Calcutta High Court (Appellete Side)
Shri Satyendranath Dutta & Anr vs The State Of West Bengal & Ors on 2 May, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
1 02.05.2016
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rc W.P. No. 16423(W) of 2008 Shri Satyendranath Dutta & Anr.
Versus The State of West Bengal & Ors.
With W.P.No. 890 of 2008 Surojit Das & Ors.
Versus The Kolkata Municipal Corporation & Ors.
With W.P.No. 1619 of 2006 Surojit Das & Ors.
Versus The Kolkata Municipal Corporation & Ors.
Mr. Amitava Mukherjee .. For the petitioner
Mr. Alok Kr. Ghosh
Mr. Swapan Kr. Debnath .. For the KMC
The interpretation of a portion of a circular bearing no. 12 of 85-86 dated July 19, 1985 issued by the Kolkata Municipal Corporation (KMC), Education Department falls for consideration in the present writ petition.
Learned advocate for the petitioners submits that the petitioner in the two original side writ petitions being W.P.No. 890 of 2008 and W.P.No. 1619 of 2006 inspite of information given by the learned advocate are not interested to proceed. Those writ petitions have already been dismissed for default.
In such circumstances, the present writ petition of the Appellate Side being W.P.No. 16423(W) of 2008 is taken up for consideration.
Two writ petitioners are involved in the present case. Both were employees of the KMC as teachers. They were appointed as teachers prior to 1980. The KMC had introduced the circular dated July 09, 1985 by which trained teachers with 5 years 2 experience was allowed to enjoy the pay scale of Rs. 360-850. Learned advocate for the petitioner submits that the petitioners had obtained training in 1984. The KMC authorities are obliged to consider the past experience for the purpose of calculating 5 years experience in terms of the circular dated July 09, 1985. In fact, KMC authorities had been doing so for a good 16 years. The corporation authorities have sought to introduce a decision of reversal dated October 26, 2003. By such decision the experience must be post training. The corporation was of the view that experience prior to training cannot be taken into consideration. Pay fixation made on the basis of taking experience prior to training into consideration is bad. The corporation authorities sought to reverse such situation. This decision was challenged by way of a writ petition. The challenge had succeeded. The decision of the corporation authorities dated October 26, 2003 to refix pay was set aside. The corporation authorities had passed another order dated August 04, 2004. Such order was stayed. Consequently the corporation authorities had passed a final order dated April 28, 2008 which is under challenge in the present writ petition.
Learned advocate for the corporation authorities submits that no right had accrued in favour of the petitioner which cannot be corrected subsequently. The petitioners had been given benefit of higher pay scale although the petitioners were not entitled thereto. The corporation authorities, therefore, took a decision not to give benefit of the higher pay scale to the petitioners. They, however, had decide not to recover any amount already paid. Since the petitioners are not entitled to any amount in terms of the circular dated July 09, 1985 the petitioners would be guilty of unjust enrichment. The payment made to the petitioners are out of state exchequer. Consequently the petitioners should not be allowed to make unjust enrichment.
The circular dated July 09, 1985 was misconstrued by the authorities till 2003. The relevant portion of the circular dated July 09, 1985 specifies that a trained teacher with 5 years experience would enjoy the pay scale 360-850. The experience has to be subsequent to the training obtained. In the event it is held that, the experience obtained prior to the 3 training is to be calculated then it would cause prejudice to persons who have obtained training and 5 years experience subsequent to training. The circular dated July 09, 1985 is not for teachers who had experience prior to the training being obtained. A teacher has to first get the training and then cover the prescribed 5 years experience to enjoy the pay scale of Rs. 360-850.
I have considered the contentions of the appearing parties and the materials made available on record.
The relevant portion of the circular dated July 09, 1985 is as follows :-
"Trained teachers with 5 years experience in CMC will enjoy pay-scale of Rs. 360-850"
The corporation authorities till 2003 had been treating teachers who had obtained requisite training and had 5 years experience, whether pre-training or post-training, to be entitled to such prescribed pay-scale.
In 2003 the corporation took the decision that the pay-scale so fixed for persons who had obtained training and had been granted such pay-scale considering the experience gathered prior to the training has wrongfully fixed. This order was set aside by the Court. The corporation thereafter issued another order to the same effect. The same was stayed by the Court. The Corporation then passed the impugned order after hearing the parties. Then Corporation have taken the stand that experience of 5 years is required post training. The persons who have been paid the salary on the prescribed pay-scale taking into consideration the experience prior to the training will, however, not to be disturbed in the sense that no recovery would be made. However, the pay-scale will be reduced. The consequential benefits will be calculated on the basis of the reduced pay- scale.
Two petitioners before me adequately reflect the problem at hand. They were appointed in 1980. The requirement to have training was introduced in 1984. At the time of their appointment, therefore, there was no requirement for a teacher to be trained. 4 During their service period they have undergone the requisite training. After successfully completing the training, they are to be considered as trained teachers. In such circumstances whether the past experience of the teachers would be wiped out for the purpose of consideration of "trained teachers with 5 years experience" in terms of circular dated July 09, 1985 is the issue.
In my view, the circular dated July 09, 1985 cannot discriminate between an existing teacher on the pay roll of the corporation authorities and a new appointee. An existing teacher did not have the requirement to be trained at the time of its appointment particularly when such appointment was prior to 1984. In the case at hand the two petitioners with the introduction of required training had undergone the training in 1984. Their appointment was on 1980. Consequent to the completion of their training the past experience is required to be considered for the prescribed pay-scale for a trained teacher in terms of the circular dated July 09, 1985. An experience gathered by a person continues to remain with the natural person. The petitioners concerned were teachers of the corporation. They had gathered 5 years experience working as such prior to their undergoing the training. The experience gathered prior to the training should be taken into consideration, as on the date when they were given appointment there was no requirement for a teacher to undergo a training. In such circumstances the impugned office order dated April 28, 2008 is modified to the extent that an existing teacher prior to the introduction of the circular dated July 09, 1985 will be entitled to have his/her past experience taken into consideration for the purpose of calculation of experience of 5 years in terms of such circular.
The petitioners have since superannuated from their services. They are receiving their pensionery benefits. The pensionery benefits are on the basis of a pay-scale which does not consider them to be a trained teachers with 5 years experience.
In view of the interpretation of the circular dated July 09, 1985 the authorities are directed to revisit the pay-package of the petitioners by treating them as trained teachers 5 with 5 years experience in terms of circular dated July 09, 1985. The authorities will revise the pension payment order in respect of the petitioners accordingly.
It is expected that the authorities will complete the entire exercise within 8 weeks from the date of communication of this order to him.
With the above directions and observations W.P.No. 16423(W) of 2008 stands disposed of without any order as to costs.
Urgent photostat certified copy of this order be given to the parties on priority basis after compliance of all formalities as to costs.
(Debangsu Basak, J.)