Smt. Manjulika Goswami vs The State Of West Bengal & Ors
2022 Latest Caselaw 2285 Cal

           IN THE HIGH COURT AT CALCUTTA
            CIVIL APPELLATE JURISDICTION
                   APPELLATE SIDE
PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
            &
THE HON'BLE JUSTICE RABINDRANATH SAMANTA

                   F.M.A 805 of 2017
                           +
                  IA No: CAN 1 of 2014
                (Old CAN 11898 of 2014)
                           +
                  IA No: CAN 3 of 2019
                  (Old CAN 356 of 2019)
                           +
                  IA No: CAN 4 of 2020
                  (Old CAN 176 of 2020)
                           +
                  IA No: CAN 5 of 2020
                  (Old CAN 177 of 2020)
                Smt. Manjulika Goswami
                           Vs
             The State of West Bengal & Ors.
                          With
                     COT 24 of 2020
             The State of West Bengal & Ors.
                           Vs
                Smt. Manjulika Goswami


                                               Page 1 of 20
 Mr. Ashok Kumar Ganguly, Adv.
                                         ...for the appellant in FMA 805 of
                                         2017 & for the respondent in COT

24 of 2020

Mr. Tapan Kumar Mukherjee, AGP Ms. Tapati Samanta,Adv. ...for the respondents/State in FMA 805 of 2017 & for the appellants in COT 24 of 2020

Heard On : 23.02.2022

Judgment on : 22.04.2022

Rabindranath Samanta, J:-

1. This appeal portrays the struggle of a woman-Librarian for

more than a decade to establish her entitlements to higher

pay commensurate with her higher qualification. Being

unsuccessful in the previous three rounds of litigation, the

appellant Smt. Manjulika Goswami has preferred the

instant appeal as a fourth round of litigation challenging

the order dated 06.12.2013 passed by a learned Single

Bench in W.P 34066 (W) of 2013.

2. The background facts which led the filing of the writ

petition may be adumbrated as under:

The appellant passed M.A in History in the year 1979

and Bachelor of Library Science in the year 1984 from the

University of Calcutta. After obtaining the degree of

Bachelor of Library Science she registered her name with

the employment exchange in the year 1987. For

appointment to the post of Librarian of Sarat Chandra

Girls' High School (H.S), at 43 A, Ram Kamal Street,

Kolkata- 700023, the school authority sought names of

candidates from the employment exchange by sending a

requisition. In response to the requisition, the employment

exchange sponsored the names of the eligible candidates

including the name of the appellant for the aforesaid post.

The interview was held at the said school on 11.05.1987

and the appellant by virtue of a call letter appeared at the

interview. Thereafter, the selection committee prepared a

panel of three candidates wherein the appellant was

empanelled as the second candidate. The panel so

prepared was approved by the respondent no. 3, the

District Inspector of Schools (SE).

3. Since the first empanelled candidate namely Krishna

Sadhukhan did not join, the appellant as a second

empanelled candidate was offered appointment and she

joined the post of Librarian of the school on 01.09.1988.

The appointment of the appellant was approved by the

respondent no. 3 vide Memo dated 27.02.1990. While the

appellant joined her services on 01.09.1988 her pay was

fixed at Rs.560 in the scale of pay of Rs. 440-1170 ( Master

Degree Holder) in terms of Memo No. 372-EDN (B) dated

31.07.1981. After the West Bengal Services (Revision of Pay

& Allowance) Rules, 1990 (in short ROPA Rules, 1990) and

the West Bengal Services (Revision of Pay & Allowance)

Rules, 1998 ( in short ROPA Rules, 1998) came into force

the pay of the appellant was fixed as per the revised scale

of pay commensurate with her post graduate qualification.

4. The appellant had been enjoying the scale of pay as per her

master degree qualification since the day of her joining and

this scale of pay was revised as per the aforesaid ROPA

Rules.

