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2022 DIGILAW 926 (CAL)

Bina Paul v. State Of West Bengal

2022-06-29

ANIRUDDHA ROY

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JUDGMENT Aniruddha Roy, J. - Facts: 1. The writ petitioner at all material time since January 25, 1961 was employed as a Craft Teacher in Hijli High School (for short, the School) and became a permanent government teacher in the scale of Rs. 70-3-118-4-150/-. Her appointment was duly approved on May 14, 1980 and she retired from her employment on December 31, 1995. She had qualified Half Yearly Examination in Class X and then three years Lady Brabourne Diploma (for short, the said LBD) for advancement of needle work. 2. By a Memo dated May 14, 1980 the Director of Secondary Education, West Bengal approved the appointment of the petitioner after due consideration of her qualification. By a Memo dated April 10, 1986 the Directorate of School Education fixed the pay scale of the petitioner after due consideration of her qualification in terms of the Government Order dated July 31, 1981 under ROPA 1981 at a sum of Rs. 425-1050/-. Under the Government Order dated March 07, 1990 her pay scale as a teacher with three years approved Diploma in Craft Arts/Sewing and Needle Craft was revised from Rs. 425-1050/- to Rs.390-2970/- and her last basic pay was Rs. 2305/-. 3. The Office of District Inspector of Schools, Midnapore by its Memo dated July 08, 1993 revised the pay scale of the petitioner after taking due consideration of her qualification from the existing scale of Rs. 425-1050/- w.e.f. April 01, 1981. 4. By the impugned Government Order No. 152-SE(B)/1M-12/95 dated December 08, 1995 (for short, the impugned 1995 Government Order), issued by the Joint Secretary, School Education Department the pay scale for a nonmatriculate with a Diploma or Training Certificate teaching staff was revised and fixed at a lower scale at Rs. 300-685/- and the pay scale of the petitioner was scaled down to Rs. 300-685/-. Though the pay scale of the teacher with 'Any Other Diploma' remained same at Rs. 425-1050/-. 5. The petitioner made several representations seeking withdrawal of the said impugned 1995 Government Order which severely affected the service benefit of the petitioner. By another impugned Government Order, No. 138-SE(B)/ES- 01B/1M-28/2000 dated February 15, 2002 issued by the Deputy Secretary, School Education Department (for short, the impugned 2002 Government Order), the scale for three years Lady Brabourne Diploma Teachers were brought down to Rs. 300-685/-. By another impugned Government Order, No. 138-SE(B)/ES- 01B/1M-28/2000 dated February 15, 2002 issued by the Deputy Secretary, School Education Department (for short, the impugned 2002 Government Order), the scale for three years Lady Brabourne Diploma Teachers were brought down to Rs. 300-685/-. In the writ petition an averment was made citing an example of another teacher who was similarly placed, received the service benefits along with pensions commensurating with the pay scale of Rs. 440-1170/-. However, the petitioner was deprived of the same. 6. Since appointment, the petitioner had an unblemished career record during her service. 7. Being aggrieved by the said impugned 1995 and 2002 Government Order, the petitioner filed the instant writ petition. 8. Pursuant to the direction made by the Court, the parties had filed and exchanged their respective affidavits. Submissions: 9. Mr. Rabindranath Mahato, learned counsel appearing for the writ petitioner submitted that, the qualification of a petitioner being a non-matriculate with three years Lady Brabourne Diploma (for short, LBD) for advancement of Needle work was approved and acknowledged by the Education Department and at the relevant point of time her pay scale was fixed by virtue of the Government Order since 1975, 1981 and thereafter from time to time as was revised. The approved pay scale at the material time was Rs. 425-1050/-. In support of his contention as to the approval and acknowledgement of the said pay scale for the petitioner as was revised from time to time, the learned counsel for the writ petitioner referred to several memoranda issued by the Education Department, Government of West Bengal from time to time, the relevant portions therefrom are reproduced below: '1. Memorandum dated 4th February, 1958: ........................................................................................................................ ........................................................................................................................ ........................................................................................................................ ................................... (i) I.A./I.Sc. (Trained) (iii) Crafts teachers (Matriculate and trained in Recognised institutions) (a) Under Graduate Assistant Masters (a) I.A. I.Sc. (trained) 70-3-118-4-150 Rs.70-3-118-4-150/- .................................................................................................................. .................................................................................................................. .................................................................................................................. .................................................................................................................. 