Calcutta High Court (Appellete Side)
Dr. Vivekananda Mukherjee vs The State Of West Bengal & Ors on 21 June, 2012
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
1.06.2012.
W.P. No. 6937 (W) of 2007
Dr. Vivekananda Mukherjee
Versus
The State of West Bengal & Ors.
Ms. Anupama Hajari.
...For the petitioner.
Mr. Tulsi Das Ray.
...For the State Respondents.
The petitioner is aggrieved by the impugned order dated 17.10.2006 issued by the District Inspector of Schools, respondent no.2 herein, rejecting the prayer of the petitioner for grant of two additional increments upon acquiring higher education qualification, namely, Ph.D. Degree.
The facts of the case are as follows:
The petitioner was appointed as an Assistant Teacher to the School on November 4, 1997 in post‐graduate scale of pay with post‐graduate degree in Economics. During his tenure as a teacher, the petitioner with the permission of the School Management obtained a Ph.D. degree in his teaching subject namely, Economics and such degree was awarded on March 3, 2006.
Thereafter the petitioner, through the School Management made a prayer to the District Inspector of Schools for grant of two additional for acquiring higher educational qualification, namely, Ph.D. in Economics in terms of ROPA applicable to the petitioner. 2 By the impugned order dated 17.10.2006 such prayer was turned down by respondent no.2 on the ground that the provisions of West Bengal Schools (Control of Expenditure) Act, 2005 (hereinafter referred to as the Act of 2005) does not permit such relief.
Ms. Hajari, learned counsel appearing for the petitioner submits that the impugned order is contrary to law, inasmuch as, the provisions of the Act of 2005 does not stand in the way of grant of such relief to the petitioner.
Learned counsel for the State refers to a Government Order being No.37‐ SE/ES(S)/5P‐37/2010 dated 5.1.2012 and submits that in view of the said Government order on or after August 18, 2005 i.e. the date of the publication of the Act of 2005, such relief cannot be granted. Hence, the respondent no.2 has rightly denied such relief to the petitioner.
In reply Ms. Hajari refers to the supplementary affidavit filed on behalf of her client and draws my attention to an unreported decision of this Court in W.P. No.7129 (W) of 2011 dated 30.11.2011 wherein a learned Single Judge of this Court has, inter alia, held that the provisions of the Act of 2005 does not disentitle a teacher from claiming two additional increments upon acquiring Ph.D. degree. In the said judgment, a Government Order bearing Memo No.1018‐SE/ES(S)/5P‐37/2010 dated September 1, 2011 has been referred to wherein it has been clarified that the provisions of the Act of 2005 does not 3 stand in the way of release of two additional increments to a teacher upon acquiring Ph.D. degree.
Strangely enough in a subsequent Government Order being No.37‐SE/ES(S)/5P‐ 37/2010 dated 5.1.2012, which has been relied upon by the learned counsel appearing for the State respondents, the Government appears to have taken a contrary view and has directed that such relief can only be granted till August 18, 2005 i.e. the date of publication of the Act of 2005.
There is no provision in the Act of 2005 which debars the grant of two additional increments to a teacher who has been appointed in post‐graduate scale of pay upon his acquiring Ph.D. degree under the provisions of ROPA applicable to the said teacher. Hence, the coming into force of the Act of 2005 shall not eclipse the relief claimed by the petitioner on such score.
It is trite law that the impugned Government Order which is in the nature of an administrative instruction cannot go beyond the scope of the Act of 2005 and create a restriction which was never envisaged in the primary legislation itself.
For the aforesaid reasons, the impugned Government Order being No.37‐ SE/ES(S)/5P‐37/2010 dated 5.1.2012 which creates an embargo beyond the scope of the primary legislation is clearly illegal and ultra vires the provisions of the said legislation.
In view of the aforesaid discussions, I hold that the petitioner's prayer for two additional increments upon acquiring Ph.D. degree in the facts of the instant case cannot 4 be said to have stood eclipsed by the provision of the Act of 2005 or the impugned Government Order, as aforesaid.
I, therefore, set aside the impugned order dated 17.10.2006 passed by the respondent no.2 herein. I further direct the respondent no.2 herein to pass appropriate order granting two additional increments to the petitioner upon his acquiring higher educational qualification, namely, Ph.D. in his teaching subject, namely, Economics in the light of the provisions of ROPA applicable to the petitioner within four weeks from the date of communication of this order.
With the aforesaid directions, the instant writ petition is disposed of. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.
( Joymalya Bagchi, J. )