5. After the West Bengal Services (Revision of Pay &

Allowance) Rules, 2009 ( in short ROPA Rules, 2009) came

into force the appellant opted option as per the Rules and

her pay was re-fixed in the post graduate pay of scale as

she drew earlier.

6. But, as a bolt from the blue, the appellant for the first time

came to learn by a letter dated 01.08.2009 of the Head

Mistress of the school that the option papers submitted by

her under the ROPA Rules, 1998 and ROPA Rules, 2009

were not approved by the District Inspector of Schools (SE).

Being aggrieved by such non-approval of the option papers

the appellant through her learned advocate vide a letter

dated 20.08.2009 made a demand of justice to the District

Inspector of Schools (SE), the respondent no.3. Getting no

reply to the letter demanding justice, the appellant filed a

writ petition being W.P 20574(W) of 2009 and by the order

dated 11.02.2010 the writ petition was disposed of by a

learned Single Bench directing the respondent no.3 to give

reply to the said demand of justice with cogent reasons. By

order dated 12.05.2010 the respondent no. 3 rejected the

letter demanding justice on the ground that the appellant

was not entitled to post graduate scale of pay as per

Government Orders dated 07.03.1990, 12.02.1999 and

10.09.1991. By the order the school authority was

requested to re-fix her pay scale since appointment i.e.

01.09.1988 as Librarian in the scale as specified in the

Rules.

7. Challenging the order dated 12.05.2010 the appellant filed

an another writ petition being W.P 13703(W) of 2010 and

the writ petition was disposed of by a learned Single Bench

vide order dated 10.05.2013. By the order dated

10.05.2013 the order dated 12.05.2010 made by the

respondent no. 3 was set aside and the respondent no. 3

was directed to consider the appellant's claim in the light

of the order dated 15.07.1988 as well as the Government

Order No. 372-EDN(B) dated 31.07.1981 and the

Government Order No. 72-EDN(HS) dated 09.08.1983

within eight weeks from the date of communication of the

order. Again, the respondent no. 3 by order dated

30.09.2013 rejected the claim of the appellant on the

ground that she did not possess the post graduate degree

in Library Science and accordingly directed the appellant

to refund the excess amount drawn by her which was not

admissible to her. It was also directed therein that the

institution in which the appellant was working would be

responsible for recovery of the amount received by her in

excess of her salary/pension.

8. Aggrieved by the order dated 30.09.2013 passed by the

respondent no. 3 the appellant as a third round of

litigation filed the writ petition being No. WP 34066(W) of

2013. By the order dated 06.12.2013 a learned Single

Bench disposed of the writ petition by setting aside the

Order dated 30.09.2013. By this Order the respondent no.

3 was directed to give higher scale of pay to the appellant

on the basis of her master degree qualification and

financial benefit to her on and from January, 2013.

Besides, the respondent no.3 was directed to give notional

benefit to her from the date of improving her qualification

for the purpose of calculating the retiral dues at the time of

retirement. Aggrieved by the operative part of the Order by

which the appellant was given the financial benefits with

effect from January, 2013 the appellant has preferred the

instant appeal.

9. The respondents by filing a cross-objection being No. C.O.T

24 of 20 challenge the impugned order dated 06.12.2013

on the grounds that the Order dated 30.09.2013 passed by

the District Inspector of Schools was a reasoned order and

the learned Single Judge ought not to have set aside the

order. The respondents contend that the appellant is not

entitled to higher scale of pay as she does not possess the

master degree qualification in Library Science.

10. The points which now fall for our consideration are as

follows:

i) Is the appellant entitled to higher pay of a Librarian

having possessed the degree of M.A in History and

Bachelor of Library Science at the time of her

appointment as Librarian ?

ii) Is the order dated 30.09.2013 passed by the District

Inspector of Schools (SE) sustainable in law ?

