Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 751 (CAL)

Amita Kundu Rana v. STATE OF WEST BENGAL

2008-07-30

SOUMITRA PAL

body2008
Judgment :- (1.) IN this writ petition the petitioner has challenged the memo dated 12th January, 2007 and memo dated 11th April, 2007 issued by the Assistant Director, Directorate of Pension, Provident Fund and Group Insurance, Government of West Bengal, respondent No. 5 and the Pension Payment Order (for short the PRO. ) deducting a sum of Rs. 91,903/- from her gratuity. Prayer has been made to pay the deducted amount along with interest at the rate of 18% per annum with effect from the date of retirement till the date of its actual disbursement. Directions have been prayed for release of the dues by allowing Grade A Pay Scale to the petitioner since she had obtained B. Ed. degree in terms of the memo dated 7th February, 1967 (1967 memo for short) and G. O. dated 31st May, 1996 (for short 1996 G. O. ). (2.) THE facts of the case are that the petitioner, a graduate, on 1st March, 1972 joined the Natun Bazar Primary School, Midnapore as an assistant teacher. On 5th October, 1972 approval was granted by the District Inspector of Schools (P. E.), Midnapore. Subsequently the District inspector issued a declaration of confirmation dated 25th October, 1980. It has been stated that pursuant to an application seeking permission for getting admitted in the B. Ed. training course, the Managing Committee of the school by a resolution granted permission to pursue the course. The petitioner pursued the course, acquired B. Ed. qualification and was granted pay scale in A category with effect from 8th March; 1973. Thereafter, vide memo dated 25th April, 1997 the Primary School Council confirmed her service with effect from 1st March, 1974. During service career the petitioner exercised her option and availed of the benefits under ROPA 1998. In March, 2007 the petitioner had retired. However, on the verge of retirement she received a copy of the impugned memo dated 12th January, 2007 issued by the Assistant Director, Directorate of Pension Provident Fund and Group insurance, respondent No. 5 to the District Inspector of Schools (P. E.) Paschim Midnapur, respondent No. 6, whereby the pension file of the petitioner was returned with an audit observation by which the respondent No. 6 was directed either to submit J. B. T. certificate or to recast the pay of the petitioner according to B category scale of pay and furnish overdrawn at statement. Thereafter, by memo dated 11th April, 2007 issued by the respondent No. 5 to respondent No. 6 it was observed that the petitioner was not eligible to get a category scale of pay from 14th October, 1974. However, the respondent No. 5 directed the respondent No. 6 to ask the office of the petitioner to produce the order of prior permission allowing the petitioner to purse the B. Ed. examination and the order sanctioning leave as per memo dated 8th January, 1972 (for short 1972 memo) since according to the respondent No. 5 as per G. O. dated 20th July, 1973, no working primary teacher is eligible to undergo B. Ed course. Allegation is the action of the respondent No. 5 in issuing the memo dated 12th January, 2007 and memo dated 11th April, 2007 is without jurisdiction and illegal as the authorities had granted a grade pay scale in accordance with law and the periodic increments were endorsed in the service book. It is contended that 1967 memo was issued for the purpose of payment in A-category considering the case of primary teachers who were graduates. Assuming the stand taken by the respondent No. 5 is just, the petitioner is still entitled to be treated under category a as her case was already decided in view of the 1996 G. O. and her qualification was incorporated in the service book. Moreover, the 1972 memo is not applicable to the petitioner as she neither prayed for deputation nor sought for leave as the school concerned was a morning school. Further, 1972 memo is independent of the 1967 memo and was issued in the interest of the deputed candidates. Since the District Inspector of Schools and education department who had utilised the services of the petitioner did not raise any objection, the question raised by the respondent No. 5 as to her status is uncalled for and illegal. Moreover, the respondent No. 6 never intimated about the