IMPORTANT POINT
The recovery of arrear salary from a retired employee, without fault or misrepresentation, and after a long period from the date of retirement is not permissible in law.

JUDGMENT :

M.V. Muralidaran, J.

Heard Mr. Indranath Mitra, learned counsel for the petitioner; Mr. Wasim Ahmed, learned counsel for the respondent State and Mr. S. Chakraborty, learned counsel for the respondent High Court Administration.

2. This writ petition has been filed by the petitioner to quash the impugned order dated 10.8.2016 issued by the sixth respondent and also seeking direction restraining the respondents from giving any effect or further effect of the order dated 10.8.2016.

3. The case of the petitioner is that he joined as Copyist on 8.1.1971 in the Judicial Department, Government of West Bengal and was promoted to different higher grade and retired from service on 31.10.2007. In consonance with the order dated 30.4.2012 followed by the orders dated 20.7.2012 and 30.7.2012, the arrear salary for the period from 1.4.2003 to 31.10.2007 to the tune of Rs.2.09 lakh was released and paid to the petitioner. While so, by a letter dated 13.12.2012, the Treasury Officer, Burdwan Treasury-I informed the sixth respondent that the petitioner is not entitled the arrear salary on the basis of ROPA 2009. Upon receipt of the letter of the Treasury Officer, the petitioner has submitted reply on 13.12.2012 through the sixth respondent stating that the Finance Department, Government of West Bengal, vide Memorandum dated 23.7.2014, accepted the order dated 7.10.2009 passed by the Hon’ble Supreme Court wherein it has been categorically stated that the employees of the District Court are also covered by the memo bearing No.1683-F dated 23.2.2009 and further clarification dated 19.11.2010.

4. Further case of the petitioner is that although the Hon’ble Supreme Court following the recommendation of the Shetty Commission, time and again, directed the State Government to revise the pay scale with effect from 1.4.2003, the Government of West Bengal in Judicial Department did not consider such aspect of the recommendation and revised the scale of pay of the petitioner till his retirement i.e. 31.10.2007. The arrear salary of the petitioner to the tune of 2.09 lakh for the period from 1.4.2003 to 31.10.2007, following the recommendation of the Shetty Commission, was recommended and paid on 29.12.2012. In the aforesaid backdrop, the issuance of the impugned order by the sixth respondent directing the petitioner to return the amount of overdrawn arrear salary to the tune of Rs.2.09 lakh is ex-facie bad. Hence, the writ petition.

5. Assailing the impugned order, the learned counsel for the petitioner submitted that, following the recommendation of the Shetty Commission, the pay of the petitioner was revised and, consequent thereto, arrear salary for the period from 1.4.2003 to 31.10.2007 was released and paid. Since the District Judge, Burdwan has already acted upon pursuant to the recommendation of the Shetty Commission and the order of the Hon’ble Supreme Court, the order of recovery of arrear salary is not sustainable in the eye of law. The action on the part of the respondent authorities, more particularly, on the part of the respondent Additional District Judge, 3rd Court, Burdwan is bad and not sustainable in the eye of law.

6. The learned counsel for the petitioner urged that the learned Additional District Judge ought not to have ordered recovery of arrear salary from the petitioner, as the arrear salary drawn and paid as per the order of the Hon’ble Supreme Court dated 7.10.2009 and 16.3.2015.The learned counsel would submit that a discrimination is meted to the petitioner since some of the Bench Clerk/Stenographer/Ex-Sheristadar have been released the arrear salary and no notice was served upon them for recovery of the arrear salary.

7. The learned counsel further submitted that the respondents being limbs of the State should act fairly, justly and reasonably. In the instant case, it would be evident that the respondent authorities have been acting in an unreasonable, unfair and arbitrary manner which clearly violates the petitioner’s right