Sunil Kumar Giri vs The State of West Bengal

Arijit Banerjee, J.—In this writ application the petitioner prays for a writ of mandamus, commanding the respondents to sanction and release his entire retiral benefits including gratuity and monthly pension together with interest at the rate of 10 per cent per annum to be calculated from the date of retirement till the date of actual disbursement.

On 16 April, 1979, the petitioner, who was then a B.Sc. graduate, was appointed as Assistant Teacher in Kishorenagar Sachindra Sikhsa Sadan (Junior High School) in the district of Purba Medinipur. On 15 September, 1979 the service of the petitioner was approved by the concerned authority. With effect from 1 May, 1985 the said school was upgraded to a High School.

In 1986, the petitioner completed B.Ed. course after obtaining prior permission from the School Authority. In 1997 he further enhanced is educational qualification by acquiring Master Degree in Bengali from a recognised university.

The District Inspector of Schools (S.E.), Medinipur, granted the petitioner higher scale of pay admissible to an Assistant Teacher having Master Degree with effect from 9 December, 1997 being the date following the last date of his M.A. examination. Subsequently, the teaching group in which the petitioner was initially appointed was changed and he became an Assistant Teacher in the language group with effect from 8 December, 2001. However, even prior thereto, he was taking at least six Bengali classes per week in addition to his regular duty of teaching science subject to the students.

The petitioner retired from service with effect from 30 November, 2008.

Though the petitioner�s pension papers were submitted by the School Authority to the concerned District Inspector of Schools before the petitioner�s retirement, the retiral dues and/or pensionary benefits were not paid to the petitioner. Being aggrieved, the petitioner approached this court by filing WP No. 12587(W) of 2011.

At the hearing of the aforesaid writ petition, the State respondents contended that some excess payment had been made to the petitioner by reason of wrong pay fixation. It was contended that since the petitioner enhanced his educational qualification in a non-relevant subject in 1997 he was not entitled to get the M.A. scale of pay with effect from the date following the last date of his M.A. examination. However, the State respondents admitted that the petitioner was entitled to higher pay scale with effect from 8 December, 2001 when his teaching group was changed from science to language group. The State respondents, thus, wanted to realise the excess payment that had been made to the petitioner during the period from 9 December, 1997 to 7 December, 2001.

By his order dated 2 September, 2011, Jyotirmay Bhattacharya, J., held that the excess payment made to the petitioner due to his wrong fixation of pay during the tenure of his service could not be realised by the State respondents in view of the judgment of the Hon�ble Supreme Court in the case of Shyambabu Verma v. Union of India, (1994) 2 SCC 521. The Ld. Judge directed the State respondents to complete the entire exercise for settlement of the retiral dues of the petitioner on the basis of his last drawn salary within a period of eight weeks and also directed the concerned Authority to pay interest at the rate of 10 per cent per annum on the delayed payment of gratuity from the date of retirement of the petitioner up to the date of actual payment thereof. The Ld. Judge, however, observed that the petitioner would be paid the pensionary relief as per his actual entitlement towards his pay and allowances as on his date of retirement.

The aforesaid order was communicated to the concerned District Inspector of Schools, who, however, instead of complying with the order, by letters dated 14 March, 2012 and 4 May, 2012 called upon the Head Master of the said School to submit the pension case of the petitioner after recasting his pay structure in the service book along with other documents including an overdrawal statement.

In response, by his letter dated 20 June, 2012 (Annexure P 9 to the writ petition) the Head Master of the said School informed the District Inspector of Schools that in terms of paragraph no. (i) of the Circular No. 57 � SE(S) dated 27 January, 1995 issued by the Assistant Secretary, Depart of School Education, Government of West Bengal, and in view of the order of this Court dated 2 September, 2011, the petitioner was entitled to get M.A. pay scale with effect from 9 December, 1997 which had already been granted to the petitioner. The Head Master of the School requested the District Inspector of Schools to take appropriate steps to sanction and release the petitioner�s retiral benefits by treating the last pay as the actual scale of pay of the petitioner.

By his memos dated 23 August, 2012, 14 November, 2012, 24 July, 2013 and 20 March, 2014 the District Inspector of Schools insisted that the petitioner was entitled to M.A. pay scale only with effect from 8 December, 2001 and not from 9 December, 1997. He repeatedly called upon the School Authorities to resubmit the pension papers of the petitioner after recasting the pay structure in the service book. Till date, the retiral benefits of the petitioner have not been released.