alleged defects to the petitioner during her career which were sought to be rectified by the impugned memo dated 12th January, 2007, a copy of which was furnished on the eve of retirement. Further, the memo dated 11th April, 2007, a copy of which was received by the petitioner after retirement, are internal communications amongst the respondent Nos. 5 and 6. Further, the memo dated 11th April, 2007, a copy of which was received by the petitioner after retirement, are internal communications amongst the respondent Nos. 5 and 6. So far as the undertaking dated 8th December, 2005 given in the form for sanction of Pension under West Bengal Recognised Non-Government Educational institution Employees (DCRB) Scheme, 1981 furnished by the petitioner is concerned, omission to state facts, as alleged, did not amount to suppression since there was no allegation of overdrawal. The statutory format which the petitioner had filled up was done in good faith. Therefore, since the petitioner, a primary teacher, was a graduate having B. Ed. qualification, there was no overdrawal of salary and there was no mistake on the part of the respondents in granting a grade scale of pay. Learned advocate for the petitioner had relied on the following judgments in support of his submissions: -1. Shyam Babu Verma and others v. Union of India and others reported in (1994) 2 SCC 521 . 2. Union of India v. Indian Railway SAS Staff Association and Others reported in 1995 supp (3) SCC 600. 3. Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav reported in (2003) 3 SCC 437 . 4. Secy. , Deptt. Of Home Secy. , A. P. and others v. B. Chinnam Naidy reported in (2005) 2 SCC 746 . 5. Pundlik v. State of Maharashtra and others reported in (2005) 7 SCC 181 . 6. Union of lndia and another v. Narendra Singh reported in (2008)2 SCC 750 . 7. Pankaj Kumar Mondal v. State of West Bengal and others reported in 2004 (2) CHN 346 . (3.) LEARNED advocate appearing on behalf of the respondents submitted that the petitioner is not covered by the 1967 memo as she did not join the said school on the said date. Further it appears from the reading of the 1967 memo that there cannot be a blanket approval of the degree obtained. Even if she had improved her qualifications in the year 1973 she has to show that it was done after obtaining necessary permission from the authority in terms of the 1972 memo which aims to regulate the training method. Had the petitioner obtained Primary Teachers Training Course her services could have been utilised. Even if she had improved her qualifications in the year 1973 she has to show that it was done after obtaining necessary permission from the authority in terms of the 1972 memo which aims to regulate the training method. Had the petitioner obtained Primary Teachers Training Course her services could have been utilised. By an erroneous interpretation of the memo and G. O. the state exchequer cannot suffer and since Rules are framed keeping public policy in mind, deduction cannot be stopped on the ground of hardship. Further as the petitioner had given an undertaking and at the time of scrutiny anomaly has been detected, the action of the respondent No. 5 in deducting the amount is just. Moreover, the petitioner has challenged the Pension Payment Order dated 19th September, 2007 without objecting to the memo dated 12th January, 2007. Learned advocate for the respondent had relied on the following judgments in support of her contentions: -1. Roshan Lal v. Union of India reported in AIR 1967 SC 1889 . 2. Jarnail Singh v. Secretary, Ministry of Home Affairs and others reported in (1993) 1 SCC 47 . 3. Prdkash Watt (Smt.) and others v. R. I. Kapur reported in 1995 supp (3) SCC 709. 4. V. Gangaramv. Regional Joint Director and others reported in (1997) 6 SCC 139 . 5. Union of India and others v. Sujatha Vedachalam (Smt) and another reported in (2000) 9 SCC 187 . 6. Union of India and ors. v. Rakash Kumar reported in (2001) 4 SCC 309 . 7. K. Seetharamv. B. U. Papamma and another reported in (2001) 4 SCC 322 . 8. Dilip Kumar Ghosh and others v. Chairman and others reported in (2005) 7 SCC 567 . 9. Union of India and others v. Sujatha Vedachalam (Smt) and another reported in (2000) 9 SCC 187 . 