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2014 DIGILAW 397 (TRI)

Sambhunath Bhattacharjee v. State of Tripura

2014-11-26

DEEPAK GUPTA, S.C.DAS

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JUDGMENT Deepak Gupta, CJ. 1. The short question which arises in this petition is whether the petitioner is entitled to benefit of the notification dated 02-11-1968 which has actually been granted to him by the State Government but after his retirement the office of the Accountant General has raised an objection that this benefit was wrongly extended to him. 2. The Circular dated 02-11-1968 issued by the Government of India to all the Education Secretaries of all State Governments and Union Territories refers to Rule 8 of the Rules to be framed for services of National Discipline Scheme (NDS) Instructors. The said rule reads as follows:- "(i) Graduates with NDS Training shall be considered equivalent to Diploma Holders in Physical Education; and (ii) Matriculation with NDS Training shall be considered equivalent to post Matriculate Certificate Holders in Physical Education." 3. The petitioner did his NDS training which is considered to be equivalent to Diploma Holder in Physical Education in the year 1964. He thereafter did his graduation though admittedly not in Physical Education in the year 1972. In 1974, he completed the condensed course in Physical Education. Thereafter, the State Government fixed the pay of the petitioner in the scale of Rs. 5,500-10,700/- by accepting him to be equivalent to a Diploma Holder in Physical Education. After the retirement of the petitioner when his pay was to be fixed, the office of the Accountant General raised an objection that he had wrongly been granted the aforesaid scale because he was not a graduate in Physical Education. 4. Reliance was placed on the notification dated 11-06-1993 wherein it is mentioned that grant of benefit of higher pay scale to Physical Instructors who acquired Bachelor Degree in Physical Education or Postgraduate Diploma in Physical Education from a College, University recognised by the Government. This condition is applicable only after 11-06-1993 and prior to that, all graduates regardless of the field of the graduation with NDS training were to be considered equivalent to Diploma Holders in Physical Education. In this behalf, it may be mentioned that the second part of Rule 8 goes to the extent of saying that those who have done matriculation with NDS training shall be considered to be post Matriculate Certificate holders in Physical Education. 5. In this behalf, it may be mentioned that the second part of Rule 8 goes to the extent of saying that those who have done matriculation with NDS training shall be considered to be post Matriculate Certificate holders in Physical Education. 5. This Court cannot lose sight of the fact that in the year 1968 when the instructions were issued, they were very few Degree courses in Physical Education and the Government in its wisdom decided that those who had done NDS training and were graduates would be treated equivalent to Diploma Holders in Physical Education. 6. The State taking this to be the interpretation of the rules gave benefit of the higher pay scale not only to the petitioner but to many other employees. The other employees are still being paid the same scale and nothing has been done to recover anything from them. The petitioner stands on the identical footing. It is not the case of the department that the petitioner made any false representation to the department while claiming this scale. The scale was granted to the petitioner immediately after 1972 and after more than four decades the clock cannot be turned back and recovery made from the petitioner and it cannot be said that the scale was wrongly granted to him. 7. Therefore, the petition is allowed and for purposes of all retiral benefits, the petitioner shall be treated to be in the pay scale of Rs. 5,500-10,700/- and his retiral benefits shall be fixed by taking into consideration the last pay actually drawn by him at the time of his retirement. The amount now due and payable to the petitioner be paid latest by 31-03-2015. In case, the amount is not paid by 31-03-2015, then the petitioner shall be entitled to interest on the said amount @ 12% per annum w.e.f. 01-12-2014. 8. The communication dated 09-09-2009 (Annexure-13 to the writ petition) is accordingly quashed.