Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Meghnath Roy on 16 December, 2019
1
SL 35
16-12-2019
Court No. 16
Samrat
CAN 7455 OF 2019
With
CAN 7454 OF 2019
IN
MAT 514 OF 2019
The State of West Bengal & Ors.
-Vs-
Meghnath Roy
Mr. Joytosh Majumder, Ld. G.P.,
Mrs. Kakali Samajpati,
Mr. Abhishek Prasad
... For the State / Appellants
Mr. Saktipada Jana,
Ms. Ujani Pal
... For the Respondent
In Re: CAN 7455 of 2019 There is a delay of 228 days in preferring the appeal. The prayer for condonation of delay is opposed by the respondent. In the application for condonation of delay, the appellants have stated various steps, which they had taken following the order passed by the learned Single Judge on 13th June, 2018. The appellants have stated that on 2nd July, 2018, the appellants approached the Legal Remembrancer for consideration why the appeal should be preferred against the order. The Legal Remembrancer granted his approval on 13th September, 2018 and approved the appointment of the learned Government Pleader and his junior to prefer an appeal against the impugned order. The certified copy was applied on 5th July, 2018 within the period of 30 days and was received on 10th August, 2018.
There is, however, delay of about 7 months for the appellants to take steps for preparation of the appeal. The Secretary, School Education Department appears to have delayed the matter which had continued till this appeal and 2 the application are taken up. The Government Pleader and the Counsel appointed to prepare the appeal thereafter had taken necessary steps, which consumed another 18 days' time.
We agree with the learned Counsel appearing on behalf of the writ petitioner / respondent that this period of 7 months have not been properly explained. The Court in number of decisions being satisfied with the merits of the matter in appeal had condoned delays of the State Authorities notwithstanding the fact that the State stands in the same position as that of a citizen approaching the Court in the matter of condonation of delay.
However, when it involves a government exchequer and there is strong prima facie case in the appeal unless there is a culpable negligence on the part of the State Authorities delay in preferring the appeal is condoned. Everyday's delay in such circumstances may not be required to be stated otherwise meritorious cases would be defeated.
Under such circumstances, we condone the delay and allow the appellants to prefer the appeal upon payment of costs of Rs. 4,000/- to be paid by the appellants to the respondent within one week from date, in default the appeal shall stand dismissed.
CAN 7455 of 2019 is thus disposed of.
In Re: CAN 7454 of 2019 in MAT 514 of 2019 By consent of the parties the appeal and the application are taken up for disposal.
We have heard the learned Counsel for the parties on merits and subject to compliance of our order passed in the 3 application under Section 5 of the Limitation Act the following order is applied.
The appeal is arising out of an order dated 13th June, 2018 in a writ petition filed by the private respondent assailing an order dated 23rd April, 2018 by which his pay for higher scale of pay on the basis of a Government Order dated 27th November, 2007 was denied.
We have perused the documents and the materials on record. It appears that the learned Single Judge had overlooked Clause 3 of the Government of West Bengal, School Education Department, Secondary Branch Circular No. 593-SE(B)/ES/O/B/IM-98/2007 dated 27.11.2007. The said Clause 3 is reproduced below:-
"3. The teacher is required to seek prior permission of concerned District Inspector of Schools (SE) (only when he/she wants to claim additional increment / higher scale of pay etc. for obtaining such higher qualification) through the Managing Committee of the School."
It appears from record that the writ petitioner made representation to the Ad Hoc Committee of the previous school on 23rd April, 2010 to allow him to pursue the course of master degree in Geography through distant mode of education. Thereafter, he joined the present school and similar application was made to the Managing Committee of the present school. The Managing Committee of the present school vide resolution dated 23rd June, 2013 allowed the petitioner to pursue higher studies without affecting the day to day academic necessity of the students. The petitioner completed the distance education course successfully and obtained master degree in Geography. When he approached the District Inspector of Schools (SE) for higher scale of pay, 4 the same was denied on the ground that he had not obtained the said degree after obtaining prior permission from the District Inspector of Schools vide issuing memo dated 23rd April, 2018.
There cannot be any doubt that at the time when he joined the present school he was already pursuing his higher studies but the only mistake possibly he had done not to seek the permission in terms of Clause 3 of the Government Circular dated 27th November, 2007.