2. Government of West Bengal Education Department Secondary Branch dated 24th December, 1966: ........................................................................................................................ ........................................................................................................................ ........................................................................................................................ ........................................................................................................................ (d) Under Graduate Teacher ........................................................................................................................ ........................................................................................................................ (i.) I.A./I.Sc. (trained) 120-5-230 Untrained undergraduates Will remain at the initial stage of the Scale i.e., at (ii.) Music teachers with I 115-3-133-4-185 120-5-230 Mus. Certificate awarded By Universities or with Equivalent certificate or diploma Awarded by recognised institutions/Craft teachers with School Leaving Certificates or recognised Equivalent qualifications with two Years Craft Training Certificates. (e) Under Graduate Teacher 3. ........................................................................................................................ (i.) I.A./I.Sc. (trained) 120-5-230 Untrained undergraduates Will remain at the initial stage of the Scale i.e., at (ii.) Music teachers with I 115-3-133-4-185 120-5-230 Mus. Certificate awarded By Universities or with Equivalent certificate or diploma Awarded by recognised institutions/Craft teachers with School Leaving Certificates or recognised Equivalent qualifications with two Years Craft Training Certificates. (e) Under Graduate Teacher 3. Government of West Bengal Finance Department dated 1st March, 1971: (iii) Music teachers with I, Music 120-5-230 90 220-5-350-(Efficiency Bars after 8 and 16th stages). certificate Awarded by Universities or with equivalent certificate or Diploma awarded by recognised institution/Craft teachers with School Leaving Certificate. (B) Under Graduate Teachers ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. 4. Government Order dated 6th September, 1975: Non teaching Staff ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... ....................................... Craft Teacher- S.F. pass or its equivalent with two years craft training from a recognized Institution. Craft Teacher S.F. passed or its equivalent with one year's Craft Training certificate from a recognized Institution or a good general education with two years craft training certificate from a recognized Institution. Rs. 220-5-350/- Rs. 230-5-250-7 1/2-310-10-400/- Rs. 175-3-214-4-230/- 5. 'Memorandum dated 31st July, 1981: 4. Assistant Teacher ........................................................................................................................... ........................................................................................................................... (B) ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... ........................................................................................................................... (iv) Craft Teacher (b) 5 year Diploma in Art and Craft from Government College of ART and Craft or Degree- 440-1170/- (c) Any further diploma Rs.425-1050/-. (xvi) Craft Teacher- Matriculate with one year Craft Training Certificate from recognized institution or Non-Matriculate with two years training certificate from recognized institution Rs. 300-685/-. 7. (ii) Teacher with 3 year 425-1050 1390-2970 Approved Diploma in Craft/Arts/ Sewing & Needle Craft/Music.'. 10. He drew attention to the Government memo dated April 10, 1986 being Annexure P-3 to the writ petition issued by the Director of School Education wherein under the fixation of pay of a teacher with three years Lady Brabourne Diploma in terms of the said Government Order dated July 31, 1981 was approved at Rs. 425-1050/- w.e.f. April 01, 1981 and the same had continued during the service tenure of the petitioner. The petitioner also received her salary on the basis of the said pay scale. Mr. 425-1050/- w.e.f. April 01, 1981 and the same had continued during the service tenure of the petitioner. The petitioner also received her salary on the basis of the said pay scale. Mr. Mahato then drew attention of this Court to the impugned Government Order dated December 08, 1995 being Annexure P-5 to the writ petition and submitted that, on the basis of the said impugned communication the pay scale of a Non-Matriculate Craft Teacher with Lady Brabourne Diploma was fixed at Rs. 300-685/- according to 1981 revision of pay scales and on the basis of the same the impugned Memorandum dated February 15, 2002 (being Annexure-X2 to the affidavit-in- reply) was issued superseding, inter alia, the said Government Order dated December 08, 1995 revising that the Craft Teachers holding three years Lady Brabourne Diploma and serving in Non-Government recognized and aided Educational Institution will be allowed to enjoy the scale of pay at Rs. 360- 815/- under ROPA, 1981. The said impugned communication also provided that in order to allow benefit of the scale of Rs.425-1050/-under ROPA 1981 on the basis of 'Any Other Diploma', such diploma should be equivalent to diploma in engineering and the candidate must also be a matriculate or equivalent and the amount overdrawn by the petitioner since April -1, 1981 at the scale of Rs.425-1050/- was condoned. However, the fixation of the said pay scale at Rs.360-815/- had affected the pensionary benefit of the petitioner severely, that too at the fag end of more than 30 years of service. 