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2012 DIGILAW 346 (CAL)

Srikanta Mukherjee v. The State Of West Bengal

2012-04-20

SOUMEN SEN, TAPAN KUMAR DUTT

body2012
Judgment :- Soumen Sen, J. The instant application has been filed for review of the judgment dated 1st August, 2007 passed in A.P.O No.2 of 2007. The order under review was passed in the appeal preferred by the petitioner against the order of dismissal of the writ petition being W.P.No.1806 of 2006. The petitioner was an assistant teacher of Scottish Church Collegiate School (Secondary School) (hereinafter referred to as the said school) till he retired from service on 20th November, 2006 on attaining 60 years of age. He joined the said school on 21st February, 1976 and retired on 20th November, 2006. The petitioner challenged the said order of superannuation on 20th November, 2006 on the ground that under the Government Circular dated 22nd March, 2004 he is entitled to continue as such whole time teacher till he attains the age of 65. In order to appreciate the points urged by the petitioner in the review application we may refer to some of the relevant facts which we feel are necessary for deciding the instant application for review. The petitioner was working as an assistant teacher in the Scottish Church Collegiate School. The said school is receiving Dearness Allowance (D.A.) from the Government. Under the provisions of the West Bengal Board of Secondary Education Act, 1963 and the Rule 28 of the Management Rules 1969, a whole time teacher is entitled to claim extension of service beyond 60 years provided he does not take the benefit of the pay revision. The Government from time to time framed various schemes and revised the pay scales but since the school was only a D.A. getting school, such benefit of pay revision was not extended to such institution until the matter was settled once and for all by this Hon’ble Court by an order dated 8th October, 2002 in W.P.No.707 of 2007 in the case of Staff Council Gyan Bharati Bidyapit Vs. State of West Bengal and others. In view of the circular issued by the Government initially on 2nd June, 1969 and the relevant Management Rules more particularly Rule 28, a teacher of a recognized nongovernment secondary school is entitled to be considered for the purpose of granting the extension of his service upto the age of 65 years, i.e. extension of 5 years beyond 60 years. In view of the circular issued by the Government initially on 2nd June, 1969 and the relevant Management Rules more particularly Rule 28, a teacher of a recognized nongovernment secondary school is entitled to be considered for the purpose of granting the extension of his service upto the age of 65 years, i.e. extension of 5 years beyond 60 years. On 31st July, 1981, the State Government has taken a decision and issued a memorandum with regard to revision of pay scales with effect from 1st April, 1981 and issued a memorandum/order paragraph 6 whereof reads as follows:- “6. Those who were in service on 31st March, 1981 will have the option either to retain their existing scale of pay and existing terms and conditions of service or to come under the revised scales of pay together with the revised terms and conditions of service, as may be determined by the State Government. The option will have to be exercised within 90 days from the date of issue of this order and they may come under the revised scales and revised terms and conditions of service with effect from 1st April, 1981 or any subsequent date not later than April, 1992. The form in which the option will have to be exercised and other terms and conditions governing option will be circulated separately. The teachers in all Government aided education institutions opting for the revised scales of pay shall retire at 60 years, provided however that who were above 54 years but below 57 years of age as on April 1, 1981 shall retire on completion of 62 years of age as on March 31, 1989 whichever is earlier, and for such teachers who were above 57 years of age on April 1, 1981 retirement will be on completion of 65 years as on March 31, 1987 whichever is earlier. The non-teaching employees of all Government aided institutions shall retire at 60 years of age.” After the introduction of ROPA Rules 1990 and 1998 the Government issued an order on 29th May, 2002. The said order appears to have been passed following an order passed by the learned Single Judge of this Hon’ble Court on 8th October, 2002. The non-teaching employees of all Government aided institutions shall retire at 60 years of age.” After the introduction of ROPA Rules 1990 and 1998 the Government issued an order on 29th May, 2002. The said order appears to have been passed following an order passed by the learned Single Judge of this Hon’ble Court on 8th October, 2002. From the