Calcutta High Court (Appellete Side)
Lopa Das vs State Of West Bengal & Ors on 9 December, 2011
Author: Harish Tandon
Bench: Harish Tandon
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice:- Harish Tandon
W.P. 28005 (W) of 2008
Lopa Das
-vs-
State of West Bengal & Ors
For Petitioner:- Mr. Ekramul Bari
For State:- Mr. Manas Kumar Sadhu
Heard on : 29th November 2011
Judgment on : 9th December 2011
In this writ petition the petitioner has assailed the Pension Payment
Order issued by the Director of Pension, Provident Fund & Group Insurance by
which a sum of Rs. 72,566/- is deducted and/or adjusted under the heading
'Overdrwal' on account of excess payment made to the petitioner.
Admittedly the petitioner had been appointed as an Assistant
Teacher in the year 1975. The petitioner was granted the benefit of increment by
the concerned authority for obtaining "distinctions" in her Graduation Degree
Examination and was paid such benefit till she attained the age of
superannuation.
According to the petitioner the authorities cannot recover the excess
payment made voluntarily by them from the retiral benefit as 'Overdrawal'.
Respondent no. 3, the District Inspector of Schools (SE), Howrah,
took a specific plea that prior to attainment of superannuation and at the time of preparation of the retiral benefit it was detected that the benefit of two increments had been granted mistakenly and such excess payment can be recovered by way of adjustment and/or deduction from the retiral benefit.
Various circulars/Government Orders are placed before this Court wherefrom it appears that the benefit of increment is provided to an employee who obtains distinction marks in Graduation, i.e. B.A/B.Sc.,/B.Com., and was in service as on 31st March 1981. By subsequent Government Order, being Memo No. 12(3)-SE(B)/IM-6/90Pt. II dated 25th January 1995, benefit of two increments was allowed to such teachers who had obtained and/or will obtain at least 50% marks in aggregate in the Graduation Degree Examination either under Two Years' and/or Three Years' Course. Thus, it is tried to be contended by the respondents that in order to avail the benefit of two increments, a teacher must obtain 50% marks in aggregate in the Graduation Degree Examination.
It is further contended by the respondents that the petitioner obtained "distinctions" in B.Sc. Part-II Examination only and while calculating the aggregate marks, obtained by the petitioner in Part-I and Part-II, it is found that the required aggregate marks of 50% has not been obtained by her and as such, she was/is not entitled to the benefit of two increments, in terms of the aforesaid Government Order.
Mr. Bari, learned Advocate appearing for the petitioner, submits that there is no indication in the aforesaid circulars that "distinctions" are to be obtained in both the parts of the Graduation Degree Examination and obtaining 50% aggregate marks is not imperative if a meaningful reading is given to the aforesaid circulars. He strenuously submits that the authorities of their own granted the aforesaid benefit and they cannot recover and/or adjust and/or deduct the said amount from the retiral benefit and placed reliance upon Single Bench judgments of this Court in the cases of Kamal Kant Jha -vs- State of West Bengal & Others, reported in 2005 (1) CHN 54, Sk. Md. Zakeria -vs- State of West Bengal & Others, reported in 2008 (1) CHN 246 and Saroj Mohan Pati -vs- State of West Bengal & Others, reported in (2011) 4 WBLR (Cal) 123.
Mr. Sadhu, learned Advocate appearing for the State, submits that the authority may be precluded from recovering the excess amount if paid voluntarily to the teacher but the teacher cannot claim fixation of pension on the basis of 'Last Pay Drawn' and places reliance upon an unreported judgment of this Court in the case of Madan Mohan Das -vs- State of West Bengal & Others (W.P. 9326 (W) of 2011 decided on 8th July 2011).
In reply Mr. Bari submits that this Court in various judgments, cited above, has passed direction upon the authorities concerned to fix pension on the basis of 'Last Pay Drawn' which has not been considered by another Co-ordinate Bench which rendered the said unreported judgment and as such, the same cannot have any binding precedent because of the doctrine of per incuriam as laid down by the Supreme Court in the case of Vijay Narayan Thatte And Others
-vs- State of Maharashtra And Others, reported in (2009) 9 SCC 92.
Having considered the respective submissions, there is no dispute that the petitioner was granted the benefit of two increments after having obtained "distinctions" in the Part-II Graduation Degree Examination. The aforesaid benefit was granted by the authorities of its own and there is no allegation by the authorities concerned that the same has been granted on the basis of any misrepresentation or commission of fraud by the said teacher.
In this regard reference can be made to the various judgments of this Court in the cases of Kamal Kant Jha, supra, Sk. Md. Zakeria, supra, Saroj Mohan Pati, supra and Kalyan Kumar Chattopadhyay -vs- State of West Bengal & Others, reported in (2006) 1 WBLR (Cal) 591. Ratio laid down in the aforesaid reports is that the Court shall grant relief in favour of a teacher against recovery of excess amount contemplated by the respondent authorities at the time of disbursement of retiral benefit in absence of any misrepresentation and/or fraud being committed by the said employee. Learned Advocate appearing for the respondents also could not dispute such proposition before this Court.
Thus, the contemplation for recovery of excess amount from the retiral benefit under the heading 'Overdrawal' is not permissible in view of enunciation of law by this Court as well as by the Hon'ble Supreme Court.
