Pratap Kr. Ray, J. - (1.) . - Petitioner, a retired Headmaster of Matigara Harasundar High School being aggrieved by the fixation of last pay and the amount of Provisional Pension to that effect by the District Inspector of Schools (SE) Siliguri, in terms of Memo No. 1415/G/S(6) dated 21st July, 1997, has challenged the same in this writ application praying the following reliefs: (a) A writ in the nature of Mandamus commanding the respondents not to give any effect and/or further effect to the impugned order as in Annexure 'I' herein. (b) A further writ in the nature of Mandamus commanding the respondents to pay Rs. 2,150/- per month as the Provisional Pension as well as Rs. 70,750/- as the provisional gratuity on the basis of the last basic pay drawn i.e. Rs. 4,300/- plus interest as admissible under the law as the approved Head Master of the Matigarah Hara Sunder High School, Post Office Matigarh, District Darjeeling. (c) A writ in the nature of Mandamus Commanding the respondent authorities to pay final pension and gratuity on the basis of the last pay drawn as the approved Head Master of the said school; Respondent Nos. 1, 2 and 3 filed Affidavit-in-Opposition opposing prayers of sanction of provisional pension and grades in favour of the petitioner in the scale of Headmaster, by annexing a decision of Director of School Education issued under Memo No. 2047/TA dated 22nd December, 1999, whereby in view of petitioner's lack of qualification to enjoy the pay scale of Headmaster of a High School or Higher Secondary School, the pay as enjoyed by the petitioner for the period 1st January, 1969 to 31st August, 1996 that is for the date of assuming the charge of Headmaster of a High School till the date of retirement was directed to be deducted being an excess amount drawn by the petitioner and in lieu thereof direction was made to pay working allowance for discharging the duties of Headmaster for the said period under existing rule providing 20 per cent of basic pay in his grade according to qualification. In the Affidavit-in-Reply the said Memo dated 22nd December, 1999 of Director of School Education, West Bengal which to be referred to as DSE for brevity has been challenged by the petitioner on several grounds.
(2.) It is submitted by Mr. Maharaj Sinha, learned Senior Advocate, appearing for the petitioner that while the petitioner was working as Headmaster of Matigara Harasundar Junior High School, the school was upgraded with retrospective effect from 1st January, 1969 in terms of the decision dated 2nd November, 1970 issued by the appropriate authority and petitioner continued to discharge the function of Headmaster, on enjoyment of the pay scale as was admissible to him while he was working as Headmaster of Junior High School. Petitioner filed a representation for fixation of his pay scale as Headmaster of High School in view of its upgradation in terms of Government Circular No. 386-Edn. (S) dated 12th March, 1974. Learned Advocate of the petitioner submitted that in terms of the said Circular Letter dated .12th March, 1974, petitioner was eligible to enjoy the pay scale of Headmaster of a High School irrespective of the fact of his qualification of a Special Honours degree, since, by the said Circular Letter, a provision was made for regularisation of such appointment in the post of Headmaster of enjoyment of such pay scale of a Headmaster of High School. It is contended by the petitioner that in terms of the representation of the petitioner dated 24th May, 1974, the District Inspector of Schools (SE) Darjeeling by his Memo No. 918/IM-59 dated 22nd August, 1974, allowed the petitioner's pay scale in the post of Headmaster of a High School and in pursuance thereof the School Authority continued to pay the petitioner's salary in terms of the grant in said rules in the said pay scale as applicable to the duly qualified Headmaster of a High School. Petitioner continued to receive such pay scale till the of retirement on 31st August, 1996 by enjoying the basic pay of Rs. 4,100/- in terms of the revised pay scale as introduced by notification No. 33-Edn (b) dated 7th March, 1990. It is contended by the learned Advocate of the petitioner that in view of enjoyment of the pay scale of a qualified Headmaster of a High School, the fixation of the basic pay of Rs. 2850/- being the pay of Assistant Teacher of a High School and thereby fixation of provisional pension to the tune of Rs. 1408/- on that basis was absolutely bad and illegal. The learned Advocate of the petitioner further challenged the Memo dated 22nd December, 1999 issued by Director of School Education, West Bengal on the ground that after retirement, such Memo was issued directing deduction of alleged excess amount as drawn by the petitioner due to enjoyment of pay scale of a Headmaster of a High School for the period 1st January, 1969 to 31st August, 1996, without hearing the petitioner. It is contended vehemently that principle of natural justice was violated and accordingly prayed for quashing and setting aside of said Memo dated 22nd December, 1999 issued by Director of School Education, West Bengal being Annexure 'A-I' of the Affidavit in Opposition and to grant necessary relief to the petitioner. Learned Advocate of the petitioner relied upon the judgment of the Apex Court passed in the case Bhagwan Shukla v. Union of India & Ors., reported in 1995 (2)LLJ 726 : [1994(4) SLR 614 (SC)] , in support of his case , contending, inter alia, that without any opportunity, since the petitioner pay scale was fixed and direction was given to deduct excess amount as drawn, the same is liable to be quashed as the petitioner has suffered a civil consequence without any hearing. However, learned Advocate of the petitioner invited this Court to look into the Circular Letter No. 386- Edn. (s) dated 12th March, 1974 which would satisfy the petitioner's claim for enjoyment of pay scale of Headmaster of a High School. It is contended that in terms of the said Circular Letter dated 12th March, 1974 petitioner was regularised as a qualified Headmaster of the High School. It is contended by the learned Advocate of the petitioner that in terms of Clause 2 of the said Circular Letter dated 12th March, 1974, the regularisation of appointment of graduates with Special Honours in the post of Headmaster of the High School was allowed. Learned Advocate of the petitioner further referred to the Clause 5A of the said Circular Letter dated 12th March, 1974 in support of his contention.
(3.) Learned Advocate Mr. Subrata Dutta of the respondents opposed the prayer of the petitioner, contending, inter alia that petitioner being under qualified to hold the post of Headmaster of a High Schools was not eligible to enjoy the benefit of qualified Headmaster, since, qualification Special Honours was not considered as regular Honours by different Circulate Letters for the purpose of enjoyment of pay scale of a Headmaster. It is urged by the learned Advocate of the respondents that the qualification for the post of Headmaster of High School in terms of Finance Department Memo No. 666-F dated 1st March, 1971 was fixed as graduates with Honours Degree or with Master degree securing not less than 40 per cent marks at M.A./M.Sc. examinations plus five years teaching experience in recognised Secondary Schools. Special attention has been drawn of this Court by referring Finance Memo dated 1st March, 1971 wherein it was categorically provided that graduates with Special Honours would not be treated as Honours Graduates for the purpose of enjoyment of the pay scale of a Headmaster of a High School and holder of the post being under qualified in terms of the qualification prescribed by the said Circular Letter was entitle only to get 20 per cent of basic pay in terms of his qualification -that is the basic pay of a Assistant Teacher of a High School. It is contended further that the petitioner's pay scale in the post of Headmaster of a High School was never approved by the District Inspector of Schools concerned as alleged. .It is contended further that since the petitioner was under qualified teacher to enjoy pay scale of Headmaster, petitioner representation as filed praying fixation of last pay in terms of the pay scale of a qualified Headmaster and thereby fixation of provisional pension to that effect was duly considered by the Director of School Education, West Bengal in terms of reference of such as made by the District Inspector of Schools concerned. In terms of the communication of the DSE, West Bengal, petitioner is not legally entitled to enjoy the pension in the pay scale of a qualified Headmaster and excess amount as drawn by the petitioner was illegal and petitioner is liable to refund the same.;