Calcutta High Court (Appellete Side)
Md. Tohidur Rahaman vs State Of West Bengal & Ors on 21 September, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 9437 (W) of 2017
Md. Tohidur Rahaman
-Vs.-
State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Mr. Anjan Bhattacharya, Adv.
For the State : Mr. Supriya Chattopadhyay, Adv.
Ms. Iti Dutta, Adv.
For the Board : Mr. Subhrangsu Panda, Adv.
Heard On : 31.07.2017, 28.08.2017, 06.09.2017
Judgment On : 21.09.2017
Arijit Banerjee, J.:-
(1) The petitioner was appointed in the respondent Madrasah on 1 November,
2008 as an Assistant Teacher in Geography. His appointment was approved by the District Inspector of Schools, Malda vide Memo dated 29 December, 2008 with effect From 1 November, 2008.
(2) At the time of joining the Madrasah, the petitioner was an Honours graduate in Geography and had also completed Part-I of the Master's Course in Geography. He continued with the Master's Course after joining the Madrasah with prior approval of the Managing Committee of the Madrasah and passed the M.A. final examination in Geography on 10 July, 2009.
(3) In view of the petitioner enhancing his educational qualification, the Madrasah Management approached the office of the District Inspector of Schools (SE), Malda being the respondent no. 4 for granting higher scale of pay to the petitioner. Since there was inaction on the part of the office of the respondent no. 4 the petitioner approached this Court by filing WP 21586(W) of 2014. The said writ petition was disposed of by a Learned Single Judge of this Court by an order dated 9 September, 2016 whereby the respondent no. 4 was directed to dispose of the petitioner's prayer for higher scale of pay by a reasoned order. Pursuant to the said order, the respondent no. 4 heard the petitioner and the Madrasah Management and passed an order dated 21 January, 2017 whereby the petitioner's claim for post-graduate scale of pay was rejected. This order is under challenge in the present writ petition. (4) I have heard learned Counsel for the parties.
(5) Mr. Bhattacharya, learned Counsel for the petitioner relied on Sec. 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005 (in short the said 'Act') which reads as follows:-
"S. 14(3). Every teacher of a school shall, if appointed in the Honours Graduate or 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."
He submitted that the petitioner's case is squarely covered by Sec. 14(3) and hence, the petitioner is entitled to post-graduate scale of pay. He was appointed as a Geography Teacher and since he has enhanced his qualification in that subject by acquiring Master Degree in Geography subsequent to joining the post in question, the petitioner is entitled to receive post-graduate scale of pay, submitted learned Counsel.
(6) Mr. Bhattacharya relied on two decisions of this Court in the cases of Mihir Kumar Mondal-vs.-State of West Bengal, 2014 (2) CHN (Cal) 338 and Swastika Bachhar-vs.-State of West Bengal, 2014 (2) CHN (Cal) 183. In the first of those two cases, the District Inspector of Schools relying on a Government Order dated June 3, 2002 denied the petitioner's claim for higher scale of pay in spite of the petitioner acquiring post-graduate degree since he did not have honours degree in the relevant subject. At the time of appointment the petitioner was a B.A. pass candidate only. However, the learned Single Judge relied on the decisions of our Division Bench in MAT 1452 of 2012 delivered on 4 January 2012 and an order dated 12 January, 2013 passed in AST No. 10 of 2013 wherein it was held that since the students are benefited by enhancement of qualification of the teachers, the teachers are entitled to the post-graduate scale. Relying on those decisions the Learned Judge allowed the post-graduate scale of pay to the petitioner.
In the second of the said two decisions, the question before the Learned Single Judge was whether the petitioner in that case possessing post-graduate qualification in the relevant subject could be denied the post-graduate scale of pay merely because the School Service Commission had not mentioned the same at the time of initial recommendation. In that case, the petitioner possessed post-graduate degree in the relevant teaching subject on the date of her appointment and the learned Judge held that she was entitled to the scale relating to post-graduate qualification. In my opinion, this decision is not very germane to the present case since the facts of that case were totally different.
