim order was passed in the Writ application in re : West Bengal Headmasters' Association and others challenging the subsequent Notification dated 27th of April, 1992 and a Division Bench of this Court stayed the Notification as referred to above. The date was extended till 7.8.92. On 16th of May, 1995 a Division Bench consisting of Justice S. B. Sinha and Justice Basudev Panigrahi in the Writ application West Bengal Headmasters' Association and others wherein interim orders dated 23rd of July, 1992 and 28th of July, 1992 were passed by the Division Bench presided over by the Justice A. N. Bhattacharjee, the Acting Chief Justice. By the said judgment it was held that Notification 548-Edn.(S) dated 27th of April, 1992 was not ultra vires as per the judgment dated 16.5.95. 3. By the said judgment it was held that Notification 548-Edn.(S) dated 27th of April, 1992 was not ultra vires as per the judgment dated 16.5.95. 3. A number of Writ petitions have been filed before this Court challenging the action of the State not to consider the question of extension beyond the age of 60 years primarily on the ground that the employees (teachers and non-teaching staff) have not returned the excess amount drawn by "them before 17th of April, 1995 and also whether on account of the fact that though options were given by the employees prior to 7th of August, 1992 but thereafter for sometime some of the employees have drawn new scale and they are prepared to return the same if they are afforded an opportunity of hearing. These are the main questions which are to be considered in the Writ petitions and the answer to these question will dispose of the Writ petitions filed by the petitioners before this court. It is admitted before the parties that when earlier Writ petition was filed a Bench presided over by the Acting Chief Justice and order of stay has been granted and finally the Writ petition was heard by a Bench on 16th of May, 1995 and by virtue of the said decision and taking note of the stay order these teachers who have given options opting for an old scale upto 7th of August, 1992 their cases were to be considered but a further conditions was imposed that only those employees who have given their option before 7th August, 1992 and have already returned the amount before 17th of April, 1995, their cases will be considered alone. 4. 4. Having heard the learned Counsel for the petitioners and the learned Counsel for the State respondents, it appears that on the face of the record that on account of the various stay orders passed in various Writ petitions including the Division Bench and it is only by the final judgment dated 16th of May, 1995, the picture became clear and thereafter the question arises for consideration for this court is that those teachers who were already given their options opting for an old scale prior to 7th of August, 1992 and admittedly they are drawing the old scale and one class of teachers who have already given their options and have not returned the amount which was returned by 17th of April, 1995 whether their period of return be extended and another class of employees who even after 7th of August, 1992 after giving their options have drawn new scale and are willing to return the excess amount or entitled to a relief for deposit of the excess amount or such a prayer be refused. According to the learned State Counsel, so far as the question of extending the period from 17th of April, 1995 to 28th of February, 1996 is concerned, there may not be serious dispute over the same. However, so far the employees who have drawn the excess amount of revised scale even after their options before 7th of August, 1992, they are also entitled to get the benefit of the return of the " amount. A learned Single Judge of this Court in C.O. No. 10552(W) of 1995 which was heard along with C.O. No. 12219(W) of 1995 was pleased to take the view that even drawing of the new scale from. August to November, 1992 and subsequently refunding the excess amount will not disentitle the petitioner, namely, Gouri Rani Pal, from getting the benefit of the extended age if she has already applied for such an option prior to 7th of August, 1992. The learned Judge has observed as follows : "There is therefore no scope of applying memo No. 59-SE(B) dated 17.4.95 to defeat her claim for consideration of extension of service beyond 60 years by application of extension of service beyond 60 years by application of that memo no. 59-SE(B). The learned Judge has observed as follows : "There is therefore no scope of applying memo No. 59-SE(B) dated 17.4.95 to defeat her claim for consideration of extension of service beyond 60 years by application of extension of service beyond 60 years by application of that memo no. 59-SE(B). Since the Managing Committee of the School was satisfied that the petitioner was physically and mentally fit for extension of service and the petitioner has been enjoying the pre-revised scale and has also refunded the excess amount drawn for the period from August, 1992 to November, 