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g.b.44
29.08.2018Ct. No.12
W. P. 4398 (W) of 2018
Chanchal Kumar Chatterjee Vs.
State of West Bengal & ors. Mr. Saktipada Jana
Mrs. Ujani Pal (Samanta) … For the petitioner
Mr. Biswabrata Basu Mallick Mr. Sanjib Das … For the State
1. This is an application under Article 226 of
the Constitution of India wherein the writ
petitioner is aggrieved by an order dated
December 27, 2017 passed by the District
Inspector of Schools (S.E.), Jalpaiguri, wherein he
has held that in the case of the petitioner,
pensionary benefits cannot be recalculated on the
basis of erroneously mentioned last drawn salary
of the petitioner and therefore, revised pension
payment order cannot be issued.
2. By an order dated April 8, 2011, a co-
ordinate bench of this Court had passed an order
in favour of the petitioner directing the respondent
authorities to refund the amount deducted from
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the overdrawn amount indicated in the pension
payment order. This part of the order has been
implemented by the State authorities.
3. The order also contained a direction on the
concerned authority to recalculate the retiral dues
of the petitioner by taking into consideration the
last drawn salary of the petitioner and to issue a
revised pension payment order, so that, the arrear
dues as per such recalculation together with
interest at the rate of 8% per annum could be
paid to the petitioner. However, the process of
recalculation of the revised pension payment
order was not completed till the year 2016 and
when the matter came up before the Assistant
Director, Pension, Provident Fund and Group
Insurance, West Bengal, the authorities directed
the concerned District Inspector of Schools to
consider the case of the petitioner in the light of
the judgement passed in a similar case of State
of West Bengal and ors. Vs. Amalendu Sekhar
Bera & anr. (M.A.T. 98 of 2015 with C.A.N.
1659 of 2015 with C.A.N. 1821 of 2015)
[Coram: Pranab Kumar Chattopadhyay and
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Ishan Chandra Das, JJ.].
4. On consideration of the same, the District
Inspector of Schools passed the impugned order.
The relevant portion of the Division Bench order
in Amalendu Sekhar Bera (supra) is delineated
below for the sake of clarity :-
“ The respondent No.1/writ petitionercannot receive excess pensionary benefitson account of the wrong fixation of lastdrawn salary. After detection of the error infixation of pay of the respondent No.1/writpetitioner, the authorities concernednamely, the appellants/petitioners hereinhad rightly corrected the last drawn salaryof the said respondent No.1/writ petitionerso that the respondent no.1/writ petitionerherein cannot receive any excesspensionary benefit in future.
We do not find any error in theaforesaid act and/or decision of theappellants/petitioners herein.
Therefore, we modify the impugnedjudgment and order under appeal passed bythe learned Single Judge by permitting theappellants/petitioners herein to fix the lastdrawn salary of the respondent No.1/writpetitioner by deducting the excess amountwhich was earlier addd with the last pay onaccount of the wrong fixation of the pay ofthe said respondent No.1/writ petitioner.
Since the appellants/petitioners hereinhave already corrected the last drawn salaryof the respondent No.1/writ petitioner bydeducting the excess amount from the lastpay of the said respondent No.1/writpetitioner and issued the revised PensionPayment Order on the basis of the correctedlast pay, we are of the opinion that the saidappellants/petitioners are not required torecalculate the retiral dues of the
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respondent No.1/writ petitioner on thebasis of the erroneously mentioned lastdrawn salary of the said respondentNo.1/writ petitioner and no further revisedPension Payment Order should also beissued as directed by the learned SingleJudge.”
5. The principle laid down by the Division
Bench in Amalendu Sekhar Bera & anr.
(supra) is that no revision of the pension payment
order can be made on the basis of erroneously
mentioned last drawn salary. The Hon’ble Division
Bench had reversed the order of the learned
Single Judge directing the authorities to make
such correction.
6. Counsel for the petitioner submits that the
order passed in favour of the writ petitioner by a
Coordinate Bench still stands and the same was
accepted by the authorities. In fact, he submits
that part of the order was complied with and
accordingly, there is no reason for the authorities
to take a contrary stand after a gap of seven
years. He further submits that if the order of the
Coordinate Bench was followed, he should have
been paid in the year 2011-12 itself.
