Md. Atiquzzaman vs State Of West Bengal & Ors on 30 September, 2013

[Cites 0, Cited by 3]

Calcutta High Court (Appellete Side)

Md. Atiquzzaman vs State Of West Bengal & Ors on 30 September, 2013

Bench: Debasish Kargupta

                                                          1




30.09.2013. 
 rc/dl/171 
                                       W.P. No. 25556 (W) of 2013 
                                            Md. Atiquzzaman 
                                                 Versus 
                                       State of West Bengal & Ors. 
                
                
               Mr. Rabilal Moitra 
               Mr. Ashok Janah 
               Ms. Ina Bhattacharjee                      ... For the Petitioner. 
                
               Mr. Biswajit Saw                               ... For the State 
                       

                      Let the affidavit of service be kept on record.  

                      This writ application is filed by the petitioner with the following 

               prayer: 

                             " a) A writ in the nature of Mandamus, commanding the 
                      respondents their agents, servants and associates and each one

of them to consider the representation of the petitioner being Annexure 'P‐11' of this writ application and further commanding them to treat the petitioner just like regular Teacher in History subject of Bariapur Baishi High Madrasah (H.S.), situated at Uttar Dariapur, Post Office - Uttar Dariapur, District‐Malda, Pin‐732201 and further commanding them to grant pay scale and service condition at par with regular teachers of the concerned Higher Secondary School along with other benefits as enjoyed by the regular teachers of the concerned higher secondary school and allow the petitioner to render his/her service upto 60 years considering the continuation, unbreakable service to a sanctioned vacancy by way of appointment by way of a regular selection process". It is the case of the petitioner that he has been discharging the similar functions to that of a whole time Assistant Teacher of the institution under reference.

Having heard the learned counsel appearing for the respective parties as also after considering the facts and circumstances of this case I find that the right of the petitioner flows from her letter of engagement read with the Government Order No. 22‐SE(HS)/PS‐03/06 dated February 25, 2009. It is necessary to point out that the nature of 2 service of the petitioner is a contract and not a status. It is revealed from the aforesaid Government Order No. 22‐SE(HS)/PS‐03/06 dated February 25, 2009 that the remuneration of a part time teacher is fixed Rs.6000.00 per month which has recently been enhanced to Rs.8,000.00 per month. Therefore, on the basis of the aforesaid engagement of the petitioner which is in the nature of contract the respondent authority is under obligation to allow the petitioner to discharge his function in respect of the post until further orders and obtaining of the permission of the concerned District Inspector of Schools as a pre‐condition to pass such an order in view of the order passed by the Joint Secretary to the Government of West Bengal, Education Department, Secondary Branch under Memo No. 100‐SE(S)/IS‐37/09 dated January 28, 2010.

Bus so far as the payment of the remuneration equal to that of a full time Assistant Teacher is concerned, it is a disputed question of fact as to whether the petitioner has been discharging similar function to that of a whole time Assistant Teacher of the institution under reference. Needless to point out that unless the above claim of the petitioner is proved he cannot claim remuneration at a rate higher than that of the amount fixed by the Government Order under reference taking into consideration it is subsequent enhancements.

In view of the above, the respondent authority is directed to allow the petitioner to continue with the engagement in the post of part time teacher in the school under reference in terms of the aforesaid Government Order No. 22‐SE(HS)/PS‐03/06 dated February 25, 2009. The respondent No. 3 is directed to take a decision with regard to the claim of the petitioner for payment of his salary and allowance claimed to that of a permanent full time teacher in accordance with law taking into consideration the facts and circumstances by passing a reasoned order within two months from the date of communication of this order and by treating this writ application as the representation of the petitioner.

Since no affidavit‐in‐opposition is filed on behalf of the respondent, the allegations made against them in this writ application are to be treated as denied by them.

I make it clear that I have not entered into the merits and all points are kept open.

This writ application is 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. )

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)