Calcutta High Court (Appellete Side)
Kalyani Sarkar vs The State Of West Bengal & Ors on 10 May, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
WPA No. 19121 of 2021
Kalyani Sarkar
Vs
The State of West Bengal & Ors.
_______
Mr. Bikash Ranjan Neogi, Adv.
Mr. Guddu Singh, Adv.
..... for the Petitioner
Ms. Chaitali Bhattacharjee,Adv.
Mr. Subhendu Roychoudhury,Adv.
..... for the State Respondents
No.s 1 to 5
Ms. Tapati Samanta,Adv.
..... for the Respondent No. 6Heard On : 27.03.2023 Judgment on : 10.05.2023 Rabindranath Samanta, J:-
1. Challenging the order dated 27.08.2021 passed by the Director of Library Services, West Bengal by which her representation seeking higher scale of pay commensurate with her higher qualification was rejected, the petitioner has approached this Court by preferring this writ petition.
2. The background facts which have given rise to filing the writ petition may be summed up as under:
The petitioner Kalyani Sarkar passed higher secondary examination in the year 1969 from West Bengal Board of Higher Secondary Education, Bachelor of Arts in the year 1972 from Page | 1 Burdwan University and bachelor in Library Science in the year 1976 also from Burdwan University.
3. On 26th September, 1983 she was appointed as a Librarian in a Library namely Tarun Sangha Library pursuant to an appointment letter dated 12.09.1983 issued by the Secretary of the Library. After appointment she was on probation for one year. At the time while she was appointed her pay was fixed at Rs. 300 per month in the scale of pay of Rs. 300-10-400-15-565-20-635. Subsequently she was transferred from Tarun Sangha Library to Milanchakra Library, Burnpur. She joined Milanchakra Library on 31 st December, 1985. Thereafter, on transfer she joined other libraries.
4. Since the petitioner was suffering from various ailments, she on 16 th August, 2005 made representation to the District Library Officer, Burdwan seeking voluntary retirement. While she made the representation she then already completed 20 years of continuous service.
5. After she made the representation, the District Library Officer, Burdwan, offered a hearing to her on 20th March, 2006 and as per his direction she had to appear before the medical board for medical examination. On 6th July, 2006 the office of the Zonal Medical Board, Burdwan Medical College medically examined her and directed her to appear before the Medical Board again for some investigations. Ultimately, the Medical Board, by issuing a certificate on 19 th February, 2007, certified that the petitioner was totally incapacitated to perform any duty. Though the certificate was issued in 2007, the voluntary retirement which she sought for was granted to her on 12th November, 2014. At last, Pension Payment Order was issued to her on 9th February, 2018, but without granting higher pay which she was entitled in consonance with her higher qualification.
6. The petitioner submits that as per Government Order No. 33-EDN (B) dated 7th March, 1990 issued by the Education Department (Budget Branch), Government of West Bengal, the librarians who acquired Page | 2 higher qualification before 1990 are entitled to get higher scale of pay and on July 21st, 1990 a memorandum was issued by which the pay and allowance of the teachers/librarians was revised.
7. On denial of the benefit of higher scale of pay to the librarians of rural libraries, a bunch of writ petitions were filed and in 2007 this Court in the case of Shibnath Koley and Others held that the librarians of rural libraries who acquired higher qualification before 1990 were entitled to get higher scale of pay. The judgment rendered by this Court in the case of Shibnath Koley was upheld by the Hon'ble Apex Court.
8. On 10th June, 2014 the Director of Library Services allowed the benefit of higher scale of pay to the rural librarians in compliance with the order passed in the case of Shibnath Koley and Others and directed the District Library Officers to extend the benefit of higher scale of pay to the rural librarians. Besides, by the same order the Director of Library Services directed the District Library Officers to fix the pay of each of the employees separately and submit the same to him for onward approval of the same by the Finance Department. In an another decision passed by a Division Bench of this Court in the case of Pradip Kumar Karak and Others -Vs- State of West Bengal in MAT No. 36 of 2001 it was specifically held that the rural librarians who acquired higher qualification before the cut-off date of July 21, 1990 were entitled to claim that they be treated at par with the librarians (Shibnath Koley and Others).
9. Since the petitioner acquired higher qualification before 1990 she is entitled to get higher scale of pay.
10. The petitioner, during her service tenure as well as after her retirement, approached the respondent authorities several times to allow her the benefit of higher scale of pay in consonance with her higher qualification. But, the authorities concerned turned deaf ear to the appeal made by her. In such context, a written representation dated 24.04.2019 made by her to the Director of Library Services and other authorities seeking higher scale of pay also yielded no result.
