Calcutta High Court (Appellete Side)
Sri Ranajit Kumar Das vs State Of West Bengal & Ors on 7 July, 2010
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
010 WP 729 (W) of 2007
Sri Ranajit Kumar Das v. State of West Bengal & ors.
Mr. Subir Sanyal
Mr. N.K. Das
Mr. Ziaul Haque ..For the petitioner.
Ms. Gita Mukherjee ..For the State.
This writ application is directed against an order passed by the respondent no. 3 dated
January 31, 2006 as also the fixation of pension and recovery of overdrawal amount as mentioned in the Pension Payment Order dated September 27, 2006.
The petitioner was appointed as assistant teacher in Bhagwanpur High School, Midnapur on and from January 2, 1968. At that point of time, his academic qualification was B.A (Hons.). The petitioner obtained M.A. degree in English on July 7, 1997.
The petitioner was appointed in Khejuri Adarsa Vidyapith, Midnapore on and from January 18, 1986. On November 16, 1994 the petitioner was appointed as Head Master of Deulpota Matangini Vidyapith, Midnapore. By virtue of an order dated November 12, 1997 (P - 4 at page 34 to this writ application), the benefit of post graduate scale of pay was extended to the petitioner in connection with the above service. The petitioner retired from the above service on September 30, 2006 on attaining the age of retirement on superannuation. After his retirement, the respondent no. 3 passed the aforesaid order dated January 31, 2006. The alleged fixation of the scale of pay of the petitioner dehors the provisions of Government Order No. 400-Edn(B) dated September 10, 1991. On the basis thereof, the pension payment order dated September 27, 2006 was issued by the respondent authority after fixing the pension of the petitioner taking into consideration the graduate scale of pay as also after recovery of an amount of Rs. 1,80,322/- towards overdrawal in pay.
In course of hearing the relevant records for adjustment of alleged overdrawal of the petitioner are produced before this Court.
It appears from the above records that a statement of overdrawal was prepared by the Secretary of Deulpota Matangini Vidyapith for the period from April 1, 1981 to February 28, 2006 to the tune of Rs. 1,80, 322/-The above statement bears the signature of the petitioner.
It is submitted on behalf of the petitioner that the petitioner obtained M.A. Degree on July 7, 1977. In accordance with the provisions of the aforesaid G.O. No. 400-Edn (B) dated September 2 10, 1991, the higher scale of pay could be granted to the petitioner with effect from April 1, 1981 or after 5 years' teaching from the date of which the higher qualification was obtained, whichever was later. Therefore, the petitioner was entitled to the post graduate scale of pay in accordance with the above government order with effect from July 7, 1982. It is further submitted on behalf of the petitioner that it was not permissible for respondents to recover the overdrawal amount from the money which had been paid to the petitioner during the tenure of his service.
Reliance is placed on the decision of Shyambabu Verma v. Union of India & ors. reported in JT (1994) 1 SC 574.
On the other hand, it is submitted by the learned State advocate that on receipt of an objection dated January 31, 2006, a statement for overdrawal of the amount was prepared by the Secretary of the concerned school. That was sent to the respondent no. 3. The above statement bears the signature of the petitioner. Therefore, on the basis of the above statement, the PPO was prepared recovering overdrawal of amount as also fixing the pension at the graduate scale of pay. Recovery was made towards the overdrawal amount from April 1, 1981 up to February 28, 2006. Therefore, it is not open for the petitioner to challenge the decision of the respondent authority at this stage.
It is further submitted on behalf of the State respondents that the petitioner ought to have challenge this action immediately after putting his signature on the statement prepared by the secretary of the concerned school.
Reliance is placed on the decisions of Union of India vs. S.R. Dhingra and others reported in (2008) 2 SCC 229 and Dhirendra Nath Purkait vs. State of West Bengal & Ors. reported in (2008)3 CLT 308 (HC).
I have heard the learned counsels appearing for the respective parties and considered the facts and circumstances of this case. Admittedly, the petitioner was initially appointed as an assistant teacher in Bhagwanpur High School with effect from January 2, 1968 with a qualification of B.A. (Hons.). At that point of time, there was no procedure for appointment of an assistant teacher for a particular subject. It is also not in dispute that the petitioner obtained M.A. degree in English on July 7, 1977.
With regard to the fixation of the scale of pay of the petitioner, it is an admitted fact that the objection has been raised by the respondent no. 3 for alleged violation of government order no. 400 3
-Edn(B) dated September 10, 1991. For proper adjudication of this case, the above government order is quoted below:
" The Governor is pleased to make, with effect from the 1st day of April, 1981, the following amendment in the Annexure I (hereinafter) referred to as the said Annexure to this Department Memo No. 372-Edn.(B) dated the 31st July 1981 (hereinafter referred to as the said Memorandum):-
Amendment In the said Annexure to the said memorandum, for sub-paragraph (b) of the 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 School 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 view of the above provisions, the petitioner was entitled to a post graduate scale of pay on and from July 7, 1982. Therefore, the recovery of overdrawal amount for the period from April 1, 1981 to February 28, 2006 cannot be sustained in law. No reason is available on record for such recovery. It does not lie on the mouth of the respondent authority that in view of a calculation made by the secretary of the concerned school, the recovery was made and the respondent authority was not under obligation to rectify that error depriving the petitioner to get the benefit extended to him by virtue of a government order. It is necessary to point out here that at that point of time, there was no particular subject for which an assistant teacher was appointed. Therefore, the question of obtaining master degree in irrelevant subject at that point of time by the petitioner could not arise.
With regard to the recovery of an overdrawal amount after the retirement in a case where such amount was paid to a public servant without any laches and/or fault on his part, the law is now well settled. Reference may be made to the decision of Shyam Babu Verma (supra) and the relevant portion of the decision are quoted below :
4"Although we have held that the petitioners were entitled only to the pay scale of Rs. 330- 480 in terms of the recommendations of the Third Pay Commission w.e.f. 1.1.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560, but as they have received the scale of Rs. 330-560 since 1973, due to no fault of theirs, and that scale is being reduced in the year 1984 with effect from 1.1.1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners, due to the fault of the respondents, the petitioners being in no way responsible for the same."
In view of the above settled principles of law, the action on the part of the respondent authority to recover the overdrawal amount from the terminal benefits of the petitioner after his retirement is liable to be set aside.
Therefore, the monthly pension of the petitioner fixed by the PPO dated September 27, 2006 as also recovery of the overdrawal amount to the tune of Rs. 1,80, 322/- are quashed and set aside.
The decision of Union of India vs. S.R.....(supra) has no manner of application in this case because the subject matter involved in the above case was rectification of the amount of monthly pension on the ground of clerical mistake. The decision of Div H.N s. State of W.B. has no manner of application in this case because the settled principles of law as decided by the Apex Court in the matter of Shyambabu Verma (supra) was not taken into consideration while delivering the above judgment.
The respondent authority is directed to fix the monthly pension of the petitioner strictly in terms of the government order no. 400-Edn(B) dated September 10, 1991 within a period of eight weeks from the date of communication of this order.
The respondent authority is further directed to refund the withdrawal amount of Rs. 1,80, 322/- to the petitioner as also the arrear pension within the aforesaid period together with an interest at the bank rate prevailing on the fixed deposit.
The writ application is thus disposed of.
There will be no order as to costs.
Urgent certified photostat copy of this order be given to the petitioner, if applied for.
(Debasish Kar Gupta, J.) 5