ANJALI ROY Vs. STATE & ORS.

JUDGEMENT

(1.) These writ petitions relate to the question of extension of service of certain numbers of teaching staff in certain schools beyond 60 years of age. On the 7th March, 1990 the Education Department, Government of West Bengal issued memorandum No. 33-Edn.(B). Broadly speaking this memo No. 33-Edn. dated the 7th March, 1990 inter alia offered option to the teachers of Government sponsored or aided schools to retain pre-revised scale of pay, that is, pre 1986 scale of pay with the right to be considered for extension of service after attaining 60 years (upto 65 years) of age or to opt for the revised scale of pay by foregoing the right to be considered for extension of service beyond 60 years of age. The option was required to be exercised within 90 days from the date of issue of the said memo. No. 33 Edn., that is, from 7.3.90. The said memo. No. 33-Edn. was however challenged in the Court by the West Bengal Head Masters' Association and others.By an interim order dated the 18th July, 1990 a Division Bench of this Court allowed opportunity to exercise option in terms of the impugned memo dated 7.3.90 without prejudice to the rights and contentions of the parties.

(2.) By an order, dated the 6th Aug., 1991 a Division Bench upheld the validity of the memo No. 33-Edn. dated 7.3.90 and directed that fresh opportunity be given to exercise option within a time to be specified by the State Government and that those who exercise option in favour to the revised scale of pay shall be deemed to have waived their statutory right for being considered for extension of their services after superannuation, but those who opt to continue in service with the existing scales of pay shall be considered for extension of service after superannuation at the age of 60 years. Pursuant to that, the State Government issued memorandum No. 348-Edn.(B) dated 30.8.91 fixing 30.9.91 as the date within which such option was to be exercised. The Government also issued a notification, being notification No. 1151-Edn. (S) dated 20.8.91, by which Rule 28 of the Management Rules, 1969 was amended. Both the notification No. 1151-Edn (B) dated 20.8.91 and the memo No. 348-Edn. (B) dated 30.8.91 were however challenged by writ petition. Subsequently the Government issued notification No. 458-Edn.(S) dated 27.4.92 further amending Rule 28 of the Management Rules and also issued memo No. 196-Edn. (B) dated 27.4.92 by this memo No. 196-Edr. (B) dated 27.4.92 the Government permitted the teaching and non teaching staff to withdraw their earlier option exercised in favour of (he revised scale aDd revert to the pre 1986 scale of pay on condition that they will have to refund the excess amount, if any, drawn by them consequent upon fixation of their pay in the revised scales introduced with effect from 1.1.86. Such withdrawal of option was required to be effected by submission of a written statement to the concerned authorities to that effect in the form provided for the purpose within 90 days from 27.4.92 and also of an undertaking to refund the excess amount, if any, drawn by them within 60 days from the date of submission of the written statement and undertaking. The said notification No. 458-Edn. dated 27.4.92 and memo No. 196-Edn. dated 27.4.92 were however challenged by writ petition. A Division Bench of this Court by order dated 2.3.7.92 directed that til) disposal of the writ petition, undertaking referred to in the memo dated 27.4.92 (meaning memo No. 196-Edn.) shall not be given effect to by the State respondents. In the subsequent order dated 28.7.92 the Division Bench recorded that on 23.7,92 on behalf of the writ petitioners an undertaking was given to the Court that if the matter in dispute was ultimately decided against them they would refund back whatever would be payable by them as a result of the decision going against them. The Division Bench also by its order dated 28.7.92 extended the time for exercising option by the writ petitioners upto 7th Aug., 1992. As we have already seen, by memo No. 196-Edn. the option was required to be exercised within 90 days from 27.4.92, that is, by the 24th July, 1992. The Division Bench by order dated 28.7.92 however extended the time for exercising option upto 7th Aug., 1992. By memo No. 300-Edn. dated 13.8.92 the Government prescribed the procedure for refund of over-payment made to the. employees who, pursuant to memorandum No. 196 Edn. dated 27.4.92 opted to revert to the pre 1986 scale of pay. It is stated in Clause (1) of that memorandum that the employees shall submit written option to retain the pre 1986 scale of pay to the authority of the school and the D. I. of Schools shall intimate the employee concerned the overpayment made to such employee within three weeks from the date of receipt of such option. Clause (2) provides that on receipt of such intimation from the D.I. the concerned employee shall deposit the amount in the Reserve Bank or the Treasury within the stipulated period of time, It is contended on behalf of the writ petitioners that since in Clause (1) of the said memo No. 300-Edn. it is stated that the employee shall submit option to retain the pre 1986 scale of pay to the authority of the school and thus uses future tense "shall" in this context, the time for exercising option gets automatically extended and that too, without any outer time limit. On an overall consideration of the facts and circumstances including the recital of the context contained in the said memo No. 300-Edn., this argument does not seem to be tenable at all. The memo No. 300-Edn. describes as its background the earlier memo No. 196-Edn. by which an option was required to be exercised within a particular time limit for reverting to the pre 1986 scale with condition to refund the excess amount drawn by virtue of earlier exercise of option to come under the revised scale of pay. Therefore inspite of any imperfection of language used in memo No. 300-Edn. it cannot be held that this memo No. 300-Edn. sets at naught the time limit fixed by memo No. 196-Edn. Memo No. 300-Edn. for all practical purposes and inspite of any imperfection of the language, rather prescribes the procedure for refund of the excess amount drawn by the concerned employee prior to the exercise of option to revert to the pre 1986 scale of pay. The procedure prescribed is that the D. I. of Schools would intimate the employee concerned the over drawn amount within three weeks from the date of receipt of the option exercised by the employee to revert to the pre 1986 scale and on receipt of such intimation the concerned employee shall deposit the amount in the Reserve c Bank of India or the Treasury within the stipulated period of time fixed for the purpose. In Clause 3(d) it is provided that till the Treasury challan showing the deposit is submitted to the D. I. the drawal of pay in the pre 1986 scale shall be treated as provisional. This provision thus makes it clear and this is also the natural import of the exercise of the option to revert to the pre 1986 scale, that on the exercise of the option to revert to the pre 1986 scale, that is, pre-revised scale from the revised scale of pay the employee concerned will draw pay in the pre-revised scale and will not any more draw pay in the revised scale. As we have seen, the revised scale of pay is coupled with a condition that the incumbent concerned will have to retire at 60 years without claiming the benefit of consideration for extension of service beyond 60 years of age. But an employee who by exercise of option, original or fresh, within time retains or reverts to the pre-revised scale of pay will be entitled to be considered for extension beyond 60 years of age.