1992 and has, in the circumstances, to be treated on the footing that she has been for all practical purposes, taking pay in the pre-revised scale since exercise of option to revert to the pre-revised scale I quash the D.L's memo No. 953/G dated 26.7.95 which is annexure-X to the supplementary affidavit." It is also admitted that in a number of cases employees were granted extension beyond the age to 60 years and those employees who have got extension have not been paid their salary on account of the fact that they have not returned the excess amount drawn though they have given the option of the old scale before 7th of August, 1992. If the employees have already employed beyond the age of 60 years they are legally entitled to for their salary and the salary cannot be stopped on the ground that they have not returned the amount. These are two separate controversies and taking an equitable and humanitarian approach of the matter the Writ petitions are disposed of with the following directions : (1) If the employees including the teaching and non-teaching staff have already given their options before 7th August, 1992 and are drawing the old scale of pay prior to 1986 and their extension is not considered on account of the non-return of the excess amount drawn by them, their cases will be considered for the purpose of extension beyond the age of 60 years provided they return the excess amount drawn by them by 28th of February, 1996. In this regard the concerned employee will approach the Managing Committee with the request to disclose the excess amount and the Managing Committee will indicate the amount and forward the same to the District Inspector of Schools and the concerned District Inspector of Schools will finally disclose the amount sought to be deposited within 15th day from the receipt of the application of the concerned employee through the Managing Committee and the employee has to deposit the amount before 28th of February, 1996 and his case will be considered for extension and he will be allowed extension accordingly and paid his salary as and when it falls due. (2) Those employees (teaching and non-teaching staff) who have already been granted extension beyond 60 years and their salary has not been paid on account of the fact that they have not returned the excess amount received in pursuance of the revision of the scale, their payments be made by the concerned District Inspector of Schools within two months from the date of return of the deposit of the excess amount drawn by them. (3) Those employees who have already given their option before 7th of August, 1992 and they are drawing salaries of the old scale but not returned the excess amount drawn by them of the revised scale, if they return the excess amount drawn prior to August, 1992 or even the excess amount drawn of the revised scale after August, 1992, in both the class or cases, by 28th of February 1996 their cases will also be considered for extension and the two Memoes No. 59-SE(B) dated 17th of April, 1995 and No. 128-SE(B) dated 18th of September, 1995 will not stand as a bar either for extension on their deposit of the outstanding amount excess drawn by them. 5. Accordingly, the Writ petition is disposed of upholding the Circular vide Memo No. 196-Edn.(B) dated 27th of April, 1992 and modifying the Memo No. 59-SE(B) dated 17th of April, 1995 and another Memo No. 128-SE(B) dated 18th September, 1995. 5. Accordingly, the Writ petition is disposed of upholding the Circular vide Memo No. 196-Edn.(B) dated 27th of April, 1992 and modifying the Memo No. 59-SE(B) dated 17th of April, 1995 and another Memo No. 128-SE(B) dated 18th September, 1995. It may be pointed out that this order is being passed keeping in view of the uncertainty which was prevailing on account of the various stay orders passed in the Writ petitions and looking into the hardships of the employees as a whole teaching and non-teaching staff and this order extending the period will not affect the right and interest of the State and the interest of the State is amply safeguarded. The State will take steps in this regard for taking appropriate steps so that the employees including teaching and non-teaching staff of the State may know this direction and they may comply, if they so like of the excess amount drawn by them before the date fixed in the case. 6. A learned Single Judge of this Court has considered the aspect of the matter and has passed a final order. There is no stay order operating in that case and even otherwise I am not inclined to stay that operation of the order as by virtue of the order passed today, no prejudice is used to the State. Accordingly, the prayer for stay is rejected. There will be no order as to costs. This order will govern the other matters being C.O. 19563(W) of 1995, C.O. 16949 (W) of 1995, C.O. 19685(W) of 1995, C.O. 20313(W) of 1995 and C.O. 21018(W) of 1995 and the same are also disposed of by this order. Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Counsel appearing for the parties on usual undertaking.