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2011 DIGILAW 255 (CAL)

Nikhil Kumar Bhaumik v. STATE OF WEST BENGAL

2011-02-23

JYOTIRMAY BHATTACHARYA

body2011
JUDGMENT : The petitioner was an Organizing Teacher of Andharia Jatiya Vidyapith Junior High School in the District of Midnapore. Initially his appointment as Organizing Teacher of the said school was approved by the concerned District Inspector of Schools (Secondary Education), Tamluk, with effect from 7th March, 1995 for a limited period till 31st December, 1995. While approving the petitioner’s appointment as an Organizing Teacher of the said school, the petitioner was requested to improve his qualification within three years, if he wants to be appointed as Headmaster of the said school, as per rule. Subsequently, the said approval order was partially modified and the service of the petitioner as Teacher-in-Charge of the said school was approved by the concerned District Inspector of School (Secondary Education), Tamluk, with effect from 1st January, 1986 in terms of the order passed by this Hon’ble Court on 9th Mach, 1999 in W.P. No. 268 of 1999. At the time of his appointment, the petitioner’s education qualification was B.Sc. Subsequently, the petitioner enhanced his educational qualification as he acquired Master Degree in Bengali from Utkal University in 1997. Thereafter the appointment of the petitioner as Headmaster of the said school was approved by the concerned District Inspector of School with effect from 11th November, 1997. The said approval was communicated to the school authority by the concerned District Inspector of School by his letter 22nd December, 1998 under memo No. 1228-S appearing at page 56 of this writ petition. The educational qualification of the petitioner at the time of granting approval to his appointment in the post of Headmaster in the said school was recorded as M.A. in Bengali. The scale of pay which was admissible to the petitioner as Head Master of the said school was also mentioned by the concerned District Inspector of School in the said letter of approval. The scale was subsequently revised from time to time and the petitioner was paid his salary as per such pay fixation and/or revision thereof regularly during the tenure of his service. The petitioner retired from service on superannuation on 30th June, 2010. Before his retirement the school authority forwarded the pension papers of the petitioner to the concerned District Inspector of School (Secondary Education) Purba Medinipur on 18th November, 2009. The petitioner retired from service on superannuation on 30th June, 2010. Before his retirement the school authority forwarded the pension papers of the petitioner to the concerned District Inspector of School (Secondary Education) Purba Medinipur on 18th November, 2009. Since the pensionary benefit and other retiral dues have not yet been paid to the petitioner, the petitioner has come before this Court with this writ petition seeking issuance of direction upon the concerned Authority for immediate release of his pensionary benefit and other retiral dues. On perusal of the writ petition, this Court finds that the concerned District Inspector of School from time to time wrote letters to the school authority for submission of various documents which according to him, was required for settlement of the pensionary benefit and/or retiral dues of the petitioner. By such letters being letter dated 15th January, 2010 etc., written by the said D.I. of School, the school authority was requested to produce the following two documents before the said District Inspector of Schools: - (i) copy of the document indicating last date of M.A. Examination; (ii) copy of the order granting study leave for M.A. Examination. The school authority submitted both the aforesaid documents to the concerned District Inspector of School, as it appears from annexures P/4 and P/5 to this writ petition at pages 74 and 79 thereof respectively. Thus, this Court does not find any apparent difficulty for releasing the pensionary benefits and/or other retiral dues of the petitioner as the documents which were called for, were all submitted by the school authority to the concerned District Inspector of Schools. In course of hearing of this writ petition, a report was submitted by the concerned District Inspector of School through his appearing counsel wherefrom this Court finds that the pensionary benefits and the other retiral dues of the petitioner could not be released due to the following objection raised by the Joint Director of Accounts, Purba Medinipur:- (i) the petitioner was appointed in Science Group having B.Sc. Degree qualification; (ii) afterwards he passed M.A. in Bengali on 10th November, 1997; (iii) as per G.O. No. 25-SE (B) 1M-102/98 dated Calcutta 12th February, 1999, Clause 12(3) and No. 155-SE(B) dated Calcutta 13th July, 1999 Amendment (3),he did not improve his qualification in the subject or group relevant to his teaching and appointment; (iv) moreover, there was no requisite approval for drawal of higher scale of pay shown by him till date. Relevant other objections like approval of study leave sanctioning memo of the West Bengal Board of Secondary Education regarding acquiring higher qualification was raised well before the date of his retirement i.e. 11th January, 2010 and 29th March, 2010 by the Accounts Department, Purba Medinipur; These are the reasons for which the concerned authority withheld the settlement of the pensionary benefits and/or retiral dues of the petitioner. After considering the tenor of the objections as referred to above, this Court finds that in fact, the respondents now intends to recover the overdrawal amount which was paid to the petitioner in excess of his admissible pay and allowances during his service period, from him before settling the pensionary benefits and other retiral dues of the petitioner. The question regarding legality of such proposed deduction on account of overdrawal payment of salary from the retiral benefits of a retired person has already been decided by the Hon’ble Supreme Court in the case of Shyambabu Varma vs. Union of India, reported in (1994) 2 SCC 521 wherein it was held that if a retired person had no hand either in process of re-fixation of pay and further payment, the overdrawal amount cannot be adjusted and/or realized from the retiral benefits of such retired person after his retirement. It is not a case where the State Government alleges that such re-fixation of his salary at a higher slab was made due to fraudulent misrepresentation made by the petitioner. As such, this Court holds that the petitioner was not at fault in the process of fixation of his pay scale during the tenure of his service. The petitioner disclosed his educational qualification to the concerned authority correctly. Even after enhancing his qualification, he reported his enhanced qualification to the concerned D.I. of Schools. He never made any misrepresentation with regard to his educational qualification to the concerned authority. The petitioner disclosed his educational qualification to the concerned authority correctly. Even after enhancing his qualification, he reported his enhanced qualification to the concerned D.I. of Schools. He never made any misrepresentation with regard to his educational qualification to the concerned authority. The concerned Authority knowing fully well that he did not enhance his educational qualification in the relevant subject, granted higher scale of pay to him. His pay was subsequently revised from time to time. No effective step was taken for realisation of the excess payment from the petitioner during the period of his service. Thus, this Court by relying on the aforesaid decision of the Hon’ble Supreme Court holds that if any amount is found to have been paid to the petitioner in excess of his entitlement during the tenure of his service due to wrong pay fixation by the concerned respondents, the said respondents are neither entitled to adjust such overdrawal amount against the retiral benefits of the petitioner, nor the said overdrawal amount can be realized from the retiral benefits of the petitioner. Under such circumstances, this Court disposes of this writ petition by directing the concerned Authority to complete the entire exercise regarding release of the pensionary benefit and other retiral dues of the petitioner on the basis of his last drawn salary within eight weeks from the date of communication of this order, without deducting any amount which was allegedly paid to the petitioner in excess of his admissible pay and allowances during the period of his service from the petitioner’s pensionary benefits and/or other retiral dues. The concerned authority is thus, directed to pay the entire arrear pensionary benefits and other retiral dues together with interest at the rate of 8% per annum thereon to the petitioner within the period as mentioned above. The concerned authority is also directed to go on paying the pensionary relief to the petitioner for the current months regularly month by month on the basis of such calculation. The writ petition is thus disposed of.