AMITA KUNDU Vs. STATE OF WP

JUDGEMENT

(1.) IN this writ petition the petitioner has challenged the memo dated 12th January, 2007 and memo dated 1th April, 2007 issued by the Assistant Director, Directorate of Pension, Provident Fund and Group insurance, Government of West Bengal, respondent No. 5 and the Pension payment Order (for short 'the P. P. O. ') deducting a sum of Rs. 91,903/- from her gratuity. Prayer has been made to pay the deducted amount along with interest at the rate of 18% per annum with effect from the date of retirement till the date of its actual disbursement. Directions have been prayed for release of the dues by allowing Grade A Pay Scale to the petitioner since she had obtained B. Ed. degree in terms of the memo dated 7th February, 1967 ('1967 memo' for short) and G. O. dated 31st May, 1996 (for short-1996 g. O. ' ).

(2.) THE facts of the case are that the petitioner, a graduate, on 1st March, 1972 joined the Natun Bazar Primary School, Midnapore as an assistant teacher. On 5th October, 1972 approval was granted by the District Inspector of Schools (P. E.), Midnapore. Subsequently the District Inspector issued a declaration of confirmation dated 25th October, 1980. It has been stated that pursuant to an application seeking permission for getting admitted in the b. Ed. training course, the Managing Committee of the school by a resolution granted permission to pursue the course. The petitioner pursued the course, acquired B. Ed. qualification and was granted pay scale in A category with effect from 8th March, 1973. Thereafter, vide memo dated 25th April, 1997 the primary School Council confirmed her service with effect from 1st March, 1974. During service career the petitioner exercised her option and availed of the benefits under ROPA 1998. In March, 2007 the petitioner had retired. However, on the verge of retirement she received a copy of the impugned memo dated 12th January, 2007 issued by the Assistant Director, Directorate of Pension Provident Fund and Group Insurance, respondent No. 5 to the district Inspector of Schools (P. E.) Paschim Midnapur, respondent No. 6, whereby the pension file of the petitioner was returned with an audit observation by which the respondent No. 6 was directed either to submit J. B. T. certificate or to recast the pay of the petitioner according to B category scale of pay and furnish overdrawal statement. Thereafter, by memo dated 11th april, 2007 issued by the respondent No. 5 to respondent No. 6 it was observed that the petitioner was not eligible to get A category scale of pay from 14st october, 1974. However, the respondent No. 5 directed the respondent No. 6 to ask the office of the petitioner to produce the order of prior permission allowing the petitioner to purse the B. Ed. examination and the order sanctioning leave as per memo dated 8th January, 1972 (for short '1972 memo')since according to the respondent No. 5 as per G. O. dated 20th July, 1973, no working primary teacher is eligible to undergo B. Ed course. Allegation is the action of the respondent No. 5 in issuing the memo dated 12th January, 2007 and memo dated llth April, 2007 is without jurisdiction and illegal as the authorities had granted A grade pay scale in accordance with law and the periodic increments were endorsed in the service book. It is contended that 1967 memo was issued for the purpose of payment in A category considering the case of primary category considering the case of primary teachers who were graduates. Assuming the stand taken by the respondent No. 5 is just, the petitioner is still entitled to be treated under category 'a' as her case was already decided in view of the 1996 G. O. and her qualification was incorporated in the service book. Moreover, the 1972 memo is not applicable to the petitioner as she neither prayed for deputation nor sought for leave as the school concerned was a morning school. Further, 1972 memo is independent of the 1967 memo and was issued in the interest of the deputed candidates. Since the District Inspector of Schools and education department who had utilised the services of the petitioner did not raise any objection, the question raised by the respondent No. 5 as to her status is uncalled for and illegal. Moreover, the respondent No. 6 never intimated about the alleged defects to the petitioner during her career which were sought to rectified by the impugned memo dated 12th January, 2007, a copy of which was furnished on the eve of retirement. Further, the memo dated 11th April, 2007, a copy of which was received by the petitioner after retirement, are internal communications amongst the respondent Nos. 5 and 6. So far as the undertaking dated. 8th december, 2005 given in the form for sanction of Pension under West Bengal recognised Non-Government Educational Institution Employees (DCRB)Scheme, 1981 furnished by the petitioner is concerned, omission to state facts, as alleged, did not amount to suppression since there was no allegation of overdrawal. The statutory format which the petitioner had filled up was done in good faith. Therefore, since the petitioner, a primary teacher, was a graduate having B. Ed. qualification, there was no overdrawal of salary and there was no mistake on the part of the respondents in granting A grade scale of pay. Learned Advocate for the petitioner had relied on the following judgements in support of his submissions: 1. Shyam Babu Verma and Ors. vs. Union of India and Ors. reported in 1994 (2) SCC 521; 2. Union of India vs. Indian Railway SAS Staff Association and Ors. , reported in 1995 Supp (3) SCC 600; 3. Kendriya Vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav reported in 2003 (3) SCC 437; 4. Secy. , Deptt. of Home Secy. , A. P. and Ors. vs. B. Chinnam Naidy reported in 2005 (2) SCC 746; 5. Pundlik vs. State of Maharashtra and Ors. , reported in 2005 (7) SCC 181; 6. Union of India and Anr. vs. Narendra Singh, reported in 2008 (2) SCC 760, 7. Pankaj Kumar Mondal vs. State of West Bengal and Ors. , reported in 2004 (2) CHN 346.

(3.) LEARNED Advocate appearing on behalf of the respondents submitted that the petitioner is not covered by the 1967 memo as she did not join the said school on the said date. Further it appears from the reading of the 1967 memo that there cannot be a blanket approval of the degree obtained. Even if she had improved her qualifications in the year 1973 she has to show that it was done after obtaining necessary permission from the authority in terms of the 1972 memo which aims to regulate the training method. Had the petitioner obtained Primary Teachers Training Course her services could have been utilised. By an erroneous interpretation of the memo and G. O. the State exchequer cannot suffer and since Rules are framed keeping public policy in mind, deduction cannot be stopped on the ground of hardship. Further as the petitioner had given an undertaking and at the time of scrutiny anomaly has been detected, the action of the respondent No. 5 in deducting the amount is just. Moreover, the petitioner has challenged the pension Payment Order dated 19th September, 2007 without objecting to the memo dated 12th January, 2007. Learned Advocate for the respondent had relied on the following judgements in support of her contentions: 1. Roshan Lal vs. Union of India reported in AIR 1967 SC 1889. 2. Jarnail Singh vs. Secretary, Ministry of Home Affairs and Ors. , reported in 1993 (1) SCC 47. 3. Prakash Wati (Smt.) and Ors. vs. R. I. Kapur, reported in 1995 Supp (3)SCC 709. 4. V. Gangaram vs. Regional Joint Director and Ors. , reported in 1997 (6)SCC 139. 5. Union of India and Ors. vs. Sujatha Vedachalam (Smt) and Anr. , reported in 2000 (9) SCC 187. 6. Union of India and Ors. vs. Rakesh Kumar, reported in 2001 (4) SCC 309; 7. K. Seetharam vs. B. U. Papamma and Anr. , reported in 2001 (4) SCC 322. 8. Dilip Kumar Ghosh and Ors. vs. Chairman and Ors. , reported in 2005 (7)SCC 567; 9. Union of India and Ors. vs. Sujatha Vedachalam (Smt) and Anr. reported in 2000 (9) SCC 187. 10. Ahmedabad Pvt. Primary Teachers' Association vs. Administrative officer and Ors. reported in 2004 (1) SCC 755.