PRATAP KUMAR RAY, J.

(1) HEARD the learned Advocates appearing for the parties.

(2) CHALLENGING the judgment and order dated 14th July, 2005 passed in W. P. No. 9888 (W) of 2005, this application has been filed by the State of West Bengal.

(3) BY the impugned judgment under appeal the learned trial Court directed to pay interest @ 10% per annum on the retirement benefit with effect from the date of deemed retirement, namely, August 31, 1994.

(4) THE factual matrix of the writ application was very short.

(5) THE petitioner admittedly opted for revised pay scale and benefit under the pension including family pension-cum-gratuity in terms of Government Memo No. 136-Edn (B) dated 15th May, 1985 by filing option on 25th June, 1990. As the petitioner opted the revised pay scale, he was legally responsible to retire from service at the age of 60 years being a condition of grant of such revised pay scale as introduced by ropa 1990. But it is an admitted position that the petitioner worked till 31st August, 1995 though he reached the age of 60 years on 31st August, 1994. Earlier the petitioner was covered under contributory provident fund scheme prior to his filing option on 25th June, 1990 changing the said scheme to pension including family pension-cum-gratuity. Under Clause (3) of the said memo dated 15th May, 1985 the writ petitioner got the right for such a change of option to come under the West Bengal Recognised Non -Government Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981 in terms of Clause 3 (b) (ii) of the said scheme. Under Clause (4) (a) of the said memo a condition was stipulated that mere filing of the option to come under the said death-cum-retirement scheme of 1981 will not automatically allow the change of such option from contributory provident fund scheme to the said scheme of 1981 unless there is a refund to the Government employers share of contribution together with interest accrued thereon credited against his contributory provident fund account and his own contribution along with interest is transferred to the general provident fund. So far as the own contribution of the teacher relating to contributory provident fund scheme and its transfer to the general provident fund with interest, petitioner had nothing to do. But so far as the refund of employers share of contribution and the interest accrued thereof petitioner was saddled with the liability and that liability was a positive liability to come under the said scheme of 1981. Admittedly, the petitioner did not refund the employers share with interest accrued therein till 12th July, 2004.

(6) AS the petitioner did not complete the condition-precedent of enjoyment of the death-cum-retirement benefit scheme of 1981, naturally his pension paper was not made ready. The petitioner moved the writ Court by filing writ application in the year 2005 alleging, inter alia, that the State Government failed to discharge its duty so far as the release of retirement benefit is concerned despite fulfillment of all conditions as stipulated in terms of the pension regulation. Since it is an admitted fact that the petitioner had no right to work after 60 years in view of exercising option of revised pay scale under ropa 1990, which stipulates that the optee of revised pay scale under ropa 1990 would not be entitled to seek any extension of service after crossing the age of 60 years up to the period of 65 years on year to year basis subject to satisfaction of mental and physical fitness as is available to the non-optee of such revised pay scale under ropa 1990, hence it appears that the petitioner had overdrawn salary for one year due to his work till the age of 61 years. This position was regularised allowing his retirement at the age of 60 years by the deeming clause of circular letter issued by the Government as a litigation was pending in the Calcutta High Court by the Teachers Association on the issue that the teachers who will o