IMPORTANT POINT
Recovery of excess payments from employees is impermissible without evidence of misrepresentation or fraud, emphasizing equitable relief in pension matters.

JUDGMENT :

(Partha Sarathi Sen, J.) :

1. In this petition the writ petitioner is aggrieved with the memo No. 182/M dated 10.05.2010 as issued by respondent No. 3/the District Inspector of Schools (S.E.), Howrah (hereinafter referred to as the ‘D.I.’ in short) who directed the writ petitioner to deposit the over-drawal amount on account of P.G. scale for the period of 26.07.1987 to 31.07.1989.

2. Admittedly, the writ petitioner has not deposited the alleged overdrawal amount and accordingly his pension was withheld though the writ petitioner retired on 30.11.2009 as headmaster of Kona High School, Howrah.

3. In the backdrop of the aforementioned factual position the petitioner approached before this Court with a prayer for issuance of writ of mandamus for rescinding and/or cancellation of the aforesaid memo dated 10.05.2010 with a further prayer for commanding the respondent No. 3, i.e.; the District Inspector of Schools (S.E.), Howrah to release his pension at the earliest.

4. At the very outset Mr. Bari, learned Advocate for the writ petitioner draws attention of this Court to page No. 40 of the writ petition whereby and whereunder the respondent No. 3/D.I. under cover of its memo dated 17.04.2009 had called for certain documents which includes copy of the sanctioned order for drawing P.G. scale with effect from 26.07.1987 along with some other documents. It is submitted by Mr. Bari that from page Nos. 26 and 27 of the instant writ petition it would reveal that the writ petitioner joined in his service on 04.11.1970 as an Assistant Teacher and at that material time his educational qualification was B.Sc. (Hons.).

5. It is further submitted that from page No. 41 of the writ petition it would reveal that the then headmaster of Bantra M.S. P.C. High School duly replied to the memo dated 17.04.2009 to the respondent No. 5 stating inter alia that the present writ petitioner increased his qualification by passing M.Sc. examination in physics from Jadavpur University and his last date of M.Sc. examination was 25.07.1987. It was further informed by the headmaster of the said school that a resolution was adopted by the managing committee of the Bantra M.S. P.C. High School on 08.04.1988 approving P.G. scale to the writ petitioner from 26.07.1987 in accordance with the rule. By the said letter the then headmaster of the said school thus requested the said D.I. to release the pension since the writ petitioner would retire on 30.11.2009.

6. It is submitted by Mr. Bari that the said D.I. did not pay any to the request letter dated 15.07.2009 as wrote by the headmaster of Bantra M.S. P.C. High School and on the contrary by issuing the impugned memo No. 182/M dated 10.05.2010 asked the writ petitioner to deposit the entire over-drawal amount for the period of 26.07.1987 to 31.07.1989. Admittedly, such alleged over-drawal amount has not been deposited by the writ petitioner.

7. In support of his contention Mr. Bari places his reliance upon a special Bench judgment as passed in WPA 9921 of 2007 (Utpal Kanti Karan vs. State of West Bengal and Others) where the said special Bench of this Court express the following view:

“g) If a teacher has partially completed higher study before entering service he/she would come under purview of G.O. No. 1595-SE(S) dated 26th December, 2005 and the question of taking permission from DIS-SE concerned would not arise.”

8. It is submitted by Mr. Bari that though the writ petitioner is not covered by the aforesaid G.O. No. 1595-SE(S) dated 26.12.2005 even then the respondent No. 3/D.I. of School is not supposed to ask the writ petitioner to deposit the alleged over-drawal amount as a condition precedent for grant of pension in favour of the writ petitioner.

9. In course of his submission Mr. Bari, learned Advocate for the writ petitioner also places his reliance upon a reported decision Thomas Daniel vs. State of Kerala and Others reported in 2022 SCC OnLine SC 536. The relevant paragraph of the reported decision