Calcutta High Court (Appellete Side)
For The vs Union Of India Reported In Air 1999 on 18 November, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 8.11.11
C. O. No. 3318 (W) of 1995 Mr. Kashi Kanta Moitra, Mr. Arup Kr. Lahiri, Mr. Lakshmi Kanta Pal .. For the Petitioner.
Mr. Ujjal Kr. Sarkar .. For the State.
The school authority of Prafulla Nagar Balika Vidyalaya in the district of North 24-Parganas published an advertisement in the daily issue of the Amrita Bazar Patrika on 22nd November, 1981 inviting application from suitable candidates having the educational qualification Master Degree (Bio), B. T. for the post of an Assistant Teacher in the said school. Pursuant to the said advertisement the petitioner applied for the said post. Ultimately she was selected for the said post. At the time of her appointment, the petitioner's educational qualification was M. Sc., in Anthropology, B. Ed. The appointment of the petitioner was approved by the concerned District Inspector of Schools (S. E.), 24-Parganas with effect from 19th February, 1982. The said educational qualification of the petitioner was also recorded in the approval letter. The petitioner was granted the scale of pay which was admissible to an Assistant teacher having Master Degree from the date of her appointment as Assistant Teacher in the said school.
Trouble started in 1994 when it was decided by the State Government that post-graduate qualification in Anthropology is not to be treated as good enough or sufficient qualification for appointment of the candidate with such qualification to the post of Life Science/Bio-Science Teacher in secondary schools in West Bengal unless such candidate possesses requisite qualification in the graduation level, i.e., qualification with Botany, Geology, etc. for being eligible for appointment to the post with a rider that no such graduate teacher who have obtained post-graduate degree in Anthropology will also be entitled to the higher scale of pay for such improvement of qualification is not being relevant to their appointment/teaching.
Following the said Government decision, the Deputy Director of School Education, West Bengal instructed the District Inspector of Schools (S. E.) to recast the pay scale of the petitioner as the petitioner, according to the Deputy Director of Schools Education, West Bengal was not entitled to get post-graduate scale of pay for her Master degree in Anthropology. Incidentally, it may be noted that the petitioner had Botany and Geology subject at her graduation level.
The direction which was so given by the Deputy Director of School Education, West Bengal to the District Inspector of Schools as referred to above, contained in Annexure "K" at page 59 of this writ petition therein, is under challenge in this writ petition at the instance of the petitioner.
Mr. Moitra, learned senior counsel appearing on behalf of the petitioner, submits that the scale which was given to the petitioner after taking into consideration the academic qualification of the petitioner at the entry level of her service in 1982, cannot be withdrawn subsequently by virtue of any decision which was taken by the State Government subsequently in 1994. In support of his submission, Mr. Moitra relied upon a decision of the Hon'ble Supreme Court in the case of Chandraprakash Madhabrao Dadwa & others vs. Union of India reported in AIR 1999 2 S.C. 59, wherein it was held that recruitment qualification could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recorded nor could it affect their confirmation. The relevant part of the said decision which was relied upon by Mr. Moitra is set out hereunder:
"Paragraph 53 -
To put it in a nut-shell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they are recruited nor could it affect their confirmation."
It is further contended by Mr. Moitra that even opportunity of being heard was not given to his client before coming to the conclusion by the Deputy Director of School Education, West Bengal that the petitioner is not entitled to get post-graduate scale of pay.
This court finds much substance in the submission of Mr. Moitra as it is rightly pointed by him that pay fixation was made by the concerned authority after taking note of the educational qualification disclosed by her at the entry level. It is not a case where the pay fixation was made at a higher level on the basis of misrepresentation and/or fraudulant misrepresentation made by her with regard to her educational qualification. The petitioner disclosed her educational qualification before the school authority, at the time of her appointment. The school authority considered the educational qualification of the petitioner and found her to be eligible for the said post. The concerned District Inspector of Schools also scrutinized the educational qualification of the petitioner at the time of approving her appointment. The scale of pay which was admissible to an Assistant Teacher having Master degree qualification was granted to her by the concerned District Inspector of Schools after taking into consideration the educational qualification of the petitioner.
The condition of service and the benefit given to such service at the entry level by the authority cannot be affected and/or withdrawn subsequently with retrospective effect by giving effect to a decision of the authority taken twelve years after the service of an employee was confirmed by the authority. Master degree in Anthropology of the petitioner was accepted as an educational qualification relevant to the appointment of an Assistant Teacher in Bio Science all throughout up till 1993. It is only in 1994 Government decided that the Master degree in Anthropology is not a relevant qualification for the post of Assistant Teacher in Bio Science. Since there was no such decision of the Government in 1882, neither the petitioner's service can be affected nor the scale given to her for her Master degree in Anthropology can be withdrawn on the basis of the decision taken by the Government in 1994. Of course, the service of the petitioner even cannot be affected by virtue of the Government decision of 1994, as the petitioner had Botany and Geology subjects at his graduation level.
3As such, this court is of the view the scale of pay which was given to the petitioner after considering her educational qualification at the entry level cannot be withdrawn from her by taking note of a subsequent decision of the Government which had no retrospective effect.
That apart, principles of natural justice has been violated in the instant case as no opportunity of being heard was given to the petitioner before taking the decision that the petitioner was not entitled to the higher scale of pay.
Accordingly, this court holds that the decision of the Deputy Director of School Education, West Bengal to the effect that the petitioner is not entitled to post-graduate scale of pay as mentioned in the communication made between the Director of Schools Education, West Bengal and the District Inspector of Schools (S. E.) contained in Annexure "K" to this writ petition at page 59 thereby stands quashed. This court, thus, holds that the scale of pay which was given to the petitioner for her Master degree cannot be withdrawn from her.
The revisional application, thus, stands allowed.
The concerned authority is, thus, directed to revise the pay scale of the petitioner as per the options given by her from time to time and pay all the pecuniary benefits admissible to her as per the options given by her, to her within twelve weeks from the date of communication of this order.
Urgent photostat copy of this order, if applied for, be supplied to the learned advocate for the petitioner as early as possible.
(Jyotirmay Bhattacharya, J.)