7. Counsel for the petitioner further submits
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that the Doctrine of Election and the Doctrine of
Approbate and Reprobate applies and State
authorities having proceeded to comply with one
part of the order of the Coordinate Bench cannot
at this stage play hot and cold and refuse to
recalculate the retiral dues of the petitioner by
taking into consideration the last drawn salary as
had been directed by the Coordinate Bench.
8. Mr. Basu Mallick, learned counsel
appearing on behalf of the respondent authorities
submits that the order of the Co-ordinate Bench
dated April 8, 2011 has directed the concerned
authority to recalculate the retiral dues of the writ
petitioner and as such the recalculation has to be
on the basis of the ‘correct last drawn salary’ and
not simpliciter the ‘last drawn salary’. He submits
that after the Division Bench judgement in
Amalendu Sekhar Bera and Anr. (supra), the
authorities cannot calculate the revised pension
payment order taking into consideration the
erroneously ‘last drawn salary’. It is his
submission that for calculation of the revised
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pension payment order it is the correct salary that
has to be taken into account.
9. I have heard learned counsel for both the
parties and perused the materials on record.
10. The arguments of the counsel on behalf of
the petitioner with regard to the fact that once the
state authorities have acted on one portion of the
order and therefore, they cannot renegade from
acting upon the second part of the order is based
on the principles of the Doctrine of Approbate and
Reprobate. It is to be noted that the phrase
“Approbate and Reprobate” is apparently
borrowed from the Scotch Law, where it is used to
express the principle accepted in the Doctrine of
Election – namely, that no party can accept and
reject the same instrument. Our Supreme Court
has time and again examined the principles
relating to the Doctrine of Approbate and
Reprobate.
11. In State of Punjab and Others –v-
Dhanjit Singh Sandhu reported in 2014 (15)
SCC 144 [Coram: Dr. B.S. Chauhan and M.
Yusuf Eqbal, JJ.], held that a person may be
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precluded, by way of his actions or conduct, or
silence, when it is a duty to speak from asserting
a right which she would have otherwise had. The
relevant paragraphs are provided below:
“22. The doctrine of “approbate andreprobate” is only a species of estoppel,it implies only to the conduct of parties.As in the case of estoppel it cannotoperate against the provisions of astatute. (Vide CIT v. V. MR. P. FirmMuar [CIT v. V. MR. P. Firm Muar, AIR1965 SC 1216] .)
23. It is settled proposition of law thatonce an order has been passed, it iscomplied with, accepted by the otherparty and derived the benefit out of it,he cannot challenge it on any ground.(Vide Maharashtra SRTC v. BalwantRegular Motor Service [MaharashtraSRTC v. Balwant Regular Motor Service,AIR 1969 SC 329] .) In R.N.Gosain v. Yashpal Dhir [R.N.Gosain v. Yashpal Dhir, (1992) 4 SCC683] this Court has observed as under:(SCC pp. 687-88, para 10)
“10. Law does not permit a person toboth approbate and reprobate. Thisprinciple is based on the doctrine ofelection which postulates that no partycan accept and reject the sameinstrument and that ‘a person cannotsay at one time that a transaction isvalid and thereby obtain someadvantage, to which he could only beentitled on the footing that it is valid,and then turn round and say it is voidfor the purpose of securing some otheradvantage’.”
24. This Court in Babu Ram v. Indra PalSingh [Babu Ram v. Indra Pal Singh,(1998) 6 SCC 358] and P.R.
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Deshpande v. Maruti BalaramHaibatti [P.R. Deshpande v. MarutiBalaram Haibatti, (1998) 6 SCC 507] ,has observed that: (P.R. Deshpandecase [P.R. Deshpande v. Maruti BalaramHaibatti, (1998) 6 SCC 507] , SCC p.511, para 8)
“8. The doctrine of election is basedon the rule of estoppel—the principlethat one cannot approbate andreprobate inheres in it. The doctrine ofestoppel by election is one of the speciesof estoppel in pais (or equitableestoppel) which is a rule in equity. Bythat law, a person may be precluded byhis actions or conduct or silence whenit is his duty to speak, from asserting aright which he otherwise would havehad.”
