JUDGMENT Jyotirmay Bhattacharya, J. 1. The petitioner was appointed as an Assistant Teacher in Modern School (H.S.) at Calcutta. He was appointed in Social Science group in the normal section of the said school. At the time of his appointment his educational qualification was B.Com. (Hons), Special B.A. and B.Ed. However, while approving his service as an Assistant Teacher in the said school, the concerned District Inspector of schools did not record his Honours degree in the approval letter. Undisputedly, he was appointed as an Assistant Teacher in the vacancy which was created on the resignation of Sibaprasad Ghosh, an Assistant Teacher, of the said school. At the time of his appointment, his salary was fixed at Rs. 557/- (all inclusive) per month. In his appointment letter it was mentioned that he was appointed on probation for a period of two years as per rules of the Educational Director, Government of West Bengal, with a rider that he would have to obtain Master Degree within the probationary period and his service would be confirmed in the said post subject to obtaining Master Degree within the probationary period. 2. The petitioner joined his service as an Assistant Teacher in the said school by accepting the condition as mentioned in the appointment letter issued by the school authority on 18th March, 1981 being annexure 'P-1' to this writ petition at page 29. The petitioner enhanced his qualification by acquiring Master Degree in Commerce in 1982. The result of the petitioner's M. Com. examination was published on 11th October, 1983. After the petitioner enhanced his educational qualification by acquiring Master Degree in Commerce, higher scale of pay was given to him. His pay scale was revised from time to time and in fact immediately before his retirement, he used to receive a sum of Rs. 30,570/- towards his monthly salary. The petitioner retired from service on superannuation with effect from 30th September, 2011. 3. Problems started in course of settlement of the retrial dues of the petitioner as the Joint Director of Accounts, Kolkata, was of the view that the scale of pay which was given to the petitioner was not admissible to him. In fact, the District Inspector of Schools (S.E.), by following the objection raised by the Joint Director of Accounts, reduced the pay of the petitioner to Rs. 26,220/- with effect from September, 2011. In fact, the District Inspector of Schools (S.E.), by following the objection raised by the Joint Director of Accounts, reduced the pay of the petitioner to Rs. 26,220/- with effect from September, 2011. Accordingly, the Headmaster of Modern School, by his letter dated 26th July, 2011, asked the petitioner to refund the overdrawal amount of pay amounting to Rs. 6,81,797/- by way of depositing the said amount to the proper government head by challan (TR. 7) at the earliest possible time so that his pension papers may be resubmitted to the concerned authority for settlement of his retiral dues. 4. The petitioner has filed the instant writ petition challenging the aforesaid action of the respondents in reducing his pay scale with effect from September, 2011 and/or for demanding refund of the said sum of Rs. 6,81,797/-, which according to the respondents was paid to the petitioner in excess of his entitlement. 5. Let me first of all consider the legality of the action on the part of the respondents in demanding refund of the said sum of Rs. 6,81,797/- from the petitioner. 6. I have already indicated above that the petitioner retired from service on 30th September, 2011. Though payment of such excess amount to the petitioner was detected by the concerned authority during the tenure of his service, but fact remains that such excess payment has not yet been recovered from the petitioner. 7. Let me now consider as to how far such recovery is possible from the petitioner, after his retirement. 8. Even assuming that some excess payment was given to the petitioner on account of his wrong pay fixation during the tenure of his service, still then can such excess payment be recovered from the petitioner after his retirement when there is nothing on record to show that the petitioner played any fraudulent role in the process of his erroneous pay fixation? Here is the case where this Court finds that the respondents were responsible in the process of erroneous pay fixation of the petitioner. Here is the case where this Court finds that the respondents were responsible in the process of erroneous pay fixation of the petitioner. As such, this Court by following the decision of the Hon'ble Supreme Court in the case of Shyambabu Varma vs. Union of India & Ors., reported in (1994) 2 SCC 521 ; holds that the respondents are not entitled to realize and/or recover such excess payment from the petitioner after his retirement, as the petitioner did not play any fraudulent role in the process of such erroneous pay fixation. 9. In this regard reference may also be made to the other decision of the Hon'ble Supreme Court in the case of Saiad Abdul Qadir & Ors. Vs. State of Bihar & Ors., reported in 2009 (3) SCC 475 ; wherein the Hon'ble Supreme Court held that such overdrawal in pay due to wrong pay fixation by the employer, cannot be recovered from the employee even during the tenure of his service. 