Calcutta High Court (Appellete Side)
Md. Kamal Hossain vs The State Of West Bengal & Ors on 10 November, 2016
Author: Sahidullah Munshi
Bench: Sahidullah Munshi
1
70.
10.11.2016.
debajyoti
W. P. No.18044 (W) of 2016
Md. Kamal Hossain
Vs.
The State of West Bengal & Ors.
Mr. Golam Mastafa,
Mr. Tarasankar Samanta,
Mr. Subir Sabud
...... For the Petitioner.
Mr. Supriyo Chattopadhyay,
Ms. Iti Dutta
...... For the State.
This writ petition has been filed with a prayer for grant of
higher scale of pay and for setting aside memo No.1008 dated 1st
August, 2016 issued by the respondent no.3 whereby the said
authority has declined to allow higher scale of pay to the petitioner. According to the writ petitioner, he was appointed as an Assistant Teacher of Geography in Mohammadia High Madrasah (H.S.). In support of his appointment, he has annexed a copy of the Memo dated 10th December, 2003 issued by the West Bengal Regional School Service Commission recommending for his appointment as a teacher in B.A. (Pass) unreserved category. By the said letter dated 10th December, 2003, the Secretary/Assistant Secretary, West Bengal Regional Service Commission, Northern Region, Malda was requested for issuing appointment to the petitioner and to allow him to join the said post of Assistant Teacher (B.A.-Pass). The appointment of the petitioner was approved by the District Inspector of Schools by Memo dated 29th March, 2004.
2While granting approval, the District Inspector of Schools duly mentioned in the approval letter the qualification of the petitioner as B.A. (Pass) in Geography in the scale of pay as mentioned in the said approval letter.
After such approval was granted, the petitioner made an application on 26th April, 2005 addressing it to the District Inspector of Schools (Secondary Education), Malda and mentioned that at the Regional Level Selection Test, 1999, he appeared as a Pass candidate in the subject of Geography, but, at the time of appearing at the same test, he had B.A. (Honours) qualification in Geography. He claimed that since he was appointed as a teacher in Geography and he had Honours qualification in the selfsame subject, he had a legitimate claim for higher scale of pay.
The said application, having not been considered, the petitioner filed a writ petition being W.P. No.5552 (W) of 2007 and by an order dated 18th March, 2016, the said writ petition was disposed of by directing the District Inspector of Schools (S.E.), Malda to consider the petitioner's representation dated 26th April, 2005, which is appearing as Annexure "P-7" to this writ petition.
Pursuant to the said order passed by this Court, the District Inspector of Schools (Secondary Education), Malda, by his Memo No.1008 dated 1st August, 2016, has passed a reasoned order and rejected the petitioner's prayer for grant of higher scale of pay. While passing the impugned order, the District Inspector of Schools has taken a stand that the petitioner having chosen to opt for being appointed in the Pass category and 3 also having opted for Pass category scale, it is immaterial whether he had Honours degree on the date of appointment for consideration of his prayer for grant of higher scale of pay. Therefore, the said respondent, the District Inspector of Schools, declined to allow the prayer for higher scale of pay.
Another reason has been given by the District Inspector of Schools to the effect that there is a bar under Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005. Section 14 reads as follows:
" 14. (1) Every teacher of a school shall, if appointed in the post of Undergraduate 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 of acquiring any qualification other than the qualifications specified for such post.
(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.
(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. "
However, since the petitioner was admittedly appointed in 2002 and the said Act came into force in 2005 and the provisions of the Act is not retrospective in nature, I hold that the bar under Section 14 is not applicable in the present case.4
In support of grant of higher scale of pay, learned Counsel has cited an unreported decision of the Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. and has submitted that the Hon'ble Apex Court in the said judgment has held that persons holding identical posts ought not to be treated differently.
The said proposition, as laid down by the Hon'ble Supreme Court, is a settled law and is being followed by our judiciary since long and there is no dispute that similarly placed persons will get similar advantages. But, the present case is little different because if the petitioner's appointment is guided by a particular rule, he has to make a prayer for grant of advantages based on those rules only and not otherwise.
In support of the case made out in the writ petition, the learned Counsel for the petitioner has relied on a Division Bench judgment of this Court in the case of Partha Chatterjee Vs. State of West Bengal & Ors., reported in (2004) 2 CAL LT 610 (HC). He has drawn the attention of this Court to the circular referred to in the said judgment. He stated that on the basis of the said circular dated 13th July, 1999, the writ petitioner is also entitled to get higher scale of pay inasmuch as on the date of his appointment, he had already the said Honours qualification and the authority has illegally overlooked the same and deprived the petitioner the benefit thereof.