It is pertinent to note that being aggrieved by the noncompliance of this court�s order dated 2 September, 2011 the petitioner had filed a contempt application being CPAN 2380 of 2012. It appears that the petitioner did not press the said contempt application for reasons best known to him and on his prayer this court permitted him to withdraw the contempt application on 25 April, 2014 reserving liberty to him to challenge further action of the respondents before the Appropriate Forum.

Appearing in support of this application Mr. Tarun Das, Ld. Counsel, submitted that although the petitioner improved his qualification by obtaining M.A. degree in a non-relevant subject, he took at least six Bengali classes per week in addition to the science classes till such time that he was shifted to the language group. Hence, in terms of the Government Circular No. 57 � SE(S) dated 27 January, 1995, he is entitled to draw the Post-Graduate scale of pay with effect from 9 December, 1997. The relevant paragraph of the said Circular is reproduced hereunder:-

"(i) Approved Assistant Teachers of non-Government Secondary Schools and Madrasahs who will take classes in subjects relevant to their respective higher qualification, though appointed/approved respectively in different group/subject other than the aforesaid teaching subject shall, henceforth, be allowed to draw pay according to their respective higher qualification, as prescribed by the State Government. Provided such Assistant Teachers take individually at least six periods per week as officially allotted by the authorities of the respective schools to such Assistant Teachers within the normal work-load upon the written consent of the concerned teacher and with the prior permission of the concerned District Inspector of Schools and strictly accordingly to the actual academic need of the individual school. If there be more than one Assistant Teacher in a school with relevant higher qualification agreeable to this arrangements, preference shall be in order of seniority. If any school has already effected such an arrangement in its academic interest, the same has to be get approved by the concerned D.I. of Schools; subject to eligibility, for the purpose of drawal of qualification pay by the concerned teachers."

Ld. Counsel for the petitioner further referred to ROPA 1990 and ROPA 1998 in support of the contention that the petitioner is entitled to higher scale of pay with effect from 9 December, 1997. Ld. Counsel also placed reliance on the decision of a Division Bench of this Court in the case of Akhtar Hossain Chowdhury v. State of West Bengal, 2013 (2) CHN (Cal) 632. In that case the Hon�ble Division Bench held that the concerned teacher had applied for prior permission to the District Inspector of Schools for undergoing higher studies and such permission was never refused although not specifically granted. The Court held that this would not stand in the way of the teacher getting the benefit of higher scale of pay upon improving his educational qualification. Acquiring higher qualification even through correspondence course would not be an impediment to the teacher being entitled to higher scale of pay. The underlying rationale appears to be that a teacher upon improving his qualification is better equipped to impart education to the students and the students are benefited from such higher qualification of the teacher.

Relying on the aforesaid submissions, Ld. Counsel prayed for an order in terms of the prayers in the writ petition.

Appearing on behalf of the State authorities Mr. Anami Sikdar placed reliance on Circular No. 253-Edn. (B)/IM. 12/84 dated 17 September, 1984, issued by the Education Department, Budget Branch, Government of West Bengal. The relevant clause of the said Circular reads as follows:-

"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 date on which higher qualification was obtained."

Relying on the aforesaid Circular Ld. Counsel submitted that the petitioner was entitled to Post-Graduate Scale of pay from 16 June, 2002 i.e. after passage of five years from the date of obtaining Master Degree in Bengali.

The aforesaid submission of Ld. Counsel is inconsistent with the stand taken by the contesting respondents in their affidavit-in-opposition wherein at paragraph 4 the respondent contended that the petitioner is entitled to get Post-Graduate scale of pay with effect from 8 December, 2001. It is further stated in the said affidavit that the District Inspector of Schools inadvertently and without verifying the gravity of academic interest and only on the basis of recommendation of the Managing Committee of the School granted Post-Graduate scale of pay to the petitioner with effect from 13 June, 1997 i.e. the date following the last date of the petitioner�s M.A. examination. This mistake has been identified by the Audit Officer during verification of the pension case of the petitioner and such mistake must be rectified.

