MANU/WB/0357/2020

IN THE HIGH COURT OF CALCUTTA

W.P. No. 17943 (W) of 2019
Decided On: 28.02.2020
Appellants: Dipak Kumar Maity
Vs.
Respondent: The State of West Bengal and Ors.
Hon'ble Judges/Coram:
Tapabrata Chakraborty, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Saktipada Jana and Ujani Pal
For Respondents/Defendant: Swapan Kr. Datta, Ld. A.G.P., Pranab Halder and
Siddhartha Chatterjee
DECISION
Tapabrata Chakraborty, J.
1 . The present writ petition has been preferred challenging inter alia the audit
observations contained in a memo dated 15th June, 2018 issued by the Assistant
Director, Pension, Provident Fund and Group Insurance and the decision of the
Finance Department contained in a memo dated 26th August, 2018 issued by the
Assistant Director of Industrial Training, West Bengal and for issuance of necessary
direction towards disbursement of the pensionary benefits on the basis of the last
basic pay fixed at Rs. 35,830/- as drawn by the petitioner on the date of his
retirement on 28th February, 2018.
2. Mr. Jana, learned advocate appearing for the petitioner submits that the petitioner
retired on 28th February, 2018 from the post of Instructor in Science and
Mathematics in an Industrial Training Centre run by Ramkrishna Mission Boys' Home,
Rahara. By an order dated 29th November 2004 passed by the respondent No. 3 the
petitioner was refused higher scale of pay for his M.Sc. & Ph.D. qualifications. The
said order was challenged in a writ petition being W.P. No. 2904 (W) of 2005 and
was set aside by an order dated 15th November, 2011. No appeal was preferred
against the said order and the same was complied with by the respondents and the
petitioner was paid all consequential monetary benefits along with all arrears. After
retirement on 28th February, 2018, the petitioner was communicated the memoranda
dated 15th June, 2018 and 26th August, 2018. However, the amount allegedly
overdrawn was not disclosed and after the writ petition was filed, a further memo
dated 15th November, 2019 was issued by the Assistant Director introducing fresh
audit observations.
3 . Mr. Jana submits that after retirement, the respondents cannot take a stand that
the petitioner did not fulfil the preconditions towards grant of the Ph.D. increments
and has to refund the same and as such the decision of the Finance Department
contained in the memo dated 26th August, 2018 is not sustainable.
4 . He argues that as regards alleged erroneous fixation of pay pertaining to the

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 period from 1st January, 1988, the petitioner is not responsible. Even assuming that
some excess payment was given to the petitioner on the ground of such pay fixation
during his service tenure, still then such excess payment cannot be recovered from
the petitioner after his retirement when there is nothing on record to show that the
petitioner played any fraudulent role in the process. The alleged error in pay fixation
is attributable to the respondents for which the petitioner cannot be made to suffer.
5 . In support of the arguments advanced, Mr. Jana has placed reliance upon the
judgments delivered in the case of Shyam Babu Verma & Ors. -vs- Union of India &
Ors., reported in MANU/SC/0654/1994 : (1994) 2 SCC 521, in the case of Syed Abdul
Qadir & Ors. -vs- State of Bihar & Ors., reported in MANU/SC/8491/2008 : (2009) 3
SCC 475, in the case of State of Punjab & Others -vs- Rafiq Masih (White Washer),
reported in MANU/SC/0621/2014 : (2014) 8 SCC 883 and in the case of Rajendra
Prasad Pandey-vs-State of Madhya Pradesh & Others (W.P. No. 132828/2016).
6 . Per contra, Mr. Datta, learned Additional Government Pleader appearing for the
State respondents denies and disputes the contention of the petitioner and submits
that the petitioner is a qualified person and he cannot feign ignorance about the
erroneous fixation of pay. Amount paid on the basis of an erroneous fixation can
always be recovered. In support of such argument reliance has been placed upon the
judgment delivered in the case of Vice-Chancellor, M.D. University, Rohtak v. Jahan
Singh reported in MANU/SC/1157/2007 : (2007) 5 SCC 77.
7 . Mr. Datta submits that the petitioner was not a teacher but an Instructor and as
such, Clause 16(5) of ROPA 1990 is not applicable to the petitioner. No instructional
staff, engaged for training under Craftsmen Training Scheme under the Directorate of
Industrial Training is getting higher scale of pay for higher qualification and Ph.D.
increments. The petitioner even could not justify the relevancy of his higher
qualification to the subject of his teaching under Craftsmen Training Scheme.
8. He further submits that at the time of pay fixation under the respective ROPA Rules
the optees are required to give an undertaking to the effect that they would refund to
the government any amount which may be drawn by them in excess of what is
admissible on account of erroneous fixation of pay. The petitioner has consciously
executed such undertaking and the respondents thus have the authority to recover the
excess amount paid due to erroneous fixation. In support of such contention reliance
has been placed upon a judgment delivered in the case of Chandi Prasad Uniyal &
Others-vs-State of State of Uttarakhand & Others, reported in MANU/SC/0656/2012 :
(2012) 8 SCC 417 and in the case of High Court of Punjab & Haryana -vs- Jagdev
Singh reported in MANU/SC/0831/2016 : (2016) 14 SCC 267.
9 . Mr. Dutta submits that the orders passed by the Hon'ble Apex Court in Shyam
Babu Verma (Supra) and Syed Abdul Qadir (Supra) were under Article 142 of the
Constitution and did not amount to declaration of law under article 141 of the
Constitution. According to him, the law is as declared by the Hon'ble Apex Court in
Chandi Prasad Uniyal & Ors. -vs- State of Uttarakhand & Ors., reported in
MANU/SC/0656/2012 : (2012) 8 SCC 417, which is to the effect that except in few
instances pointed out in Syed Abdul Qadir (Supra) and in Col. (Retd.) B.J. Akkara -
vs- The Govt. of India & Ors., reported in MANU/SC/4389/2006 : (2006) 11 SCC 709,
excess payment made due to wrong/irregular pay fixation can always be recovered.
10. Indisputably, the respondents have granted the benefits for the post graduate
qualification together with the increments for Ph.D. to the petitioner vide memo dated

