Abdul Qadir vs State Of West Bengal & Ors

Shampa Sarkar, J

In this writ petition, the petitioner has challenged the deduction of an overdrawn amount of Rs.1,54,126/- from the retirement benefits of the petitioner by the respondent, namely, the District Inspector of Schools (P.E.), erstwhile Burdwan.

According to the petitioner, the amount mentioned hereinabove was not an overdrawn amount as the same was receivable by the petitioner in terms of the Government Order No. 732-SE(Law)/PL/55-28A/01 dated November 21, 2003.

For convenience, the said order is quoted below:

"From: Shri S. K. Ghosh,

Asst. Secretary to the Govt. of West Bengal.

To: The Chairman,

District Primary School Council,

P.O., P.S. & Dist. Burdwan.

Sub: Fixation of pay of the teachers coming from different erstwhile Municipal Manager school of the Asansol Municipal Corporation.

Ref: Your memo no. 3624 dated 25.06.2003.

With reference to the above, I am directed to say that:-

1) The fixation of pay of the teaches of the schools (under erstwhile Asansol Municipal Corporation) who have unconditionally, opted to be treated as 'Teachers of Burdwan DPSC' should be fixed as per Govt. order guiding such fixation but not repeat not on the basis of the existing pay they used to receive under Asansol Municipal Corporation.

2) These teachers should not get less salary than the existing teachers of Burdwan DPSC having identical length of service. Pay protection to that extent is admissible.

3) These teachers need not have to refund any excess amount (if any) drawn by them during these years. Nor they will get any protection of pay on the basis of their last emoluments drawn under Asansol Municipal Corporation.

4) No change of option regarding CPF/Gratuity or Pension/Gratuity will be entertained from those teachers at this stage. The options submitted by them under Asansol Municipal Corporation will be applicable mutates - mutandis while they are brought under the fold of Burdwan DPSC."

Aggrieved by the aforementioned deduction, the petitioner had moved this Court on an earlier occasion by filing W.P. 32161 (W) of 2008. The said writ petition was disposed of by another learned Judge of this Court with the following order:

"Having heard the learned lawyers for the parties and going through the materials on record, I dispose of this application directing the Director of School Education, (Primary Education), respondent no. 2, concerned to treat this writ application as representation of the petitioner and to look into the problem as disclosed therein and consider the same within a period of twelve weeks from the date of communication of this order. If for any reason the prayer of the petitioner is refused, reasoned order be passed and such decision be communicated to the petitioner, in writing, within a period of four weeks from the date of taking such decision.

Copy of the writ petition along with certified copy of this order be supplied to the Director of School Education, (Primary Education).

Xerox certified copy, if applied for be supplied to the parties." By a supplementary affidavit the petitioner has handed up a copy of an order dated April 9, 2015, purportedly issued in compliance with the direction of this Court.

The learned advocate for the State respondents submits that the petitioner was not entitled to any relief in this writ petition as the order dated February 9, 2015 was not challenged by the petitioner. By a supplementary affidavit the said order has been produced before this Court and the petitioner has pleaded that as the said order was lost, he could not annex the same to the writ petition and only upon an application under the Right to Information Act, the said order once again was made available to the petitioner and, thus, the supplementary affidavit was filed.

Although it is the stand of the State respondents that as the order dated February 9, 2015 was not challenged, the writ petition was not maintainable, yet in their affidavit-in-opposition, the said document was not annexed and thus withheld from the court.

Be that as it may, upon perusal of the order dated February 9, 2015 which was issued pursuant to the direction of this Court, I am of the opinion that the said order was not issued in compliance with the direction of this Court dated April 17, 2009 passed in W.P. 32161(W) of 2008. The specific direction was upon the Director of School Education, (Primary Education) to treat the earlier writ petition filed by the petitioner as a representation and to dispose of the same according to law. The order dated February 9, 2015, purportedly issued in compliance with the order mentioned hereinabove, was issued by a sub ordinate authority, designated as District Inspector of Schools, Primary Education, Burdwan.

It is settled law that when the Court has directed a particular authority to take certain steps in a matter, none other than the said authority should have taken the decision.

Under such circumstances, the order dated February 9, 2015 is quashed and set aside.

The Commissioner of School Education is directed to consider and dispose of the grievances of the petitioner in accordance with law on the basis of the statements, pleadings and records available in the writ petition.

A copy of the writ petition along with the server copy of this order should be communicated to the Commissioner of School Education, Government of West Bengal by the petitioner within a week from date. Upon receipt of the same, the Commissioner of School Education, Government of West Bengal will dispose of the matter in accordance with law upon hearing the petitioner and on the basis of the records and the Government orders applicable in this case. A reasoned order should be passed and communicated to all concerned. The entire exercise should be completed within a period of 6 (six) weeks from date of receipt of a copy the order along with a copy of this writ petition.

This writ petition is disposed of. There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, shall be supplied to the parties as expeditiously as possible.