Nirmal Kumar Maity vs The State of West Bengal & Ors.

In this writ petition the short issue connects to the action of the Authority being the Managing Director, State Fisheries Development Corporation (for short the MD and the Corporation respectively) to fix the pay and other admissible benefits of the writ petitioner with retrospective effect from 1st July, 1988 after reverting him to the post of fisherman-cum-guard from the post of cashier, which the petitioner immediately held prior to his superannuation.

The reason for such action by the Authority stems from the fact that at the stage of his initial appointment the petitioner suppressed his actual qualification by only disclosing on the basis of an Admit Card issued by the West Bengal Higher Secondary Council for the Higher Secondary (HS) Examination of 1971 that he has qualified in the Class X Standard Examination.

The Authority came to the finding that the documents on which the petitioner relies are namely, a certificate issued on 16th October, 1974 by the Headmaster of the School in issue which merely states that the petitioner was a student of their institution and was scheduled to appear in the HS Examination of the year 1971 but could not appear at the said examination. Second, the petitioner relies upon a Xerox copy of the purported Admit Card for appearing in HS Examination of 1971.

The Authority, through repeated orders pursuant to several interventions by this Hon''ble Court at the behest of the petitioner, came to the finding that the Class X Pass Certificate which, under the relevant Government Orders (GOs) dated 9th January, 1980 and 12th January, 1963, could be treated as equivalent to School Final Matriculation Pass Certificate differs from the mere Admit Card for the HS Examination since, such Admit Card is not equivalent to a Class X Pass Certificate. Therefore, the Authority came to the further conclusion that the petitioner did not possess equivalent educational qualification for the appointment to the Group ''C'' post of Project Assistant (for short PA) in the year 1988.

It is relevant to mention that the petitioner continued to be in the service of the Corporation from 1988 till his retirement on 31st July, 2013 and, in the meantime the petitioner was even promoted to the post of Cashier, from which he eventually retired.

Mr. Soumen Dutta, Ld. Counsel for the petitioner relying on the decision reported in AIR 2015 SC 696 at Paragraph 11 submits that there can be no recovery from the retirement dues of the petitioner who has since retired after completing long years of service. Mr. Dutta further argues that the Authority erred in not treating the Admit Card as equivalent to a Class X Pass Certificate.

Further, according to Ld. Counsel for the petitioner, there is no evidence of fraud committed by the petitioner since the petitioner repeatedly knocked on the doors of the Authority for treating his HS Admit Card as a Class X Pass Certificate. It is brought to the notice of this Court that pursuant to the action of the Authority impugned in the writ petition, the retirement dues of the petitioner have been unreasonably withheld and the petitioner is now living hand-to-mouth on the basis of a meagre provisional pension.

Arguing for the respondents/Authority, Mrs. Santi Das, Ld. Counsel points out that the Finance Department''s Memo dated 9th January, 1980 is unequivocal on the point that a 10th Class Certificate from a HS School shall be treated as equivalent to a final/matriculation Pass Certificate for the purpose of appointment to a Group C post under the State. Mrs. Das further points out that such Memo of the Finance Department is binding upon the Corporation.

The further stand is taken by the Authority is that the petitioner failed to produce the 10th Class Certificate and even the original HS Admit Card inspite of opportunities granted to do so and, on the contrary, relies upon a certificate of the Headmaster alone. It is also brought to the notice of this Court that the petitioner never took the point that the 10th Class Certificate is lost from his custody and simply reiterates that the Xerox copy of the HS Admit Card be treated as equivalent to a 10th Class Certificate. Therefore, Mrs. Das submits that close on the superannuation date of the writ petitioner the Authority came to a valid conclusion that the petitioner, did not qualify to be initially appointed in the Group C post of PA. Therefore, the petitioner stood rightly reverted and, order of recovery drawn.

