Ujjal Roy vs State Of West Bengal & Ors

Moushumi Bhattacharya, J

The petitioner has challenged an Office Memorandum dated 21st August, 2017 passed by the District Inspector of Schools by which the petitioner's claim for grant of an Honours Graduate Scale of Pay was rejected.

The petitioner had earlier challenged an order of the District Inspector by which the D. I. had come to a similar conclusion, namely that the petitioner is only eligible for a Pass Graduate Scale of Pay. The earlier order dated 25th September, 2014 had been passed pursuant to a direction of a learned Single Judge of this court dated 7th May, 2014 in W. P. 12768 (W) of 2014. The impugned Office Memorandum was passed in W. P. 29719 (W) of 2015 where the D. I. was directed to decide on a representation of the petitioner and pass a reasoned order.

This is the third round of litigation.

Learned counsel for the petitioner at the very outset submits that the petitioner is not claiming a revised scale of pay and the prayer is only restricted to the refund of an amount of Rs.5,49,801/- which the petitioner had to deposit by way of a treasury challan dated 27th October, 2012 on the eve of his retirement.

The petitioner retired as an assistant teacher of the concerned school on 30th November, 2012. Counsel submits that the petitioner had enjoyed an Honours Graduate Scale of Pay from the date of joining, namely from 4th October, 1985. The petitioner had to however pay the amount of Rs.5,49,801 one month before his retirement for being issued the Pension Payment Order (PPO). Counsel relies on Amita Kundu (Rana) Versus State of West Bengal & Ors. reported in 2008 (3) CHN page 62 for the proposition that an undertaking given by a teacher has an element of compulsion when it is linked with the payment of pension and other superannuation benefits. Counsel also relies on Niladri Kumar Choudhury Versus State of West Bengal & Ors., an unreported decision of a learned Single Judge of this court passed in W. P. 24231 (W) of 2017 where the point of an undertaking given just before superannuation was considered. In that decision the court was of the view that a declaration made for getting pensionary benefits after retirement has a flavour of economic duress under which such declaration is extracted from an employee who is on the verge of retirement. The court accordingly was of the view that the State cannot recover such benefits when an employee is on the verge of retirement based on such declaration. Counsel relies on paragraph 18 of State of Punjab Versus Rafiq Masih (White Washer) reported in (2015) 4 SCC 334 where the Supreme Court held that situations of hardship would include recovery from employees where the excess payment has been made for a period in excess of five years before the order of recovery is issued and that in such a case recovery was not permissible in law.

Learned counsel for the State relies on Chandi Prasad Uniyal and Ors. Versus State of Uttarakhand and Ors. reported in (2012) 8 SCC 417 for the point that amounts paid without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right. Counsel also relies on High Court of Punjab and Haryana Versus Jagdev Singh reported in (2016) 14 SCC 267 where the Supreme Court held in favour of the recovery on the undertaking furnished by the concerned officer to the effect that payment would be refunded if the same was found to be in excess or subsequently demanded by the authorities. Counsel submits that in this case the petitioner had given a similar declaration at the time of filling up the pension booklet eighteen months before the petitioner retired.

I have heard learned counsel for the parties.

The material part of the impugned order of the D. I. is set out below:

"Rationale Behind the order There is no provision to grant Hons Graduate Scale for the Work Education Teacher. Hence, the claim of the petitioner cannot be acceded to.

The matter is thus disposed of in accordance with law. All concerned are being informed accordingly."

The facts relevant to the case of the petitioner have also been set out in the impugned order. The facts record that the petitioner joined the concerned school as an assistant teacher in Work Education on 4th October, 1985 and enjoyed an Honours Graduate Scale of Pay from the date of appointment. The deposit of the alleged overdrawn amount made by the petitioner through treasury challan is also recorded in these facts. Besides noting that there is no provision to grant Honours Graduate Scale of Pay, no other reasons have been stated in the impugned Memorandum.