11. Admittedly, the appellant possessed M.A in History and

Bachelor of Library Science while she was appointed as the

Librarian of the aforesaid school. Undisputedly, for the

purpose of appointment of the Librarian of the school the

school authority sought names of the candidates from the

concerned employment exchange by sending a requisition

and in reply thereto the employment exchange sponsored

the names of the eligible candidates. Thereafter, the

interview was held at the school on 11.05.1987 and the

appellant participated in the interview. After the interview

the selection committee prepared a panel of three

candidates namely i) Krishna Sadhukhan, M.A, B.Lib, ii)

Manjulika Goswami, M.A, B.Lib, and Parmita

Bhattacharyay, M.Sc, B.Lib. As the first empanelled

candidate namely Krishna Sadhukhan did not join, the

appellant was offered the appointment and she joined the

school on 01.09.1988.

12. What it appears from the documents on record, the

panel prepared by the selection committee of the school

was approved by the District Inspector of Schools (SE),

Calcutta on 15.07.1988. The panel approved by the

District Inspector of Schools shows that in the column of

qualification the appellant's qualification has been spelt as

M.A, B.Lib. It is the claim of the appellant that since her

appointment she was drawing higher pay commensurate

with her post graduate qualification and her initial pay was

fixed at Rs. 560 in the scale of pay of Rs. 440-1170 (Master

Degree holder).

13. Learned Counsel appearing for the appellant by drawing

our attention to a Government Order No. 72 EDN (HS)

dated 09.08.1983 submits that as per this Government

Order a candidate having M.A/M.Sc/M.Com degree with

diploma in Library Science from a Government recognized

university was entitled to get higher pay commensurate

with his/her post graduate qualification. In terms of this

Government Order the appellant was rightly bestowed with

the higher pay since the very day of her appointment and

even the authority allowed her to draw higher pay

commensurate with post graduate degree in terms of the

West Bengal Services (Revision of Pay & Allowance) Rules,

1990. Learned Counsel submits that the appellant by

submitting option under the ROPA Rules, 1998 was getting

higher pay as admissible to a candidate having post

graduate degree. Learned Counsel points out that non-

approval of the option submitted by the appellant in terms

of the ROPA Rules, 1998 after a long period since the

option was exercised by her smacks of malafides on the

part of the respondent no. 3. Learned counsel argues that

returning the options exercised by her as per the ROPA

Rules, 1998 and ROPA Rules, 2009 by the authority

concerned is vitiated with illegalities and arbitrariness.

Learned Counsel emphasizes that the valuable right

accrued to the appellant could not be taken away by the

authority concerned in arbitrary manner without giving

opportunity of being heard to her. On this score, learned

counsel submits that the order dated 30.09.2013 passed

by the respondent no. 3 and the portion of the impugned

order of the learned Single Bench permitting the appellant

to get monetary benefits with effect from January, 2013

are liable to be set aside.

14. Learned Counsel appearing from the respondents in

support of the cross-objection submits that as per the West

Bengal Services ( Revision of Pay & Allowance) Rules, 2009

a Librarian who holds Master's Degree in Library Science

from a recognized university is only entitled to higher

revised pay. The appellant who possess degree of M.A

(History) and Bachelor in Library Science is not entitled to

the revised pay which is admissible to a Librarian having

master degree in Library Science. In such context, learned

counsel for the State respondents submits that the Order

dated 30.09.2013 passed by the respondent no. 3 is quite

justified and the portion of the impugned order by which

the Order of the respondent no. 3 has been quashed is

liable to be set aside.

15. While the appellant was appointed as the Librarian of

the school the Government Order which was then in vogue

is the Order No. 72 EDN(HS) dated 09.08.1983. The

Government Order dated 09.08.1983 reads as under :-

" Sub: Appointment of Librarian in the State Govt.

Sponsored or Aided Secondary Schools upto Class XII

standard.

In partial modification of Govt. Order No. 17. EDN

(HS) dated 18.03.1982, the under-signed is directed to

say that the Governor is pleased to prescribe the

following three types of qualifications for recruitment

to the posts of Librarians, in future, in the institutions

mentioned above:

1. M.A/M.Sc./M.Com. with Degree or Diploma in Library

Science from a Govt. recognized University.