The Ld. Counsel for the respondents then referred to Clauses 1.4 and 1.5 of the Memorandum No. 88/SE/(B)/EES/OIB/IM-9/98 dated 26 May, 1998, issued by the School Education Department, Budget Branch, Government of West Bengal which are as follows:-

"1.4. On receipt of the Application Forms, 18 (eighteen) months in advance, in Part �A�/Form �C� (commutation) and Forms for Nomination along with other enclosures/documents from the retiring employee the Headmaster/Headmistress/Teacher-in-Charge/Administrator/Sub-Inspector (Circle), as the case may be, shall start work of preparation of pension papers. He shall fill up Part �B� of the Comprehensive Form, issue Pay Certificate in Part �C� of the Comprehensive Form mentioning therein the liabilities (if any) to be recovered from the pensionary benefit and shall complete the entries and required certificates in the Service Book of the retiring employees.

1.5. The Headmaster/Headmistress/Teacher-in-Charge/Administrator/Sub-Inspector (Circle), as the case may be, shall send the pension papers, Part-A, Part-B, of the Comprehensive Form, Pay Certificate, Part �C�, Form C (for commutation of pension), Nominations for Death Gratuity in L.T.A. pension. Service Book along with other documents/enclosures as mentioned in the pension Form, duly completed in all respects to the Pension Sanctioning Authority, i.e. District Inspector of Schools fifteen (15) months in advance from the date of superannuation of the employees for issue of pension sanction order in Part-E."

18(i). Referring to the aforesaid Memorandum, Ld. Counsel submitted that the pension case of the petitioner was submitted to the office of the District Inspector of Schools by Memo dated 26 September, 2008 only two months in advance from his date of retirement i.e. 30 November, 2008 and thus, there was violation of Clause 1.5 of the aforesaid Memorandum. It was further submitted that for noncompliance with the audit objection by the School Authority and the petitioner, the pension case of the petitioner has not been finalised and only the petitioner and the School Authority are responsible for the same. It was further contended that in terms of the Memo dated 6 March 2013 issued by the Directorate of Pension, Provident Fund and Group Insurance, Finance Department, Government of West Bengal (R- 5 to the affidavit-in-opposition), the petitioner will have to refund the overdrawal amount which had been paid to the petitioner due to inadvertent approval of Post-Graduate scale with effect from 13 June, 1997 instead of 8 December, 2001.

In this connection Ld. Counsel referred to the Supreme Court decision in the case of Shyambabu Verma (supra) and submitted that even going by that decision the pay scale of an employee can be reduced by correction of inadvertent mistake for future purpose but not retrospectively. Ld. Counsel also referred to the Supreme Court decision in the case of Syed Abdul Qadir v. State of Bihar, 2009 (1) Supreme 163, in support of the same contention.

I have considered the rival contentions of the parties.

The Government Circular No. 57 SE(S) dated 27 January, 1995 extracted herein above makes it amply clear that an Assistant Teacher of non-Government Secondary Schools who takes classes in subjects relevant to his higher qualification though appointed in a different group/subject, will be entitled higher pay provided he takes at least six classes per week in the subject relevant to his higher educational qualification upon the written consent of the concerned teacher and according to the academic need of the concerned school. In the present case, although the petitioner was appointed in the science group and took classes in science subjects till 7 December, 2001, it appears from the records of the case that he also took at least six classes in Bengali in during that period as allotted to him by the School Authority. Hence, in my opinion, he is clearly entitled to receive Post-Graduate Scale of pay with effect from 9 December, 1997 being the date following the last date of his M.A. examination and the District Inspector of Schools rightly granted the petitioner higher pay scale admissible to an Assistant Teacher having Master degree with effect from 9 December, 1997. There was no mistake on the part of the District Inspector of Schools in granting the petitioner higher scale of pay with effect from 9 December, 1997. The present stand of the respondents that the District Inspector of Schools had committed a mistake in doing so, is baseless, an afterthought and is rejected.

Since there was no mistake on the part of the District Inspector of Schools in allowing the petitioner to draw higher scale of pay with effect from 9 December, 1997, no question of overdrawal of salary by the petitioner or excess payment to him by the respondents can or does arise. Hence, the present stand of the respondents that the petitioner is liable to refund alleged excess payment made to him, is absolutely baseless and not tenable in the facts of the case.