Having heard the parties and considering the materials placed, this Court arrives at the following findings:-

A) That undoubtedly the petitioner claimed to be appointed to a Group C post on the basis of a Xerox copy of HS Admit Card which cannot be treated to be the equivalent of a Class X Pass Certificate.

B) That unarguably there is a conceptual difference between an Admit Card and a Pass Certificate. Both the documents represent two ends of an examination process. The first allows entry into the examination and, the second proves that the examinee qualified in the examination.

C) That the Xerox copy of the HS Admit Card cannot be treated to be the equivalent of a 10th Class Pass Certificate is a fact which does not require elaboration. It is plain to this Court that the petitioner did not fall within the purview of the GO dated 9th January, 1980 since a certificate cannot be treated to be the equivalent of an Admit Card.

D) That the petitioner failed to produce even the original Admit Card is a fact which also requires to be noticed by this Court. It is to be further noticed that the petitioner relies upon the Certificate of the Headmaster of the institution which stops short of unambiguously stating that the petitioner qualified in the Class X Examination of the School. The Headmaster'' Certificate only reiterates the stand of the petitioner that he was scheduled to appear in the HS Examination of the year 1971 but, could not do so. Therefore, even the Certificate of the Headmaster fails to demonstrate any equivalence between an Admit Card and a Class X Pass Certificate.

E) The further point is not oblivious to this Court that inspite of several opportunities the petitioner failed to produce the original documents or, failed to take the position that the original Class X Pass Certificate was lost from his custody. Therefore, although this Court is conscious of the fact that the petitioner started knocking on the doors of the Authorities with the documents in support of his educational qualification namely, the Xerox copy of the Admit Card and the certificate of the Headmaster and, thereby attempting to come clean on any charge of fraud that could be evelled against him, this Court at the same time must be conscious of the fact that during the stage of his initial appointment in 1988 the petitioner was very much aware of his educational limitations and, therefore cannot claim to be Ceasar'' wife qua a charge of subterfuge.

F) At the same time this Court finds that the Authority at the relevant point of time made entries in the service record of the writ petitioner permitting him to continue in a Group C post and to draw the scales of pay attached thereto and thereafter even promoted the petitioner to the post of Cashier. From the judgment and order of an Hon''ble Single Bench of this Court dated 4th March, 2015 in WP 5889(W) of 2015 with WP 23093(W) of 2013 this Court finds enough persuasive materials of hold that the Authority was reminded to take notice of relevant considerations while arriving at its decision that the petitioner did not meet the eligibility criteria to be initially engaged as PA in the year 1988.

G) Accordingly, this Court finds that the Authority acted in a manner by which the deliberate lapses on the part of the petitioner were brushed under the carpet and his service record dressed up to show his eligibility for a Group ''C'' post. Admittedly again the petitioner worked in a Group ''C'' capacity till 2013, i.e. upto his retirement.

It is an acknowledged position in law that although fraud is a consideration for directing recovery at any stage, in this case the conduct of the Authority enmeshed with the conduct of the petitioner cancels out one culpability of fraud by another.

Therefore, considering the law against recovery laid down in the facts of 1995 Supp (1) SCC 18, In Re: Sahib Ram vs. State of Haryana & Ors., the petitioner can be extended parity of treatment. The Authority is accordingly restrained from effecting any further recovery from the writ petitioner.

The very fact that the Authority decided not to cancel the initial appointment of the petitioner but to revert him to the Group ''D'' post of fisherman-cum-guard in order to quietly bury the traces of its own negligent conduct allowing the petitioner to work in an enhanced capacity till his superannuation restrains this Court from directing any further recovery.

However, the corresponding action of the Authority correcting its stand, although belated, by reverting the petitioner to the post of fisherman-cum-guard stands answered in the affirmative.

Accordingly, the Authority is directed to calculate and release the admissible retirement dues of the petitioner in the light of the above findings of this Court within a period of six weeks from the date of communication of this order.

WP 18150(W) of 2015 stands disposed of.

There will be, however, no order as to costs.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.