Calcutta High Court (Appellete Side)
Chandra Bhushan Dwivedi vs State Of West Bengal & Ors on 20 December, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
1
20.12.2016
04
RP Ct.4
WP 13043 (W) of 2009
Chandra Bhushan Dwivedi
Vs.
State of West Bengal & Ors.
Mr. Himadri Barua
Mr. Biswajit Das
.... For Petitioners
Mr. Amit Prakash Lahari
.... For State
The petitioner has challenged memo dated 26th November,
2008 issued by the Director of School Education, West Bengal by
which his claim for the benefit of two additional increments by
virtue of having acquired doctorate decree, was rejected.
Mr. Barua, learned Advocate appears for the petitioner and
submits, by the said memo reason for denial of the benefit was
attributed to the provisions of Sections 4, 16 and 20 of the West
Bengal Schools (Control & Expenditure) Act, 2005. According to
him, there can be no application of those provisions to the case of
the petitioner and hence, the reason in the impugned memo is
perverse. In support of his submission he relies on a judgment of a
learned Single Judge of this Court in the case of Chowdhury
Moniruzzaman vs. State of West Bengal & Ors. reported in 2012
2
(3) CLJ (Cal) 327 wherein it was held that the Ph.D degree obtained
by the petitioner in that case as awarded in the convocation on 8th
May, 2009, which entitled him to receive two additional increments
provided for in Clause 5, Rule 12 of ROPA 1998.
Mr. Lahiri, learned Advocate appearing for the State hands up
copy of the GO 37-SE/ES(S)/5P-37/2010 dated 5th January, 2012
and submits, the cut off date for granting such additional
increments was thereby extended to 18th August, 2005 i.e. till before
the publication of the West Bengal Schools (Control & Expenditure)
Act, 2005. This government order was not considered in
Chowdhury Moniruzzaman (supra). Hence that judgment could
not be relied on as applicable in the present case.
He submits further, it would appear from the impugned order
that the appointment of the petitioner as headmaster was on the
recommendation of the West Bengal School Service Commission.
Hence, the petitioner having been appointed as headmaster through
the West Bengal School Service Commission his pay will be fixed in
the scale of pay as per the qualification mentioned by the West
Bengal School Service Commission. When the approval of the
petitioner having been appointed as headmaster was given on 23rd
May, 2006 the petitioner had his qualification as MA, B.Ed. Thus,
3
the petitioner was not entitled to the additional increments claimed.
Such claim was rejected by the impugned order which required no
interference.
By the impugned order the Director of School Education
reasoned, inter alia, as follows:-
"As a result, since there is the said departmental
clarification No.2062-SF (S) and the case of Pranab
Kumar Banerjee is even not identical one, this matter
definitely falls under the provisions of Sections 4, 16 and
20 of the West Bengal Schools (Control of Expenditure)
Act, 2005. According to these, a teacher/Headmaster is
not entitled to claim benefits of additional increments or
higher scale of pay on acquiring any qualification other
than the qualifications specified for the post. The pieces
of law existing at the date of commencement of that Act
lost their force and utility in view of provisions in Section
20. It is not the case of the petitioner that he is entitled to
benefits because of the terms and condition of his
appointment. It is not his case either that according to
the category for which he was appointed he became
entitled to the benefit on acquiring the doctorate degree.
The Govt. Order, circulars and instructions did not create
4
any vested right of the petitioner. In any case, such right
was not saved, as is clear from provisions in Section 16
of the Act. It is also pertinent to mention here that an Act
is adopted and set up on an altar of law which the
Government follows. The petitioner by his desire and
right has obtained Ph.D degree. This degree is neither
essential nor desirable as terms and conditions related to
the appointment of the petitioner. So, how the question of
sanction two additional increments in favour of the
petitioner comes after the enforcement of the West Bengal
Schools (Control of Expenditure) Act, 2005 on and from
December, 2005, as therein the prescribed Sections 4, 16
and 20?