10. Thus, by following the aforesaid decisions of the Hon'ble Supreme Court, this Court has no hesitation to hold that the demand which was made by the concerned authority towards recovery of the said sum of Rs. 6,81,797/- which according to the respondents was paid to the petitioner in excess of his entitlement, should be quashed and accordingly the impugned demand is quashed. 11. As such, this Court restrains the respondents from recovering the said sum of Rs. 6,81,797/- from the petitioner either by way of deduction from his retiral dues or otherwise. 12. Let me now consider the other part of the relief which the petitioner has claimed in this writ petition regarding his pay fixation in the light of ROPA, 1981. 13. Admittedly, the petitioner enhanced his educational qualification by acquiring M. Com. Degree in 1982. The result of his M. Com examination was published on 11th October, 1983. 14. Having regard to the aforesaid fact that the petitioner enhanced his qualification by acquiring Master Degree in 1983; this Court is required to consider the petitioner's entitlement under ROPA, 1981 which was in force at the relevant time. 15. Degree in 1982. The result of his M. Com examination was published on 11th October, 1983. 14. Having regard to the aforesaid fact that the petitioner enhanced his qualification by acquiring Master Degree in 1983; this Court is required to consider the petitioner's entitlement under ROPA, 1981 which was in force at the relevant time. 15. Though, the petitioner claims that he was appointed in the Higher Secondary Section and he was allotted Commerce classes in Class XI & XII by the school authority, but there is nothing on record to show that in fact he was appointed in the Higher Secondary section. His appointment letter shows that he was appointed in the normal section in the said school. 16. Since he was appointed in the normal section in Social Science group, he cannot claim the benefit of the higher scale of pay immediately from the date of improvement of his qualification as per ROPA, 1981 as he did not improve his qualification in the relevant subject. 17. ROPA, 1981 provides that all existing secondary teachers who entered service with higher qualification or who have improved their qualification relevant to their teaching subject, will get the higher scale on qualification basis without restriction. 18. Since the petitioner did not improve his qualification in the relevant subject, he cannot get the benefit of this part of the provision of ROPA, 1981. 19. Other part of ROPA, 1981 provides that all existing secondary school teachers who were appointed with higher qualification in the subject not relevant to their teaching or who improved their qualification subsequent to their appointment in the subject not relevant to their teaching will be allowed the higher scale on qualification basis with effect from 1st April, 1981 or after five years teaching, counting from the date on which the higher qualification was obtained whichever is later. Since the petitioner improved his qualification in non relevant subject, in my view, he is entitled to get the benefit of this part of the provision of ROPA, 1981. 20. Thus, the petitioner's entitlement for higher scale of pay with effect from 17th August, 1987; i.e. the day following the last date of his M. Com Examination, cannot be denied by the State respondents. 21. 20. Thus, the petitioner's entitlement for higher scale of pay with effect from 17th August, 1987; i.e. the day following the last date of his M. Com Examination, cannot be denied by the State respondents. 21. As such, this Court disposes of this writ petition by directing the school authority to resubmit the pension papers of the petitioner in the light of the observations made hereinabove to the concerned District Inspector of schools positively within a period of one month from the date of communication of this order and the concerned District Inspector of schools is directed to complete the entire exercise which he is required to complete as per the rules within four weeks thereafter so that the ultimate financial benefit towards his retiral dues and the pensionary relief, including arrear pension, can be given to him within eight weeks thereafter. 22. It is made clear that the concerned authority will not be permitted to deduct any amount of overdrawal in pay from the retiral benefits of the petitioner. 23. It is, however, made clear that his retiral dues, arrear pension and the pensionary relief will be calculated on the basis of his actual entitlement which will be fixed by the concerned District Inspector of schools in the light of the observation made hereinabove, after giving a reasonable opportunity of hearing to the petitioner. 24. In the event, the entire retiral dues, including the arrear pension etc., is not paid to the petitioner within the time as fixed above, the State respondents will be liable to pay interest @ 8% per annum on such retiral dues of the petitioner from the date since when such payment became due and payable to the petitioner upto the date of actual payment thereof. 25. The writ petition is, thus, disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.