2. B.A./B.Sc./B.Com. with Degree or Diploma in Library

Science from a Govt. recognized University.

3. Matriculation or equivalent with certificate in

Librarianship awarded by any of the following three

institutions:

       I)          Bengal Library Association

       II)         Ramkrishna Mission Boys' Home, Rahara

       III)        Janata College, Kalimpong.

The incumbents of the posts of Librarian will

draw pay according to their qualifications, as

approved in terms of Govt. Order No. 372-EDN(B)

dated 31.07.1981.

Necessary instructions may please be issued

to all concerned".

16. As per Memo no. 372-EDN(B) dated 31.07.1981 issued

by the Education Department, Budget Branch,

Government of West Bengal, the revised scale of pay of a

Librarian holding Master's Degree with Diploma in Library

Science was Rs.440-1170 with higher initial pay at Rs.560.

The appellant who fulfilled all the required qualifications

was enjoying the higher scale of pay commensurate with

her higher qualification. It is not in dispute that she was

enjoying the higher scale of pay exercising options under

the ROPA Rules, 1990 and ROPA Rules, 1998. But, after

she exercised the option under the ROPA Rules, 2009, the

appellant came to learn from the Head Mistress of her

school through the District Inspector of Schools (SE), the

respondent no. 3 herein, that her option exercised under

the ROPA Rules, 1998 was not approved by the respondent

no. 3 and accordingly both the options furnished by her as

per the ROPA Rules, 1998 and ROPA Rules, 2009 were

returned to the school authority.

17. The drawal of higher pay commensurate with her higher

qualification did not get impeded while she exercised

option under the ROPA Rules, 1990. Long after she

exercised option under the ROPA Rules, 1998 and after the

option under the ROPA Rules, 2009 was exercised by her,

the authority concerned returned her both the two options

and directed the school authority to recover the amount

which she drew in excess of her pay.

18. Even after the order dated 10.05.2013 was passed in

W.P 13705(W) of 2010 wherein the authority concerned

was directed to consider the claim of the appellant in the

light of the order dated 15.07.1988 and the Government's

Order dated 31.07.1981 and 09.08.1983 the respondent

no. 3 remained defiant in not obeying the Court's Order.

19. After going through the ROPA Rules, 1990, ROPA Rules,

1998 and ROPA Rules, 2009 it appears to us that only in

the West Bengal Services (Revision of Pay & Allowance)

Rules, 2009 the scale of a Librarian having Master's Degree

in Library Science has been re-fixed as under:

      Existing Pay          Revised Pay Structure

  Scale/ Special

  Pay/Allowance

          etc.                Pay            Grade

                             Band             Pay



      4650-10175             7100-       Rs.4100

                             37600

20. Now, the question is whether by insertion of such a

clause in the ROPA Rules, 2009 pertaining to revised pay

structure of a Librarian having Master's Degree is

applicable to the appellant. A careful reading of the ROPA

Rules, 2009 does not show that the Rules speak of the

Librarians who were appointed and enjoying higher scale of

pay commensurate with their higher qualification before

these Rules came into force. In the absence of any express

provision in the Rules it will be construed that the Rules

are applicable to those appointees who were appointed

after the Rules came into force.

21. As indicated above, the appellant was enjoying the

higher scale of pay commensurate with her higher

qualification since the very beginning of her appointment

in terms of Government Order No. 372-EDN(B) 31.07.1981.

As the panel prepared by the selection committee and

approved by the District Inspector of Schools (SE) shows,

the educational qualification of the appellant has been

noted therein as M.A, B.Lib. The indefeasible right of the

appellant on enjoyment of higher scale of pay in

consonance with her post graduate qualification to sustain

her livelihood with dignity has fructified as the

fundamental right as enshrined in Article 21 of the

Constitution and this right cannot be taken away abruptly

except according to the procedure established by law. In

the absence of any express provision in any procedural law

having statutory force in this regard the State authority

cannot take away such indefeasible right of the appellant.

