P.K.Ray, J. - (1.) Heard learned advocates appearing for the parties. In the instant writ application, the petitioner has prayed for release of all retirement benefits on considering the petitioner as an employee who enjoyed the 5th term of extension upon granting appropriate leave for the period of absence for 10 months during the 5th term of extension. The facts leading to the writ application are as follows :
(2.) The petitioner, admittedly while discharging the function as Headmaster of the school, exercised his option for ROPA 1990 pay scale, that is revised pay scale, but subsequently during the extended period of time to revert to the pre-revised pay scale, the petitioner applied for the same and was allowed to enjoy the pre-revised pay scale with right to serve the school upto the age of 65 years on crossing the age of superannuation, on extension of service year to year basis subject to physical fitness and mental alertness as well as subject to refund of excess amount as already enjoyed while the petitioner was enjoying the revised pay scale prior to his return to the old pay scale. It is an admitted fact that the petitioner's service upto the 3rd term of extension was duly approved by the District Inspector of Schools concerned. The 3rd term of extension ended on 30.12.95. Time to refund the excess amount as drawn in the revised scale of pay prior to change of option was 28.02.96, which was the last date. Under the circular letter No. 161-SE(R)/IM-6/90 Pt. 2 dated 28.12.95 issued by the Education (School) Department, Government of West Bengal such last date to refund the excess amount was allowed by following the procedure for such refund as it appears in clause 4 which provides that refund was not unilateral action, but it is a multilateral action in between the teaching and non-teaching staff, the Managing Committee and the District Inspector of Schools concerned. It provides that on the application of the concerned employee the Managing Committee will finalise the amount, and thereafter will forward the papers to the District Inspector of Schools concerned about refund of the excess amount, who in turn will intimate the Managing Committee as well as the employee concerned the actual amount as to be refunded and thereafter the payment to be made. In the instant case, it is true that petitioner's application has been opposed by the State respondents as well as by the school authority taking a plea that due to non-refund of the excess amount as drawn, extension of service for 4th and 5th terms was not approved, but from the affidavits it appears that nowhere the aforesaid respondents have disclosed that the Managing Committee duly intimated the petitioner about the excess amount and forwarded the papers to the District Inspector of Schools concerned for his necessary approval directing the petitioner to refund the excess amount. The District Inspector of Schools also has not disclosed the same in the affidavit. Hence, it appears prima facie from the records that so far as the refund of the excess amount is concerned, the petitioner only cannot be blamed, as the other two authorities, the Managing Committee and the District Inspector of Schools concerned also did not act in terms of the said circular which castes a responsibility to intimate the petitioner. Hence, it appears that non-refund of the excess amount to the tune of Rs.57,000/- and odd, in the instant case has been caused due to the failure to act as per Circular by all the parties, namely, the petitioner, the State respondents as well as the Managing Committee of the school as they did not follow the procedure properly.
(3.) The memo dated 28.12.95 is relevant for adjudication of this case, and as such, the same is quoted in extenso: "The undersigned is directed to refer to Memo No. 59-SE(S) dated 17.4.95 and Memo No. 128-SE(B) dated 18.9.95 and to say that in pursuance of the judgment/order passed by Hon'ble Mr. Justice S.R. Misra in C.O. No. 19564(W) of 1995 on 5.12.95/6.12.95, certain modifications of the above said two Government orders are considered necessary. 2. In the circumstances, the undersigned is directed by the order of the Governor to say that the teaching and non-teaching employees who exercised option to revert to the Pre-1986 scale of pay within the period stipulated in G.O. No. 196-Edn.(B) dated 27.4.92 as subsequently extended by the Calcutta High Court, that is, on or before 7.8.92 and who are drawing salaries on the basis of Pre-1986 scale of pay, but have not refunded the excess amount drawn by them so far, are hereby given the last chance of refunding the said excess amount by the 28th day of February, 1996. On such refund being made by such teaching and non-teaching employees, the concerned teaching and non-teaching employees will be considered, for extension or allowed to continue on extension, as the case may be, beyond 60 years. 3. There may be a few teaching and non-teaching employees who opted for the Pre-1986 scale of pay on the basis of G.O. No. 196- Edn.(B) dated 27.4.92 on or before 7.3.92, and are drawing salaries on the basis of Pre-1986 scale of pay, but have not returned the excess amount drawn by them in the revised scale of pay, Le. the scale of pay introduced in G.O. No. -Edn.(B) dated 7.3.90 and have not attained the age of 60 years are hereby allowed to return the excess amount drawn by them prior to August 1992 or even the excess amount drawn on the basis of the said revised scale after August 1992, in both the class of cases, by the 28th day of February, 1996. On such refund of the said excess amounts, their cases for extension of services beyond 60 years of age will be considered by the respective authorities. 4. In regard to such refund, the concerned employee will approach the Managing Committee with the request to disclose the excess amount and the Managing Committee will indicate the amount of refund and forward the same to the District Inspector of Schools and the concerned District Inspector of Schools will finally disclose the amount sought to be refunded within 15 days from the receipt of the application of the concerned employee through the Managing Committee and the employee has to deposit the amount before the 28th day of February, 1996.";