IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Harish Tandon And The Hon’ble Justice Prasenjit Biswas MAT 1952 of 2024 Abul Kalam Azad -Versus- The State of West Bengal & Ors. For the Appellant : Mr. Pijush Chaturbedi, Mr. Benazir Ahmed. For the Respondents/ : Mr. Bhaskar Prasad Vaisya, Ld. A.G.P. State Mr. Ranjan Saha, Delivered on : 20.03.2025 Prasenjit Biswas, J:- 1. The order passed by the learned Single Bench dated 06.09.2024 in connection with WPA 4109 of 2023 is assailed in this appeal. 2. A writ petition was filed at the behest of this appellant challenging the order of the District Inspector of Schools (S.E.), Purba Burdwan dated 28th September, 2022 by which the D.I. of schools rejected the prayer of this appellant/petitioner for 2 consolidation of pension thereby fixing petitioner’s pension taking note of the pay which the petitioner enjoyed on treating him a teacher being entitled to enjoy post graduate scale of pay. 3. The service of this appellant/petitioner was regularized in permanent post of Assistant Teacher in Social Science Group at Dadhia Gopaldas High School, Purba Burdwan, w.e.f. 01.01.1986. After taking permission from the Managing Committee of the School this appellant/petitioner obtained M.A. Degree in Bengali from the University of Burdwan through correspondence course. Thereafter, he made an application for getting post graduate scale of pay as he enhanced his qualification in the relevant subject of teaching. The Managing Committee approved the prayer of this appellant and post graduate pay scale was accorded to him w.e.f. 01.06.1999 and the petitioner received the said pay scale till his retirement from service. But after retirement from service the pension and other terminal benefits has been sanctioned on the basis of pass graduate scale and, as such, a writ petition was filed being WPA 24146 of 2019 before this Court. The said writ petition was disposed of by giving direction upon the authority concerned to dispose of the representation made by this appellant. The respondent no. 3 /D.I. schools (S.E.), Purba Burdwan heard out the matter and rejected the claim of the petitioner. This appellant/petitioner challenged the order of the District Inspector of School dated 28th September, 2002 in the writ petition in which the impugned order was passed by the learned Single Bench. 4. The relevant portion of the impugned order is quoted herein below. “Having considered the submissions made on behalf of the parties and taking note of the report filed by the Commissioner of School Education, West Bengal dated 29th May, 2024 in terms of order of a Coordinate Bench dated 25th April, 2024, it transpires that initially petitioner was appointed being an organizing teacher under pass graduate category reckoning 3 petitioner’s educational qualification as B.Com pass. Petitioner’s pay was fixed in pass graduate scale of pay. Petitioner obtained post graduate qualification in Bengali which is not petitioner’s relevant subject of teaching. In Revision of Pay and Allowance Rules, 1998, which was issued vide memorandum dated 12th February, 1999, Clause 12(3) provides that a teacher is entitled to receive postgraduate scale of pay provided the said teacher obtained higher qualification in the relevant subject. Considering the date of obtaining higher qualification by the petitioner since last date of examination was 25th March, 1999, it is found that Clause 12(3) of ROPA 1998 applies in the present case which does not permit sanction of post graduate scale of pay in favour of the petitioner for acquiring post graduate qualification in Bengali which is not relevant subject of his teaching since initially he was appointed in Social Science Group under pass category.” 5. Mr. Pijush Chaturbedi, learned Advocate appearing on behalf of the appellant said that this petitioner joined in the School as Assistant Teacher in the Social Science Group with qualification B.Com. Thereafter permission was given by the Managing Committee of this school to this appellant for higher studies and accordingly he obtained M.A. degree from the University. The appellant applied for getting post graduate pay of scale which was approved by the Managing Committee and he was given post graduate pay scale in salary since 01.06.1999 till the date of his retirement i.e. 31.03.2015. The salary being sanctioned and released after verification of the documents by the authorities concerned and he got the said pay of scale for a period of 16 years and nobody raised any objection against his post graduate pay of scale. As such, the respondent authorities are bound to sanction and release pensionary benefits based upon last drawn salary of the appellant in post graduate scale of pay and the denial of the same is violation of principles of natural justice. 