11. Referring to the two expressions namely 'Diploma' and 'Training' Mr. Mahato submitted that, the petitioner was though a Non-matriculate had qualified the three years Lady Brabourne Diploma and not the two years training course. Such diploma definitely stands on a higher pedestal than a two years training course even though the petitioner was a Non-Matriculate. He then submitted that, none of the qualifications for a Craft Teacher mentioned in the said impugned 1995 Government Order was that of the petitioner. Accordingly the petitioner should fall within the category of 'Any Other Diploma' and was entitled to the pay scale of Rs.425-1050/- as she was granted w.e.f. April 01, 1981 in terms of the Government Order dated July 31, 1981. 12. Accordingly the petitioner should fall within the category of 'Any Other Diploma' and was entitled to the pay scale of Rs.425-1050/- as she was granted w.e.f. April 01, 1981 in terms of the Government Order dated July 31, 1981. 12. Referring to the Government Memorandum issued by the Education Department dated July 05, 1991, he submitted that, the qualifications mentioned under the heading Craft Teacher would not match with the qualification of the petitioner but the pay scale to which the service of the petitioner was approved and revised at Rs. 425-1050/- fell under the category 'with any other Diploma'. On the basis of the said scale the petitioner received her salary till retirement with allied benefits. Such scaling down of pay scale of the petitioner infringed her vested right and was done in violation of the basic principle of natural justice, as no opportunity of hearing was afforded to the petitioner. It was an unilateral scaling down of the pay scale of the petitioner by the State Executive and as such was arbitrary and wrongful. In support, he relied upon a decision of the Hon'ble Supreme Court In the matter of: Divisional Superintendent, Eastern Railway, Dinapur & Ors. vs. Shri. L.N. Keshri & Ors., reported at (1975) 3 SCC 1 . 13. Learned counsel then submitted that, under equitable consideration, when the employer was at fault and paid a higher pay scale to an employee throughout his service tenure, the employer should not be allowed to recover such excess amount from the retiral benefits from a retired person. In support, he relied upon a decision of a Co-ordinate Bench of this Court In the matter of: Kalyan Kumar Chattopadhyay vs. The State of West Bengal & Ors., reported at (2006) 2 Cal LT 600. 14. Learned counsel for the petitioner then submitted that, pension is a hard earned benefit by an employee for rendering a long service, such benefit cannot be taken away unilaterally. In support, he relied upon a decision of the Hon'ble Supreme Court In the matter of: Grid Corporation of Orissa & Ors. vs. Rasananda Das, reported at (2003) 10 SCC 297 . 15. Mr. Mahato then submitted that, this is a fit case where the impugned decisions of the State Executive scaling down the pay scale of the petitioner should be set aside by allowing the said writ petition. 16. Mr. vs. Rasananda Das, reported at (2003) 10 SCC 297 . 15. Mr. Mahato then submitted that, this is a fit case where the impugned decisions of the State Executive scaling down the pay scale of the petitioner should be set aside by allowing the said writ petition. 16. Mr. Shamim Ul Bari, learned advocate appearing for the State respondents, at the outset submitted that, the pay scale of a Non-Matriculate Craft Teacher with a simple qualification of LBD could not be equated with the other matriculate and diploma holder teachers. He submitted that, the State should not indulge such discrimination. He further submitted that, to allow the benefit of the scale of Rs. 425-1050/- under ROPA 1981 on the basis of 'Any Other Diploma', such expression should be construed and accepted as a diploma equivalent in engineering and with matriculation or equivalent qualification. Under the said 2002 impugned Government Order the expression 'Any Other Diploma' was clarified that such diploma should be a diploma equivalent to a diploma in engineering and the candidate must be matric or equivalent in order to draw the pay scale of Rs. 425-1050/- (ROPA 1981) and corresponding pay scale of Rs. 1390-2970/- (ROPA 1990). As the writ petitioner was a non- matriculate, she could not be equated with the diploma in engineering of a candidate who is matriculate. Mr. Bari submitted that, following and in terms of the said pay scale at the revised rate of Rs. 300-685/- the concerned disbursing authority for pension had already been intimated for clearance for payment and the procedure were in progress at the relevant point of time. 17. It was then submitted that, the expression 'Any Other