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2015 DIGILAW 999 (CAL)

Bimal Kumar Manna v. State of West Bengal

2015-12-23

SAMAPTI CHATTERJEE

body2015
JUDGMENT : Samapti Chatterjee, J. Petitioner has filed the present writ petition assailing the orders dated 30th January, 2013 passed by the District Inspector of Schools (SE), Purba Medinipur whereby the petitioner’s pensionary benefit has been withheld on the ground that the writ petitioner was not entitled to draw higher scale of pay w.e.f. on 01.04.1995 as per G.O No.57-SE (S) dated 27.01.1995. 2. Mr. Jana, Learned Counsel appearing for the petitioner, submits that the petitioner was appointed on 15th September, 1976 as an Assistant Teacher on the concerned school. Subsequently, his appointment was approved in Work Education Group by the District Inspector of Schools (S.E) Midnapore with effect from 29th December, 1980 vide approval letter dated 10th January, 1981 appears that in Annexure “P-1”. 3. Mr. Jana, Learned Counsel, further submits that the petitioner has passed B.Sc. from the Calcutta University and also obtained Bachelor of Education (B.Ed.) in 1980. The petitioner obtained post graduate degree i.e. M.A in History from Calcutta University in 1991 without hampering the business of the School. 4. Mr. Jana, Learned Counsel, further submits that in the year 1989 the petitioner took admission for the said M.A. course. 5. Mr. Jana, Learned Counsel, also contends that prior to take admission in the Session 1990-1991 for M.A. course as non-collegiate candidate, the petitioner obtained permission from the school authority. After obtaining post-graduate degree i.e. M.A. in History, the petitioner'’ pay scale was sanctioned by the District Inspector of Schools (SE) Tamluk vide Memo No.2229-S dated 15.10.1996 as in Annexure "P-5" Therefore, the petitioner’s case cannot be rejected on the ground that it is a case of G.O. No.57 (S.E) (S) dated 27th January, 1995 as the same is not applicable to the petitioner’s case. 6. Mr. Jana further contends that though the petitioner enhanced his qualification i.e. M.A. in History is not relevant subject, yet the petitioner is entitled to get the benefits of higher scale of pay in view of the said G.O dated 27th January, 1995. After joining the said school, with prior permission of the school authority and thereafter he acquired post graduate degree i.e. M.A. in History. Moreover, petitioner has been allowed to take classes in History of the said school for a long period and taking more than sixteen classes in History per week. After joining the said school, with prior permission of the school authority and thereafter he acquired post graduate degree i.e. M.A. in History. Moreover, petitioner has been allowed to take classes in History of the said school for a long period and taking more than sixteen classes in History per week. Therefore, it cannot be described that the improvement of the petitioner’s qualification i.e. M.A. in History is not a relevant to his teaching subject. Be that as it may, Mr. Jana, Learned Counsel, further contends that the petitioner is entitled to enjoy the post graduate scale of pay after five years from the date of acquiring post graduate degree. 7. Mr. Jana, Learned Counsel, further submits that said issue is settled by the Hon’ble Division Bench in a reported case in Ashim Kumar Adgiri Vs State of West Bengal & Ors reported in 2013 (2) CHN (Cal) 568 which is quoted below :- “Mr. Bhattacharya, Learned Additional Government Pleader submits that the appellant herein cannot claim the benefit of higher scale of pay in terms of the Circular dated 10th September, 1991 since the said appellants has improved his qualification in the subject other than the subject for which the said appellant was appointed and approved. The said appellant has improved his qualification in History for which he was not appointed and approved. The teacher who was allowed to take classes in subjects relevant to the respective higher qualification, though appointed and approved in different group would be entitled to enjoy the benefit of higher scale of pay according to the higher qualification in terms of the memorandum dated 27th January, 1995. Mr. Bhattacharya further submits that the appellant herein has already been granted the benefit of higher scale of pay for improving the qualification in terms of the memorandum dated 27th January, 1995 and necessary payment has already been released in this regard. We do not agree that the Circular dated 10th September, 1991 is not at all applicable in respect of the appellant herein. Scrutinizing the aforesaid Circular we find that the appellant is entitled to enjoy the benefit of higher scale of pay even for improving the qualification not relevant to the teaching subject after five years’ teaching counting from the date on which higher qualification was obtained. Scrutinizing the aforesaid Circular we find that the appellant is entitled to enjoy the benefit of higher scale of pay even for improving the qualification not relevant to the teaching subject after five years’ teaching counting from the date on which higher qualification was obtained. The memorandum dated 10th September, 1991 is set