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 29th March, 2012 on the basis of an order dated 15th November, 2011 passed in an
earlier writ petition being W.P. No. 2904 (W) of 2005. The additional increments for
Ph.D. as already granted to the petitioner cannot be withdrawn after retirement on a
pretext that the Directorate has not been able to produce the formal order towards
grant of such incremental benefits. The decision of the Finance Department contained
in the memo dated 26th August, 2018 issued by the Assistant Director of Industrial
Training, West Bengal is thus not sustainable in law and the same is, accordingly, set
aside.
11. In the case of Chandi Prasad Uniyal (Supra) the issue was as to whether the
appellant therein can retain the amount received on the basis of irregular/wrong pay
fixation in the absence of any misrepresentation or fraud on his part. The Court after
taking into consideration the various decisions of this Court came to the conclusion
that even if by mistake of the employer the amount is paid to the employee and on a
later date if the employer after proper determination of the same discovers that the
excess payment is made by mistake or negligence, the excess payment so made can
be recovered.
12. The dispute as regards grant of post graduate scale of pay and Ph.D. increments
was finally settled through issuance of the memo dated 29th March, 2012. Thereafter
the petitioner exercised option on 24th May, 2012 to avail the revised benefits under
the ROPA 2009 with a declaration that "I hereby undertake to refund to the
Government any amount which may be drawn by me in excess of what is admissible
to me on account of erroneous fixation of pay in the revised pay structure as soon as
the fact of such excess drawal comes/brought to my notice."
13. Thus while opting for the benefit of the revised pay scale, the petitioner was
clearly on notice of the fact that a future refixation or revision may warrant an
adjustment of the excess payment, if any, made. It is not a case that such
undertaking was given without application of mind. The declaration clause also
cannot be construed to be an unconscionable term.
14. In page 11 of the supplementary affidavit filed by the petitioner the total of basic
pay and grade pay due on the date of retirement has been shown to be Rs. 35,090/-.
However, the petitioner has actually drawn an amount of Rs. 35,830/-. In page 36 of
the report in the form of an affidavit filed on behalf of the respondent No. 3 the total
of basic pay and grade pay due on the date of retirement, upon withdrawing the
additional Ph.D. increments and upon correction of fixation has been shown to be Rs.
33,610/-. As such, the total overdrawn amount due to erroneous pay fixation and
Ph.D. increments was calculated to be Rs. 86,94,013.68 and the total due amount,
upon retaining Ph.D. increments and rectifying pay fixation was calculated to be Rs.
85,04,498/-. The excess amount drawn for erroneous fixation thus amounts to Rs.
1,89,515.68 (Rs. 86,94,013/- minus Rs. 85,04,498.68).
15. Applying the proposition of law as laid down in the case of Chandi Prasad Uniyal
(Supra) to the facts of this case, I am of the opinion that the authorities are entitled
to recover the said amount of Rs. 1,89,515.68, as paid in excess to the petitioner due
to erroneous pay fixation, from his retiral dues.
16. Without disturbing the Ph.D. increments which have already been granted to the
petitioner but rectifying the erroneous fixation, as detailed in Clause I of the
respective memoranda dated 15th June, 2018 and 15th November, 2019, the
petitioner would become entitled to a total pay (basic pay + grade pay) of Rs.

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 35,090/-.
17. The respondents are, accordingly, directed to disburse the pensionary benefits
along with all arrears in favour of the petitioner treating the last pay drawn to be Rs.
35,090/- and upon adjusting an amount of Rs. 1,89,515.68/- positively within a
period of four weeks from the date of communication of this order.
18. With the above observations and directions, the writ petition is disposed of.
19. There shall, however, be no order as to costs.
20. Urgent Photostat certified copy of this order, if applied for, be handed over to the
parties on compliance of necessary formalities.
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