Diploma' used in the Government Order for determination of pay scales between the Matric and Non-Matric category with diploma had created anomalies. Thus, it was decided that the scale of pay of three years LPD holders teachers, who were enjoying the scale at Rs. 230-400/- under 1975 revision of scale of Rs. 300-685 under ROPA 1981 was not just and proper. They were enjoying the unrevised scale on the basis of the LBD, as the academic qualification for being matriculate was not a mandatory pre-requisite for admission in LBD course. On the other hand the scale prescribed under ROPA 1981 for teachers holding LBD and those holding 'Any Other Diploma' was the same. They were enjoying the unrevised scale on the basis of the LBD, as the academic qualification for being matriculate was not a mandatory pre-requisite for admission in LBD course. On the other hand the scale prescribed under ROPA 1981 for teachers holding LBD and those holding 'Any Other Diploma' was the same. The scales enjoyed by the teachers with engineering diploma, with Matriculate or equivalent, were all along lower than that was enjoyed by three years LBD holders, it was not proper that the scale of LBD holders would be made at par with that of the holders of Diploma in Engineering with matriculation. By the said impugned 2002 Government Order, the State Executive by revising the pay scale after superseding the earlier Government Orders, removed the disparity and the discrimination. By the said impugned 2002 Government Order, the entire overdrawn amount drawn by the petitioner was condoned and was not directed to be returned but she was allowed the scale of pay of Rs. 360-815/- rightly. Mr. Bari submitted that, since the petitioner was allowed to receive the pay scale at Rs. 425-1050/- under ROPA 1981 by virtue of the Government Order and had received the said scale during her service tenure for more than 30 years, the excess payment made to the petitioner could not be recovered and the same was not recovered accordingly. In support, he placed reliance on a judgment delivered by the Division Bench of this Court In the matter of: The Director of Pension, Provident Fund & Group Insurance, Government of West Bengal & Anr. vs. Rajkumar Jana & Ors., delivered in CAN 4386 of 2018 in MAT 398 of 2018. 18. Mr. Bari submitted that, re-fixation of pay scales is permitted at any stage. In support, he relied upon a decision of a Co-ordinate Bench of this Court In the matter of: Sri Suranjan Saha vs. The State of West Bengal & Ors., delivered in WPA 9901 of 2009. 19. Mr. Bari then submitted that, the writ petition is misconceived and is liable to be and should be dismissed. Decision: 20. The petitioner since her inception of service in 1961 started with a pay scale as was approved and revised by the State Government from time time after due consideration of her qualification till retirement. 19. Mr. Bari then submitted that, the writ petition is misconceived and is liable to be and should be dismissed. Decision: 20. The petitioner since her inception of service in 1961 started with a pay scale as was approved and revised by the State Government from time time after due consideration of her qualification till retirement. Under the Government Order dated July 31, 1981 under ROPA 1981 the pay scale of the petitioner was revised and fixed at Rs. 425-1050/- and on the basis thereof the subsequent revision took place from time to time, till the said impugned 1995 Government Order was issued. 21. Under the Government Order dated July 31, 1981 the pay scale against which the petitioner being a Non-Matriculate with three years LBD was approved, the said was not mentioned and as such by considering her under the category 'Any Other Diploma', the pay scale was fixed at Rs. 425-1050/-. The said expression 'Any Other Diploma' had been used time and again under diverse Government Orders for revision of pay but no specific definition was attached thereto with regard to the qualification of a candidate under such expression. Such situation continued throughout the service tenure of the petitioner till retirement and a vested right on the said pay scale had accrued in favour of the petitioner. Consequently, there was a legitimate expectation on the part of the petitioner also that she would continue with the said pay scale of Rs. 425- 1050/- with corresponding revision thereof as revised from time to time and she received the said pay scale till her retirement. Such vested right of the petitioner was taken away by scaling down her pay scale through the said impugned 1995 Government Order and subsequently the said 2002 Government Order without affording any opportunity of hearing to the petitioner. 