out hereunder : Government of West Bengal Education Department Writers’ Buildings, Calcutta-1 No.400-Edn(B)/1M-45/91 dated Calcutta 10th September, 1991 Memorandum The Governor is pleased to make, with effect from the 1st day of April, 1981 the following Amendment in the Annexure-1 (hereinafter referred to as the said Annexure to this Department Memo No.372-Edn(B) dated 31st July, 1981 (hereinafter referred to as the said Memorandum): In the said Annexure to the said Memorandum for sub-paragraph (b) of paragraph (2) under “N.B” viz (b) All existing secondary school teachers who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale on qualification basis after five years’ teaching counting from the date on which higher qualification was obtained, the following shall be substituted : (b) All existing secondary schools teachers who were appointed with higher qualifications in subjects not relevant to their teaching or who improved their qualifications subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from the 1st April, 1981 or after five years’ teaching counting from the date on which higher qualification was obtained whichever is later.” In support of his contention Mr. Jana, learned counsel also relied on a decision passed by the Hon’ble Court reported in 2013 (2) CHN(Cal) 565 (Samir Kumar Saha vs State of West Bengal & Ors), 2013 (2) CHN (Cal) 632 (Akhtar Hossain Chowdhury vs State of West Bengal & Ors), 2013 (3) WBLR (Cal) 856 (Nibir Kumar Som vs State of West Bengal & Ors), 2009 (4) CHN 440 (Maleka Khatun vs State of West Bengal & Ors), 2012 (1) CLJ (Cal) 349 (Pampa Das vs State of West Bengal & Ors) and also 2012 (4) CHN (Cal) 372 (Subhasis Naskar vs State of West Bengal & Ors). 8. Per contra, Mrs. Sipra Majumder, learned counsel appearing for the state, submits that the petitioner enhanced his qualification sometime in the year 1991 in non-relevant subject. 8. Per contra, Mrs. Sipra Majumder, learned counsel appearing for the state, submits that the petitioner enhanced his qualification sometime in the year 1991 in non-relevant subject. Therefore, the petitioner is not entitled to get the higher scale of pay in view of G.O No.57 (SE) (S) dated 27.01.1995. This submission of Mrs. Majumder, learned counsel appearing for the state, is vehemently opposed by Mr. Jana, learned counsel appearing for the petitioner. 9. Considering the submissions advanced by the learned counsel appearing for the respective parties and after perusing the record, I am of the view that admittedly petitioner got appointment on 15th September, 1976 and enhanced his qualification i.e. M.A. in History in 1991, therefore the petitioner’s case is falling under the purview of the said G.O No.57 (SE) (S) dated 27th January, 1995. Admittedly the petitioner acquired the post-graduate degree i.e. M.A. in History. Further after considering the decision of Ashim Kumar Adgiri (supra), Samir Kumar Saha (supra), Akhtar Hossain Chowdhury (supra), Nibir Kumar Som (supra), Maleeka Khatun (supra), Pampa Das (supra) and also Subhasis Naskar (supra) I am of the view that since the petitioner enhanced his qualification in History as non-collegiate candidate without affecting and/or ignoring and/or hampering the duty of the school, therefore, the objection raised on behalf of the District Inspector of Schools (SE) Purba Medinipore that the petitioner is not entitled to enjoy the higher scale of pay in view of G.O No.57 (SE) (S) dated 27th January, 1995 cannot be sustained in the eye of law. 10. Mr. Jana, learned counsel appearing for the petitioner submits that the petitioner is very much entitled to get pension and gratuity on the basis of the last pay drawn in view of the memo dated 15.10.1996 whereby the petitioner was granted higher scale of pay with effect from 01.04.1995 by the concerned District Inspector of Schools. As per G.O No.57 (SE) (S) dated 27.01.1995 it was taken into account the said higher scale of pay for possessing higher qualification i.e. M.A. in History. 11. Mr. Jana also submits that the petitioner is entitled to enjoy the pension and gratuity on the basis of the last pay drawn as the petitioner’s pay scale was time to time fixed under ROPA 1990, 1999 as well as 2009 without any objection and the no recovery was made during the period of the service of the petitioner. 12. Mr. Jana also submits that the petitioner is entitled to enjoy the pension and gratuity on the basis of the last pay drawn as the petitioner’s pay scale was time to time fixed under ROPA 1990, 1999 as well as 2009 without any objection and the no recovery was made during the period of the service of the petitioner. 12. Mr. Jana also vehemently contended that no recovery can be made after the retirement on the principle of natural justice. 13. Mr. Jana further contended that the petitioner retired on 30th November, 2013. 14. Mr. Jana also strongly contended that the petitioner was allowed to enjoy the higher scale of pay with effect from 1st April, 1995 vide order dated 15.10.1996 issued by the District Inspector of Schools (SE) Purba Medinipore. 15. Mr. Jana further contended that the pay scale of the petitioner was fixed under G.O No.57 (SE) (S) dated 29.01.1995 taking into account the said higher scale of pay for higher qualification in M.A (History). 