said order it appears that the Government had taken a decision that authorities of all D.A. getting schools recognized by the West Bengal Board of Secondary Education in the State which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Government of West Bengal would have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Government for teachers and non-teaching employees of the Government Aided Schools with immediate effect. This was followed by a Government order dated 22nd March, 2004 which was primarily aimed at giving a right of consideration to the whole time approved staff of D.A. getting schools to claim an extension of service beyond 60 years if they were in service on or beyond 31st December, 1985. The relevant portions of the said Memorandum dated 22nd March, 2004 are reproduced hereinbelow:- “The undersigned is directed to refer to Memo No.641-SE(P)/5S- 577/2001 and dated 29th May, 2002 of this Department whereby it was decided that the authorities of all D.A. getting schools recognized by the West Bengal Board of Secondary Education in the State which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Govt. of the West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and nonteaching employees at the rate prescribed by the State Government for teachers and non-teaching employees of the Govt. Aided Schools with immediate effect. There are, however, some employees in those schools, whether ROPA 1998 scale have been introduced in the school or not, who due to their serving beyond 60 years with approval from the concerned District Inspector of Schools are not eligible to draw pay and allowances under the ROPA Rules, 1990 or the ROPA Rules, 1998. This issue of allowing D.A. to such employees was under consideration of the Government for sometime past. This issue of allowing D.A. to such employees was under consideration of the Government for sometime past. The whole time approved staff who were in service on or beyond 31st December, 1985 may continue up to the age of 65.” The petitioner during the course of his employment although had opted for a revised scale of pay but it was contented that his statutory right to be considered for extension beyond 60 years and up to the age of 65 years cannot be taken away. The petitioner made a representation on 15th September, 2006 on the basis of the Government order dated 22nd March, 2004 for considering his case for extension of his service up to the age of 65 years since in terms of the Government order dated 22nd March, 2004 he was in service on 31st December, 1985. Since the said application was not disposed of, a writ application was filed praying, inter alia, for a writ in the nature of mandamus directing the authorities concerned to allow the petitioner to get the extension of service tenure beyond the age of superannuation. The said writ petition was dismissed at the stage of admission on the ground that the Government Memorandum dated 22nd March, 2004 has no manner of application to the case of the petitioner since he had already opted for the benefits of the 1981 Scheme and the relevant ROPA Rules. The learned Single Judge was of the view that Government Memorandum dated 22nd March, 2004 also does not change the situation so far as the petitioner is concerned. According to the learned Single Judge the said Memorandum was issued for a particular purpose to give particular benefit to the class of employees mentioned therein. Being aggrieved by the said decision an appeal was preferred by the petitioner, inter alia, on the ground that the said order was passed on a total misconception of fact that the writ petitioner had opted for the benefits under the 1981 Scheme but the fact remains that the petitioner/appellant had never opted for the benefits under the 1981 Scheme and furthermore, the writ petitioner/appellant being an assistant teacher in a D.A. getting school, could not have opted for the benefits under 1981 Scheme inasmuch as the teaching staff of the D.A. getting school does not come under the purview of the Death-cum- Retirement Benefit Scheme, 1981 or ROPA Rules, 1990. Some of the grounds on which the said appeal was preferred are set out hereinbelow:- “I. For that the impugned order had been passed on the rudiments of a mis-conception that the writ petitioner had opted for the benefits under the 1981 Scheme but the actual fact is that the writ petitioner/appellant had never opted for the benefits under the 1981 Scheme and furthermore, the writ petitioner/appellant being an assistant teacher in a D.A. getting school, is not even entitled to opt for the benefits under 1981 Scheme inasmuch as the teaching staff of the D.A. getting school does not come under the purview of the Death-cum- Retirement Benefit Scheme, 1981.” “II. For that the learned Judge ought to have appreciated that Dearness Allowance (hereinafter referred to as D.A.) is not a Government Aid and the grant of D.A. to a school does not tantamount to conferment of a status of an aided institution and as such the provisions applicable to an aided institution do not ipso-facto apply to D.A. getting schools.” “III. For that the learned Judge ought to have appreciated that the teaching staff of aided institution enjoy absolutely the benefits of the Revision of Pay and Allowances Rules (hereinafter referred to as the said ROPA Rules) and they retire upon attaining the age of 60 years and they avail the benefits of the Death-cum-Retirement Benefits Scheme, 1981 whereas the teaching staff of D.A. getting schools are excluded from availing the benefits under the 1981 Scheme and as such they have been conferred a right to be considered for extension of service beyond the age of 60 years subject to the preconditions of physical fitness and mental alertness.” “V. For that the learned Judge erred in law in delivering the judgment without even considering the contents of the memorandum dated 22nd March, 2004 which clearly specifies that “the whole time approved staffs of D.A. getting schools who were in service on or before 31st December, 1985 may continue upto the age of 65 years” and in the instant case the appellant being a teaching staff of D.A. getting school and having entered into service before 31st December, 1985 is entitled to extension of service beyond 60 years.” “VI. For that the learned Judge ought to have appreciated that an employee of a D.A. getting school does not come within the definition of the “employee” as prescribed under the ROPA Rules and by subsequent Government Circulars the basic pay of an employee of a D.A. getting school had been directed to be fixed at the rate prescribed under the ROPA Rules and upon such fixation the salary would be payable by the school from their own resources and the D.A. component would be paid by the Government and such fixation of basic pay in terms of the ROPA Rules do not debar employees of D.A. getting school from seeking extension of service beyond 60 years.” “VIII. For that the memorandum dated 22nd March, 2004 is squarely applicable in respect of the appellant and on the rudiments of the same the appellant is entitled to extension of service beyond 60 years of age.” During the pendency of the appeal, the petitioner filed a supplementary affidavit bringing on record the minutes of the meeting of the Governing Body of Diocesan Schools held on 12th July, 2006 and a Circular issued by the School Education Department, Government of West Bengal on 29th May, 2002. In support of the said Circular following averments have been made:- “5. That thereafter in the month of July, 2007, the appellant from a reliable source obtained a copy of minutes of the meeting of the Governing Body of Diocesan Schools (Diocesan Board of Education), Diocese of Calcutta, Church of North Indian held on 12th July, 2006.” “6. That a perusal of the said minutes in Annexure “X” would reveal that in the said meeting an appeal from Mrs. Sucheta Roy, the Headmistress of Christ Church Girls’ High School, Dum Dum, dated 12th July, 2006 to the Rt. Revd. P.S.P. Raju, Bishop of Calcutta and Chairman, Governing Body seeking extension of her service, as she was to retire on 31st January, 2007, was placed and that Mrs. Roy in her appeal, referred to the Memo. No.98-SE(B)/1M-36/2003 dated 22.03.2004 issued by the Government of West Bengal, School Education Department wherein option had been given that the whole time approved staff of D.A. getting schools recognized by the West Bengal Board of Secondary Education who were in service on or before 31st December, 1985 may continue upto the age of 65 years.” “11. No.98-SE(B)/1M-36/2003 dated 22.03.2004 issued by the Government of West Bengal, School Education Department wherein option had been given that the whole time approved staff of D.A. getting schools recognized by the West Bengal Board of Secondary Education who were in service on or before 31st December, 1985 may continue upto the age of 65 years.” “11. That in this context it further needs to be mentioned that Mrs. Sucheta Roy in respect of whom the Governing Body had granted extension of service enjoyed the same and identical scale of pay as enjoyed by the appellant herein prior to retirement and towards conferment of such scale of pay the Christ Church Girls’ High School also obtained an identical document as obtained from the appellant herein.” “12. That Mrs. Sucheta Roy’s date of retirement was 31st January, 2007 and she retired enjoying the revised scale of pay as fixed by the school authorities in consonance with the Revision of Pay and Allowances Rules and the appellant herein is absolutely similarly situated with the said incumbent inasmuch as he attained the age of superannuation on 