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2008 DIGILAW 963 (CAL)

Niharkana Saha Sikder v. State

2008-09-26

TAPEN SEN

body2008
JUDGMENT:- (1.) HEARD Mr. Ekramul Ban for the petitioner. Pursuant to the Order dated 21. 8. 2008, Mr. Suprokash Banerjee has appeared and ably assisted the court on behalf of the State. Similarly, Mr. Jayanta Mitra has appeared and made his submissions on the behalf of the respondent Nos. 8 and 9. (2.) LEARNED Counsel for the petitioner submits that since the petitioner has retired on 30. 10. 2007 and since this is a case where the respondents have threatened recovery and since this case is covered by a judgment of the Honble Supreme Court of India passed in the case of Shyam Babu verma and Ors. v. Union of India reported in (1994)2 SCC 521 , no useful purpose will be served in keeping this Writ Petition pending by calling for affidavits and that in the interests of justice and taking into consideration the facts as they appear from the different circulars, the matter may therefore be disposed of at the "motions" stage itself. Neither Mr. Banerjee appearing for the State nor Mr. Jayanta Mitra appearing for the respondent Nos. 8 and 9 have any objection to the disposal of the Writ Petition at this stage itself and therefore, with their consent, this Writ Petition is being disposed of at this stage. (3.) THE learned Counsel for the petitioner has challenged the validity of the memos dated 11th March, 2008 and 6th May, 2008 as contained in annexures p-4 and p-3 respectively, both of which were issued after the superannuation of the petitioner. By memo dated 11th March, 2008, the o. S. D. and Ex-Officio, Joint Secretary, Government of West Bengal wrote to the District Inspector of Schools (PE), Burdwan, whereby and whereunder while referring to the pay fixation of the petitioner (who retired as the head-teacher of the Vidyasagar F. P. School, Burdwan), he stated that since the petitioner was permitted to pursue the B. Ed Course by the District inspector of Schools (PE), Burdwan, vide Memo No. 734 -(P. E) dated 9th june, 1982 and since by reason of Memo No. 1192-Edn (P) dated 20th July, 1973, Primary Teachers were not allowed to pursue B. Ed. Course of study, the petitioner was therefore not entitled to get the a category scale of pay. Course of study, the petitioner was therefore not entitled to get the a category scale of pay. By reason of the subsequent memo dated 6th May, 2008 being Memo No. 453 and purporting to be under the seal and signature of the Assistant director, Pension, Provident Fund and Gr. Insurance, Government of West bengal, the matter pertaining to the pension case of the petitioner was accordingly resubmitted with a note that after careful consideration, the department had directed to recast the petitioners pay in the b category scale of pay and the case be resubmitted giving the overdrawal statements and suggesting the mode of recovery-of such pverdrawals. (4.) THESE two memos are under challenge. (5.) BEFORE proceeding to deal with the two memos referred to above, it would be necessary to briefly state that as early as on 24th July, 1984 the District Inspector of Schools (PE) issued a letter to the Sub-Inspector of Schools vide Annexure p-2 appeared to the Writ Petition, wherein he stated that the petitioner will be entitled to the a category scale of pay as per D. P. I. , West Bengals No. 3283 (16) Sc/p dated 27th July. 1971. with effect from 29th March. 1984 consequent upon her passing the B. Ed. Examination in the session of 1982-83. (6.) LET it be recorded that in the impugned Memo dated 11th March, 2008 as contained in annexure p-4 at page 27 of the Writ Petition, the o. S. D. and Ex-Officio Joint Secretary, has mentioned that the petitioner was permitted to pursue her B. Ed course by the District Inspector of schools (PE), vide memo No. 734- (PE) dated 9th June, 1982 a photo copy whereof has been brought on record vide Annexure p-1 to the Writ Petition. (7.) UPON a perusal of the aforesaid bare facts, it is evident that the district Inspector of Schools (PE) permitted the petitioner to pursue her b. Ed course for the session 19821983. Thereafter, in 1984, the petitioner was allowed the a category scale of pay. It is the case of the petitioner (as has been stated in paragraph 7) that after retirement and when the pension papers were being processed, objections were raised which ultimately resulted in the passing of the impugned memos. Thereafter, in 1984, the petitioner was allowed the a category scale of pay. It is the case of the petitioner (as has been stated in paragraph 7) that after retirement and when the pension papers were being processed, objections were raised which ultimately resulted in the passing of the impugned memos. (8.) DURING the course of submissions, attention of this Court was drawn to a circular of the Government of West Bengal, Department of school Education (Primary Branch), issued under memo No. 352-SE (Pry) dated 31st May, 1996 whereby and whereunder it was, inter alia, laid down in para 4 therein that cases which had already been decided on the basis of the memo dated 7th February, 1967 of the D. P. I. , West Bengal need not be reopened. The said circular reads as follows: (9.) IN the instant case, the petitioner apparently stands on an even stronger base because the D. I. Schools (PE), Burdwan, by reason of the memo dated 24th July, 1984 (Annexure p-4 granted the a category scale of pay to her on the basis of an even subsequent memo dated 27th July, 1971 (i. e. subsequent to the memo dated 7. 2. 