(3.) There cannot however the any question that an employee who inspite of exercise of option in favour of the pre-revised scale draws or continues to draw pay in the revised scale will yet be entitled to the benefit of consideration for extension beyond 60 years simply because he has exercised option in paper only. Obviously one cannot have both the benefits, namely, the benefit of the revised scale of pay and also the benefit of consideration for extension beyond 60 years of age. But of course the excess amount drawn by enjoying the benefit of the revised scale in terms of memo No. 33-Edn. dated 7.3.90 till the exercise of option for reversion to the pre-revised scale pursuant to memo No. 196-Edn. was required under memo No. 300-Edn. to be quantified by the D. I. and the employee concerned was required to deposit the quantified amount within the prescribed time on receipt of the communication from the D. I. in that respect. As we have seen, in Clause 3(d) of memo No. 300-Edn. it is stated that till the Treasury challan showing deposit of the excess amount drawn, obviously till reversion to the pre-revised scale, the drawal of pay in the pre-revised scale will be treated as provisional. The import of this clause is that till the over-drawn amount is refunded by the incumbent concerned in accordance with the prescribed procedure he cannot claim the benefit of extension beyond 60 years of age simply because he has been drawing pay in the pre-revised scale, and any extension beyond 60 years, even if granted or availed of, will be only provisional and will be subject to the liability to refund the over-drawn amount. The argument of the learned Advocate for the petitioner that the incumbent concerned has no responsibility to see that he draws pay in the pre-revised scale rather than in the revised scale after exercise of option to revert to the pre-revised scale does not seem to be tenable It may be that the pay statement is submitted by the school authorities and the D. I. passes the bill or sanctions the amount but. that does not mean that the incumbent concerned has no responsibility in the matter. After the exercise of the option to revert to the pre-revised scale if the incumbent concerned finds that he is being given pay by the school authorities in the revised scale of pay it is his duty to point out the irregularity to the school authorities and ask them to prepare the pay bill for him in the pre-revised scale rather than in the revised scale. He cannot continue to draw the pay in the revised scale after exercising the option to revert to the pre-revised scale without pointing out the same to the school authorities. Of course if there were any bona fide mistake or confusion in the matter, that could be remedied or rectified by subsequent acts by refunding the excess amount drawn after the exercise of option to revert to the pre-revised scale and by drawing pay in the pre-revised scale with due promptitude. A similar memorandum being memo No. 10-Edn. (E) dated the 10th Jan., 1993 was issued in the same line as the memo No. 300-Edn. It is further to be noted here that although in view of memo No. 196-Edn. dated 27.4.92 the option for reversion to the pre-revised scale was required to be exercised within 90 days, that is, 24th July, 1992 yet the time for exercising such option, as we have already noticed, stood extended upto 7th Aug., 1992 in view of the order of the Division Bench dated 28.7.92. The Government by its memo No. 59-SE(B)dated the 17th April. 1995 took note of the fact that the option to revert to the pre-revised scale was required to be exercised within 90 days from the date of the issue of memo No. 196-Edn. dated 27.4.92 and the time was subsequently extended by the High Court upto 7.8.92 and accordingly, all such options for reversion to the pre 1986 scale were required to be exercised by 7.8.92. There is no doubt that this is the correct position.