Under the circumstances, since there is no prescribed
formulation of previous sanction under Sub-Section 1(V) of
Section 4 of the said Act, 2005 in this respect and this Act
has overriding effect, no relief can be given to the
petitioner for his Ph.D Degree which is neither an
essential nor desirable qualification for the appointment
of the petitioner for his entry to the Service in the School.
Hence, the prayer and representation of the petitioner are
rejected after detail consideration."
5
Clause 5, Rule 12 of ROPA 1998 is reproduced below:-
"Secondary teachers/Headmasters/Headmistresses with
Doctorate Degree in the subject taught or in an allied
subject shall get two additional increments from the date
of convocation on which such degree is awarded:
Provided that those who obtained this degree prior to the
date of coming over to the revised scale shall get two
additional increments from the date with effect from
which they elect to draw pay in the revised scales,
provided that they have not already got such additional
increments in the earlier pay-revision and provided
further that in the latter case, pay should be fixed at least
at the third stage of the relevant scale of pay."
ROPA 1998 were rules framed by the Government of West
Bengal, School Education Department. The relevant clause and rule
stated above, therefore, cannot have anything to do with any act on
the part of the school in which the petitioner serves, for his claim to
be hit by Section 4(1)(iv) or (v) of the Control of Expenditure Act,
2005. The said provisions are reproduced below:-
6
"4. Previous sanction of State Government for
appointment etc.-
(1) Save as otherwise provided in sub-section (2), no school
authority shall,-
(i)...........
(ii)..........
(iii).........
(iv) revise the pay or allowances of any teacher or non-
teaching staff; or
(v) grant any special pay or allowance or other
remuneration under any description whatsoever including
ex gratia payment or any other benefit, having financial
implication, to any person holding a teaching or non-
teaching post; or
(vi)...........
(2).........."
Government Order dated 5th January, 2012 relied upon by Mr.
Lahiri clarified the position of the State that the Control of
Expenditure Act, 2005 did not permit two additional increments to
be granted. That circular falls in line with the reasoning given in the
impugned and does not add anything to it.
7
The claim of the petitioner appears to stand provided for by
the Government under ROPA 1998. It is not a claim which is in
revision of pay and allowances of the petitioner made by the school
authority. This Court, therefore, does not find any application of
provisions of Sections 4, 16 nor 20 of the Control of Expenditure
Act, 2005 to bar the claim of the petitioner.
The other point sought to be made by Mr. Lahiri seems to be
inspired by Clause 3, Rule 12 of ROPA 1998 which is reproduced
below:-
"All teachers, including physical Education teachers and
Librarians of Secondary Schools who have improved/will
improve their qualification or who were appointed with
higher qualification in the subjects or group relevant to
their teaching/ appointment shall get higher scale of pay
appropriate to their qualifications, with effect from the 1st
January, 1996 or the date of improving qualification,
whichever is later, provided that such higher qualified
teachers in the relevant subjects or group is justified as
per approved staff pattern of that school. If such teacher
is appointed through West Bengal School Service
8
Commission, his/her qualification mentioned by the West
Bengal School Service Commission."
The reading of Clauses 5 and 3, Rule 12, ROPA 1998 would show
that these two clauses respectively deal with additional increments
and higher scale of pay with regard to teachers having doctorate
degree or higher qualification. In the provision for higher scale of
pay on having or acquiring higher qualification, exception has been
made for fixation of scale of pay of those teachers who have been
appointed through the West Bengal School Service Commission.
However, in the provision for grant of additional increments to
teachers/headmasters with doctorate decree no such exception has
been made. The case sought to be made by Mr. Lahiri was also not
a case on the reasons given in the impugned order.
For the aforesaid reasons, the impugned order is found to be
perverse and set aside. The respondents are directed to grant
additional two increments to the petitioner from the date of convocation in which the petitioner received his Ph.D degree in ancient History while his teaching subject is Social Science. The additional two increments should be granted to the petitioner and consequent disbursal within a period of eight weeks from the date of communication of this order.
9
This writ petition is, thus, disposed of. Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.
(ARINDAM SINHA, J.)