25. The Supreme Court in RajasthanState Industrial Development andInvestment Corpn. v. Diamond and GemDevelopment Corpn. Ltd. [RajasthanState Industrial Development andInvestment Corpn. v. Diamond and GemDevelopment Corpn. Ltd., (2013) 5 SCC470 : (2013) 3 SCC (Civ) 153] , made anobservation that a party cannot bepermitted to “blow hot and cold”, “fastand loose” or “approbate andreprobate”. Where one knowinglyaccepts the benefits of a contract orconveyance or an order, is estopped todeny the validity or binding effect onhim of such contract or conveyance ororder. This rule is applied to do equity,however, it must not be applied in amanner as to violate the principles ofright and good conscience.
26. It is evident that the doctrine ofelection is based on the rule of estoppel,the principle that one cannot approbateand reprobate is inherent in it. Thedoctrine of estoppel by election is oneamong the species of estoppel in pais(or equitable estoppel), which is a rule
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of equity. By this law, a person may beprecluded, by way of his actions, orconduct, or silence when it is his dutyto speak, from asserting a right whichhe would have otherwise had.”
12. The Supreme Court in Shyam Telelink
Ltd. –v- Union of India reported in 2010 (10)
SCC 165 [Coram: Markandey Katju and T.S.
Thakur, JJ.] had also examined the principles
relating to Doctrine of Approbate and Reprobate
and had held that a person cannot accept and
reject the same instrument. The relevant
paragraphs are delineated below:
“23. The maxim qui approbat nonreprobat (one who approbates cannotreprobate) is firmly embodied in Englishcommon law and often applied bycourts in this country. It is akin to thedoctrine of benefits and burdens whichat its most basic level provides that aperson taking advantage under aninstrument which both grants a benefitand imposes a burden cannot take theformer without complying with thelatter. A person cannot approbate andreprobate or accept and reject the sameinstrument.
24. In Ambu Nair v. Kelu Nair [(1932-33)60 IA 266 : AIR 1933 PC 167] thedoctrine was explained thus: (IA p. 271)
“Having thus, almost in terms,offered to be redeemed under theusufructuary mortgage in order to getpayment of the other mortgage debt, theappellant, Their Lordships think,cannot now turn round and say thatredemption under the usufructuary
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mortgage had been barred nearlyseventeen years before he so obtainedpayment. It is a well-accepted principlethat a party cannot both approbate andreprobate. He cannot, to use the wordsof Honyman, J. in Smith v. Baker [1873LR 8 CP 350] LR at p. 357:
‘… at the same time blow hot andcold. He cannot say at one time that thetransaction is valid, and thereby obtainsome advantage, to which he could onlybe entitled on the footing that it is valid,and at another time say it is void for thepurpose of securing some furtheradvantage.’ ”
25. The view taken in the abovedecision has been reiterated by thisCourt in City Montessori School v. Stateof U.P. [(2009) 14 SCC 253] To the sameeffect is the decision of this Courtin New Bihar Biri Leaves Co. v. State ofBihar [(1981) 1 SCC 537] where thisCourt said: (New Bihar case [(1981) 1SCC 537] , SCC p. 558, para 48)
“48. It is a fundamental principle ofgeneral application that if a person ofhis own accord, accepts a contract oncertain terms and works out thecontract, he cannot be allowed toadhere to and abide by some of theterms of the contract which provedadvantageous to him and repudiate theother terms of the same contract whichmight be disadvantageous to him. Themaxim is qui approbat non reprobat (onewho approbates cannot reprobate). Thisprinciple, though originally borrowedfrom Scots law, is now firmly embodiedin English common law. According to it,a party to an instrument or transactioncannot take advantage of one part of adocument or transaction and reject therest. That is to say, no party can acceptand reject the same instrument ortransaction (per Scrutton,L.J., Verschures Creameries Ltd. v. Hull
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& Netherlands Steamship Co.Ltd. [(1921) 2 KB 608 : 1921 All ER Rep215 (CA)] ; …).”