10. Ahmedabad Pvt. Primary Teachers association v. Administrative Officer and others reported in (2004) 1 SCC 755 . (4.) THE question which has to be decided whether the petitioner is entitled to a scale of pay and, if not, whether deduction can be made after her retirement. (5.) SO far as the question whether the petitioner is entitled to A scale of pay it is to be noted that the petitioner was appointed in the year 1973 when the 1967 memo was in vogue. (5.) SO far as the question whether the petitioner is entitled to A scale of pay it is to be noted that the petitioner was appointed in the year 1973 when the 1967 memo was in vogue. The said memo was reconsidered in G. O. dated 31st May, 1996. The relevant portion of the said 1996 G. O. is extracted hereunder: -"the undersigned is directed to invite a reference to memo No. 306 Sc/ P. dt. 7. 2. 67 issued by the Director of Public Instruction, West Bengal and indicating that there may not be any objection to treat the MA, BT/ba, PGBT teachers of aided primary schools as a category teachers for the purpose of payment of Govt. grants on deficit basis. 2. The matter has since been reconsidered by this Deptt. This Deptt. is of the view that BT/b. Ed. degrees are intended for teacher in Secondary/ High School and do not impart necessary training in methods of teaching in Primary Schools. 3. The undersigned is accordingly directed by order of the Governor to say that for the purpose of sanction of pay scale to a Primary School teacher as Trained Matriculate/school Final/madhyamik Passed or equivalent. The Primary Teachers Training Certificate only from a recognized Primary Teachers Training institute of this State shall be accepted w. e. f. 1. 7. 96. 4. The undersigned is further directed to say that the cases already decided on the basis of the memo No. 306-Sc P dated 7. 2. 67 of the D. P. I. West Bengal need not be reopened. Also the cases of the Primary School teachers who have obtained BT/b. Ed. /pgbt degree/diploma before 1. 7. 96 may be decided in terms of the said memo dated 7. 2. 67 of the DPI West Bengal. " (Emphasis supplied)It is pertinent to note that the cases of the Primary School teachers who have obtained B. Ed degree before 1st July, 1996 would be decided in terms of the memo dated 7th February, 1967. The memo dated 7th February, 1967 (1967 memo) is as follows :-TO : The District Inspector of Schools, Calcutta. Sub : Trained and graduate teacher in aided primary schools - payment of grants to them as "a" category teachers. Ref.-His Memo. No. 967/h dated 2. 1. The memo dated 7th February, 1967 (1967 memo) is as follows :-TO : The District Inspector of Schools, Calcutta. Sub : Trained and graduate teacher in aided primary schools - payment of grants to them as "a" category teachers. Ref.-His Memo. No. 967/h dated 2. 1. 67 with reference to his above memo on the subjects noted above, the undersigned has to state that there may not be any objections to treat the M. A. B. T. B. A. B. T. B. A. Pg. B. T. teachers of aided primary schools as a category teachers for the purpose of payment of govt. grants on deficit basis to the schools in which such teachers are at work. In this context it is appropriate to refer to the memo dated 8th January, 1972, - (1972 memo) the relevant portion of which is as under : from : The Director of Public Instruction, West Bengal To : The District Inspector of Schools (P. E.), Midnapore sub : Deputation of Graduate Primary School Teachers to Secondary Teachers Training. In inviting a reference to the above subject, the undersigned has to state that under the existing rules there is no provision for deputation of Graduate Primary School (including Junior Basic) Teachers to Secondary Teachers Training (e. g. B. T. B. Ed. P. G. B. T. etc.) Primary teachers desirous of undergoing any Secondary Teachers Training course, may apply to their employees for sanction of leaves as per Rules. The receipt of this memo may be please be acknowledged. (Emphasis supplied) (6.) IT is evident that 1967 memo speaks of payment of grants to train and graduate teachers having B. A. , B. T. in aided primary school treating them as a category teachers. A combined reading of 1967 memo and 1996 G. O. shows a primary school teacher who had obtained B. Ed. degree before 1st July, 1996 may be treated as a category teacher. The question of applicability of 1972 memo strongly relied on by the State, does not arise as it deals with a situation where a primary teacher seeks deputation for undergoing