30th November, 2006 and he retired availing the same scale of pay as availed by Mrs. Sucheta Roy.” “15. That the appellant being an employee of a D.A. getting school does not come within the purview of the Revision of Pay and Allowances Rules but the benefits of revision at par with the employees of Aided schools are granted to the employees of D.A. getting schools on the rudiments of independent Government orders and in this context reference is drawn to the Memo. Dated 29th May, 2002.” Before the Division Bench the School Authorities filed an affidavit in which they have disclosed a document which is an undertaking signed by the petitioner on 19th May, 1990 in the form of option in which the petitioner had agreed to avail the benefit of revised scale of pay. The petitioner made a categorical statement that he would not apply for extension of service on attaining the age of superannuation prescribed in Paragraph 17 of the Government Order No.33-Edn. (B) dated 7th March, 1990. The relevant portion of the said undertaking is reproduced hereinbelow:- “ANNEXURE – VIII B (To be used by those governed by the first proviso to para 5(2) of the Order) I Srikanta Mukherji have read carefully the contents of G.O. No. 33- Edn (B), Dt. (B) dated 7th March, 1990. The relevant portion of the said undertaking is reproduced hereinbelow:- “ANNEXURE – VIII B (To be used by those governed by the first proviso to para 5(2) of the Order) I Srikanta Mukherji have read carefully the contents of G.O. No. 33- Edn (B), Dt. 7.3.90 and I agree to abide by the terms and conditions stipulated therein and I will not apply for extension of my service on attaining the age of superannuation prescribed in para 17 of the Order. i) I____________________ hereby elect for the revised scale of Rs.___________ of my substantive/officiating/temporary post with effect from 1st January, 1986. ii) I Srikanta Mukherji hereby elect to continue in the existing scale of pay of Rs.615/- of my substantive/officiating/temporary post mentioned below till 1.4.1986 and to come under the revised scale of pay Rs.1770/- with effect from 1.4.1986.” In view of such disclosure the petitioner in Paragraph 16 of the supplementary affidavit made the following averments:- “16. That all the employees of the appellant’s school had been made to sign the proforma as provided for under the Revision of Pay and Allowances Rules 1990 and the preparation and execution of such a document is nothing but an internal arrangement adopted by the school and the same does not have the effect of usurping the right towards extension of service and such contention stands fortified by the memo. dated 22nd March, 2004 which in fact is addressed to and is applicable in respect of employees of D.A. getting schools.” The Division Bench had made reference to the Scheme of 1981, the Management Rules 1969 and more particularly Rule 28, ROPA Rule 1990, Annexure-I Circular dated 7th March, 1990, the minutes of the meeting regarding Mrs. Sucheta Roy and have held that the petitioner having agreed to abide by the terms and conditions stipulated in the Government Order dated 7th March, 1990 had willfully and voluntarily waived to get his service beyond 60 years and such waiver cannot be construed to be against the public policy. The Division Bench had also rejected the contention of the appellant/petitioner that following issuance of memorandum dated 22nd March, 2004 he acquired a right to get extension of service after 65 years of age. The Division Bench had also rejected the contention of the appellant/petitioner that following issuance of memorandum dated 22nd March, 2004 he acquired a right to get extension of service after 65 years of age. The petitioner instead of challenging the said order of the Hon’ble Division Bench filed an application for review in September, 2007, inter alia, on the following grounds:- “I. For that the impugned judgment had been delivered on the rudiments of an erroneous comprehension that the applicant having availed revision of pay through exercising of an alleged option had waived his right to avail extension of service beyond 60 years of age and that the applicant cannot claim double benefits of revision of pay under the ROPA Rules as well as extension of service.” “II. For that the Hon’ble Court ought to have appreciated that if the applicant is an optee under the ROPA Rules then in terms of paragraph 17(2) of the same, the applicant would also be entitled to enjoy pensionary benefits but the applicant, being an employee of a D.A. getting school is not entitled to get pensionary benefits being covered by Contributory Provident Fund Rules under Employees Provident Fund and Miscellaneous Provisions Act, 1952 and as such the acceptance of revised scale does not act as an embargo towards availing extension of service.” “III. For that the