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2011 DIGILAW 379 (CAL)

Taru Sinha @ Taru Sinha v. STATE OF WEST BENGAL

2011-03-15

DEBASISH KAR GUPTA

body2011
JUDGMENT 1. THE Judgment of the Court was as follows : This writ application is directed against an order dated January 12, 2007 passed by the Deputy Director of Accounts (Education), Government of West Bengal for recovery of overdrawn amount from the terminal benefits of the petitioner from December 28, 2001. 2. THE petitioner was working for gain as an assistant teacher in Craft in Hatthuba Kalibala Kanya Bidyapith Gram Seva Sangha, North 24 Parganas. THE petitioner retired from the above service on attaining the age of retirement on superannuation with effect from January 1, 2008. The benefit of scale of pay of Rs. 425-1025/- was extended to the petitioner in terms of the Revision of Pay and Allowances Rules, 1981 on the basis of memorandum No. 372-Edn.(B)dated July 31, 1981. The petitioner was holder of a three years Diploma from Lady Brabourne College. In the above memo, the benefit of such scale of pay of Rs. 440-1470/- was extended for the Craft teachers with five years Diploma in Arts and Craft for Government College. The benefit of the scale of Rs. 425-1050/- was extended to the Craft teachers with any other Diploma. The extension of the benefit of the scale of pay of Rs. 425-1050/- was further clarified by the Directorate of School Education, West Bengal by an order dated April 10, 1986 allowing the Craft teachers with three years Lady Brabourne Diploma enjoyed the above scale of pay. The above scale of pay was further revised under the Revision of Pay and Allowances Rules 1991 to Rs. 1390-2970/-. The petitioner enjoyed the aforesaid benefits. 3. BY virtue of an Government order issued under memo No. 138 SE(B) ESC/B/1M-28/2000 dated February 15, 2002, the scale of pay of Craft teachers holding three years Lady Brabourne Diploma and serving in non-Government recognized and aided educational institutions was reduced to Rs. 360-815/- under Revision of Pay and Allowances Rules, 1981 and Rs. 1200-2360/- under Revision of Pay and Allowances Rules, 1990. On the basis of the above Government order, the scale of pay of the petitioner was refixed and by virtue of the impugned order the overdrawal for the period from April 1,1981 to December 27,2001 was condoned with a further direction for recovery of the overdrawal amount on the basis of the calculation made in the impugned order with effect from December 28, 2000. 4. 4. THE learned Counsel appearing on behalf of the petitioner submits that in terms of the Revision of Pay and Allowances Rules, 1981, the scale of pay of the petitioner was revised. It was subsequently clarified by an order of the Director of School Education, West Bengal. THE scale of pay of the petitioner was subsequently revised in terms of the Revision of Pay and Allowances Rules, 1990. There was no fault and/or laches on the part of the petitioner. She had no role to play in fixing her scale of pay. According to him, it was not open for the respondent authority to reduce the above scale of pay to her at the verge of her retirement and to realize any portion of such overdrawal from the terminal benefits of the petitioner. The learned Counsel appearing on behalf of the petitioner relied upon the decision of Shyam Babu Verma v. Union of India reported in (1994)2 SCC 521 ; Syed Abdul Qudir v. State of Bihar and Ors. reported in (2009)3 SCC 475 and Kamal K. Jha v. State of West Bengal and Ors. reported in (2005)1 Cal HN 54. 5. ON the other hand, it is submitted by the learned State Advocate that the Government has the power to modify the scale of pay of an employee unilaterally and to recover the overdrawal from the terminal benefits of that employee. 