Calcutta High Court (Appellete Side)
Md. Azizul Haque Laskar vs State Of West Bengal & Ors on 7 December, 2016
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice SAHIDULLAH MUNSHI
W.P. No.19433(W) of 2016
MD. AZIZUL HAQUE LASKAR
... Petitioner
- Versus -
STATE OF WEST BENGAL & ORS.
... Respondents
Mr. Biswaroop Bhattacharyya, Mr. Golam Mohiuddin, ... For the petitioner.
Mr. L.K. Gupta, Mr. J.K. Gupta ... For the State.
Heard on : 21.09.2016, 27.09.2016, 15.11.2016.
Judgment on : December 7, 2016.
Sahidullah Munshi, J.:-
This writ petition has been filed challenging an order dated 8th March, 2016, passed by the District Inspector of Schools (S.E.), Cooch Behar, rejecting the petitioner's claim for grant of higher scale of pay on the basis of his Post- Graduate (M.M.) Degree.
The petitioner claims that having qualification Kamil in Arabic with M.M. (Mumtazul Muhaddethin) Degree participated in the selection process of first regional level selection test. On being selected, the Secretary, West Bengal Regional Service Commission, Northern Region, vide his Memo No.512(977)/748/CSTM/Recom/07 dated 1st October, 2008, recommended the candidature of the petitioner for appointment as an Assistant Teacher. A copy of the said recommendation letter dated 1st October, 2008 has been annexed to the writ petition as Annexure P-2. From the said Annexure P-2 it appears that committee for selection of teachers in Madrasahs recommended for appointment of the petitioner as a Pass category candidate in the subject Arabic (Madrasah)/Adv. Arabic/ Theology. After such appointment was issued the Secretary of the Madrasah concerned informed the petitioner that he was appointed as an Assistant Teacher in permanent vacancy of the High Madrasah. The petitioner was, therefore, requested to join the Madrasah within seven days from the date of receipt of the said letter of appointment issued by the Secretary of the said Madrasah. In pursuance of such letter of appointment, the petitioner joined the post of Assistant Teacher in Advance Arabic (M.M.) in permanent vacancy on 8th November, 2008. A copy of the joining letter is also annexed to the writ petition at page 46. After the petitioner joined his service, the District Inspector of Schools, by his Memo dated 7th March, 2011, issued approval in favour of various teachers including the petitioner who was appointed as an Assistant Teacher. A copy of the said letter of approval has also been annexed to this writ petition. After such approval was granted by the District Inspector of Schools, the petitioner wrote a letter on 8th June, 2009 being Annexure P-4 to the Secretary of the High Madrasah and prayed for grant of Post-Graduate scale of pay on the ground that although, the petitioner was appointed in the Pass category in Advance Arabic but he completed his M.M. Degree, equivalent to M.A. Degree, before the examination of Madrasah Service Commission. The petitioner repeated his prayer for grant of higher scale of pay. He has also annexed a copy of the Resolution adopted by the Managing Committee on 10th June, 2009 wherefrom it appears that the Managing Committee recommended for higher scale of pay. Since the petitioner's prayer for grant of Post-Graduate (P.G.) scale of pay on the basis of his M.M. Degree was not considered, he filed a writ petition being W.P. No.24472 (W) of 2015 before this Hon'ble Court. The said writ petition was disposed of by one of the Hon'ble Judges of this Court by an order dated 1st December, 2015. Relevant portion of the said order is set out below :-
"... as the higher pay scale has not been decided upon by the District Inspector of Schools, in my view, interest of justice would be subserved by directing the District Inspector of Schools to decide upon the request of the writ petitioner for higher pay scale in accordance with law, preferably within six weeks from the date of communication of this order to him. The District Inspector of Schools will pass a reasoned order, which he will communicate to the writ petitioner forthwith thereafter..."
In pursuance of the aforesaid order dated 1st December, 2015, passed by this Hon'ble Court, the District Inspector of Schools heard the matter and passed a reasoned order which has been communicated to the parties by his Memo No.232/5/ESTT dated 8th March, 2016. By the said reasoned order the District Inspector of Schools (S.E.), Cooch Behar has rejected the petitioner's claim for grant of Post-Graduate scale, inter alia, on the following grounds :-
a) That the petitioner appeared in the regional level service test (A.T) / 07 for the post of Assistant Teacher in Arabic subject in the Pass category and as per recommendation of the selection committee the petitioner was appointed as an Assistant Teacher at the High Madrasah (H.S.) in Arabic subject (Pass category). He was drawing graduate scale of pay since the date of his joining the Madrasah on 8th November, 2008;
b) Although, G.O. No.150-MD dated 30th January, 2009, Post-Graduate Scale for M.M. qualification is also with effect from 1st January, 2009 but the same stood clarified in a subsequent Government Order being No.560-MD/0/6M-40/07 dated 31st March, 2010 whereby it was clarified that existing teachers will not automatically enjoy the said scale of pay as they were not recruited against vacancy meant for Post-
Graduate Degree holders but they may appear before the West Bengal Madrasah Service Commission against vacancies notified for Post- Graduate (M.M.) teacher as an in-service candidate and might get the benefit of the said scale after being selected by the Service Commission keeping the other existing benefits obtained by the said teachers intact. On the above grounds the District Inspector of Schools, Cooch Behar came to the conclusion that the petitioner is not entitled to Post-Graduate scale of pay and his prayer was rejected. The said order has been impugned in this writ petition and in support of his case the petitioner submits that since the M.M. Degree is a Post-Graduate Degree and the petitioner already acquired Post- Graduate Degree before his appointment, he is entitled to higher scale of pay as per Government circular.