26. The decision of this Court in R.N.Gosain v. Yashpal Dhir [(1992) 4 SCC683 : AIR 1993 SC 352] brings in thedoctrine of election in support of thevery same conclusion in the followingwords: (SCC pp. 687-88, para 10)
“10. Law does not permit a person toboth approbate and reprobate. Thisprinciple is based on the doctrine ofelection which postulates that no partycan accept and reject the sameinstrument and that:
‘… A person cannot say at one timethat a transaction is valid and therebyobtain some advantage, to which hecould only be entitled on the footingthat it is valid, and then turn round andsay it is void for the purpose of securingsome other advantage.’(See Verschures Creameries Ltd. v. Hulland Netherlands Steamship Co.Ltd.[(1921) 2 KB 608 : 1921 All ER Rep215 (CA)] KB at p. 612, Scrutton, L.J.)According to Halsbury's Laws ofEngland, 4th Edn., Vol. 16:
“1508. Examples of the common lawprinciple of election.—After taking anadvantage under an order (for examplefor the payment of costs) a party may beprecluded from saying that it is invalidand asking to set it aside.' ”
27. In America estoppel by acceptanceof benefits is one of the recognisedsituations that would prevent a partyfrom taking up inconsistent positionsqua a contract or transaction underwhich it has benefited. AmericanJurisprudence, 2nd Edn., Vol. 28, pp.677-80 discusses “estoppel byacceptance of benefits” in the followingpassage:
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“Estoppel by the acceptance ofbenefits.—Estoppel is frequently basedupon the acceptance and retention, byone having knowledge or notice of thefacts, of benefits from a transaction,contract, instrument, regulation whichhe might have rejected or contested.This doctrine is obviously a branch ofthe rule against assuming inconsistentpositions.
As a general principle, one whoknowingly accepts the benefits of acontract or conveyance is estopped todeny the validity or binding effect onhim of such contract or conveyance.
This rule has to be applied to doequity and must not be applied in sucha manner as to violate the principles ofright and good conscience.”
13. On a thorough study of these above noted
judgments, the principles that emerges is that a
person cannot at the same time accept and reject
an instrument. Such acceptance has to be judged
by his conduct and actions. If the person has
chosen to accept a particular instrument and/or
order, he cannot at a latter point agitate against
the same instrument and/or order. Carrying the
analogy further, if a person acts on a part of an
order passed by a Court, he cannot choose to
ignore and/or reject the other part of the order
unless the same has been challenged by him
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under the process established in law. In the
present case, the authorities accepted the order
passed on April 8, 2011 and proceeded to carry
out the first point of the order that is of refunding
the overdrawn amount. With regard to the second
part of the order for recalculation of the pension
payment order steps were taken by the authorities
to comply with the same. It is only after five years
that the Assistant Director, Pension, Provident
Fund and Group Insurance objected to the order
and directed the authorities below to act in
consonance with another order passed by the
Calcutta High Court. The very fact that the
respondent authorities did not file any appeal
against the order dated April 8, 2011 lends
credence to the fact that they had accepted the
order and had in fact complied with part of the
same. Apropos, having accepted the same, it did
not lie in their mouth at a latter date to not
comply with another part of the order.
14. Apart from the fact that the state authorities
are clearly hit by the Doctrine of Approbate and
Reprobate, I am of the view that the State
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Authorities are also prevented from re-agitating
the issue relating to the manner in which
recalculation has to be carried out, as the issue
has been settled and reached a finality. The
Supreme Court in Indian Council for Enviro-
Legal Action Vs. Union of India and Ors.
reported in (2011) 8 SCC 161 [Coram: Dr.
Dalveer Bhandari and H.L. Dattu, JJ.]
discussed the entire issue of finality of judgement
in paragraphs 103 to 142. The principle on which
the ‘Doctrine of Finality’ is based has been
delineated in paragraphs 103 and 142 that are
provided below:-
“103. The maxim interest reipublicae ut sitfinis litium says that it is for the public goodthat there be an end to litigation after a longhierarchy of appeals. At some stage, it isnecessary to put a quietus. It is rare that in anadversarial system, despite the Judges of thehighest court doing their best, one or moreparties may remain unsatisfied with the mostcorrect decision. Opening door for a furtherappeal could be opening a floodgate which willcause more wrongs in the society at large at thecost of rights.
