Bashab Kumar Chatterjee vs The State of West Bengal and Others

I.P. Mukerji, J.—Mr. Majumdar, learned counsel for the State, has argued the case as strongly as possible. He has placed all the facts, all the documents, decisions and letters that are on record. But unfortunately, no matter how hard he tries today; he is not in a position to reverse the state of affairs that started on 10th September, 1980 with the appointment of the writ petitioner as an assistant teacher in Bengali and ended with his retirement on 30th August, 2008. The writ petitioner''s retiral benefits have been held up by the Government. There is only one substantial ground for doing so. It is this. The writ petitioner did not have a qualification in Master of Arts in Bengali that could be recognised by the Government.

In 1972, the writ petitioner obtained a Master of Arts degree from the Chittagong University in Bangladesh. On the basis of this degree he was placed in the post-graduate scale of pay. He also had an honours degree in Bengali from the same University.

There was no fraud or concealment on the part of the writ petitioner. He had openly disclosed his credentials at the time of his appointment. His pay scale was revised from time to time on this basis, until he finally retired in 2008 drawing pay, as re-fixed from time to time, in the post-graduate scale.

The Government wants to withhold the retirement benefits on the ground of his qualification. According to them, in order that the master''s degree to be recognised, the writ petitioner should have undergone a two-year course in an University in Bangladesh. Furthermore, the degree obtained should have been endorsed by the Ministry of External Affairs of this country that it was genuine and that the writ petitioner had an Indian passport and a Bangladesh visa.

It was for the first time on 2nd February, 1988 that the Government of West Bengal took the decision that an educational qualification from Bangladesh obtained after 16th March, 1971 should be so verified through the Ministry of External Affairs.

On 9th January, 1990, a memorandum was published by the Government of West Bengal to the effect that a M.A. degree would be recognised only upon the completion of a two year course. An exception was made in the case of the Headmaster only.

First of all, in my opinion, it is very doubtful whether the terms and conditions, of an existing employment could be changed by this kind of a notification dated 9th January, 1990. In any event, such a notification would not have retrospective effect. The writ petitioner was already in service in the school with the above qualification, from 1980.

Assuming that the Government was competent to de-recognise qualifications and recognise particular qualifications obtained in specific conditions from Bangladesh, it did not enforce the notifications of 9th January, 1990/2nd February, 1988 against the writ petitioner by formally de-recognising his qualification and reducing his scale of pay.

Mr. Majumdar, learned advocate for the State, cited a decision in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, . He relied on paragraph Nos. 13 and 14, which are inserted below:--

We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only tire amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

We are concerned with the excess payment of public money which is often described as "taxpayers'' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also with-out any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

He also cited a decision in the case of Videsh Sanchar Nigam Ltd. and Another Vs. Ajit Kumar Kar and Others, . He relied on paragraph 46, which is inserted below:--

It is well settled that a bona fide mistake does not confer any right on any party and it can be corrected. VSNL vide subsequent Office Order bearing Ref No. HQ-A/01-04/91-PE1 dated 18-10-1995 had rectified its mistake appearing in earlier order dated 3-9-1993 and the said office order was again modified by another Office Order bearing No. HQ-8A/-01-04/91-PE1 dated 19-12-1995 by which Para 2(A) of the Office Order dated 18-10-1995 was modified to the extent as stated in the earlier part of this Judgment. The modified order was a one-time exercise for choosing the alternatives of settlement of pension and the pensioners were required to submit their consent to the regional heads in a prescribed format by 15-1-1996. The Government of India, Ministry of Personnel, Public Grievances and Pension (DP and PW), New Delhi, issued OM dated 22-11-1996 (Annexure P-14) which is the nodal department of the Government of India for taking policy decisions on pensionary matters sent clarificatory order, a copy thereof was sent to the Ministry of Telecommunications, Department of Communications, dealing with the subject of payment of pension to the employees of erstwhile OCS who were absorbed in VSNL.

He submitted that a bona fide mistake did not confer any right on any party and could be corrected.

No one can say that the writ petitioner did not have the proper qualification. The question is only whether the Government recognised this qualification.

His qualification of Master of Arts in Bengali from the Bangladesh University was certainly recognised by the Government of West Bengal in 1980 by giving him the appointment and granting the post-graduate scale of pay and continuing to do so with increments up to the time of his retirement.

If the Government had changed its policy with regard to recognition, it did so, from or about 1988 as narrated above. That change of policy was not applied in case of the writ petitioner. In all probability, it could not be applied against the writ petitioner. It would be contrary to law. It would have the some absurd results. Take the case of an F.R.C.S. Surgeon employed in a Government hospital. Suppose, now the Government decides that the F.R.C.S. qualification should not have been recognised. It has to pass an order cancelling his appointment with retrospective effect. The result would be absurd and unjust.

In this case, no fraud or irregularity or concealment of fact is involved. The writ petitioner openly declared his qualification and was thereafter appointed. No steps were taken by the Government to reduce his scale of pay. Therefore, it has to be taken as a conscious decision by the State to recognise his service and not an omission or a mistake in calculation which could be rectified after the retirement of the service holder. Neither was any payment without the authority of law, as observed in Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , made or received in this case.

In those circumstances, this writ application succeeds. I allow this writ application by passing an order in terms of prayer (a) of the writ petition save and except that the payment of interest, is reduced to 8 per cent per annum simple interest to be paid to the writ petitioner from 1st October, 2008, (31st August, 2008-30th September, 2008 is allowed as processing time) till the date of payment of his retirement benefits. Compliance of this order is to be effected within three months from the date of communication of this order. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.