impugned judgment had been delivered without taking into consideration the contents of the Government Order dated 29th May, 2002 which clearly stipulates that the authorities of all D.A. getting schools recognized by the West Bengal Board of Secondary Education in the State which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Government of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Government for teachers and non-teaching employees of the Government aided schools and as such the grant of revised scale of pay excluding D.A. component, is payable by the school authorities from their own fund and not by the Government and accordingly such revisions does not act as a deterrent towards extension of service to employees of D.A. getting schools.” “IV. For that the impugned judgment is based upon surmises and conjectures.” “VII. For that the impugned judgment is based upon surmises and conjectures.” “VII. For that the Hon’ble Court had merely quoted the observation of the learned Single Judge to the effect that memo. dated 22nd March, 2004 was issued to give particular benefit to the class of employees mentioned therein, without adjudicating the specific issue as agitated by the applicant to the effect that the applicant comes within the said “class of employees” and the said expression had remained undefined and unexplained.” “IX. For that the impugned finding that the applicant by availing revision of scale of pay had waived his right to avail extension of service, is an instance of total misconception of law and fact constituting “sufficient reason” for intervention through review.” “X. For that the impugned judgment is an instance of mistakes galore inasmuch as the Hon’ble Court being oblivious of the averments made in the supplementary affidavit observed that “the Headmistress of a minority institution was not granted extension of service”.” “XI. For that the Hon’ble Court neither did consider the averments made in the supplementary affidavit nor did consider the documents annexed thereto though genuineness of authenticity of averments did not stand disputed and/or controverted by the respondents and such non consideration of official evidence constitutes an error apparent on the face of the record requiring no convoluted argument for detection of such errors.” Mr. Tapabrata Chakraborty appearing on behalf of the petitioner submitted that there is an error apparent on the face of record resulting in serious miscarriage of justice. It was submitted that the said order was passed on a total misconception of fact and the learned Counsel had drawn our attention to four documents which are as follows:- I. Pension Scheme for teachers and non-teaching staff issued under the Government Order 15th May, 1985. II. Finance Department Circular dated 7th March, 1990. III. Government Order dated 29th May, 2002. IV. The Government Memorandum dated 22nd March,2004. Mr. Chakraborty submitted that it would be apparent from the Scheme of 1981 that such Scheme does not extend to a D.A. getting school. He has drawn our attention to Paragraph 2 of the said Scheme along with Statement-I as mentioned therein. The said Paragraph 2 of the 1981 Scheme is reproduced hereinbelow:- “2. The Government Memorandum dated 22nd March,2004. Mr. Chakraborty submitted that it would be apparent from the Scheme of 1981 that such Scheme does not extend to a D.A. getting school. He has drawn our attention to Paragraph 2 of the said Scheme along with Statement-I as mentioned therein. The said Paragraph 2 of the 1981 Scheme is reproduced hereinbelow:- “2. After careful consideration of the recommendations, the Governor is pleased to direct that retirement benefits at the rates described in the West Bengal Recognized Non-Government Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981 enclosed as Annexure-I will be admissible to all whole time approved teaching and nonteaching employees of the non- Government/Sponsored/Aided Institutions as shown in Statement-I, who were in active service on or after 1st April, 1981 subject to the following conditions. Person who retired from service prior to 1st April, 1981 will not get these benefits.” Mr. Tapabrata Chakraborty by referring to Statement-I as indicated in the Scheme 1981 submitted that it would be evident from Paragraph 3 and Paragraph 4 that such benefits would not extend to Dearness Allowance getting schools. Since the respondent institution is a D.A. getting school, the said scheme of 1981 cannot and does not have any manner of application to the teaching and non-teaching employees of the said institution. Similarly, the Circular of 7th March, 1990 also does not apply to such D.A. getting school. In making reference to Paragraph 17 it was submitted that the entire rule including Paragraph 17 is applicable to the teaching and non-teaching staff of