104. It should be presumed that everyproceeding has gone through infiltration severaltimes before the decision of the Apex Court. Inthe instant case, even after final judgment ofthis Court, the review petition was alsodismissed. Thereafter, even the curative petitionhas also been dismissed in this case. Thecontroversy between the parties must come to
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an end at some stage and the judgment of thisCourt must be permitted to acquire finality. Itwould hardly be proper to permit the parties tofile application after application endlessly. In acountry governed by the rule of law, finality ofthe judgment is absolutely imperative and greatsanctity is attached to the finality of thejudgment. Permitting the parties to reopen theconcluded judgments of this Court by filingrepeated interlocutory applications is clearly anabuse of the process of law and would have far-reaching adverse impact on the administrationof justice.………..…………..
142. The applicants certainly cannot beprovided an entry by back-door method; andpermit the unsuccessful litigants to reagitateand reargue their cases. The applicants havefiled these applications merely to avoidcompliance with the order of the Court. Theapplicants have been successful in theendeavour and have not permitted thejudgement delivered on 13-2-1996 to acquirefinality till date. It is strange that otherrespondents did not implement that final orderof this Court without there being any order ordirection of this Court. These applicationsbeing devoid of any merit deserve to bedismissed with heavy costs.”
15. Subsequently, in Union of India and
Others Vs. Major S. P. Sharma and Others
[Coram: Dr. B.S. Chauhan, J. Chelameswar
and M.Y. Eqbal, JJ.] reported in (2014) 6 SCC
351 the Supreme Court once again elucidated the
principles in paragraphs 75 to 90 with regard to
the Doctrine of Finality. M.Y. Eqbal, J. observed
in paragraphs 80 to 82 as follows:
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“80. In M. Nagabhushana V. State ofKarnataka this Court held that thedoctrine of res judicata is not atechnical doctrine but a fundamentalprinciple which sustains the rule of lawin ensuring finality in litigation. Themain object of the doctrine is to promotea fair administration of justice and toprevent abuse of process of the court onthe issues which have become finalbetween the parties. The doctrine isbased on two age-old principles,namely, interest reipublicae ut sit finislitium which means that it is in theinterest of the State that there shouldbe an end to litigation and the otherprinciple is nemo debet bis vexari, siconstat curiae quod sit pro una eteadem causa meaning thereby that noone ought to be vexed twice in alitigation if it appears to the court that itis for one and the same cause.
81. Thus, the principle of finality oflitigation is based on a sound firmprinciple of public policy. In theabsence of such a principle greatoppression might result under thecolour and pretence of law inasmuch asthere will be no end to litigation. Thedoctrine of res judicata has beenevolved to prevent such anarcy.
82. In a country governed by the ruleof law, the finality of a judgement isabsolutely imperative and great sanctityis attached to the finality of thejudgement and it is not permissible forthe parties to reopen the concludedjudgements of the court as it would notonly tantamount to merely an abuse ofthe process of the court but would havefar-reaching adverse effect on theadministration of justice. It would alsonullify the doctrine of stare decisis, awell-established valuable principle ofprecedent which cannot be departedfrom unless there are compellingcircumstances to do so. Thejudgements of the court and particularly
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of the Apex Court of a country cannotand should not be unsettled lightly.”
16. I would go amiss if I do no not consider the
judgement delivered by the Division Bench of this
High Court wherein Sanjib Banerjee, J. authoring
the judgement on behalf of himself and the
Hon’ble the Chief Justice had examined the issue
with regard to the Doctrine of Finality and
pronounced the principles thereto in Indu
Bhusan Jana Vs. Union of India and Ors.
reported in AIR 2009 Cal 24; (2009) 1 CHN 27
[Coram: Surinder Singh Nijjar, C.J. and Sanjib
Banerjee, J.]. The Principles of Doctrine of
Finality have been succinctly captured in the
paragraphs delineated below:
“11. Upon an order attaining finality, itmatters little as to whether it waserroneous. A party aggrieved by anorder has to work out his remedieswithin the legal framework. If an issueor the entire lis is concluded upon afinding being rendered and such findingremains unchallenged, it is no longeropen to the party to undo the effectthereof at any subsequent stage orcollaterally unless it is demonstratedthat the finding was obtained by fraudor the Court lacked jurisdiction to passthe order. The hierarchy in thejudiciary exists to afford litigants toclimb up the ladder in pursuit of justiceand to right a wrong committed at a
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lower level. But if a litigant accepts anorder, he does it to his prejudice andbinds himself thereby.