Mr. Chattopadhyay, learned Counsel, appearing for the State, has drawn the attention of the Court to the same circular published under Memo No.155-SE(B)/10M-102/98 Pt-1. He 5 refers to paragraph 3 of the said circular, particularly, to the amended portion of the said section, which reads as follows:
" ...................... If such teacher is appointed through West Bengal School Service Commission, his/her pay will be fixed in the scale of pay as per his/her qualification mentioned by the West Bengal School Service Commission. "
In the present case, it is undisputed that the petitioner chose to be governed by the Pass category scale and he mentioned B.A. (P) as his qualification and the School Service Commission, in its recommendation, mentioned his qualification as B.A. (P) in category 'unreserved'.
According to the aforesaid circular, if a candidate is appointed in B.A. pass category, even if he had higher qualification on the date of appointment, he cannot subsequently claim higher benefit and higher scale of pay. Therefore, so far this part of the said circular is concerned, it is clear that the petitioner, even on the basis of the said circular of 1999, cannot claim higher scale of pay on the basis that he had already Honours qualification.
Therefore, the decision given by the District Inspect of Schools appears to be not incorrect, which is based on the above- mentioned circular.
Mr. Mastafa, learned Counsel, appearing for the petitioner, has relied upon a decision of the Division Bench of this Court in the case of Smt. Nita Dey Chandra Vs. The State of West Bengal & 6 Ors., to say that as the petitioner had higher qualification, he is entitled to higher scale of pay.
The fact situation of that case is different from the fact situation of the present case. In the said case, the petitioner was appointed as an Assistant Teacher after having passed through School Service Commission. Subsequently, he acquired Master degree in Physics from the University in 2004. Therefore, the acquisition of higher qualification on a subsequent date of the appointment is permissible and that is why, the prayer for higher scale of pay was allowed by the Division Bench.
Mr. Mastafa has also relied upon a judgment in the case of Md. Basiruddin Vs. State of West Bengal, reported in 2014 (2) CHN (CAL) 89. In the said decision, this Court allowed higher scale of pay considering the subsequent acquisition of higher academic qualification. It is not the case in the present case. Therefore, principle laid down in the said case is not applicable in the present one.
Another Division Bench judgment in the case of Sutapa Kundu Vs. The State of West Bengal & Ors. passed in FMA No.2199 of 2013 with CAN 10370 of 2012 has been relied upon by Mr. Mastafa to show that the Division Bench has allowed higher scale of pay in case of a candidate who acquired higher qualification. This is also a case where the candidate improved his qualification subsequently, which is not identical with the present case. Therefore, the same has no bearing in the present case.
7In support of the impugned order, Mr. Chattopadhyay has relied on a judgment of a Division Bench of this Court in the case of Tarak Chandra Roy Vs. State of West Bengal & Ors., reported in 2008 (2) CHN 973. The Hon'ble Division Bench in the said decision has categorically held as follows:
" 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. The being the position of law, the petitioner would not be entitled to claim higher scale of pay. We, therefore, dismiss the writ petition. "
Mr. Chattopadhyay has also relied on a judgment in the case of State of West Bengal and Ors. Vs. Md. Sohidullah & Ors., reported in 2008 (2) CHN 234. In the said judgment, the Division Bench held as follows:
8" 14. On a combined reading 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. Bandyopadhyay'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.
21. In such view of the matter, Sohidullah is not entitled to claim post-graduate scale as he was selected in pass category on the basis of his application. The learned Judge, in our view, erred in allowing the writ petition of Sohidullah. "
Having heard the parties and having considered the ratio discussed in the said judgments, I am of the considered view that in the present case, the petitioner has failed to satisfy this Court that he is entitled to get higher scale of pay merely because he had higher qualification on the date of appointment. According to the aforesaid circular of 1999, as amended, it is only when the Service Commission recommends the name of the petitioner as an Honours or post-graduate candidate, he will be entitled to get benefit of the higher scale of pay. But, the higher qualification having not been mentioned in the recommendation of the Service Commission, the petitioner cannot claim higher scale of pay. Although the petitioner had higher qualification, he chose to compete with the pass category candidates, and after competing with the candidates, who had lesser qualification, when the writ 9 petitioner got appointment, he cannot claim for higher scale of pay.
The conduct of the petitioner cannot be appreciated. The petitioner was appointed in 2003 with pass category scale of pay. His appointment was approved as a pass category candidate in 2004 and after his approval in 2005, for the first time, he made an application before the concerned authority for making available to him the benefit of higher scale of pay. However, the District Inspector of Schools has rightly held that the petitioner is not entitled to get higher scale of pay. I find no reason to interfere with the same, particularly, when the Division Bench judgments in the case of Md. Sohidullah & Ors. and Tarak Chandra Roy (supra) are completely against the writ petitioner.
The order impugned does not call for any interference. The writ petition fails and the same is hereby dismissed.
There will be no order as to costs.
( Sahidullah Munshi, J. )