the non-Government/Sponsored/Aided Educational Institutions and other Organization as mentioned in Annexure-I. The said Annexure-I of the said rule does not cover D.A. getting School. In this regard he has relied upon Rule 2(e) of the said Rule which defines employee as follows:- “2(e). “Employee” means a member of the teaching and non-teaching staff of the non-Government/Sponsored/Aided educational institutions and other organizations as mentioned in Annexure I.” Annexure-I to the said Rule is also reproduced hereinbelow:- ANNEXURE-I “1. Teachers and non-teaching staff of – (i) State Government sponsored or aided Primary School/Jr. Basic Schools (including Pre-Basic Schools); (ii) State Government Sponsored or Aided Jr. High/High Schools/Higher Secondary Schools up to Class XII standard (including Jr. High/High and Sr. Teachers and non-teaching staff of – (i) State Government sponsored or aided Primary School/Jr. Basic Schools (including Pre-Basic Schools); (ii) State Government Sponsored or Aided Jr. High/High Schools/Higher Secondary Schools up to Class XII standard (including Jr. High/High and Sr. Madrasah); (iii) State Government Sponsored or Aided Schools for Handicapped; (iv) State Government Sponsored/Aided Training Institutes for Primary teachers; (v) State Government Sponsored/Aided Polytechnics; (vi) State Government Sponsored/Aided Junior Technical Schools; (vii) Sponsored Day Students’ Homes; (viii) Recognized Non-Government Sponsored/Aided voluntary organizations under the administrative control of Education Department. 1. 2. Employees of District School Boards. 2. 3. Non-teaching Staff of Non-Government Colleges. 3. 4. Library Staff of Sponsored/Aided- .(i) Educational Institution; .(ii) District Library; (iii) Sub-Divisional/Town Library; (iv) Rural/Area/Primary Unit Library.” It was submitted that option given in Paragraph 17 is in relation to the employees covered under the definition of Rule 2(e) of the said Rules and does not extend to the petitioner. It was submitted that since a disparity was existing between the scale of pay of Government and non-Government schools, the matter was ultimately resolved by this Hon’ble Court in the case of Staff Council Gyan Bharati Vidyapith & Anr. Vs. State of West Bengal & Ors. on October 8, 2002 in W.P. No.707 of 2002 which had resulted in a circular being issued by the Government on 29th May, 2002 by reason whereof a D.A. getting school is now required to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Government for teachers and non-teaching employees of the Government Aided School with immediate effect. The relevant portion of the said Circular No. 641-SE(LAW)/5S-577/2001 dated 29th May, 2002 is reproduced below:- “After due consideration of the matter, it is decided that the authorities of all D.A. getting schools recognized by the West Bengal Board of Secondary Education in the State which receive D.A. component for the approved teaching and non-teaching staff of their schools from the Govt. of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Govt. for teachers and non-teaching employees of the Govt. Aided Schools with immediate effect. of West Bengal will have to pay salary in the appropriate scale of pay from their own resources to the approved teaching and non-teaching employees at the rate prescribed by the State Govt. for teachers and non-teaching employees of the Govt. Aided Schools with immediate effect. It is also decided that the approved teaching and non-teaching employees of those D.A. getting schools will get D.A. from the Govt.(on percentage basis) at the rate as is admissible to other employees of State Govt. aided Educational Institutions as is announced from time to time by the State, in supersession of all the previous orders issued from the Govt. to this effect.” The respondent educational institution as a D.A. getting school is required to follow the said Government Order dated 29th May, 2002. Since it is a D.A. getting school and the pensionary benefits are not extended to such teaching and non-teaching staff, under Memorandum dated 22nd March, 2004 a special right for consideration has been given to the whole time staff if they were in service honor beyond 31st December, 1985 to claim an extension upto the age of 65. It was submitted that these circulars have not been considered in their proper perspective and both the learned Single Judge as well Division Bench had proceeded on the basis as if the benefit of the 1981 Scheme has been availed by the petitioner and accordingly he cannot claim extension in terms of the Government Order dated 22nd March, 2004 beyond the age of superannuation, that is, 60 years. Per Contra, Mr. Asish Chakraborty, learned Counsel appearing on behalf of the Respondent No.4, 5 and 6 submitted that the review application is required to be dismissed in