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11. The petitioner submits that since she is similarly circumstanced as that of the librarians who were allowed higher scale of pay, she expected that the respondent authorities would consider her representation and allow her the scale of pay, but to no effect.
12. Aggrieved by the inaction on the part of the state respondents the petitioner preferred a writ petition being WPA 4815 (W) of 2020 before this Court. By an order dated 5th March, 2021 passed by a learned Single Bench the writ petition preferred by her was disposed of directing the Director of Library Services to consider and dispose of her representation by a reasoned order. In compliance thereof, the Director of Library Services by the impugned order dated 27.08.2021 considered the representation of the petitioner, but he disallowed her representation on the reasons that she by exercising option under the ROPA 1998 and ROPA 2009 accepted the scale of pay which was admissible to her and she cannot depart from the option exercised by her. The petitioner submits that the impugned order is in conflict with the order passed in the case of Shibnath Koley and Others and in the case of Pradip Kumar Karak and Others and as such the order is vitiated with illegality and the same is liable to be quashed.
13. Under the aforesaid circumstances the petitioner prays for quashing of the impugned order dated 27.08.2021 and direction upon the respondents to release higher scale of pay to her on her acquiring higher qualification in terms of the Memorandum dated 07.03.1990.
14. The respondent No. 6, the District Library Officer, Burdwan, in his affidavit-in-opposition states that the Director of Library Services rightly rejected the representation of the petitioner since the petitioner by exercising option on 28.06.1999 under the ROPA 1998 and thereafter by exercising option under ROPA 2009 accepted the scales of pay as per the ROPA Rules. As per the Memorandum dated 13.04.2009 by which the Department of Mass Education and Extension and Library Services adopted ROPA 2009, the provision of this Memorandum shall have over-riding effect notwithstanding anything to the contrary contained in any other orders for the time Page | 4 being in force and all such orders shall have effect subject to the provisions of this Memorandum. This answering respondent states that under Government Order No. 663-Edn (MEE) dated 26th July, 1994 it was notified that the scale of a person would depend as per the post and not as per the qualification he acquired. Such being the legal position, the employees would get the scale as per their post and not as per their improved or acquired qualification. On such grounds and disputing the averments as made in the writ application this answering respondent submits that the writ application is liable to be dismissed.
15. However, the petitioner in her affidavit-in-reply denies the averments as made in the affidavit-in-opposition.
16. Admittedly, the petitioner was initially appointed as a Librarian of a Rural Library namely Tarun Sangha Library on 26.09.1983. Thereafter, she was transferred to different libraries. Undisputedly, on health ground, the petitioner took voluntary retirement after completing twenty years of service in the year 2014 and after her retirement pension payment order was issued to her on 9 th February, 2018. As it appears from Annexure P1 i.e. the statement of marks issued by the University of Burdwan, the petitioner improved her qualification by obtaining the degree of Bachelor in Library Science in the year 1976. Since the petitioner was not granted higher scale of pay in consonance with her higher qualification she made a representation dated 24.04.2019 to the Director of Library Services and other State authorities seeking higher scale of pay. The representation made by the petitioner was not addressed by the concerned respondent authority and because of this she approached this Court by preferring a writ petition being WPA 4815 (W) of 2020. By order dated 5th March, 2021 passed by a learned Single Bench the Director of Library Services was directed to dispose of the representation by a reasoned order within a specified time. By the impugned order as quoted above, the Director of Library Services turned down her representation Page | 5 assigning the reasons as stated hereinbefore. The relevant portion of the impugned order may be excerpted as under :
"Going by the above stated judgement it appears that the claim of the petitioner is founded on similarity of the case. But on scrutiny of records it appears that the petitioner exercised option on 28.06.1999 to come over to revised scale of pay Rs. 3350-6325/- from 01.09.1996 in pursuance of order of the Department of Mass Education Extension and Library Services on ROPA 1998 vide no 531-Edn(MEE) dated 30.03.1999. The said order of the Department of Mass Education Extension and Library Services was based on Finance Department order vide no 7306-F dated 16.10.1998, As per Rule 12 of the said Finance Department Order:-
'The provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules, orders or notifications for the time being in force, and all such rules, orders and notifications including the West Bengal Service Rules, Part I, shall have effect subject to the provisions of these rules.' Again the petitioner come over to revised basic pay Rs 13040/- and Grade Pay of Rs. 2900/- from 01.01.2006 in pursuance of order of the Department of Mass Education Extension and Library Services on ROPA 2009 vide no 472- MEE/Estt. Dated 13.04.2009. As per Rule 17 of the said Order:-
'Overriding effect of the order-The provision of this memorandum shall have effect not withstanding anything to the contrary contained in any other orders from the time being in force and as all such orders shall have effect subject to the provisions of this memorandum.' Page | 6 So in both the occasions the petitioner accepted the existing pay and consciously exercised options to move to the higher revised scale as allowed in ROPA 1998 and ROPA 2009 and also she had never prayed for higher pay scale during her service life. Thereby the petitioner had lost opportunity to get higher scale from her date of acquiring higher qualification.