To that extent there is no quarrel amongst the parties. But what is tried to be contended by the respondents is that the pensionary benefit cannot be calculated on the basis of 'Last Pay Drawn'. It is a specific case of the respondents that upon a meaningful reading of the various circulars/Government Orders occupying the field manifest that the benefit of two increments, granted to the petitioner by mistake, cannot clothe the petitioner with any legal right to claim pension on the basis of 'Last Pay Drawn'.
Let me now examine whether the benefit which was accorded to the petitioner could have been awarded or not. If the answer is in negative then the Court would embark to decide whether such mistake could confer a legal right upon the petitioner to claim pension on the basis of 'Last Pay Drawn'.
It would be profitable to quote the Government Circular, being Memo No. 503(3)-Edn.(D) dated 23rd December 1983 wherein benefit of two increments were provided to teachers who had passed Graduation Examination by holding 'distinctions' and who were in service as on 31st March 1981. The said Government Order was subsequently modified by another Government Order No. 12(3)-SE(B)/IM-6/90Pt. II dated 25th January 1995 where the said benefit of increment was also extended to the teacher who obtained and/or will obtain at least 50% of the total marks in aggregate in such Graduation Degree Examination.
By another Government Order No. 126 (3)-SE (B)/IM-6190 Pt-II dated 6th June 1997 it was clarified that where Graduation Degree Examinations are held in parts; either two years or three years course, then to avail such benefit of increment, the teacher must secure at least 50% of the total full marks in aggregate in all the parts.
Although there is no indication in any of the Government Orders from where it could be held without any reasonable doubt that "distinctions" in both the parts is imperative and the teacher should not be granted such benefit if he/she obtains "distinctions" in one of the Part. If the Government Order dated 23rd December 1983 is read contextually, it would appear that "distinctions" in Graduation would entitle an employee to avail the benefit of two increments but upon purposive reading of the subsequent circulars, as aforesaid, one could find that the benefit is also extended to the teachers who have obtained 50% aggregate marks in the Graduation Degree Course.
If the contention of Mr. Bari is accepted that "distinctions" in any of the parts would entitle the teacher to avail the said benefit of increment then the teachers who did not obtain 50% aggregate marks in the Graduation Degree Course but had obtained more than 50% marks in one of the Part cannot be deprived of such benefit. The tenet of the Government Order dated 25th January 1995 does not exclude an employee to avail such benefit who obtains "distinctions" but the said benefit is also extended to an employee who secures 50% aggregate marks in the Graduation Degree Examination.
Court should not interpret the provision in such a manner that it would render it unworkable but, if necessary, would interpret to uphold the parity amongst the same class of people. This Court does not find that if a teacher who obtains "distinctions" in one Part of the Graduation Degree Examination is granted the benefit of increment whereas another teacher who obtains more than 50% marks in any of the part of the Graduation Degree Examination would be denied of such benefit. Therefore, it could not be said that a teacher who obtains "distinctions" in any of the part of the Graduation Degree Examination is entitled to the benefit of increment but such benefit can only be extended to a teacher who obtains "distinctions" in both the Parts.
Next question which arises for consideration is whether the authorities should be directed to pay the pensionary benefit on the basis of the 'Last Pay Drawn' in spite of the fact that the authorities had mistakenly granted such benefit of increment to the petitioner.
From the judgments relied upon by Mr. Bari, as indicated above, it appears that the point which is urged in this writ petition was not in issue but it is an ultimate order and/or relief granted to the petitioner. What binds the Court is the ratio and/or the law enunciated and not the ultimate relief granted to the petitioner as it does not cover within the doctrine of binding precedent. One of the reason for saying so is that in the event the ratio laid down in the said judgment is subsequently found to be not correct in another proceeding even then the operating portion of the said judgment binds the parties to the said judgment and the said operating portion does not lose its efficacy between the parties. However, in the case of Madan Mohan Das, supra, the Co-ordinate Bench in the said unreported judgment laid down after holding that the authorities cannot recover the excess amount but the pensionary benefit on the basis of the 'Last Pay Drawn' cannot be claimed as no legal right accrues on the said teacher in the following words :
"This Court, thus, holds that though recovery of the excess payment from the retired person from his retiral dues is not permissible, but the retired person cannot claim the pensionary relief for the current months on the basis of his last drawn salary which, in fact, was not admissible to him on the date of his retirement.
In my view, State cannot be burdened with such recurring liability for payment of pension for the current months by giving effect to such erroneous pay fixation even after such error is detected. However, I make it clear that any amount of money paid to any retired person on account of pension in excess of his entitlement cannot be recovered from him."
In view of the discussion made above, it is clear that the respondent authorities cannot recover the excess amount paid voluntarily to the petitioner and any such contemplation is not permissible in law.
Thus, the Pension Payment Order issued by respondent no. 4 is hereby quashed and set aside.
The said respondent is directed to recast the Pension Payment Order in the light of the observation and directions made hereinabove. Such exercise shall be completed by the said authority within six weeks from the date of communication of this order.
This Court, however, does not find that the petitioner is entitled to claim pension to be calculated on the basis of the 'Last Pay Drawn' and the concerned authority is directed to calculate the admissible pension and shall make all efforts to disburse the same to the petitioner within eight weeks from the date of communication of this order.
The writ application is disposed of. However, there will be no order as to costs. Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.) ac