Narendranath Banerjee vs State of West Bengal and Others

Jayanta Kumar Biswas, J.—The petitioner in this WP under art. 226 dated June 10, 2008 is questioning deduction of Rs. 1,62,413 from his gratuity amount. The deduction was shown in the pension payment order dated May 5, 2006 (WP p. 47). The State Government issued a GO No. 3416-Edn (D) dated June 22, 1965 that assistant teachers of Government and aided secondary schools, on successful completion of the training course at the Institute of English, Calcutta, would get the benefit of two advance increments in their respective scales of pay.

The petitioner''s appointment as an assistant teacher in Bhadrakali High School in Hooghly was approved by the District Inspector of Schools (SE), Hooghly (hereinafter referred to as the DI) with effect from August 3, 1966. The secondary school was a recognized non-government aided institution.

The Government issued a GO No. 1620-Edn (S) dated October 16, 1973 that while deputing teachers for the training course the school authorities should confine, as far as practicable, the selection to honours or MA degree holders in English. While in service the petitioner obtained master degrees in History and English.

The petitioner did the training course at the Institute of English, Calcutta during the session June 8-October 7, 1977 and passed the final exam. In recognition of his successful completion of the prescribed course the institute awarded a diploma in English language teaching on October 7, 1977. There is no dispute that he was given the benefit of the GOs in force entitling him to two advance increments in his scale of pay.

As he opted in to the Revision of Pay and Allowance Rules (in short ROPA), his scale of pay was to be revised with effect from April 01, 1981. By a GO No. 403(2)-Edn (B) dated September 7, 1983 the Government ordered that the teachers sponsored or deputed by their respective institutes for doing the training course upto the session ending on or before December 1983 would get the benefit of the two increments, even if they opted in to the revised scale as from April 1, 1981.

The Government then issued a GO No. 171-Edn (B) dated May 15, 1984 that the pay of the teachers who had obtained the diploma prior to introduction of the revised scales of pay with effect from April 1, 1981 would first be refixed in the revised scale according to the normal rules, and would finally be fixed after granting one or two additional increments, as the case might be, on the revised scale ensuring that the teachers were allowed the third stage benefit.

It was stated in the GO No. 171-Edn (B) dated May 15, 1984 that pay of the teachers having postgraduate degree and in the revised scale of Rs. 550-1470 should be fixed at Rs. 600. The document at p.44 of the WP (a document prepared by the school authority) reveals that the petitioner''s pay was fixed at Rs. 600 with effect from April 1981. This means that he was given the benefit of both the GOs dated September 7, 1983 and May 15, 1984.

The Government then issued a GO No. 1569 (16) GA dated September 21, 1985 that pay of the teachers obtaining the diploma before April 1, 1981 and having ten years'' teaching experience on the date of option in to the revised scale should be fixed at Rs. 600 on April 1, 1981 and then one incremental benefit should be extended to them to make it Rs. 625. The document at p.44 of WP also reveals that the petitioner was given the benefit of the GO dated September 21, 1985 as from April 1982.

The Government thereafter issued a GO No. 1157 (17) 6A dated May 10, 1988 cancelling the GO No. 1569 (16) GA dated September 21, 1985. It was ordered that pay of the teachers who obtained the diploma before April 1, 1981 should be refixed according to the GO No. 171-Edn (B) dated May 15, 1984. The DIs were directed to submit the refixed pay of such teachers to the office of the Director of School Education, West Bengal for further examination.

The petitioner''s pay fixed at Rs. 625 with effect from April 1982 according to the GO dated September 21, 1985 was not refixed according to the GO dated May 10, 1988. His pay fixed at Rs. 625 was maintained and subsequently his pay was refixed from time to time under the subsequent ROPAs issued by the Government. On reaching the age of superannuation he was to retire on May 31, 2006.

According to the GOs in force, the school authority, his employer, was to prepare his pension papers and submit them to the DI, the pension sanctioning authority. The document at p.42 of the WP reveals that the school authority submitted the pension case. The document is a letter of the DI dated April 18, 2005 to the secretary of the managing committee of the school.