Mr. Jana, learned Counsel for the respondent had drawn our attention to a communication dated 8th June, 2017 from the Deputy Director of School Education to the District Inspector of Schools (SE) directing such authorities to refer the case to the Directorate and not to the School Education Department for disposal of cases of higher scale of pay of teachers of secondary schools as per existing rules in case such authorities facing difficulty. Under Section 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005, Honours-graduate teacher is entitled to draw pay scale of post-graduate teacher upon acquiring post- graduate degree in the manner as may be specified by the order.
On 27th November, 2007, the School Education Department, Secondary Branch issued Order No. 593- SE(B)/ES/O/B/1M-98/2007, wherein clause 3 it is stated that the teacher is required to seek prior permission of concerned District Inspector of Schools only when he wants to draw additional increment/higher scale of pay for obtaining such higher qualification through the Managing Committee of the School. There is nothing on record to 5 show that the Managing Committee has forwarded the request of the writ petitioner to the District Inspector of Schools for higher scale of pay for obtaining higher qualification. Undoubtedly, the writ petitioner, at the time of joining the present school was already pursuing the higher studies and the Managing Committee of the present school had permitted him to pursue such course without affecting academic interest of the institution. Section 14(3), as it stands, does not require any prior permission to be taken for obtaining higher qualification. However, manner in which a teacher must be entitled to higher scale of pay upon acquiring post-graduate degree is indicated in the Government Order dated 27th November, 2007. We do not find any guideline which the District Inspector of Schools is required to follow in the event it is found that a teacher before joining in the institution was already pursuing his higher studies but for some unavoidable reasons, permission as contemplated under G.O. dated 27th November 2007 was not sought for from the District Inspector of Schools or the Managing Committee failed to take steps in this regard. We have also not found out any relevant Rules which sets out any guideline as to the factors to be taken into consideration by the D.I. either in allowing or disallowing higher scale of pay upon obtaining higher qualification. Possibly, these are the difficulties for which the communication dated 8th June, 2017 was made from the Deputy Director of School Education to the District Inspector of Schools to refer such cases where the said authorities are facing difficulties. 6 There cannot be any doubt that a person with higher qualification would be expected to have better knowledge in the subject and the students are likely to be benefited by reason of the higher qualification of a teacher. The benefit of higher qualification is not only restricted to monitory benefit of the teacher but is also extended to the students and the institution in which he is working as a teacher. It would be the endeavour of all schools to have academic excellence and it is the duty of the welfare State to encourage academic excellence in all the institutions since the ultimate beneficiary would be the students with focus on all registrations which are student-centric. We feel that same guideline should be in place to decide a case like the present one as absence of any such guidelines may lead to arbitrariness.
We are not unmindful of the fact that the West Bengal Schools (Control and Expenditure) Act, 2005 was enacted to provide for the control of expenditure in the schools in West Bengal and unless the authorities are of the opinion that such expenditure towards payment of the higher salary of a teacher would be a futile exercise or would not be beneficial to the schools or the students, the authorities may decline payment of higher scale of pay. Higher scale of pay would encourage the teacher and would be a motivating factor which ought not to be ignored. The consideration for not denying higher scale of pay could be that, already there are sufficient number of teachers having Honours / post-graduate degree on the same subject in the institution and, as such, payment of higher scale of pay would not be a burden on exchequer. 7 We also observe that the relevant Rule does not prevent all the authorities from giving an ex-post-facto approval if occasion so arises. However, we should not ponder on the probabilities and improbabilities that are likely to happen in a particular given situation and is left to the Commissioner of School Education to decide the issue of granting higher scale of pay to the writ petitioner in accordance with Section 14 of the West Bengal Schools (Control and Expenditure) Act, 2005, the Order dated 27th November, 2007 and the observation made by us above which could be treated as guiding factor for considering the case of the writ petitioner within 8 weeks from the date of communication of this order after granting an opportunity of hearing to the writ petitioner, the school authorities and the District Inspector of Schools or their representatives and dispose of the matter by passing a reasoned order within the aforesaid time frame which shall be communication to the writ petitioner within two weeks thereafter.
Accordingly, the appeal and the application being CAN 7454 of 2019 are disposed of with the aforesaid direction. (Saugata Bhattacharyya, J.) (Soumen Sen, J.)