With reference to the cases cited by learned counsel for the State, in Chandi Prasad Uniyal (supra) the Supreme Court specifically made an exception for cases of "extreme hardship". The cases of extreme hardship were subsequently enumerated in paragraph 18 of Rafiq Masih and included instances where the recovery was made of the excess amount which had been paid to the concerned employee for more than five years. Jagdev Singh was decided by the Supreme Court on the peculiar facts of that case. While the concerned respondent was posted as an Additional Civil Judge in Haryana, the Judicial Service pay scale was revised under a Notification dated 28th September, 2001. Under the Revised Pay Rules, each officer was required to submit an undertaking that any excess pay made will be refunded to the Government. Upon opting for the revised scale the respondent furnished the undertaking and was granted the revised scale of pay. The respondent was thereafter placed under suspension in 2002 and compulsorily retired from service in 2003. The pay scales were once again revised with effect from 1st January, 1996 by a Notification dated 7th May, 2003 pursuant to which an exercise was undertaken for adjustment of excess pay made to Judicial Officers and a letter for recovery was served upon the respondent. On consideration of these facts, the Supreme Court found the action for recovery to be outside the instances of hardship mentioned in paragraph 18 of Rafiq Masih. The fact that the respondent had furnished the undertaking while opting for the revised pay-scale and that this position was specifically admitted in the counter-affidavit of the respondent, weighed with the Court in holding that the respondent is bound by the undertaking. In the facts of the present writ petition, the petitioner (teacher) gave the declaration contained as a standard clause in pension booklets for the issue of the Pension Payment Order. This is not an instance either of opting for a revised pay scale on the part of the petitioner or any undertaking given in pursuance of specific Rules notified for such revision.

This court is of the view that declarations which an employee is made to give at the time of filling up of the pension booklet has an element of compulsion. In cases such as these, the declaration is connected with an assurance of disbursement of retirement benefits. It would be unusual to find an employee disagreeing to such declaration when his entire retirement benefits would be at stake. Even though it has been held in several cases that pension or retirement benefit is not a matter of bounty bestowed by the State on an employee, there is an inevitable absence of volition in the giving of such declaration when it is treated as a condition precedent for issuing of the Pension Payment Order. Pension and retirement benefits being welfare measures to ensure that a retired employee is able to lead a life of dignity after his/her retirement, cannot be interfered with until and unless the concerned authorities are able to establish fraud or misrepresentation on the part of the concerned employee or serious inequities warranting interference.

In the facts of this case, the petitioner enjoyed an Honours Graduate Scale of Pay from 4th October, 1985 on and from the date of his appointment until his retirement on 30th November, 2012. The recovery of Rs. 5,49,801/-was made on 27th October, 2012, a month before his retirement. Notably, the petitioner is no longer claiming refixation of his salary on an Honours Graduate Scale of Pay but only seeks refund of the amount which was paid by the petitioner through the treasury challan. It is evident from the facts that the impugned recovery is squarely covered by paragraph 18 (iii) of Rafiq Masih which held that recovery from employees where the excess payment has been made for a period in excess of five years before the order of recovery is issued, to be impermissible in law. The fact of the undertaking given by the petitioner cannot be used as a ground for seeking refund since the petitioner did not have any real choice in the matter on the date when such declaration was given.

In any event, the impugned Memorandum is cryptic, vague and devoid of reasons. The concerned D. I. has not relied on any Rule or Regulation to show the basis for denying an Honours Graduate Scale of Pay to the petitioner. In view of the above reasons, the impugned Memorandum dated 21st August, 2017 is set aside. The respondent no.4, namely the Director of Pension and Provident Fund and Group Insurance is directed to refund the amount of Rs.5,49,801/- to the petitioner within three weeks from the date of communication of this order and the amount should reach the petitioner not later than 13th September, 2019. The petitioner will also be entitled to interest @9% per annum from the date of issue of the Pension Payment Order, which is 5th October, 2013 until the amount is refunded to the petitioner.

W. P. 9304(W) of 2019 is disposed of in terms of the above directions.