Even at law, the contention of the respondents that the petitioner must refund the alleged overdrawn amount or that the same must be given credit for finalising the retiral benefits of the petitioner, is not sustainable. Even assuming the petitioner was erroneously granted higher scale of pay with effect from 9 December, 1997, the petitioner cannot be blamed for the same in any manner. It is not that the petitioner misled the respondents or played fraud on them or hoodwinked them in any manner to obtain higher scale of pay with effect from 9 December, 1997. Even if, the higher scale of pay was granted with effect from 9 December, 1997 by reason of inadvertent mistake on the part of the respondent authorities, the petitioner cannot be faulted for the same and no amount can be recovered by the respondent authorities from the petitioner on that ground. This is the ratio decendi of the Hon�ble Supreme Court�s decisions in the case of Shyambabu Verma (supra) and Syed Abdul Qadir (supra).

Admittedly, the petitioner retired from service on 30 November, 2008. Almost seven and half years have elapsed since then but the petitioner is still running from pillar to post for receiving his retiral benefits. This is most unfortunate. This court by its order dated 2 September, 2011 directed the State respondents to release the retiral benefits of the petitioner on the basis of his last drawn salary within a period of eight weeks along with interest at the rate of 10 per cent per annum on the delayed payment of gratuity. This court further observed that the pensionary relief would be paid to the petitioner as per his actual entitlement towards his pay and allowances.

Upon the said order being communicated to the office of the D.I., the D.I. of Schools took a view that the petitioner was entitled to higher scale of pay only from 8 December, 2001 and not from 9 December, 1997 and stuck to such view by issuing letter after letter for correction of the salary statement of the petitioner. As I have held above, this view of the D.I. of Schools is completely erroneous and is not sustainable at law and in the facts of the case.

The reliance of the respondents on the Circular dated 17 September, 1984 is totally misplaced. It is the Circular dated 27 January, 1995, that applies to and governs the facts of the instant case. In any event, the 1984 Circular stands superseded by the 1995 Circular.

As regards the respondents� contention of late submission of the pension papers of the petitioner and not 15 months in advance from the date of the petitioner�s superannuation as provided in the Memorandum dated 26 May, 1998, extracted above, in my opinion, the same cannot be a ground for withholding the petitioner�s retiral benefits for about 8 years. In any event, it was the School Authority who was responsible for submission of the pension papers and if there was some delay in that regard, the petitioner should not suffer. Further, this point pales into insignificance in view of the fact that admittedly the petitioner�s pension papers were submitted on 26 September, 2008, and more than seven and a half years have elapsed since then.

It is a matter of shame that teachers who shape the future of the youths of this country are treated with scant regard by the State Authorities. A teacher makes immense sacrifices in life and dedicates the prime of his life so that the students are benefited. He finds his reward in seeing his students doing well in life. Teaching is undoubtedly one of the noblest occupations. A teacher does not aspire for mansions or luxury cars or a fat bank balance but he is definitely entitled to be treated with respect and regard and withholding a teacher�s retiral benefits on frivolous and completely untenable grounds definitely calls for retribution of the authorities who are responsible for such irresponsible acts.

Accordingly I make it clear that the petitioner is entitled to higher scale of pay upon acquiring Master Degree in Bengali with effect from 8 December, 1997 and his pensionary benefits will be calculated accordingly. The respondent authorities shall process the entire retiral benefits of the petitioner within a period of six weeks from the date of receipt of this order without insisting on any correction of the service records or salary statement of the petitioner in any way. The entire retiral benefits shall be paid to the petitioner within eight weeks from the date of receipt of this order. The respondent authority shall pay interest at the rate of 10 per cent per annum to the petitioner on the gratuity amount payable to him from the date of retirement of the petitioner up to the date of actual payment. The respondent authorities shall also pay interest on the arrear pension amount, if any, at the rate of 10 per cent per annum from the date such pension should have been paid to the petitioner till the date of actual payment. This is a small amend that the State authorities can make to compensate the petitioner for depriving him of his lawful retiral benefits on frivolous grounds and harassing him to no end. This court expects the D.I. of Schools to act more responsibly and efficiently in discharging his duties including processing and releasing the retiral benefits of teachers who superannuate, expeditiously and on priority basis.

This writ application succeeds and is allowed as indicated above. The petitioner shall be entitled to costs of this proceeding assessed at Rs. 20,000/- to be paid to him along with the retiral benefits in terms of this order.

Urgent certified photocopy of this order, if applied for, be given to the parties upon compliance of necessary formalities.