6. HAVING heard the learned Counsel appearing for the respective parties as also considering the facts and circumstances of this case, I find that under Revision of Pay and Allowances Rules, 1981 the scale of pay of the Craft teachers of non-Government recognized and aided educational institutions was fixed as follows : "Craft Teacher with 5-Year Diploma in Art and Craft from Government College of Art and Craft or Degree-440-1170/-. Any other Diplama - Rs. 425-1050/-" It is not in dispute that in view of the above, the petitioner was entitled to enjoy the benefit of the scale of pay of Rs. 425-1050/- on the basis of the Revision of Pay and Allowances Rules, 1981. Necessary to point out that the petitioner was holding a three years Diploma from the Lady Braborne College. It is also not in dispute that the petitioner's right to get the benefit of the scale of Rs. 425-1050/- on the basis of the Revision of Pay and Allowances Rules, 1981. Necessary to point out that the petitioner was holding a three years Diploma from the Lady Braborne College. It is also not in dispute that the petitioner's right to get the benefit of the scale of Rs. 425-1050/- with effect from April 1,1981 was further strengthened on the basis of an order dated April 10, 1986 passed by the Director of School Education, West Bengal. Admittedly, the above scale of pay of the petitioner was revised to Rs. 1390-2970/-on the basis of the Revision of Pay and Allowances Rules, 1990 in view of the following provisions. "Craft Teacher- a) with 5-year Diploma in Art and Craft from Government College of Art and Craft or Degree 440-1170/- 1420-3130/-. b) With any other Diploma 425-1050 1390-2970/-" 7. BUT there was unilateral action on the part of the Government to pass an order dated February 15, 2002 for reducing the scale of pay of the Craft Teachers holding three years Lady Brabourne College Diploma and serving non-Government educational institutions to Rs. 360-815/- under the Revision of Pay and Allowances Rules, 1981 and to Rs. 1200-2360/-under the Revision of Pay and Allowances Rule, 1990. On the basis of the above Government order, the scale of pay was revised on the verge of her retirement and there was a direction for recovery of the overdrawal amount for the period from December 2001. 8. IT is revealed from the affidavit in opposition filed on behalf of the State respondents that the benefits of the scale of pay of Rs. 425-1050/-and 1390-2970 were given to the petitioner on the basis of wrong interpretation of the provisions of Revision of Pay and Allowances Rules, 1981 and 1990. IT was rectified subsequently by a Government order dated February 15, 2002. In view of the aforesaid admitted facts and circumstances, the benefits of scale of pay of Rs. 425-1050 and Rs. 1390-2970/- were given to the petitioner in terms of the provisions of the Revision of Pay and Allowances Rules, 1981 and 1990 respectively. 9. IT was rectified subsequently by a Government order dated February 15, 2002. In view of the aforesaid admitted facts and circumstances, the benefits of scale of pay of Rs. 425-1050 and Rs. 1390-2970/- were given to the petitioner in terms of the provisions of the Revision of Pay and Allowances Rules, 1981 and 1990 respectively. 9. THEREFORE, it was not open to the respondent authority to pass an order at the verge of the retirement of the petitioner from service for recovery of such alleged withdrawal from the terminal benefits of the petitioner on the basis of the settled principles of law as decided in the matter of Syed Abdul Qudir v. State of Bihar and Ors. (supra). The relevant portions of the above decision are set out below. "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officers concerned of the Government of Bihar. Learned Counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." 10. NEEDLESS to point out that the petitioner had no role to play in fixing her scale of pay. There was no laches and/or negligence on her part. In view of the above, the impugned order dated January 12, 2007 passed by the Deputy Director of Accounts (Account), Government of West Bengal and order dated February 1, 2008 passed by the Joint Director, Pension and Provident Fund and Group Insurance, Govt. There was no laches and/or negligence on her part. In view of the above, the impugned order dated January 12, 2007 passed by the Deputy Director of Accounts (Account), Government of West Bengal and order dated February 1, 2008 passed by the Joint Director, Pension and Provident Fund and Group Insurance, Govt. of West Bengal are quashed and set aside. 11. THE respondent authority is directed to release all terminal benefits to the petitioner within a period of two months from the date of this order together with an interest at the highest rate payable on a fixed deposit by a nationalized bank for the period from which it was due and payable till the actual payment. 12. THE writ application is thus disposed of. There will be no order as to costs.