Calcutta High Court (Appellete Side)
Sri Partha Sarathi Das vs State Of West Bengal & Ors on 10 February, 2014
Author: Debasish Kargupta
Bench: Debasish Kargupta
1
10.02.2014.
srm
W.P. No. 2321 (W) of 2014
Sri Partha Sarathi Das
Versus
State of West Bengal & Ors.
Mr. Sougata Mitra
...For the Petitioner.
Mr. Tapan Kumar Mukherjee,
Md. Hasanuz Zaman
...For the State.
Let affidavit‐of‐service be kept on record.
Since a point of law is required to be decided on the basis of the facts and
circumstances disclosed in this writ application, this matter is take up for hearing.
This writ application is directed against an order passed by the respondent
No.3 under his Memo No.120/1(4)/L.S./Prl. dated December 11, 2013. By virtue of the impugned order the claim of the petitioner for extending the benefit of postgraduate scale of pay was rejected by the respondent No.3 on the following grounds:
(i) under the provisions of the West Bengal School (Control of Expenditure) Act, 2005, the scale of pay of the concerned Assistant Teacher has to be fixed on the basis of the recommendation made by the School Service Commission.2
(ii) In accordance with the provisions of Government Order No.593‐SE(B) dated November 27, 2007, the benefit of higher scale of pay to an Assistant Teacher to the post of graduate teacher category cannot be awarded.
Admittedly, the petitioner had obtained postgraduate scale of pay before the West Bengal Schools (Control of Expenditure) Act, 2005 came into force. Needless to point out that the Government Order No.593‐SE(B) dated November 27, 2007 was issued in exercise of power conferred to the respondent authority under the provisions of sub‐section (3) of Section 14 of the above Act.
It is not in dispute that the above provisions were not in existence at the material point of time, i.e, when the petitioner acquired the postgraduate qualification. The petitioner obtained M.A. degree in English from the University of Burdwan, the last date of her M.A. Part‐II examination being October 11, 2004.
I do not find substance in submissions made by Mr. Tapan Kumar Mukherjee, learned Additional Government Pleader, High Court, Calcutta, that since the application was submitted by the petitioner after introduction the above Act and Government Order because the date of acquiring the qualification is material for considering the claim of the petitioner. 3
It is further submitted by him that the petitioner has entitled to get the benefit from the date of his application and not from the date of acquiring the qualification.
This type of submission is disapproved by this Court because the relevant date of consideration should be the date of acquiring the qualification and it does not lie on the mouth of the State‐respondents that delay in submitting the application will not entitle a qualified person to get his financial benefit from the date of acquiring such qualification. The above submission is misconceived and rejected.
Reference may be made to the decision of Dibyendu Mondal vs. State of West Bengal & Ors. reported in (2013) 3 WBLR (CAL)854 and the relevant portion of the above decision is quoted below :
"4. After hearing the learned Counsel appearing for the respective parties as also after careful consideration of the facts and circumstances of this case, I find that the claim of the petitioner is to be considered in accordance with the provision of Sub‐section(3) of Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005 and the above provision are quoted below :‐ "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 category, upon acquiring post graduate degree, in the matter as may be specified by order."4
5. The Government of West Bengal issued an order in exercise of the aforesaid power conferred upon it under the provision of Sub‐section(3) of Section 14 of the Act under memo no. 1979(5) dated December 12, 2007. Therefore, the above Government Order was not in force at the time of obtaining the aforesaid Master degree by the petitioner. For the same reasons Government Order No.593‐SE(B) dated November 27, 2007 has no manner of application in this case because the petitioner had obtained the M.Sc. qualification prior to issuing of the above order." It further appears from the impugned order that the respondent No.3 referred the matter to the respondent No.2 for his opinion. The respondent No.2 is the authority to take a decision in the above matter.
In view of the discussions and observations made hereinabove, the impugned order is quashed and set aside.
The respondent No.3 is directed to extend the benefit of postgraduate scale of pay in favour of the petitioner from the date following his last date of M.A. Part‐II examination including all arrears within a period of two months from the date of 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.
( Debasish Kar Gupta, J. ) 5