By the letter dated April 18, 2005 the DI informed and directed the secretary of the managing committee of the school as follows:-

(2)Pay has been fixed on 1.4.81 at Rs. 550/- and one notional increment for ten years of service i.e. total Rs. 575/- . After this pay has been finally fixed at the third stage i.e. Rs. 600/- as per G.O. No. 171 Edn (S), dt. 15.5.84. Overdrawn statement to be submitted with verification from ADI/S (SE), Serampore.

It is in compliance with such information and direction that the school authority submitted, with a covering letter dated May 19, 2005 the statement of overpayment due to wrong fixation of pay and allowances under the 1981, 1990 and 1998 ROPAs. The statement is dated August 18, 2005 (WP pp. 44-47) that due to wrong pay fixation the petitioner was overpaid Rs. 1,62,412.52 during April 1981 - July 2005. The petitioner submitted representations to all concerned including the State Government.

The Director of School Education, West Bengal gave a decision (WP p. 51) that the petitioner''s representation should be allowed. A Joint Secretary of the School Education Department of the Government gave a decision dated January 31, 2008 (WP p. 55) that the petitioner''s pay should be fixed at Rs. 600 instead of Rs. 625, and that the overpaid amount should be recovered on such basis. This means that according to the State Government the petitioner''s pay was wrongly fixed from April 1982.

The State has filed an Affidavit-in-Opposition and it has sought to justify the deduction stating a case that the GO dated May 10, 1988 was never considered while fixing and refixing the petitioner''s pay, and that in view of the provisions of para.44 of the 1981 Death-cum-Retirement Benefits Scheme applicable to the case and the petitioner''s undertaking given while opting in to the revised pay scales, the State was entitled to deduct the overpaid amount.

No provision of any law empowered the DI to give the direction that he gave and made known by his letter dated April 18, 2005. His direction amounted to a review of the decisions whereby his predecessors in office had approved the fixations of the petitioner''s pay under the several ROPAs revising the scales and according to the GOs dated June 22, 1965, October 16, 1973, September 7, 1983, May 15, 1984 and September 21, 1985.

Failure, if any, of the DI concerned to refix the petitioner''s pay according to the GO dated May 10, 1988 was not because of any misrepresentation on the part of the petitioner or fraud exercised by him. What was not done in 1988, in my opinion, could not be done in 2005 for undoing the things done during 24 years from 1981. It was against all canons of fair play and equity. Besides, the DI did not give any reason why the petitioner''s pay was to be fixed at Rs. 550 on April 1, 1981.

It is evident that pay refixed according to the unauthorised and illegal direction was accepted, and that the overpaid amount was deducted from the gratuity amount. The Director of School Education found merit in the petitioner''s representation against the deduction. The State Government gave its decision dated January 31, 2008, which is contrary to the one the DI recorded in his letter dated April 18, 2005. According to the Government, pay refixed at Rs. 600 with effect from April 1, 1981 was correct.

In my opinion, benefits given to the petitioner could not be withdrawn and a consequent direction for recovery of overpaid salary and allowances could not be issued, especially when it was not the case of the respondents that the petitioner''s pay was not refixed according to the GO dated May 10, 1988 for any misrepresentation on the part of the petitioner or fraud exercised by him. I think the principle applied in Syed Abdul Qadir and Others Vs. State of Bihar and Others, should apply to the case. For these reasons, I allow the WP and order as follows. The decisions of the DI in the letter dated April 18, 2005 and the Joint Secretary dated January 31, 2008 are hereby set aside. Within four weeks from the date this order is served, the State shall pay the recovered Rs. 1,62,413, refix pay, calculate unpaid salary, recalculate retirement benefits, and pay balance salary, retirement benefits, pension arrears, etc. with 7% p.a. interest on balance salary from the date the salary became due and on other amounts from June 1, 2006. No costs. Certified xerox.