However, while passing the order impugned the District Inspector of Schools has not taken into consideration of the provisions of Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005. Section 14 of the said Act is extracted below :-
"14. (1) Every teacher of a school shall, if appointed in the post of Undergraduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay of acquiring any qualification other than the qualifications specified for such post.
(2) Every teacher of a school shall, if appointed in the post of Graduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the qualifications specified for such post.
(3) Every teacher of a school shall, if appointed in the Honours Graduate for Post-graduate teacher category, be entitled to draw pay of Post-graduate teacher category, upon acquiring Post-graduate degree, in the manner as may be specified by order."
Sub-Section (2) of the aforesaid Section 14 specifies that if a teacher is appointed in the Post-Graduate teachers category he will be entitled to drawing pay in the scale of pay in which he is appointed and will not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than specified for such post. Sub-Section (3) specifies that a teacher of a school, if appointed in the Honours Graduate or Post-Graduate teaching category, are entitled to draw pay of Post-Graduate teaching category upon acquiring Post-Graduate in the manner as may be specified by the order. Therefore, the said provision makes room for issuing clarificatory order in keeping with the provision of Section 14(2) and such clarification has been issued by the Government in 2010 and on the basis of which the District Inspector of Schools (S.E.), Cooch Behar, has passed the impugned order and the same cannot be said to be without jurisdiction. The provision of Section 14 evidently makes it clear that there are distinction between Pass category and Post- Graduate category and there is no provision for switching over from Pass category to Post-Graduate category unless one is recruited against the vacancy meant for Post-Graduate Degree. However, by the order impugned the District Inspector of Schools has kept it open for the petitioner to get the benefit of availing the vacancy meant for Post-Graduate Degree and may appear before the West Bengal Madrasah School Service Commission against the vacancy notified for Post-Graduate teacher as an in-service candidate and may get benefit of the said scale of being selected by the said School Service Commission keeping the other existing benefit obtained by the said teacher intact.
Mr. Gupta, Learned Additional Advocate General appearing for the State, has relied on a decision in the case of State of West Bengal & Ors. - Vs. - Md. Sohidullah & Ors., reported in 2008(2) CHN 234. In support of the impugned order passed by the authority concerned Mr. Gupta relies upon paragraphs 14, 15 and 21 of the said judgment and those are set out below :-
"14. On a combined reading of three circulars we feel that although Sohidullah and Nirupama did have requisite higher qualification being post-graduate and honours, as the case may be, they chose to compete for the pass category. Hence, they are not entitled to the benefit of the higher pay scale.
15. Mr. Bandyopadhyay's contention that it violates article 14 of the Constitution, in our view, does not hold good. If a litigant who has a right knowingly does not contemporaneously exercise such right, cannot complain before the Court that he is not being given the benefit for the right which he did not contemporaneously exercise.
21. In such view of the matter, Sohidullah is not entitled to claim post- graduate scale as he was selected in pass category on the basis of his application. The learned Judge, in our view, erred in allowing the writ petition of Sohidullah."
In support of his submission Mr. Gupta has also cited the case of Tarak Chandra Roy - Vs. - State of West Bengal & Ors., reported in 2008(2) CHN
973. In the said decision the Hon'ble Division Bench has categorically held as follows :-
"We have considered the submission made by the learned Counsel. In our opinion, the petitioner being an appointee subsequent to the promulgation of the West Bengal School Service Commission Act, 1997 cannot be given the benefit of circular dated 22nd November, 1993 and 8th March, 2000. Petitioner having been appointed as Assistant Teacher pass category can only get the pay-scale specified by the Commission for that post. Even otherwise the benefit of circular dated 22nd November, 1993 and 8th March, 2000 would not confer any vested right upon the Assistant Teachers. No such right has been protected under the West Bengal Schools (Control of Expenditure) Act, 2005. In view of section 14 of the 2005 Act no graduate category teacher is entitled to claim any additional increment for acquiring any qualification than the qualifications specified for such post. The provision in section 16 would not be applicable to aid the claim of the petitioner as by virtue of section 20 of the 2005 Act the circulars and orders existing previously stand abrogated. That being the position of law, the petitioner would not be entitled to claim higher scale of pay. We, therefore, dismiss the writ petition."