1967 which is referred to in para 11 below). (10.) IT is equally important to notice that the respondents never raised any objection to the grant of such a category scale of pay to the petitioner while she was in service. It was only after her retirement on 30th October, 2007 that the impugned memos dated 11 th March, 2008 and 6th May, 2008 came to be issued. (11.) UNDER these circumstances, the submissions of Mr. Jayanta mitra appearing for the respondents No. 8 and 9 and which are to the effect that (a) the petitioner being a Primary Teacher, could only have pursued the BT Degree and not B. Ed Degree in terms of the circular dated 7th february, 1967 and (b) that the B. Ed Course was confined exclusively to secondary Schools, cannot be accepted by this Court as there was no fault on the part of the petitioner when she was allowed by responsible government Officers to pursue a higher academic career. The circular referred by Mr. Mitra dated 7th February, 1967 and 20th July, 1973 read as under: (12.) THE aforementioned submissions of Mr. The circular referred by Mr. Mitra dated 7th February, 1967 and 20th July, 1973 read as under: (12.) THE aforementioned submissions of Mr. Jayanta Mitra would also have to be rejected because in the subsequent circular dated 31st May, 1996 (taken note of in para 8 supra), it was clearly mentioned in para 4 therein that the cases of Primary Teachers who had obtained B. T/b. Bd./pgbt degree/diploma before 1st July, 1996, may be decided in terms of the aforesaid memo dated 7th February, 1967. In the instant case, the petitioner has stated in para 4 of the Writ Petition that she successfully completed the B. Ed. Course in the 1982-83 Session. In other words, she completed B. Ed. before 1st July, 1996 and therefore, on the basis of the circular dated 7th February, 1967 read with the circular dated 31st May, 1996 (taken note of in the above paras 11 and 8 respectively), the petitioner will be deemed to have become entitled to the a category scale of pay. (13.) IN the case of Shyam Babu Verma and Ors. v. Union of India and ors. , reported in (1994)2 SCC, page 521, it has been held that if a higher scale of pay has been erroneously given, it would be just and proper not to recover any excess amount already paid to such person. (14.) IN the instant case, while there is absolutely no fault on the part of the petitioner, her case stands on a much better pedestal because in view of the two circulars referred to above (i. e. 7th February, 1967 and 31st May, 1996) she would be deemed to be entitled to the a category scale of pay as she had obtained her B. Ed degree prior to 1st July, 1996. Moreover, responsible Officers of the Government allowed the petitioner to pursue a higher academic career in B. Ed and, therefore, after her retirement, they could not have initiated a process to reduce her scale of pay, i. e. to a lower category scale of pay, and/or threatened to make recovery of the excess amount drawn by the petitioner. (15.) FOR the foregoing reasons, this Court is of the view that the writ petition must succeed and it is accordingly allowed to do so. (15.) FOR the foregoing reasons, this Court is of the view that the writ petition must succeed and it is accordingly allowed to do so. (16.) AS a result, the impugned memo as contained in Annexures p-3 and p-4 are quashed and the respondents are directed to release the pensionery benefits of the petitioner on the basis of her last pay drawn which she had been paid on the date of her retirement by treating the a category scale of pay as a yardstick to calculate her pensionary dues. The concerned Department shall therefore immediately and forthwith resubmit the pension papers. (17.) SINCE the petitioner has superannuated in the year 2007 and since litigation has been enforced upon her for no reason and for no fault of her, the respondent authority shall complete the entire task in the manner directed above within a period of 8 (eight) weeks from the date of receipt of a copy of this order. (18.) AFTER the aforementioned Order was dictated in Court, learned counsel for the petitioner prayed for compensation for such enforced litigation as well as for harassment. He also prayed for interest on such compensation. (19.) THE submission of the learned Counsel for the petitioner praying for compensation and interest was therefore considered and since the respondents have unnecessarily harassed the petitioner by enforced litigation, it was felt that they must compensate the petitioner. (20.) THIS, therefore, is also one of those cases where this Court seriously considered to grant monetary compensation to the petitioner but, is of the opinion that instead of doing so, an Order should be passed in such a manner that justice is granted in an appropriate manner. The concept of compensation should not always be construed to mean monetary compensation. The concept of compensation also includes the moulding of relief in such a manner that the relief which is ultimately granted would be such that it would sufficiently assuage the hurt that the person has suffered. Such relief can also be conceived of in the shape of justice being delivered at the doorstep of the person who has suffered at the hands of the respondents. Such relief can also be conceived of in the shape of justice being delivered at the doorstep of the person who has suffered at the hands of the respondents. (21.) IN that view of the matter and giving effect to the concept of delivery of justice at the doorstep, this Court therefore directs the respondents and/or its concerned Officers to personally go to the petitioner and ensure the handing over of all final pension papers to her at her place of residence. (22.) CONSEQUENTLY, it shall not be the responsibility of the petitioner to visit or go to the Office of the respondents at all. It will be the responsibility of the respondents and the concerned Officers to process the pension papers strictly in accordance with law and then hand them over personally to the petitioner wherever she be and at her place of choice. This is the least that the State must do to compensate the feeling of humiliation, injustice and harassment that has been meted out to her. This would be fulfilling the concept of delivery of justice at the doorstep and it would be a sufficient alternative compensation. (23.) THE entire exercise must be completed within a period of 8 (eight) weeks from the date of receipt of a copy of this Order by the concerned respondents. (24.) LET the photocopies of the various circulars referred to herein and which were produced by the learned Counsel for the parties, be retained with the records of this case. (25.) IF urgent certified copy of this order, duly photocopied, is applied for by the parties, the same should be given expeditiously.