Sri Jyotish Chakraborty vs The State Of West Bengal & Ors
2021 Latest Caselaw 6347 Cal

   Ct. 05
Item No.09
14.12.2021
 (suvendu)


                          WPA 16295 of 2019

                         [Via Video Conference]

                       Sri Jyotish Chakraborty
                                 Vs.
                     The State of West Bengal & Ors.



                     Mr. Narayan Chandra Mandal
                     Mr. Bhaskar Mandal
                     Mr. Chandan Chakraborty
                                      ............for the petitioner

                     Mr. Joytosh Majumder
                     Ms. Tapati Samanta
                              ..........for the respondent nos. 3 & 4

Mr. Bhaskar Prasad Vaisya Mr. Suman Dey ..........for the State

The petitioner has challenged an order of

the Assistant Director, Directorate of Pension,

Provident Fund and Group Insurance, dated 29 th

April, 2019 but signed on 27th May, 2019 and also

seeks issuance of a revised Pension Payment

Order based on the enhanced pay scale which the

petitioner claims to be entitled to.

Learned Counsel appearing for the

petitioner places a decision of 30 th May, 2018 of

the Director of Library Services which records that

the petitioner is entitled to get a higher scale of

pay on acquiring higher qualification in

accordance with a Memorandum dated 7th March,

1990. Counsel submits that the impugned

decision by which the petitioner has asked to

refund the overdrawn amount is contrary to the

law laid down by the Supreme Court.

Learned counsel appearing for the

respondent no. 4, being the District Library

Officer, submits that the refund was on the basis

of an erroneous calculation made by the said

authority which would be evident from the case

made out in the affidavit-in-opposition of the said

respondent. Counsel also submits that the

petitioner did not receive any amount towards

revised scale of pay during his service tenure.

A decision passed by a learned Single

Judge of this Court in W.P.No. 16172 (W) of 2019

(Sri Supriya Chakraborty Vs. The State of West

Bengal & Ors.) is placed to show that on similar

facts, the learned Judge directed the concerned

authority to rectify the defects in the pension

papers of the petitioner for issuing the revised

Pension Payment Order and consequential benefits

to the petitioner. Counsel also relies on The State

of West Bengal & Ors. Vs. Smt. Ila Giri & Ors.

reported in 2014 (3) CLJ (Cal) 271 where a

Division Bench of this Court relying on Syed Abdul

Qadir & Ors. Vs. State of Bihar & Ors. reported in

(2009) 1 Supreme 163 refused to interfere with the

impugned order on excess payment being made to

the husband of the writ petitioner before the

Court.

Upon hearing learned counsel and

perusing the materials on record, it appears that

although the petitioner was held to be entitled to

revised scale of pay by the Director of Library

Services on 30th May, 2018, the said authority

requested the petitioner to contact the authority

with regard to the compliance of certain audit

observations made by the DPPG with regard to

revised pension. The decision of the DPPG would

appear from the impugned decision which refers to

overdrawn amount. Since according to counsel for

the respondent no. 4, the overdrawn amount was

on account of an erroneous calculation and the

petitioner was asked to contact the District Library

Officer on account of such observation which the

petitioner did not do, this Court is of the view that

the petitioner should first be directed to approach

the concerned authority for clarity in the matter

and the basis of the refund sought for.

The decision of Ila Giri was passed before

the judgment of the Supreme Court in Rafiq Masih

was pronounced in 2015. The law with regard to

recovery from retired or soon be retired employees

and the conditions when such recovery was

impermissible in law has been set out in the last

paragraph of the said judgement. Hence, Ila Giri

may not entirely be relevant in the present case.

WPA 16295 of 2019 is accordingly

disposed of with a direction on the petitioner to

approach the District Library Officer in accordance

with the communication dated 11th June, 2019 for

reconciliation of the observation made by the

DPPG. The petitioner shall be at liberty of

approaching the authority within a week from date

and the District Library Officer shall take

necessary steps in the matter of revised pension

within four weeks from the date on which the

petitioner approaches the District Library Officer.

It is made clear that any decision of the

District Library Officer or any other authority shall

be made only upon hearing all concerned parties

including the petitioner and upon considering all

the relevant decisions passed by the Supreme

Court and the High Courts in this regard including

the relevant Memorandum and Notifications.

WPA 16295 of 2019 is disposed of in

terms of the above.

Urgent photostat certified copy of this

order, if applied for, be given to the parties on

usual undertakings.

(Moushumi Bhattacharya, J.)