The petitioner has alleged in paragraph 10 of the writ petition that a number of Assistant Teachers appointed in Senior Madrasahs through School Service Commission having the qualification M.M., were allowed to enjoy Post- Graduate scale with effect from 1st January, 2009, particularly in Bhurkunda Emdadia Senior Madrasah and Nurun Nabi Senior Madrash by the District Inspector of Schools (S.E.), North 24-Parganas. However, no averment has been made by the petitioner about the appointment whether the same was in Pass catetgory or Post-Graduate category. Therefore, such allegation cannot be the basis for grant of Post-Graduate scale of pay to the petitioner.
It is undisputed that the petitioner acquired M.M. qualification before his selection as an Assistant Teacher. When the vacancies were notified he opted for the Pass category scale of pay but not the Post-Graduate scale. Once he has opted a particular category despite having Post-Graduate Degree he has to be satisfied with the said category of scale of pay, he cannot switch over to the other category after being appointed because the number of vacancies and other criteria vary for Pass category and Post-Graduate category. Persons appointed in the Pass category cannot claim at par with those who had to pass during the selection process held for the Post-Graduate category. That apart, the petitioner's claim is clearly barred in view of the modified circular under Government Order No. 560-MD/0/6M-40/07 dated 31st March, 2010 and the same is based on Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005. Conversion of post is not allowed under the Act itself and consequentially he is not entitled to higher scale of pay once he was appointed in the Pass category. Therefore, the said circular cannot be said to be contrary to the provisions of the Act, nor can it be said to be unconstitutional. Therefore, this Court does not find any infirmity in the order passed by the District Inspector of Schools, Cooch Behar.
Having heard the parties and having considered the ratio decided in the aforesaid decisions I am of the considered view that in the present case, the petitioner has failed to satisfy this Court that he is entitled to get higher scale of pay merely because he had higher qualification of Post-Graduate on the date of his initial appointment. According to the referred circulars, it is apparent that it is only when the Service Commission recommends the name of a candidate as a Post-Graduate candidate, he will be entitled to get the benefit of the higher scale of pay, but the higher qualification, having not been mentioned in the recommendation of the Service Commission, the petitioner cannot claim higher scale of pay. Although, the petitioner had higher qualification, he chose to compete with the Pass category candidates and after competing with the candidates, who had lesser qualification, when the writ petitioner got appointment, he cannot claim for higher scale of pay. In this connection, reference may be made to a judgment delivered by this Court in W.P.18044 (W) of 2016 which has been decided on an identical issue. Conduct of the petitioner cannot be appreciated. The petitioner was appointed in 2008 with Pass category scale of pay. His appointment was approved as a Pass category candidate. He never mentioned his higher qualification. Therefore, the petitioner is not entitled to get higher scale of pay. That apart, according to the ratio decided in the above- referred decisions, it cannot be held that if a litigant, who has a right knowingly does not contemporaneously execute such right, he cannot complain before the Court that he is not being given the benefit of the right which he did not contemporaneously execute. It has been further held in the said decision by the Hon'ble Division Bench that the petitioner's contention that action of the respondent authority is violative of Article 14 of the Constitution, does not hold good. The Division Bench held that if a litigant, who has a right knowingly does not contemporaneously execute that right, cannot complain before the Court that he has not been given benefit for the right which he did not contemporaneously execute. However, it is important to point out that the Division Bench, while deciding the issue, also discussed the ratio of the decision of the Hon'ble Apex Court in the case of State of Haryana - Vs. - Haryana Civil Secretariat Personnel Staff Association, reported in AIR 2002 SC 2589 where the Hon'ble Apex Court observed that equation of post, determination of pay-scale and other allied decisions should be left to the Executive and not open for judicial review.
When a teacher appointed in a particular category, he will get the pay-scale of that category only irrespective of his higher qualification. In the said decision the petitioner-teacher, although, a Post-Graduate, appeared in the interview as a Pass category candidate and, therefore, pay-scale of Post-Graduate teacher cannot be made available to the petitioner. Ratio of the decision cited above squarely covers the present case and, therefore, the petitioner's contention fails and no relief can be granted in this writ petition. There is no scope to interfere with the order impugned passed by the District Inspector of Schools (S.E.), Cooch Behar.
The writ petition fails and the same is dismissed.
However, in the facts and circumstances of the case, there will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the respective parties upon compliance of all usual formalities.
(Sahidullah Munshi, J.)