4 6. Mr. Bhaskar Prasad Vaisya, learned A.G.P. on behalf of the respondent State said that there is no illegality or irregularity in the impugned order passed by the learned Single Bench. The District Inspector of Schools (S.E.), Purba Burdwan passed a reasoned order. The petitioner as in-service teacher without taking prior permission from the competent authority enrolled himself as a regular student in MA course in Bengali in the University and he drew post graduate scale of pay w.e.f. 01.06.1999 without obtaining any kind of permission from the appropriate authority. The petitioner has qualification of B.Com in Social Science Group but he obtained post graduate pay scale for obtaining M.A. degree in Bengali. School Authority did not obtain any permission from D.I. of school and, as such, this appellant wrongly received post graduate scale of pay. So, there is no illegality or irregularity on the part of the State respondent by issuing pension payment order in favour of the petitioner treating him as pass graduate teacher. 7. In State of Punjab & Ors.-vs- Rafiq Masih (White Washer) & Ors. reported in (2015) 4 SCC 334, the Hon’’ble Apex Court examined the validity of an order passed by the State to recover the monetary gains wrongly extended the beneficiaries to the employees in excess of their entitlement without any fault or misrepresentation at the behest of the recipient. The Apex Court in that report considered the situation of hardship caused to an employee, if recovery is directed to reimburse the employer and disallowed the same, exempting the beneficiary employees from such recovery. This judgment passed by the Apex Court is not confined to cases where there is wrong fixation of salary and as a result whereof some excess amount was paid to an employee. The larger issue was whether an employer is entitled to recover monetary benefits mistakenly given to the employee and the same was decided by the Apex Court in that case. It was held by the Apex Court that the mistake could have 5 occurred on account of a variety of reasons, including the grant of a status which the concerned employee was not entitled to, or payment of salary in a higher scale, than in conscious of the right of the concerned employee because of a wrongful fixation of salary of the employee, consequent upon the upward revision of pay scales or for having been been granted allowance, for which the concerned employee was not authorized. It has further been held by the Apex Court that in all such cases the employer would not recover the amount provided the excess payment was not attributable to any fraud or misrepresentation by the employee. The categories wherein recoveries by the employers, would be impermissible in law has been delineated by the Apex Court in the said report. 8. Admittedly, the appellant/petitioner got post graduate pay scale in his salary since 01.06.1999 till his date of retirement on 31.03.2025. The salary being sanctioned and released after verification of documents by the respondent authorities. For such prolonged period of 16 years respondents never raised any objection against post graduate pay scale of the petitioner. It is also admitted position that this present appellant petitioner has no role in fixation of his pay scale. There is no allegation against this petitioner for suppression of material facts of filing false documents. It is contended by the appellant that he got permission from the Managing Committee of the school and thereafter he obtained post graduate degree in Bengali. Nothing has been brought on record on behalf of the authority that this appellant/petitioner was responsible for the pay fixation and fraud or misstatement has been made by him. There is nothing on record to show that there was an error miscalculation or mistake. This appellant petitioner was not responsible for such pay fixation. On the other hand, such pay fixation was made by the authority concerned. After obtaining post graduate qualification the salary of this appellant was revised in post graduate pay scale. This 6 appellant got salary in post graduate scale of pay from 01.06.1999 till his retirement from service on 31.03.2015. The petitioner cannot be suffered pensionary benefits in post graduate pay scale for latches/negligence on the part of the respondent school authority. The Managing Committee of the school accorded approval to the petitioner for studying in post graduate course and after completion of the said post graduate course as per application of the petitioner and as per provision of extant rules authority granted post graduate pay scale to the petitioner. The petitioner had no role to play in granting post graduate pay scale in his favour. 9. It is said by the appellant that the then Managing Committee unfortunately did not forward the documents of this appellant before the District Inspector of School (S.E.), Burdwan for granting approval of the same and, as such, a resolution was taken by the Managing Committee in a meeting dated 18.07.2012 and took unanimous decision to send all relevant documents of the petitioner of the District Inspector of School, Burdwan for granting post facto approval of post graduate pay scale to the petitioner. So, it can be said that this petitioner had no role in fixation of his pay scale. There is no allegation against this petitioner for suppression of material facts or filing false documents and, as such, the respondent authorities cannot change the pensionary benefits treating the petitioner as a pass graduate teacher when admittedly the petitioner got salary in post graduate scale of pay for last 16 years till his date of retirement. 