Brijendra Kumar Singh vs State Of West Bengal & Ors.

I. P. Mukerji, J

The issue involved in this appeal is very pinpointed. The appellant was a secondary school teacher in a government aided school, Salkia Shree Mishra

Vidyalaya. He was post-graduate in Political Science. He obtained this qualification in 1980. He was appointed on a temporary basis on 3rd

November, 1981 and made permanent on 3rd November, 1983.

The cause of controversy between the parties was a government circular No. 400-Edn.(B) dated 31st July, 1981 which was to the following effect:

“All existing Secondary School teachers who were appointed with higher qualifications in subjects not relevant to their teaching or who improved

their qualifications subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with

effect from the 1st April, 1981 or after five years’ teaching counting from the date on which higher qualification was obtained whichever is

later.â€​

According to the appellant he was entitled to the higher scale of pay from 3rd November, 1981 whereas according to the respondents as stated in their

affidavit-in-opposition and argued in court by their learned counsel, the appellant was not an existing teacher on 1st April, 1981 the date of effect of

the notification but was only appointed on 3rd November, 1981. Hence, he would only be entitled to the higher scale of pay five years from 3rd

November, 1983 i.e. with effect from 3rd November, 1988. On 31st October, 2017 the appellant retired.

His pension was sought to be calculated on the basis of the higher scale of pay with effect from 3rd November, 1981.

On 6th November, 2017 the District Inspector of Schools (SE), Howrah wrote to the Headmaster of the school where he taught, asking him on what

basis the post graduate scale of pay was allowed to the appellant with qualification MA (Political Science) with B.P.Ed. This letter was in response to

the letter dated 26th October, 2017 to the District Inspector by the Directorate of Pension, Provident Fund and Group Insurance to the said effect. The

pension payment order was withheld. Hence, the writ.

In paragraph 9 of the affidavit-in-opposition the respondents have stated that in the option form for ROPA 1998 as well as ROPA 2009 the appellant

had specifically undertaken to refund to the government any excess payment drawn. The appellant feels aggrieved by this threat.

We take note of three decisions of the Supreme Court in Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in (2009) 3 SCC 47,5 Chandi

Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in (2012) 8 SCC 417 S,tate of Punjab & Ors. Vs. Rafiq Masih (Whitewasher)

reported in (2014) 8 SCC 883 and State of Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 33 4brought to our

notice by learned counsel for the parties. The principle of law which is laid down is this. The government has the right to recover from a recipient any

excess amount paid to him. This recovery is justified as restitution under Section 72 of the Indian Contract Act, 1872.

However, two decisions of the Supreme Court Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in (2009) 3 SCC 475 and State of Punjab

& Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 have laid down some exceptions.

In Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in (2009) 3 SCC 475 the highest court opined:

“58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve

the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that

the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of

wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for

recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V.

Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and

Bihar SEB v. Bijay Bhadur.â€​

In Punjab & Ors. Vs. Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334 the same court said in Paragraph 18:

“18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have

mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a

ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even

though he should have rightfully been required to work against an inferior post.

In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to

such an extent, as would far outweigh the equitable balance of the employer's right to recover.â€​

First of all, the government notification was with effect from 1st April, 1981. It applied to existing teachers. It did not apply to those teachers whose

appointments were subsequent to that date, whether the appointments were temporary or permanent. The appellant was temporarily appointed on 3rd

November, 1981 and made permanent on 3rd November, 1983. On one interpretation of this notification it did not apply to him at all. But the

government applied the notification to him and made it effective from five years after his permanent appointment on 3rd November, 1983, that is, 3rd

November, 1988.

The appellant is well within his rights to say that since he had the requisite qualification on his date of appointment which was later, than the effective

date of the notification, he could claim the higher scale of pay from the date of his temporary appointment on 3rd November, 1981.

The appellant did not coerce the department or misrepresent before it or practice fraud on it to calculate the effective date of his higher scale of pay.

The respondents satisfied themselves while preparing the pension papers. There is nothing to suggest that some officer in the government acted

illegally or fraudulently. The government memorandum is such that more than one interpretation to it is possible. These factors are certainly

exceptional entitling the appellant to protection against recovery. The appellant’s case should have been considered in accordance with the

principles in Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors. reported in (2009) 3 SCC 475 and State of Punjab & Ors. Vs. Rafiq Masih (White

Washer) & Ors. reported in (2015) 4 SCC 334. Therefore, that part of the judgment ordering recovery is set aside.

I make it clear that the appellant will be entitled to pension on the basis of his recalculated scale of pay. Let his pension and other dues, if any be

released on this basis immediately not later than two months of communication of this order. The impugned judgment and order dated 12th March,

2019 is partially affirmed. The appeal (FMA 1094 of 2019) is partly allowed.

No order as to costs.

Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.