Calcutta High Court (Appellete Side)
Gopa Bhaumik vs State Of West Bengal & Ors on 24 November, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
24.11.2011. W. P. No. 13848 (W) of 2011
Gopa Bhaumik
versus
State of West Bengal & Ors.
Mr. Taraprasad Haldar ... For the Petitioner.
Mr. Mintu Goswami,
Mr. N.K. Rakshit ... For the State.
The petitioner was appointed as an Assistant Teacher in
Science Group in Bhangore Balika Vidyalaya, South 24-
Parganas. At the time of her appointment, her educational
qualification was B.Sc.(Bio), B.Ed. Subsequently, she
enhanced her qualification by acquiring Master degree in
English. Thereafter seven English classes in class-IX and
class-X in a week were allotted to her.
Considering the fact that the petitioner had been taking
seven English classes in class-IX and class-X in a week, she
was allowed to avail of higher scale of pay by the concerned
District Inspector of Schools for her enhanced qualification,
even though she did not enhance her qualification in the
relevant subject.
It is rightly pointed out by Mr. Goswami, learned
advocate appearing for the State-respondents that at the
relevant time when the petitioner was allowed to avail of higher scale of pay for her Master degree in English, there was no Government Order and/or Circular authorising the District Inspector of Schools to grant higher scale of pay to an Assistant Teacher for his/her enhanced qualification in a non- relevant subject, though adequate number of classes relating to the subject in which such teacher enhanced his/her qualification, are taken by him/her.
2Mr. Goswami submits that the said benefit for grant of higher scale of pay to the teachers who improved their qualification in a non-relevant subject and were taking seven classes in a week in the subject not relevant to their appointment, was introduced by the Government in January 1995 by issuing Government Order No.57-SE(S) dated 27th January, 1995.
Be that as it may, this Court does not find any wrong on the part of the petitioner in the process of fixation of her pay scale for her enhanced qualification in the non-relevant subject. Such fixation was made by the concerned District Inspector of Schools erroneously.
It has already been decided by the Hon'ble Supreme Court in the case of Shyambabu Varma Vs. Union of India & Ors. reported in (1994) 2 S.C.C. page 521 that if any excess payment is made to an employee due to his/her wrong pay fixation during the tenure of his/her service, such excess payment cannot be recovered from him/her after his/her retirement from his/her retiral dues, particularly when the employee concerned is not in any way responsible in such erroneous pay fixation.
Since in the present case, some excess payment was made to the petitioner due to erroneous pay fixation by the concerned authority, the concerned authority cannot be permitted to adjust and/or recover any excess payment made to the petitioner during the tenure of her service due to such wrong pay fixation from her retiral dues. The petitioner retired from service on superannuation with effect from 31st March, 2011. Nothing has been paid to her towards her retiral dues till date.
Under such circumstances, this Court disposes of this writ petition by directing the concerned authority to complete 3 the entire exercise for settlement of retiral dues of the petitioner on the basis of her last drawn salary, so that she can be paid all her retiral benefits within eight weeks from the date of resubmission of the Service Book and the Pension Papers of the petitioner by the school authority to the concerned District Inspector of Schools.
The school authority is, thus, directed to submit the Service Book and the Pension Papers of the petitioner after making necessary correction therein within two weeks from date.
It is made clear that the concerned authority is not permitted to adjust and/or recover any amount of money which was paid to her in excess of her entitlement during the tenure of her service, out of her retiral dues.
Re: Payment of Pensionary Relief This Court is of the view that though in view of the decision of the Hon'ble Supreme Court in the case of Shyambabu Varma Vs. Union of India & Ors. (supra), recovery of the excess payment made to the petitioner due to wrong pay fixation by the concerned authority in which the petitioner had no fraudulent role to play, is not permissible after his/her retirement out of his/her retiral dues, but the Hon'ble Supreme Court in the said decision has not held that the concerned authority is required to go on paying the current pensionary relief on the basis of the last drawn salary which was not admissible to him/her as per the law.
This Court, thus, holds that though recovery of the excess payment from the retired person from her retiral dues is not permissible, but the retired person cannot claim the pensionary relief for the current months on the basis of her 4 last drawn salary which, in fact, was not admissible to her on the date of her 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 her entitlement cannot be recovered from her.
As such, this Court directs the concerned authority to ascertain the entitlement of the petitioner with regard to her pay and allowance which was admissible to her as per law as on the date of her retirement and calculate the admissible pensionary relief accordingly and pay the same to the petitioner.
The concerned authority is also directed to go on paying the current pension regularly at the rate to be fixed in the manner as aforesaid.
The writ petition is, thus, disposed of.
Let the Report submitted by the Director of School Education, West Bengal in Court today, be kept with the record.
Urgent photostat certified copy of this order, if applied for, be furnished to the applicant as early as possible.
(JYOTIRMAY BHATTACHARYA, J.) dc.