From the foregoing analysis it appears that the petitioner is not entitled to get higher scale.
Hence the representation dated April 24, 2019 is considered and rejected.
The petition stands disposed of in terms of the
aforesaid decision"
17. The order as noted above assigns the reasons that since the petitioner by exercising option under the ROPA 1998 and ROPA 2009 accepted the scales of pay thereunder, she, in terms of the Government Memorandum dated 13.04.2009 by which ROPA 2009 was adopted by the Department of Mass Education Extension and Library Services, is debarred from making any claim contrary to the claim she made by exercising the options. However, in his affidavit-in-opposition the respondent no. 6 has taken an added defence that in terms of G.O No. 663-Edn (MEE) dated 26.07.1994 the scale of pay of a person would depend as per the post and not as per the qualification he/she acquired.
18. Learned Counsel appearing for the petitioner submits that since his client improved qualification by acquiring degree in Bachelor of Library Science in the year 1976, the petitioner is entitled to get higher scale of pay commensurate with her higher qualification. In such context, learned counsel submits that in view of the order dated 6th March, 2014 rendered by the Hon'ble Apex Court in Civil Appeal Nos. 6967-6970 of 2009 ( State of West Bengal and Others -Vs-
Page | 7 Shibnath Koley and Others) and the decision of a Division Bench of this Court in the case of Pradip Kumar Karak and Others -Vs- The State of West Bengal and Others reported in 2018 (4) CHN (CAL) 131 the petitioner who improved her qualification long before 21st July, 1990 is entitled to claim that she may be treated at par with the Librarians namely Shibnath Koley and Others who were before the Hon'ble Apex Court.
19. Per Contra, learned counsels appearing for the State respondents and the respondent No.6 submit that in view of the options exercised by the petitioner under ROPA 1998 and ROPA 2009 retaining the scales of pay admissible to her and in view of the G.O No. 663-Edn(MME) dated 26.07.1994 no higher scale of pay can be granted to the petitioner on improving qualification. According to learned counsels, the scale of pay of the petitioner was dependent on the post she held and not as per the qualification she acquired. Learned counsels further submit that in terms of G.O. dated 10.09.1991 issued by the Education Department, Government of West Bengal, a rural librarian is not entitled to get higher scale of pay on improving qualification.
20. After the Memorandum dated 07.03.1990 came into force, the Education Department, Government of West Bengal by issuing a Memorandum dated 21.07.1990 amended Sub-Para 3 of Para 16 of the Memorandum dated 07.03.1990 to this effect that the principle of Para 16 (3) which was applicable to a librarian of a Rural Library was substituted to this extent that orders in this behalf relating to teachers/librarians of other institutions/organisations as mentioned in Annexure-I where ever necessary shall be issued separately. By a subsequent amendment on 10th September, 1991 Para 16(3) of the Memorandum dated 07.03.1990 was modified to this extent that teachers and librarians of secondary schools who will improve their qualifications in the subjects relevant to the teaching / appointment shall get higher scale of pay appropriate to their qualifications with effect from the date of improving qualification. Based on such memorandum dated 10.09.1991 and the memorandum dated Page | 8 26.07.1994 the state respondents contend that the petitioner is not entitled to get higher scale of pay being a librarian of rural library.