12. The principle of finality or resjudicata is a matter of public policy andis one of the pillars on which a judicialsystem is founded. Once a judgementbecomes conclusive, the matters inissue covered thereby cannot bereopened unless fraud or mistake orlack of jurisdiction is cited to challengeit directly at a later stage. The principleis rooted to the rationale that the issuesdecided may not be reopened, and haslittle to do with the merit of thedecision. If it were to be otherwise, nodispute can be resolved or concluded.The principles of res judicata andconstructive res judicata apply equallyto proceedings under Article 226 of theConstitution.
13. A decision pronounced by a Courtof competent jurisdiction is bindingbetween the parties unless it is modifiedor reversed, by adopting a procedureprescribed by law. It is in the interestof the public at large that finality shouldattach to the binding decisionspronounced by a Court of competentjurisdiction and it is also in the publicinterest that individuals should not bevexed twice over in the assessment ofthe same matter in issue. Even in caseof a judgement passed incuriam whichis unchallenged, the efficacy andbinding nature of the operative order isconclusive inter parties. The principleapplies both to an order from which anappeal lies and no appeal is preferredand to an order from which no appeal isprovided.”
17. On an analysis of the above judgement on
the Doctrine of Finality one concludes that the
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above Doctrine is based on two age-old principles,
namely, interest reipublicae ut sit finis litium which
means that it is in the interest of the State that
there should be an end to litigation and the other
principle is nemo debet bis vexari, si constat curiae
quod sit pro una et eadem causa meaning thereby
that no one ought to be vexed twice in a litigation
if it appears to the court that it is for one and the
same cause. It is clear that once an order attains
its finality, that is, it is not challenged in appeal or
by way of any procedure established in law, it
matters little whether such order was erroneous
and bad in law. This order inter se the parties
becomes final and is not open to challenge by
either of the parties on a subsequent occasion.
The only exceptions to the Doctrine of Finality are
that the finding of the earlier order was obtained
by fraud or the court lacked jurisdiction to pass
the order.
18. The authorities cannot now rely on a
judgment of the Division Bench passed after four
years, in another matter, to overrule the judgment
passed by the co-ordinate Bench. The above view
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of mine is strengthened by the principles laid
down by the Supreme Court with regard to the
Doctrine of Finality inter se the parties. It is not
in dispute that subsequent to passing of the order
dated April 8, 2011 the State authorities did not
prefer an appeal against the said order. In fact,
they proceeded to act on the same and refunded
the amount of Rs.28,338/- that had been illegally
deducted by the authorities. In fact, they also
paid the interest @ 8% per annum as directed by
the court. With regard to the second direction of
recalculation of the retiral dues taking into
consideration the last drawn salary, an order was
passed by the D. I. of Schools (S. E.), Jalpaiguri
directing the school authorities to submit the
pension paper. It is only in the year 2016 that the
Assistant Director of Pension, Provident Fund and
Group Insurance, Government of West Bengal
raised an objection stating that the revised
pensionary benefits cannot be calculated on the
basis of the ‘last pay drawn’ erroneously at higher
slab in light of the judgement of the Division
Bench as indicated above. This change of stance
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that has now been taken by the respondent
authorities in the case of the petitioner is no
longer legally tenable as the same is diametrically
opposite to the principles of the Doctrine of
Finality. In the present case, none of the
exceptions to the Doctrine of Finality, that is,
fraud or error of jurisdiction come into play in any
manner whatsoever.
19. In view of the same, I set aside the Official
Memorandum dated December 27, 2017 passed
by the District Inspector of Schools (S. E.),
Jalpaiguri and direct the District Inspector of
Schools to act in terms of the order dated April 8,
2011. It is made clear that the retiral dues of the
petitioner shall be calculated by taking into
consideration the ‘last drawn salary’, that is,
Rs.9425/- and to issue the revised pension
payment order within a period of six weeks from
date. The respondent authorities are directed to
make payment of the arrear pension amounts
within a period of ten weeks from date and to pay
the pension as per the revised calculation keeping
in mind the ‘last drawn salary’, that is, Rs.9425/.
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20. The writ petition being W. P. No. 4398 (W) of
2018 is, accordingly, allowed and disposed of.
21. There will be no order as to costs.
22. Urgent certified copy of this order, if applied
for, be made available to the parties upon
compliance of the requisite formalities.
(Shekhar B. Saraf, J.)
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