Calcutta High Court (Appellete Side)
Somnath Adhikary vs The State Of West Bengal & Ors on 12 April, 2013
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
64 12.4.2013 W.P. 9780 (W) of 2013
akb
Somnath Adhikary
-Versus-
The State of West Bengal & Ors.
Mr. Prahlad Ghosh
Ms. Kakali Samajpaty ...For Petitioner
Mr. Khairul Alam ...For State
Affidavit-of-service filed on behalf of the petitioner in
Court be kept on the record.
This writ application is filed by the petitioner assailing
an order passed by the respondent No. 3 under Memo No. 4178/SD/G
dated November 05, 2012. By virtue of the impugned order the respondent No. 3 rejected the prayer of the petitioner for granting post- graduate scale of pay in his favour in connection with his services as an Assistant Teacher in Science Group of Bhagabanpur K.B.S. High School, District - Malda.
Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case I find that the appointment of the petitioner in the post of Assistant Teacher with academic qualification in Physics (Honours) was approved by the respondent No. 3 with effect from March 11, 2006.
The petitioner submitted an application before the School Authority for obtaining prior permission. The School Authority, in its turn forwarded the above application to the respondent No. 3 by a communication issued under Memo No. KBS/41/07-08 dated August 31, 2007.
The petitioner obtained Master Degree in Physics in the year 2010. The last date of M.Sc. Part-II Examination of the aforesaid subject was May 20, 2010. The respondent No. 3 has not taken any decision and sat tight over the matter.
This issue has been settled by a Division Bench of this Court by a judgement dated October 16, 2012 delivered in the matter of Asim Kumar Adgiri vs. State of West Bengal & Ors. (In Re:
MAT 1459 of 2012) and the relevant portions of the above decision are set out below :-
"It is true that a circular cannot override the specific provisions of the Act. In the present case, the appellant/petitioner was admittedly 2 appointed in the school as Honours Graduate with B.Ed degree. As a matter of fact, at the time of joining the school qualification of the appellant was Honours Graduate in Mathematics and B.Ed. Subsequently the same appellant acquired post-graduate degree. Therefore, in terms of Section 14(3) of The West Bengal Act, XIV of 2005 appellant herein is entitled to draw pay of post-graduate teacher. Furthermore, Para 3 of the Office order dated 27th November, 2007 has not been specifically violated in the present case since the appellant also sought for prior permission from the concerned District Inspector of Schools for undergoing post graduate studies through the managing committee of the school and such permission was never denied by the said District Inspector of Schools.
Considering the aforesaid facts, we are of the opinion that the District Inspector of Schools should not have rejected the claim of the appellant/petitioner for higher scale of pay even after acquiring higher qualification i.e. M.Sc in Mathematics.
Accordingly, we set aside and quash the decision of the District Inspector of Schools, as communicated to the appellant/petitioner, under office memorandum dated 15th March, 2011.
For the identical reasons, we also set aside the impugned order under appeal passed by learned Single Judge."
In view of the aforesaid settled-principles of law, the reason assigned by the respondent No. 3 for rejecting the claim of the petitioner cannot be sustained in law and the same is quashed and set aside.
I direct the respondent No. 3 to extend the above benefit of post-graduate scale of pay in favour of the petitioner following the last date of M.Sc. Examination within a period of two months from the date communication of this order.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
3( Debasish Kar Gupta, J.)