21. In a decision in the case of Shibnath Koley and Others -Vs- The State of West Bengal and Others reported in AIR 2007 CAL 223 a Division Bench of this Court has held that the librarians of rural library who improved qualification were entitled to get higher scale commensurate with their higher qualification. This judgment was carried to the Hon'ble Apex Court by the State of West Bengal in Civil Appeal Nos. 6967-6970 of 2009 and by order dated 06.03.2014 the Civil Appeals preferred by the State of West Bengal have been dismissed by the Hon'ble Apex Court. Reading of the order passed by the Hon'ble Apex Court shows that an argument was advanced on behalf of the State by referring to Memorandum dated 31.07.1981 that the librarians were entitled to get the pay scales which were prescribed at the time of recruitment. The Hon'ble Apex Court at paragraph 6 of the order has opined that once the revision of pay on the basis of better qualification was granted in March 1990, the Government would not have looked back and said in July, 1994 that the Memorandum of 31st July, 1981 will continue to govern this Rural Librarians. This principle as postulated by the Hon'ble Apex Court neatly applies to the Government Order dated 26th July, 1994 as raised in the affidavit-in-opposition as well as at the time of argument.
22. What comes to the notice of this Court from a judgement dated 13.04.2023 passed by this Bench in WPA No. 22091 of 2022 (Suprabhat Thakur Vs The State of West Bengal & Ors.), in the Memorandum of Appeal of the Civil Appeals (The State of West Bengal and Others -Vs- Shibnath Koley and Others) before the Hon'ble Apex Court the State of West Bengal raised an issue that in view of the Memorandum dated 21.07.1990 librarians of rural library were not entitled to get higher scale of pay on improving their qualification. But, as the order dated 6th March, 2014 of the Hon'ble Apex Court shows, while the matter was finally disposed of, the State did not raise this issue before the Hon'ble Apex Court. Therefore, in Page | 9 legal parlance, the State is now estopped from raising such plea because of the principle of constructive Res Judicata.
23. However, the Division Bench in Pradip Kumar Karak and Others - Vs- The State of West Bengal and Others reported in 2018 (4) CHN (CAL) 131 has held at paragraph 139 that those librarians who have acquired higher qualifications before the cut off date of July 21, 1990 are entitled to claim that they be treated at par with the Librarians (Shibnath Koley and Others) who were before the Hon'ble Supreme Court as Respondents in Civil Appeal Nos. 6967-6970 of 2009.
24. Viewed from all aspects, the petitioner who improved qualification by obtaining degree in Library Science in 1976 is entitled to get higher scale of pay.
25. While the decisions in Shibnath Koley and in Pradip Kumar Karak occupy the field as to granting higher scale of pay on improving higher qualification, Government order dated 26th July, 1994 as referred by the learned counsels for the respondents and the options exercised by the petitioner previously under statutory compulsion under ROPA 1998 and ROPA 2009 will not stand in the way towards granting higher scale of pay to the petitioner on her acquiring higher qualification before 21st July, 1990.
26. In view of the above the impugned order dated 27.08.2021 passed by the Director of Library Services is vitiated with illegalities and this order is liable to be quashed.
27. Though the petitioner is entitled to get higher scale of pay since her acquiring higher qualification before 21st July, 1990, the concerned State authority denied the benefits of higher scale to her. Such wrong committed by the State authority being a continuing wrong, the writ petition is tenable even if there is delay in seeking the remedy. However, as held by the Hon'ble Apex Court in the decision in the case of Union of India and Others -Vs- Tarsem Singh reported in (2008) 8 SCC 648, consequential relief of recovery of arrear of pay shall be restricted to a period of three years prior to the date of filing of the Page | 10 writ petition. The writ petition being WPA 4815(W) of 2020 was filed on 06.03.2020.
28. Accordingly, though the petitioner is entitled to get her pay scale refixed on acquiring higher qualification, but she is entitled to get arrear pay with effect from 06.03.2017.
29. In view of the above, the writ petition succeeds and the writ petition may be disposed of by passing the following order :
The impugned order dated 27.08.2021 passed by the Director of Library Services, West Bengal is hereby quashed. The respondents are directed to refix the scale of pay of the petitioner on improving her qualification in terms of Paragraph 16(3) of the Memorandum No. 33- Edn(B) dated 07.03.1990 and under the relevant Revision of Pay and Allowance of Rules within four weeks from the date of communication of this judgment and order. The respondents are further directed to disburse the arrear pay to the petitioner on the basis of refixation of her higher pay from 06.03.2017 with 8% interest thereon till the final payment is made within six weeks from the date of refixation of her higher scale of pay. The concerned respondents shall issue revised Pension Payment Order in favour of the petitioner on the basis of her refixed higher scale of pay within six weeks from the date of communication of this judgement and order.
30. With the aforesaid directions the writ petition stands disposed of.
31. No order as to costs.
32. Parties may act on this Server Copy of this judgment and order duly downloaded from the Official Website of this Court.
33. Urgent certified website copy of this judgment and order, if applied for, be given to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.) Page | 11