Calcutta High Court (Appellete Side)
Nadu Pandit vs The State Of West Bengal & Ors on 10 April, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 12758 (W) of 2005
Nadu Pandit
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioner : Sk. Kamal Uddin, Adv.
Mr. Swadhin Pan, Adv.
For the respondent : None
Heard On : 17/03/2015 & 24/03/2015
Judgment On : 10/04/2015
Arijit Banerjee, J.:
(1) The brief facts of the case giving rise to the present writ petition are as follows.
(2) The petitioner obtained his M.A. degree in Bengali and B.Ed. from the University of Burdwan in the years 1995 and 1996 respectively.
(3) An advertisement was published in 1998 by the West Bengal Regional Schools Service Commission, Eastern Region for recruitment to the post of Assistant Teacher in language group. (4) The petitioner was selected as an Assistant Teacher by the West Bengal Regional School Service Commission (Eastern Region), vide memo dated December 31, 1998 and got appointment on February 1, 1999 in Bansberia High School (H.S.), Bansberia. The District Inspector of Schools (Secondary Education), Hooghly granted approval to the said appointment vide Memo dated March 30, 1999.
(5) Since his appointment, the petitioner has been taking more than seven classes in Bengali of the Higher Secondary School due to shortage of teaching staff in the School, in the academic interest of the students. The Higher Secondary School Council appointed the petitioner as Bengali examiner since 2001. (6) The petitioner was appointed in the scale of Rs. 4650-10-175 under ROPA 1998 which was the scale of pay of teachers having pass graduate degree. The higher scale of Rs. 6,000-12,000/- applicable to teachers having post graduate degree was not paid to the petitioner.
(7) The petitioner made a representation dated May 14, 2004 addressed to the Secretary of the said School to take necessary steps in the matter so that the petitioner may get the benefit of the higher scale for his enhanced qualification. After receiving the said representation the School Authority at their meeting dated May 21, 2004 pass a resolution that the Secretary of the said School would take proper steps in the matter by referring the matter to the District Inspector of Schools (SE), Hooghly, for his sanction.
(8) Accordingly, the Secretary of the said School vide his letter dated May 22, 2004 requested the District Inspector of Schools (SE), Hooghly requesting him to sanction the higher scale of pay for the petitioner in view of the petitioner's higher qualification. (9) Since there was no response from the District Inspector of Schools (SE), Hooghly, the petitioner moved a writ application in this Court which was disposed of by an order dated October 11, 2004 by directing the Director of School Education (SE), West Bengal to consider the petitioner's prayer for higher scale within eight weeks from the date of communication of the order. By the said order the Authority was also directed to take into consideration the effect of extending such benefit to similarly placed teachers as claimed by the petitioner. (10) In this connection, it may be noted that one Soumen Dutta who had a Master degree in Physical Education but was getting pass graduate scale had approached this Court and pursuant to this Court's order directing the respondent authority to fix his salary as per revised pay scale, the Director of School Education, West Bengal passed an order extending the benefit of the post graduate scale to him from his date of joining. (11) By an order dated 19th May, 2005 the Director of School Education (SE), West Bengal disallowed the petitioner's request for post graduate scale of pay on the ground that the petitioner had been recommended by the School Service Commission as a pass graduate teacher in pursuance of their selection process and in terms of the para 12 (3) of the Revision of Pay and Allowance Rules, 1998 as amended by Memo No. 155-SE (B) dated 13th July, 1999 the petitioner is not entitled to the post graduate scale of pay.
(12) Being aggrieved by the said order of the Director of School Education, the petitioner is before this Court by way of the instant writ petition.
(13) In spite of service of notice nobody appeared for the respondent authorities.
(14) Ld. Counsel appearing for the petitioner submitted that under the un-amended ROPA Rules, as per paragraph 12 (3) of the Memorandum No. 25-SE(B)/IM-102-98 dated 12th February, 1999, all teachers including Physical Education teachers, who have improved, will improve their qualifications or who were appointed with higher qualification in the subject or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualification with effect from January 1, 1996 or the date of improving the qualifications whichever is later. Although the said paragraph 12 (3) of the said memorandum was amended by Memo No. 155-SE(B)/10M-102/98 Pt-1 dated 13th July, 1999, such amendment would not apply to the petitioner since the petitioner's date of joining was 1st February, 1999, i.e. prior to such amendment.
(15) Ld. Counsel drew this Court's attention to the amended paragraph 12 (3) which reads as follows:-
"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 qualification, whichever is latter. Provided that such higher qualified teachers in the relevant subjects or group is justified as per approved staff pattern of that school, is 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."
(16) Ld. Counsel further submitted that the staff pattern of the concerned school cannot be a deciding factor as regards applicability of the higher scale of pay to an otherwise eligible candidate. He relied on a decision of this Court in the case of Partha Chatterjee-vs.-State of West Bengal reported in 2004 (2) CLJ (Cal) 493. He also relied on an unreported decision of this Court in the case of Bhaskar Chakraborty-vs.-State of West Bengal rendered in WP No. 2326 (W) of 2002, wherein this Court held that the order dated 13th July, 1999 in so far as the same purports to amend paragraph 12 (3) of the Government order dated 12th February, 1999 is discriminatory, violative of Article 14 and of no effect. An appeal that was sought to be preferred by the State of West Bengal against the said judgment and order after a lapse of about two years was not even entertained by the Division Bench which refused to condone the inordinate delay in filing the appeal.
(17) Relying on the aforesaid authorities, Ld. Counsel for the petitioner submitted that the petitioner should be entitled to higher scale of pay from the date of his joining. (18) I have considered the submissions made on behalf of the petitioner and I am inclined to accept the same. There is no dispute that the petitioner joined service on 1st February, 1999. As per the memorandum dated 12th February, 1999 the petitioner should be entitled to higher scale of pay because of his higher qualification. This court in Partha Chatterjee (supra) held that the Government order/circular dated 13th July, 1999, in so far as it amends the earlier Government orders and provides that if a teacher is appointed through the West Bengal School Service Commission, his/her pay shall be fixed in the scale of pay as per his/her qualification mentioned by the West Bengal School Service Commission cannot be applied to the petitioner retrospectively. Even otherwise, a teacher appointed with a post graduate degree in a relevant teaching subject cannot be denied the post graduate scale of pay on the ground of the School Service Commission not having mentioned the post graduate degree in its recommendation or on the ground of the appointment of a post graduate teacher not being justified by the staff pattern of the School which is determined by the School Authority and over which the petitioner has no control.
(19) In fact, in the case of Bhaskar Chakraborty (supra) this Court in effect struck down the Government order dated 13th July, 1999 in so far as the same purports to amend paragraph 12 (3) of the Government order dated 12th February, 1999 as unconstitutional. Hence, denial of the post graduate pay of scale to the petitioner by the Director of School Education relying on the circular dated 13th July, 1999 cannot be sustained.
(20) Further, the petitioner stands on the same footing as Soumen Datta who was granted the post-graduate scale of pay by the Director of School Education. The petitioner who is similarly placed cannot be treated differently, as that would amount to blatant discrimination.
(21) In view of the aforesaid this writ petition succeeds. The order dated May 19, 2005 passed by the Director of School Education, West Bengal is set aside. The Respondent authorities are directed to extend the benefit of the post graduate scale of pay to the petitioner with effect from his date of joining i.e. 1st February, 1999. The arrears shall be paid to the petitioner within a period of two months from the date of communication of this order to the respondent authorities.
(21) The writ petition is accordingly disposed of.
(Arijit Banerjee, J.)