any secondary teachers training course which the petitioner did not seek. Since there is no reference to 1972 memo in 1996 G. O. , 1996 G. O. has to be construed independently. Since there is no reference to 1972 memo in 1996 G. O. , 1996 G. O. has to be construed independently. In my opinion, while treating the petitioner as b category teacher the respondent No. 5 neither considered the 1967 memo and the 1996 G. O. nor the 1972 memo in proper perspective. Further it is to be noted that though the service of the petitioner as a teacher was utilized by the Education Department and though the Director of School Education, District Primary School Council, Paschim Medinipur and the District Inspector of Schools (Primary Education) Paschim Midnapore are the respondent Nos. 2,3 and 6 respectively, yet those respondents have chosen not to file affidavits controverting the fact the petitioner was not qualified to be treated as a category primary teacher. Rather, it is interesting the Assistant Director, Directorate of Pension, Provident Fund and Group insurance, Government of West Bengal, respondent No. 5 in her affidavit has stated that under the Rules and Regulations the petitioner was not eligible to category a salary since she did not carry out the functions of B. Ed. training which was meant for secondary school level and in fact was always at work at primary level (paragraph 2, sub-paragraphs viii and ix of the affidavit in opposition). Such statements run contrary to the 1996 G. O. which in no uncertain terms categorises primary school teachers in a grade, who had obtained B. Ed. degree before 1st July, 1996. Interestingly though it has been stated in the affidavit in opposition that it is on behalf of the state respondents, there is no averment to show that the respondent Nos. 2, 3 and 6 have authorised the respondent No. 5 to swear the affidavit on their behalf. In real sense it is an affidavit only by the respondent No. 5. Though in Roshan Lal (supra) it has been held that the duties of status are fixed by law (paragraph 6), yet the respondent No. 5 ignored the mandate in 1967 memo and the 1996 G. O. Therefore, in the light of the 1996 G. O. and in the absence of affidavits by the respondent Nos. 2, 3 and 6, the respondent No. 5 was not entitled to question the status of the petitioner. 2, 3 and 6, the respondent No. 5 was not entitled to question the status of the petitioner. In other words, the question is can the Assistant Director of Pension the respondent No. 5 decide whether the petitioner is entitled to a category scale of pay. The answer should be in the negative as, if at ail, it is the respondent Nos. 2, 3 and 6 who should have objected. The respondent No. 5 in categorising the petitioner in B category and thereby making the deduction exceeded her brief. In short, such an act was uncalled for and without jurisdiction. The principles of law laid dawn in Dilip Kumar Ghosh (supra) are not applicable to the facts of the case. Therefore, in view of the 1996 G. O. read with 1967 memo and the fact that the petitioner was a graduate having B. Ed. qualification, she was entitled to be treated as a category teacher. (7.) THE next question - assuming the petitioner was not entitled to a scale of pay, whether any deduction can be made after superannuation. During argument much reliance was placed on the memo dated 12 the January, 2007 and the memo dated 11th April, 2007. So far as the memo dated 12th January, 2007 is concerned the respondent No. 5 had requested No. 6, to whom it was addressed, to rectify the defects. It also had an audit observation requesting either to submit J. B. T. certificate of the petitioner or to recast her pay in b category scale of pay. A copy of the said memo was forwarded to the petitioner for information. As correctly contended on behalf of the petitioner, it was the respondent No. 6 who, if at all, should have replied and not the petitioner who was merely furnished with a copy. It appears that the respondent No. 6 a state respondent, whose role is vital -chose to ignore the said memo as the affidavit filed by the respondent No. 5 is silent in that regard. By memo dated llth April, 2007 again request was made to the respondent No. 6 to rectify the defects but the said respondent, again as it appears from the affidavit chose not to answer. Moreover, the memo dated 11th