Calcutta High Court (Appellete Side)
In Re: Naresh Chandra Mahato vs State Of West Bengal And Others Reported on 7 March, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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07.3.14
W. P. 16360 (W) of 2007
In re: Naresh Chandra Mahato ... Petitioner
Mr. Jakir Hossain
Mr. Sarwar Jahan ... For the Petitioner
Mr. Arun Prokash Lahiri
Mr. Manas Kumar Sadhu ... For the State
Respondents
This writ application had been preferred challenging an order passed by the respondent no.3 on 19th of October, 2006 by which the said respondent observed that prior permission towards enhancement of qualification cannot be granted on post facto basis.
It had, inter alia, been averred in the writ application that the petitioner participated in the selection process for appointment to the post of an Assistant Teacher with Bachelor of Arts (Honours in History) qualification. Such selection was conducted by the West Bengal School Service Commission (hereinafter referred to as the said Commission). The petitioner emerged to be successful in the selection process and he was recommended for appointment to the post of Assistant Teacher in Social Science Group to the Daralhat High School. On the basis of such recommendation, the petitioner was given appointment and such appointment was also approved by the respondent no.3 vide memorandum dated 27th February, 2001 with effect from 20th of January, 2001 in the pay scale of Rs.5,500 - 11275/-. Thereafter, the petitioner sought for permission from the school authorities to pursue the post- 2 graduation degree correspondence course in relevant subject and upon availing such permission the petitioner pursued the said course and passed Master of Arts in History Part-II Examination on 13th of August, 2007.
In the meantime, the school authorities approached the respondent no.3 to accord necessary permission to the petitioner towards enhancement of qualification of the petitioner. As the prayer made by the school authorities reached the said respondent no.3 subsequent to the petitioner's appearance in the M. A. Examination, the said respondent no.3 by the impugned order vide memorandum dated 19th of October, 2006 denied to accord prior permission on post facto basis. Subsequent thereto, the school authorities again approached the said respondent no.3 and in response thereto, the respondent no.3 issued a memorandum dated 15th of December, 2006 stating, inter alia, that the permission had already been refused by the earlier memorandum dated 19th of October, 2006.
This writ application was affirmed on 17th of July, 2007 and subsequent thereto, the petitioner passed the M. A. Final Examination in History on 13th of August, 2007. The said academic certificates had been brought on record by the petitioner by way of a supplementary affidavit.
In spite of earlier direction of this Court, no affidavit-in- opposition had been filed by the State respondents.
Mr. Jahan, learned advocate appearing on behalf of the petitioner, submits that in terms of Section 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005, the 3 petitioner is entitled to post-graduate scale of pay as the petitioner was appointed as an Assistant Teacher with honours graduate qualification.
Mr. Jahan, learned advocate, further places reliance upon a judgement delivered by the Hon'ble Division Bench of this Court reported in 2013 (2) CHN 565 wherein the issue for availing prior permission from the concerned District Inspector of Schools towards enhancement of qualification was considered and the Hon'ble Court was pleased to hold that the government order dated 24th of June, 1997 does not stand on the way towards grant of benefit of higher scale of pay to a teacher on acquiring higher qualification through correspondence course.
Similar issue was considered by this Court in the case of Maleka Khatun -vs- State of West Bengal and others reported in 2009 (4) CHN (Cal.) 440 wherein the Hon'ble Court observed that irrespective of prior permission, the petitioner, who obtains and acquires higher qualification, cannot be denied the benefit of higher scale of pay.
Mr. Jahan had further placed reliance upon a judgement delivered on 14.6.2012 by the Hon'ble Court in W. P. 3266 (W) of 2012, which is Annexure 'P-7' to the supplementary affidavit. In the said judgement upon dealing with the provisions of the West Bengal Schools (Control of Expenditure) Act, 2005 the Court observed, inter alia, that the concept of seeking prior permission from the District through the Managing Committee of school was introduced for the first time through the Government Order dated 27th November, 2007.
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Mr. Lahiri, learned senior advocate appearing for the State authorities, submits that prior permission ought to have been obtained from the respondent no.3 prior to appearing in the M. A. Examination. In support of such submission, Mr. Lahiri places reliance upon a government order dated 24th of June, 1997 and to the government order dated 27th of November, 2007.
Mr. Jahan, learned advocate in reply to the contention of Mr. Lahiri, submits that the petitioner passed the M. A. Part-II Examination on 13th of August, 2007 and that as such the government order dated 27th of November, 2007 is not applicable in case of the petitioner.
So far as the Government Order dated 24th June, 1997 is concerned, the Hon'ble Appeal Court in the judgement reported in 2013 (2) CHN 565 had already held that the said Government Order does not stand on the way towards grant of benefit of higher scale.
The admitted facts are that the petitioner availed appointment on the basis of his honours qualification and that he obtained the post-graduate qualification upon availing prior permission of the school authorities who were satisfied that such enhancement of qualification would be beneficial for the students at large and that acquirement of such qualification would not hamper the normal duty of the petitioner as an Assistant Teacher of the said school.
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In the instant case, the petitioner had obtained the post-graduate qualification subsequent to filing of the writ application and in view of the earlier judgement delivered by this Court, prior permission from the respondent no.3 for pursuing a post-graduate course is not an absolute necessity and that as such the impugned order passed by the respondent no.3 dated 19th of October, 2006 is not sustainable in law and the same is accordingly set aside and quashed.
The petitioner improved his educational qualification prior to issuance of the government order dated 27th of November, 2007 and that as such the said government order does not stand in the way towards grant of higher scale of pay to the petitioner on the basis of the post-graduate degree obtained by him in relevant subject.
As the post-graduate qualification was obtained by the petitioner during pendency of the writ application, I direct the petitioner to make a fresh representation for grant of post- graduate scale of pay to the respondent no.3 incorporating all the facts and relevant documents, within a period of three weeks from date.
Upon receipt of such representation, the respondent no.3 shall consider the petitioner's claim for higher scale of pay for his enhanced educational qualification, in accordance with law and in the light of the observations made above, upon granting opportunity of hearing to the petitioner and the school authorities and the said respondent no.3 shall pass a reasoned order and communicate the same to the petitioner. 6
The entire exercise should be completed within a period of ten weeks from the date of communication of this order.
Needless to observe, in the event the petitioner's claim is accepted, necessary follow up steps should be taken by the respondents without any further delay.
The writ application is, accordingly, disposed of. There shall, however, be no order as to costs. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.
(Tapabrata Chakraborty, J.)