16. Mr. Jana also contended that the order of the District Inspector of Schools (SE) Purba Medinipore dated 30.01.2013 is bad in law in view of the fact that the concerned District Inspector of Schools has time to time passed the order this allowing the petitioner to draw higher scale of pay vide order dated 15.10.1996 and the said order is till in force. 17. Mr. Jana further vehemently urged that no steps has been taken by the concerned District Inspector of Schools to modify and/or cancel the order relating to grant of higher scale of pay before the date of the superannuation of the petitioner. Not only that Mr. Jana also contended that in view of that facts the petitioner made a representation on 12.02.2013 and 19.02.2013 respectively before the concerned authority to take steps relating to the pensionary benefits as per last pay drawn by the petitioner. 18. Mr. Jana also contended that this act on the part of the respondent authorities is illegal, arbitrary, unfair, unjust and very much against the principle of natural justice and also contrary to Article 300A of the Constitution of India. 19. Mr. 18. Mr. Jana also contended that this act on the part of the respondent authorities is illegal, arbitrary, unfair, unjust and very much against the principle of natural justice and also contrary to Article 300A of the Constitution of India. 19. Mr. Jana further contended that it is a settled law as laid down by the Hon’ble Supreme Court in catena of decisions which have been time to time followed by the Hon’ble Division Bench as well as the Learned Single Bench of this Hon’ble Court in several decisions. In support of his contention, learned counsel appearing for the petitioner relied on the decisions reported in 1994 (2) SCC Page-521 (Shyambabu Verma & Ors vs Union of India & Ors) and 2009 (3) Supreme Court Cases 475 (Syed Abdul Qadir & Ors vs State of Bihar & Ors). He also relied on the latest Supreme Court decision reported in 2015 (1) Supreme Today Page-671 : (2015) 1 WBLR (SC) 795 (State of Punjab & Ors vs Rafiq Masih (White Washer) etc.) Paragraph 12 at pages 19-20 of the aforesaid decision which is quoted below :- “Para-12-It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payment have mistakenly been made by the employer, in excess of their entitlement. Be that it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law : (i) Recovery from employees belonging to Class III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases here an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (iv) Recovery in cases here an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover.” Learned counsel for the petitioner also relied on an unreported decision of the Hon’ble Division Bench passed on 9th September, 2013 in W.P.S.T No.216 of 2013 (State of West Bengal & Ors vs Asis Das Gupta). 20. Per contra, Mrs. Sipra Majumder, learned counsel appearing for the state submits that the petitioner was wrongly granted higher scale of pay for possessing his higher qualification with effect from 01.04.1995 though the petitioner is not entitled to enjoy the said increments. Therefore, the District Inspector of Schools wrote a letter to the Headmaster of the concerned school to re-fix the scale of the petitioner afresh. Extract of that letter is quoted below from Annexure P-7 of the writ petition:- “2. The drawal of higher scale of pay w.e.f. 01.04.1995 on having M.A in History under ROPA 90 appears to be not in order as per G.O.No.33-Edn(B) dated 07.03.1990 read with G.O No.401-Edn(B) dated 10.09.1991 as he belonged to non-relevant group-C subject. Moreover, he was not entitled to draw higher scale of pay (P.G) w.e.f 01.04.1995 as per G.O No.57-SE(S) dated 27.01.1995 clause (ii) without changing the group by resulting clear vacancy in Social Science Group as it appears. Hence the drawal of higher scale of pay (PG) w.e.f. 01.04.1995 appears to be not in order”. 21. Mrs. Majumder further contended that as a result thereof the District Inspector of Schools (SE) Purba Medinipore wrote a letter to the Joint Secretary of the said school. Contents of the letter dated 11.04.2014 is quoted below :- “From: The District Inspector of Schools (SE) Purba Medinipore. To: The Joint Secretary. School Education Department, Secondary Brach Bikash Bhawan, Salt Lake City, Kolkata-700091. Sub: Admissibility of higher scale of pay of Sri Bimal Kr. Manna, Ex-Assistant Teacher of Madhyapalli Sikshaniktan, P.O. Amdabad, Dist-Purba Medinipore. Ref: Memo No.1515-Se(S)-5P-57/2013 dated 4th December, 2013. To: The Joint Secretary. School Education Department, Secondary Brach Bikash Bhawan, Salt Lake City, Kolkata-700091. Sub: Admissibility of higher scale of pay of Sri Bimal Kr. Manna, Ex-Assistant Teacher of Madhyapalli Sikshaniktan, P.O. Amdabad, Dist-Purba Medinipore. Ref: Memo No.1515-Se(S)-5P-57/2013 dated 4th December, 2013. In reference to the subject cited above the undersigned has to forward the documents as submitted by the Headmaster of the school for allowing higher scale of pay in favour of Sri Bimal Kumar Manna who retired as A.T. on November 2013. It is also noted that the school is a 4 Class Jr. High School. Hence, the undersigned would request him to convey his kind instruction in this regard so that the pension case be dispose of at the earliest. Sd/- District Inspector of Schools (SE) Purba Medinipore” 22. Mrs Majumder further vehemently urged that the petitioner is not entitled to enjoy the said benefit of higher scale of pay possessing higher qualification M.A in History, therefore, respondent should be directed to re-fix the petitioner’s higher scale of pay for possessing higher qualification M.A in History. 23. Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records. It is also revealed from the record that the petitioner was appointed as an Assistant Teacher on 15.09.1981 in Madhyapalli Sikshanniketan, District-Purba Medinipore and his appointment was duly approved by the concerned authority. He was allowed to complete the higher qualification by the school authority and he completed the higher qualification and the petitioner was allowed to draw higher scale of pay for possessing higher qualification in view of completing the higher scale of pay with effect from 01.04.1995 vide an order no.2229-S dated 15.20.1996 issued by the District Inspector of Schools (SE) Purba Medinipore and thereafter the District Inspector of Schools (SE), Purba Medinipore time to time fixed the scale of pay of the petitioner under different ROPAs including ROPA 2009 without any break and without any objection. 24. It is also revealed from the record that the petitioner superannuated from his service on 30th November, 2013 when he was working as Assistant Teacher in the said school. 24. It is also revealed from the record that the petitioner superannuated from his service on 30th November, 2013 when he was working as Assistant Teacher in the said school. It is further evident from the records that the petitioner’s pay was fixed taking into account the higher scale of pay for possessing higher qualification in M.A. (History) and the school authority submitted all the relevant papers and documents pertinent to the petitioner’s terminal benefits in the office of the District Inspector of Schools (Se) Purba Medinipore prior to his superannuation. 25. I cannot also ignore the fact that the petitioner’s pension sanctioning authority is the District Inspector of Schools (SE) Purba Medinipore and order dated 15.10.1996 was issued by the said District Inspector of Schools (SE) Purba Medinipore. Therefore, no question can be raised by the same District Inspector of Schools (SE) Purba Medinipore relating to the petitioner’s entitlement of higher scale of pay for possessing higher qualification M.A. in Hisotry. 26. I also cannot shut my eyes to the point that order dated 15.101996 have not been withdrawn and cancelled by the concerned District Inspector of Schools when the petitioner was in service and it is nobody’s case that the petitioner during his service tenure made any defalcation of fund or fraud on the said school. Therefore, after the retirement of the petitioner question of recovery as observed by the audit observation does not and cannot arise at all. 27. Considering the submissions advanced by Mr. Jana and also after considering the decisions of the Hon’ble Supreme Court in case of Syed Abdul Qadir & Ors (supra) and Tar Singh’s case and Rafiq Masih case (supra) I am of the view that the letter dated 16.10.2015 issued by the concerned District Inspector of Schools for recovery of the excess payment drawn by the petitioner just after his retirement is bad in law, therefore, cannot be sustained in the eye of law because the said District Inspector of Schools (SE) Purba Medinipore by order dated 15.10.1996 allowed the petitioner to enjoy higher scale of pay for possessing higher qualification with effect from 01.04.1995 which was time to time re-fixed under various ROPAs including ROPA 2009 without any objection. 28. 28. That being the position I have no hesitation to hold that the impugned order dated 30.01.2013 issued by the District Inspector of Schools (SE) Purba Medinipore and the order dated 04.12.2013 issued by the Joint Secretary, School Education Department should be quashed and set aside. Therefore, impugned order dated 30.01.2013 issued by the District Inspector of Schools (SE) Purba Medinipore and order dated 04.12.2013 issued by the Joint Secretary, School Education Department are hereby quashed and set aside. 29. In view of the decision of the Hon’ble Supreme Court in case of Shyambabu Verma and Others (supra) and subsequent decision in case of Abdul Qadir (supra) and Rafiq Masih (supra) I hold that in the facts of the present case recovery of excess amount cannot be allowed after retirement of the petitioner concerned since the said amount was not paid on account of any mis-representation or fraud on the part of the petitioner. Accordingly, I direct the respondent authority to release the pension, gratuity and other retirement benefits on the basis of the pay drawn by the petitioner in the last month of his salary at an early date but positively within three (3) months from the date of communication of this order. 30. With these directions this wF 31. No order as to costs. 32. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.