This implies that the indefeasible right accrued to her will

continue till she gets all her monetary benefits. As of right

the higher scale of pay admissible to a Librarian having

Master's Degree in Library Science as per the ROPA Rules,

2009 will be admissible to the appellant. That being so, the

respondent no. 3 ought to have accepted and approved the

options exercised by the appellant in terms of the ROPA

Rules, 1998 and ROPA Rules, 2009.

22. It is evident from the Order dated 30.09.2013 that the

District Inspector of Schools directed the school authority

to recover the amount of money which was paid to the

appellant in excess of the pay admissible to her.

23. From a document annexed to the paperbook it appears

that the date of birth of the appellant is 18.10.1958. That

being so, she has retired from service on superannuation

on 31.10.2018.

24. In the decision in the case of State of Punjab and

Others -Vs- Rafiq Masih ( White Washer) and Others

reported in (2015) 4 SCC 334 the Hon'ble Apex Court at

paragraph 18 has held as under:

"18. It is not possible to postulate all

situations of hardship which would govern employees

on the issue of recovery, where payments have

mistakenly been made by the employer, in excess of

their entitlement. Be that as it may, based on the

decisions referred to hereinabove, we may, as a ready

reference, summarise the following few situations,

wherein recoveries by the employers, would be

impermissible in law:

i) Recovery from the employees belonging to Class III

and Class IV service ( or Group C and Group D

service)

ii) Recovery from the retired employees, or the

employees who are due to retire within one year, of

the order of recovery.

iii) Recovery from the employees, when the excess

payment has been made for a period in excess of

five years, before the order of recovery is issued.

iv) Recovery in cases where an employee has

wrongfully been required to discharge duties of a

higher post, and has been paid accordingly, even

though he should have rightfully been required to

work against an inferior post.

v) In any other case, where the court arrives at the

conclusion, that recovery if made from the

employee, would be iniquitous or harsh or arbitrary

to such an extent, as would far outweigh the

equitable balance of the employer's right to

recover."

25. As held above, the higher scale of pay was admissible to

the appellant in terms of the aforesaid ROPA Rules. In view

of this and in the decision of the Hon'ble Apex Court supra,

the respondent authorities cannot deduct any amount of

money either from the salary of the appellant or from her

retiral benefits.

26. Accordingly, point no.1 is answered in the affirmative

and point no. 2 is answered in the negative.

27. In the result, the writ petition being No. 34066(W) of

2013 should be allowed in terms of the prayers as made

therein and the cross-objection filed by the respondents

should be rejected.

28. Consequently, the portion of the impugned order dated

06.12.2013 by which the appellant has been given

monetary benefits with effect from January, 2013 is liable

to be set aside and the same is set aside accordingly. The

portion of the impugned order by which the order dated

30.09.2013 of the respondent no.3 has been set aside is

affirmed.

29. In view of the above, the writ petition being No. WP

34066(W) of 2013 stands allowed and the cross-objection

filed by the respondents stands rejected.

30. The respondent no.3 is directed to give approval of the

option papers submitted by the appellant at the material

time in terms of the ROPA Rules, 1998 and the ROPA

Rules, 2009. The concerned respondents are directed to

grant higher scale of pay to the appellant as admissible to

a Librarian holding Master's Degree in Library Science as

per the relevant ROPA Rules. The respondents are further

directed to grant pensionary benefits and other retiral

benefits to the appellant in terms of the revised pay in

accordance with the ROPA Rules, 1998 and ROPA Rules,

2009. Payment of Pension Order (PPO), if issued, in favour

of the appellant shall be revised in accordance with the

revised pay of the appellant.

31. The respondents are directed to comply all the aforesaid

directions within two months from date.

32. Thus, the appeal and the cross-objection stand

disposed of.

33. All the connected applications also stand disposed of.

34. No order as to costs.

35. Urgent certified website copies of this judgment, if

applied for, be given to the parties upon compliance with

all requisite formalities.

(Rabindranath Samanta,J.)

I agree,

(Harish Tandon,J.)