DEB KAMAL MUKHERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Petitioner, a retired Headmaster of Matigara Harasundar High School being aggrieved by the fixation of last pay and the amount of Provisional Pension to that effect by the District Inspector of Schools (SE) Siliguri, in terms of Memo No. 1415/G/S(6) dated July 21, 1997, has challenged the same in this writ application praying the following reliefs:

(2.) Respondent Nos. 1, 2 and 3 -filed Affidavit -in -Opposition opposing prayers of sanction of provisional pension and grades in favour of the Petitioner in the scale of Headmaster, by annexing a decision of Director of School Education issued under Memo No. 2045/TA dated December 22, 1999, whereby in view of Petitioner's lack of qualification to enjoy the pay scale of Headmaster of a High School or Higher Secondary School, the pay as enjoyed by the Petitioner for the period January 1, 1969 to August 31, 1996 that is from the date of assuming the charge of Headmaster of a High School till the date of retirement was directed to be deducted being an excess amount drawn by the Petitioner and in lieu thereof direction was made to pay working allowance for discharging the duties of Headmaster for the said period under existing rule providing 20 per cent of basic pay in his grade according to qualification. In the Affidavit -in -Reply the said Memo dated December 22, 1999 of Director of School Education, West Bengal which to be referred to as DSE for brevity has been challenged by the Petitioner on several grounds.

(3.) It is submitted by Mr. Maharaj Sinha, learned Senior Advocate, appearing for the Petitioner that while the Petitioner was working as Headmaster of Matigara Harasundar Junior High School, the school was upgraded with retrospective effect from January 1, 1969 in terms of the decision dated November 2, 1970 issued by the appropriate authority and Petitioner continued W discharge the function of Headmaster, on enjoyment of the pay scale as was admissible to him while he was working as Headmaster of Junior High School. Petitioner filed a representation for fixation of his pay scale as Headmaster of High School in view of its upgradation in terms of Government Circular no -. 386 -Edn. (S) dated March 12, 1974. Learned Advocate of the Petitioner submitted that in terms of the said Circular Letter dated March 12, 1974, Petitioner was eligible to enjoy the pay scale of Headmaster ota High School irrespective of the fact of his qualification of a Special Honours degree, since, by the said Circular Letter, a provision was made for regularization of such appointment in the post of Headmaster for enjoyment of such pay scale Of a Headmaster of High School. It is contended by the Petitioner that in terms of the representation of the Petitioner dated May 24, 1974, the District Inspector of Schools (SE) Darjeeling by his Memo No. 918/IM -59 dated August 22, 1974, allowed the Petitioner's pay scale in the post of Headmaster of a High School and in pursuance thereof the School Authority continued to pay the Petitioner's salary in terms of the grant in aid rules in the said pay scale as applicable to the duly qualified Headmaster of a High School. Petitioner continued to receive such pay scale till the date of retirement on August 31, 1996 by enjoying the basic pay of Rs. 4,100.00 in terms of the revised pay scale as introduced by: notification No. 33 -Edn (b) dated March 7, 1990. It is contended by the learned Advocate of the Petitioner that in view of. enjoyment of the pay scale of a qualified Headmaster of a High School, the fixation of the basic pay of Rs. 2,850.00 being the pay of Assistant Teacher of a High School and thereby fixation of provisional pension to the tune of Rs. 1,408.00 on that basis was absolutely bad and illegal. The learned Advocate of the Petitioner further challenged the Memo da*ied: December 22, 1999 issued by Director of School Education, West Bengal on the ground that after retirement, such Memo was issued directing deduction of alleged excess amount as drawn by the Petitioner due to enjoyment of pay scale of a Headmaster of a High School for the period January 1, 1969 to August 31, 1996, without hearing the Petitioner. It is contended vehemently that principle of natural justice was violated and accordingly prayed for quashing and setting aside of said Memo dated December 22, 1999 issued by Director of School Education, West Bengal being Annexure 'A -1' of the Affidavit in Opposition and to grant necessary relief to the Petitioner. Learned Advocate of the Petitioner relied upon the judgment of the Apex Court passed in the case Bhagwan Shukla v/s. Union of India and Ors., 1995 (2) L.L.J. 726 in support of his case, contending, inter alia, that without any opportunity, since the Petitioner pay scale was fixed and direction was given to deduct excess amount as drawn, the same is liable to be quashed as the Petitioner has suffered a civil consequence without any hearing. However, learned Advocate of the Petitioner invited this Court to look into the Circular Letter No. 386 -Edn. (s) dated March 12, 1974 which would satisfy the Petitioner's claim for enjoyment of pay scale of Headmaster of a High School. It is contended that in terms of the said Circular Letter dated March 12, 1974 Petitioner was regularized as a qualified Headmaster of the High School. It is contended by the learned Advocate of the Petitioner that in terms of Clause. 2 of the said Circular Letter dated March 12, 1974, the regularization of appointment of graduates with Special Honours in the post of Headmaster of the High School was allowed. Learned Advocate of the Petitioner further referred to the cl. 5A of the said Circular Letter dated March 12, 1974 in support of his contention.