(7) Mr. Chattopadhyay, learned Counsel for the State relied on Sec. 14(2) of the said Act which reads as follows:-
"S.14(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."
He submitted that the petitioner's case falls under Sec. 14(2) and hence he cannot claim higher scale of pay on the basis of his Master Degree. (8) Learned Counsel also relied on a Government Order bearing No. 593 dated 27 November, 2007 and in particular paragraph 7 of the said order which reads as follows:-
"No such prayer for higher scale of pay from any teacher with graduate degree and graduate scale of pay at the time of entry into service/joining the schools will be entertained no matter whether he/she has secured this higher qualification before or after introduction of West Bengal Schools (Control of Expenditure) Act, 2005."
(9) Mr. Chattopadhyay relied on a decision of our Court in the case of State of West Bengal-vs.-Md. Sohidullah, 2008 (2) CHN (Cal) 234. Learned Counsel relied on paragraphs 14, 15 and 19 of the reported judgment which read as follows:-
"14. On a combined regarding of three circulars we feel that although Shohidullah 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. Bandopadhyay'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.
19. The State is funding the schools by providing inter alia the salary for the teaching staff. They have their financial scheme through their annual budget. They prepare their budget as per financial resources they have in their hands. They, in their wisdom, wanted to give additional incentives to those teaching staff, who wanted to acquire higher qualification which would ultimately enure to the benefit of the students at large. However, the teachers who had already higher qualification and did not utilize such qualification at the time of entry in service, they cannot get benefit of those circulars and in our view, the State is right in denying such benefit to those teaching staff."
(10) Learned Counsel also relied on a decision in the case of Tarak Chandra Roy- vs.-State of West Bengal, 2008 (2) CHN (Cal) 973, and in particular learned Counsel relied on paragraph 10 of the judgment which reads as follows:-
"10. 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."
(11) I have carefully considered the rival contentions of the parties. (12) It is not in dispute that the petitioner was appointed as an Assistant Teacher in the pass-graduate category. In spite of holding an honours graduate degree, the petitioner chose to compete in the pass-graduate category. Two Hon'ble Division Benches of this Court in the cases of State of West Bengal-vs.-Md. Sohidullah (supra) and Tarak Chandra Roy-vs.-State of West Bengal (supra) have held in no uncertain terms that in such a case if the teacher acquires higher qualification, he cannot claim higher scale of pay. These decisions are binding on me and hence I am unable to follow the decision of the learned Single Judge in the case of Mihir Kumar Mondal-vs.-State of West Bengal (supra). The rationale behind the rule appears to be that it is easier to compete for appointment in a pass graduate category post compared to honours graduate or post-graduate category post and if a candidate in spite of having higher qualification applies for appointment to a pass-graduate category post, he should be happy with the scale of pay which is applicable for such category. Subsequently, he cannot contend that because of his higher qualification which he had on the date of appointment or which he might have acquired subsequently, he is entitled to a higher scale of pay.
(13) Further, I am in agreement with Mr. Chattopadhay's submission that Sec. 14(2) squarely applies to the petitioner and as such he is precluded from claiming higher scale of pay. The Government Order dated 27 November, 2007 referred to above also clearly stands in the way of the petitioner claiming higher scale of pay. Sec. 14(3) of the 2005 Act does not apply to the petitioner since he was not appointed in the Honours Graduate or Post-graduate teacher category. (14) In view of the aforesaid, I find no infirmity in the conclusion reached by the respondent no. 4 in the order impugned in this writ application. I am unable to direct the authorities to grant higher scale of pay to the petitioner. The order impugned warrants no interference.
(15) Accordingly, WP 9437(W) of 2017 is dismissed, without, however, any order as to costs.
(16) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance with necessary formalities.
(Arijit Banerjee, J.)