10. It is profitable to quote the observation of the coordinate Bench of this Court passed in the case of State of West Bengal & Ors.-vs.- Samar Chattopadhyay & Ors. in connection with MAT 2176 of 2023 wherein the Bench observed as follows: “An employee who has rendered services is expected to get the retiral dues admissible to the post as recognition of satisfactory services rendered by 7 him. Withholding of the retiral benefits unreasonably and without any powers having reserved in the Relevant Rules put such employee to an unequal bargaining so as to succumb to the command of the authorities. It is not expected from the litigant to prevaricate it stands at the different stages of the adjudicatory process relying on certain documents without satisfying the legal parameters set forth in this regard.” 11. Reliance has been placed by the learned Advocate on behalf of the appellant upon the decision rendered by the Hon’ble Apex Court in the case of Jagdish Prasad Singh-vs-State of Bihar & Ors. reported in 2024 SCC OnLine SC 1909. Paragraphs 20 and 21 of the report which are reproducing herein below:- “20. Without prejudice to the above findings, we are of the view that no departmental action could have been initiated by the State against the appellant after eight years following his superannuation because the employer employee relationship had come to an end after the appellant’s superannuation. The order directing reduction in pay scale and recovery from the appellant was manifestly not preceded by any show cause notice and was thus, passed in gross violation of the principles of natural justice. Pursuant to the order dated 20th July, 2009 passed in the Writ Petition No. 6714 of 2009 filed by the appellant, he submitted a representation to the Secretary, Food and Consumer Protection Department, Government of Bihar, which vide order dated 8th October, 2009 was rejected, preceded by a personal hearing. A perusal of the said order would indicate that the Secretary took a view that as per paragraph 11(supra) of the Government Resolution, the first/second time bound promotion of the appellant had come to an end automatically w.e.f. on 1st January, 1996 and thus, the appellant was required to be redesignated to the post of Marketing Officer and would be entitled to the revised pay of Rs.5500-9000 w.e.f. 1st January, 1996 as recommended by the Fitment Committee. Thus, even in this order, the promotion conferred to the appellant to the post of ADSO on 10th March, 1991 is not doubted. 8 21. We firmly believe that any decision taken by the State Government to reduce an employee’s pay scale and recover the excess amount cannot be applied retrospectively and that too after a long time gap. In the case of Syed Abdul Qadir and Others v. State of Bihar and Others, this Court held that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. The relevant paras of the Syed Abdul Qadir(supra) are extracted herein below: - “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. 9 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.”” 12. When the appellant was not responsible for pay fixation and such pay fixation of the petitioner was made by the authorities concerned he cannot be held responsible of such fixation of pay. No objection was raised on behalf of the respondent State prior to retirement of the writ petitioner. The higher pay scale has been given to this appellant till his retirement on the basis of conscious decision of the authority concerned. As such the respondent authorities are bound to sanction and release the pensionary benefits based upon last drawn salary of the petitioner in post graduate scale of pay. 10 13. On the conspectus of the facts narrated hereinabove, we find that the respondent authorities cannot take any kind of advantage denying releasing pensionary benefits based upon last drawn salary of the petitioner in the post graduate scale of pay. 14. Under such Circumstances, we are inclined to hold that the impugned order passed by the learned Single Bench dated 06.09.2024 suffers from illegality and material irregularity and accordingly, the said impugned order is liable to be set aside. 15. Accordingly, appeal being MAT 1952 of 2024 is hereby allowed. The impugned order dated 06.09.2024 passed in connection with WPA 4109 of 2023 is hereby set aside. 16. Concerned respondent authorities are hereby directed to sanction and release pensionary benefits based upon last drawn salary of this appellant/petitioner in post graduate scale of pay within one month from the date of communication of this order. 17. MAT 1952 of 2024 is hereby disposed of. 18. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees. I agree. (Harish Tandon, J.) (Prasenjit Biswas, J.)