22. In absence of any specific pay scale being provided for against the specific qualification of the petitioner, the petitioner's pay scale was rightly followed in terms of and under the expression 'Any Other Diploma'. From the relevant Pay Fixation Order starting from the joining of the petitioner in her service till retirement, there was no specific pay scale created or provided for taking into account of the qualification of a Non-matriculate Craft Teacher with a three years LBD. 23. From the relevant Pay Fixation Order starting from the joining of the petitioner in her service till retirement, there was no specific pay scale created or provided for taking into account of the qualification of a Non-matriculate Craft Teacher with a three years LBD. 23. From a close scrutiny of the reasons mentioned in the said impugned 1995 Government Order and in the said 2002 impugned Government Order, it appears that a comparison was made with a matriculate teacher with engineering diploma. In absence of any specific definition of the expression 'Any Other Diploma' or in absence of a specific pay scale being fixed for a Non-matriculate Craft Teacher with three years LBD, such a comparison and the reason therefor was totally baseless, arbitrary, misconceived and erroneous on the part of the State Executive and dehorse any legal principle. 24. The qualification Non-matriculate Craft Teacher with three years LBD is a distinct, and independent qualification setting up a different class altogether from the engineering diploma with matriculation or any other qualification. 25. After considering the other qualifications for which specific pay scales were scheduled and in absence of any such specific pay scale being scheduled for a Non-matric Craft Teacher with three years LBD, the State Executive allowed them to draw their salary as per the scale mentioned under the specification 'Any Other Diploma' after due consideration of their qualification. This exercise by the State Executive was done consciously and with due application of mind and upon due consideration of the qualification of the Non-matric Craft Teacher with three years LBD. 26. The State Executive, thus, could not have issued the said impugned 1995 and 2002 Government Order to withdraw the said Non-matric Craft Teacher with three years LBD from the expression 'Any Other Diploma' without creating an independent and specific class by fixing their specific pay scale. 27. The ratio decided In the matter of: Divisional Superintendent, Eastern Railway, (supra), Grid Corporation of Orissa & Ors.(supra) and Kalyan Kumar Chattopadhyay (supra), are settled proposition of law. The State Executive had her alleged pay scale. Therefore, the said three judgments do not require, to the view of this court, any detailed discussion. 28. 27. The ratio decided In the matter of: Divisional Superintendent, Eastern Railway, (supra), Grid Corporation of Orissa & Ors.(supra) and Kalyan Kumar Chattopadhyay (supra), are settled proposition of law. The State Executive had her alleged pay scale. Therefore, the said three judgments do not require, to the view of this court, any detailed discussion. 28. In the matter of: Raj Kumar Jana (supra), the writ petitioner had increased his qualification to Masters level and at the time of receiving the retirement benefit when the pay scale was sought to be scaled down, the State proposed for refund of amount of the excess payment made, in view of the audit observation made at the relevant point of time which was not opposed by the writ petitioner employee. Fact is not such in this case. In the instant case there was no audit objection nor that the writ petitioner had accepted the revision of payment by scaling down her pay scale. Therefore, the ratio decided in the above judgment has no application in the facts and situation of this case. In the matter of: Sri Suranjan Saha (supra), the refund of excess payment released by the State employer was not directed to be returned as the benefit was not derived by the petitioner by misrepresentation or fraud. The refixation was permitted since the same was on the basis of specific Executive Government Order commensurating with the nature of service of the writ petitioner. Such is not the fact in the instant case, as there was no specific pay scale was fixed against the specific qualification of the petitioner. Hence the ratio decided in this judgment has no application in the fact of the case. 29. In view of the foregoing discussions and reasons, though the impugned 1995 Government Order, stood superceeded by the said impugned 2002 Government Order, to avoid any controversy both the said impugned Government Orders dated December 08, 1995 and February 15, 2002 stand set aside and both the said impugned Government Order would have no effect or further effect upon the petitioner and also would not bind the petitioner in any manner whatsoever. The respondent authorities shall grant all the retirement benefits to the petitioner including her pension taking into account as if none of the two impugned Government Orders dated December 08, 1995 and February 15, 2002 had any existence in so far as the petitioner was concerned. 30. The respondent authorities shall forthwith process the entire retirement benefit receivable by the petitioner without taking into consideration of the said two impugned Government Orders dated December 08, 1995 and February 15, 2002 and shall release the same, with arrear if any, within a period of ten weeks from communication of this judgment and order before the appropriate authority and shall go on paying the regular pension on the basis of her entitlement without taking into account of the said two impugned Government Orders dated December 08, 1995 and February 15, 2002. 31. On the above terms the writ petition WPA 5577 of 2003 stands allowed. All connected applications are disposed of. 32. There shall, however, be no order as to costs.