limine. The learned Counsel submitted that the writ petition should have been dismissed on the ground of suppression of material facts. It was submitted that the writ petitioner has suppressed the undertaking dated 19th May, 1990 whereby he has exercised his option for a revised pay scale and has given a clear undertaking that he would not apply for extension of service on attaining the age of superannuation prescribed in Paragraph 17 of G.O.No.33- Edn(B) dated 7th March, 1990. It was submitted that the writ petitioner has suppressed the undertaking dated 19th May, 1990 whereby he has exercised his option for a revised pay scale and has given a clear undertaking that he would not apply for extension of service on attaining the age of superannuation prescribed in Paragraph 17 of G.O.No.33- Edn(B) dated 7th March, 1990. He further submitted that the Paragraph 10 of the writ petition, the petitioner based his cause of action on the purported ground that notwithstanding the Government Order dated 31st July, 1981 his statutory right to be considered for extension upto the age of 65 years. The petitioner had conveniently suppressed that the undertaking obtained was not in relation to the Government Order dated 31st July, 1981 but with regard to Government Order dated 7th March, 1990, the implication whereof has been duly considered by a Division Bench of this Court in a judgment reported in 1991(2) CLJ 188 (West Bengal Headmasters’ Association & Ors. Vs. State of West Bengal & Ors.). In referring to the said judgment it was argued that the petitioner tried to make out his case on the basis of the ratio laid down in the said judgment in which the Hon’ble Division Bench was considering the implication of Rule 28 of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, vis-à-vis the Government Order dated 31st July, 1981. It was argued that the Division Bench has also taken a note of the subsequent Government Order dated 7th March, 1990 on the basis of which the present undertaking was obtained on 19th May, 1990. It appears from the said decision that the Hon’ble Division Bench considered the said Management Rule 28, Government Order 31st July, 1981 and to the subsequent Government Order dated 7th March, 1990. It was held in the said decision that the teachers of Government Aided Higher Secondary Schools who opted for the revised scales of pay in terms of offer given to them by the State Government by Order dated 31st July, 1981 have neither forfeited nor waived their right in the facts and circumstances of that case for being considered for extension of their services after superannuation in terms of a statutory Rule 28. It was further noticed that unlike the Government Order dated 7th March, 1990, the optees were required under the Government Order dated 31st July, 1981 to exercise their option in writing, saying that having opted for the revised scales of pay they shall not apply for extension of service on attaining the age of 60 years. The first proviso to Paragraph 5(2) of the Government Order dated 7th march, 1990, makes it clear that the teachers who had not attained the age of superannuation as prescribed in Paragraph 17 of the aforesaid Government Order on the date of issuance of the said order, for getting the revised scales of pay would be required to exercise their option in form prescribed in Annexure VIII-B. The said form Annexure VIII-B clearly mentions that those governed by the first proviso to Paragraph 5(2) of the Order would be required to exercise their option in that particular form and Paragraph 1 of the said form requires each teacher to exercise his option by clearly indicating that having opted for the revised scales of pay, he would not apply for extension of his service on attaining the age of superannuation, that is, 60 years. On the basis of the aforesaid it was submitted that the statements made in Paragraph 10 are misleading if not suppression of material facts. It was argued that the writ petition and the appeal ought to have been dismissed on the ground that the writ petitioner made a false statement and/or concealed material facts and/or made a misleading statement with a view to get an order and in such a case such petition should have been dismissed in limine without considering the merits of the claim. It was further submitted that the case made out in the original writ petition as also before the Appellate Court are entirely different from what is now sought to be argued in this review petition and this review petition is required to be dismissed as an abuse of process of Court. In this regard, reliance has been placed on the following judgments:- i) 2008(12) SCC 481 (K.D.Sharma v. Steel Authority of India Ltd & Ors.); ii) 2010 (2) SCC 114 (Dalip Singh v. State of Uttar Pradesh & Ors.); iii) 2005 (4) SCC 605 (MCD v. State of Delhi & Anr.)