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Mr. Jana submits that after retirement, the respondents cannot take a stand that the petitioner did not fulfil the preconditions towards grant of the Ph.D. increments and has to refund the same and as such the decision of the Finance Department contained in the memo dated 26th August, 2018 is not sustainable.

He argues that as regards alleged erroneous fixation of pay pertaining to the period from 1st January, 1988, the petitioner is not responsible. Even assuming that some excess payment was given to the petitioner on the ground of such pay fixation during his service tenure, still then such excess payment cannot be recovered from the petitioner after his retirement when there is nothing on record to show that the petitioner played any fraudulent role in the process. The alleged error in pay fixation is attributable to the respondents for which the petitioner cannot be made to suffer.

Mr. Datta submits that the petitioner was not a teacher but an Instructor and as such, Clause 16(5) of ROPA 1990 is not applicable to the petitioner. No instructional staff, engaged for training under Craftsmen Training Scheme under the Directorate of Industrial Training is getting higher scale of pay for higher qualification and Ph.D. increments. The petitioner even could not justify the relevancy of his higher qualification to the subject of his teaching under Craftsmen Training Scheme.

Indisputably, the respondents have granted the benefits for the post graduate qualification together with the increments for Ph.D. to the petitioner vide memo dated 29th March, 2012 on the basis of an order dated 15th November, 2011 passed in an earlier writ petition being W.P. No.2904 (W) of 2005. The additional increments for Ph.D. as already granted to the petitioner cannot be withdrawn after retirement on a pretext that the Directorate has not been able to produce the formal order towards grant of such incremental benefits. The decision of the Finance Department contained in the memo dated 26th August, 2018 issued by the Assistant Director of Industrial Training, West Bengal is thus not sustainable in law and the same is, accordingly, set aside.

Thus while opting for the benefit of the revised pay scale, the petitioner was clearly on notice of the fact that a future refixation or revision may warrant an adjustment of the excess payment, if any, made. It is not a case that such undertaking was given without application of mind. The declaration clause also cannot be construed to be an unconscionable term.

In page 11 of the supplementary affidavit filed by the petitioner the total of basic pay and grade pay due on the date of retirement has been shown to be Rs.35,090/-. However, the petitioner has actually drawn an amount of Rs.35,830/-. In page 36 of the report in the form of an affidavit filed on behalf of the respondent no. 3 the total of basic pay and grade pay due on the date of retirement, upon withdrawing the additional Ph.D. increments and upon correction of fixation has been shown to be Rs.33,610/-. As such, the total overdrawn amount due to erroneous pay fixation and Ph.D. increments was calculated to be Rs.86,94,013.68 and the total due amount, upon retaining Ph.D. increments and rectifying pay fixation was calculated to be Rs.85,04,498/-. The excess amount drawn for erroneous fixation thus amounts to Rs.1,89,515.68 (Rs.86,94,013/- minus Rs.85,04,498.68).