April, 2007, a copy of which was sent to the petitioner, is of no significance as it was issued after her superannuation. Moreover, the memo dated 11th April, 2007, a copy of which was sent to the petitioner, is of no significance as it was issued after her superannuation. In fact she for the first time came to learn about the deduction on 19th September, 2007, that is after retirement, when P. P. O. was furnished. Question is whether deduction can be made after retirement. The law in this regard is well settled. The Supreme Court in Shyam Babu Verma (supra), and in Union of India versus Indian Railway SAS Staff Association (supra) has held recovery or deduction after superannuation is not permissible. Since the petitioner was entitled to a scale of pay in law and as the respondent No. 5 had wrongly interpreted the 1967 memo and 1996 G. O. , the judgments in V. Gangaram (supra), Union of India and others versus Sujatha Vedachalam (supra), Ahmedabad Primary teachers Association (supra), Union of India versus Rakesh Kumar (supra) and Jarnail Singh (supra) relied on behalf of the respondents are not applicable to the facts of the case. Therefore, in view of the law lay down by the Apex Court the deduction of Rs. 91,903/-by the respondent No. 5 is unwarranted and illegal and, hence, cannot be sustained. Thus, the deduction of sum Rs. 91,903/- is set aside and quashed. (8.) A significant question was raised by the learned advocate for the State that the petitioner is not entitled to any relief since she had not come with clean hands as the undertaking dated 8th December, 2005 furnished by her, which is on record, has been suppressed. Suppression means concealment. The question is whether the petitioner resorted to such a method. As the petitioner was under a belief, which was bonafide, that she was an a category teacher, which she was as held in this judgment, the answer has to be in the negative. Further, the mere fact of the petitioner having put his signature on the proforma and thereby agreeing to abide by the undertaking to refund does not warrant the respondent No. 5 to deduct the said sum of Rs. 91. 903/-since it was beyond her comprehension that a deduction shall be made on account of alleged overdrawal spanning over a period of more than three decades. 91. 903/-since it was beyond her comprehension that a deduction shall be made on account of alleged overdrawal spanning over a period of more than three decades. Moreover, such an undertaking barely 15 months before the retirement has an element of compulsion because it is interlinked with the payment of pension and other superannuation benefits like gratuity. It is given under an apprehension that refusal to give such undertaking could put in jeopardy the release of post retirement financial benefits. Since there was no deception or willful misrepresentation or even misrepresentation, the allegation of suppression does not hold water. Therefore, the principles of law laid down in the judgment in Prakash Watt (supra), relied on by the respondents, are not applicable to the facts of the case. In my view, the undertaking which was given at the behest of the State was superfluous as the petitioner was, as held in this judgment, entitled to a scale. Had the petitioner not furnished such undertaking her position could have been worse - it could have lead to stoppage of all retirement benefits. Such an undertaking pushes the retiree between the devil and the deep sea. (9.) TO sum up, in my view, the entire action of the respondent No. 5 is harassing in nature. Therefore, the writ petition is allowed. The respondent No. 5 is directed to refund the said sum of Rs. 91,903/- to the petitioner within a fortnight from the date of presenting the certified copy of this order along with interest at the rate of 8% per annum to be calculated from the date of retirement till the date of actual payment. The respondent Nos. 2, 3, 4, 5 and 6 are also directed to refix the pensionary benefits of the petitioner in the grade a pay scale. The petitioner is also entitled to a cost which is assessed at Rs. 5,100/- to be paid by the respondent No. 5. Writ petition succeeds. Later : after the judgment and order is delivered, Ms. Saha, learned advocate appearing on behalf of the State, prays for stay of operation of the judgment and order. Prayer is considered. Stay is refused.