Calcutta High Court (Appellete Side)
The Kolkata Municipal Corporation & Ors vs Satyendranath Dutta & Ors on 3 April, 2017
Author: Biswanath Somadder
Bench: Sankar Acharyya, Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :
THE HONB'LE MR. JUSTICE BISWANATH SOMADDER
&
THE HON'BLE MR. JUSTICE SANKAR ACHARYYA
MAT 1143 of 2016
The Kolkata Municipal Corporation & Ors.
-Versus-
Satyendranath Dutta & Ors.
For the appellants / applicants : Mr. Alok Kumar Ghosh
Mr. Swapan Kumar Debnath
For the respondents / writ : Mr. Amitava Mukherjee
petitioners Ms. Arpita Saha Heard on : 08.3.2017 Judgment on : 03.04.2017
BISWANATH SOMADDER, J.: The instant appeal has been preferred by the Kolkata Municipal Corporation (hereinafter referred to as "KMC") and its authorities against the judgment and order of the learned Single Judge dated 2nd May, 2016 passed in W.P. No. 16423(W) of 2008 (Shri Satyendranath Dutta & Anr. Vs. The State of West Bengal & Ors.).
By the said judgment and order, the learned Single Judge was pleased to dispose of the writ petition [W.P. No. 16423 (W) of 2008] by directing the KMC authorities to revisit the pay-package of the writ petitioners by treating them as trained teachers with 5 years experience in terms of a circular dated July 9, 1985. The authorities were also directed to revise the pension payment order in respect of the writ petitioners accordingly within a certain timeframe.
The only question which falls for consideration in the instant case is whether the learned Single Judge interpreted the relevant portion of the circular, being circular no.12 of 85-86 dated July 9, 1985, issued by KMC, Education Department, correctly or not, in the factual backdrop of the case.
Before we proceed to answer this issue, a brief background of the facts is required to be stated. Two writ petitioners were involved. Both were employed by KMC as teachers and were appointed as such in the year 1980. The KMC had introduced the relevant circular dated July 9, 1985, in terms of which trained teachers with 5 years experience were allowed to enjoy the pay scale of Rs. 360-
850. It was contended on behalf of the writ petitioners that they had obtained training in 1984. As such, the KMC authorities were obliged to consider the past experience for the purpose of calculating 5 years experience in terms of the circular dated July 9, 1985. In fact, KMC had been doing so for 16 years long and the KMC authorities sought to introduce a decision of reversal on October 26, 2003. By such decision, the experience must be post training. However, the KMC was of the view that experience prior to training cannot be taken into consideration. Pay fixation on the basis of taking experience prior to training into consideration was bad. The KMC authorities sought to reverse the situation. This decision was challenged by way of a writ petition. The challenge had succeeded. The decision of the KMC authorities dated October 26, 2003 to refix the pay was set aside. The KMC authorities passed another order dated August 4, 2004. Such order was stayed. The KMC authorities passed a final order dated April 28, 2008 which was under challenge in two of the three writ petitions, which were taken up for consideration together by the learned Single Judge.
The learned Single Judge, after considering the respective submissions of the parties was pleased to observe as follows:-
"The circular dated July 09, 1985 was misconstrued by the authorities till 2003. The relevant portion of the circular dated July 09, 1985 specifies that a trained teacher with 5 years experience would enjoy the pay scale 360-
850. The experience has to be subsequent to the training obtained. In the event it is held that, the experience obtained prior to the training is to be calculated then it would cause prejudice to persons who have obtained training and 5 years experience subsequent to training. The circular dated July 09, 1985 is not for teachers who had experience prior to the training being obtained. A teacher has to first get the training and then cover the prescribed 5 years experience to enjoy the pay scale of Rs. 360-850.
I have considered the contentions of the appearing parties and the materials made available on record.
The relevant portion of the circular dated July 09, 1985 is as follows :-
"Trained teachers with 5 years experience CMC will enjoy pay-scale of Rs. 360-850"
The corporation authorities till 2003 had been treating teachers who had obtained requisite training and had 5 years experience, whether pre-training or post- training, to be entitled to such prescribed pay-scale.
In 2003 the corporation took the decision that the pay-scale so fixed for persons who had obtained training and had been granted such pay-scale considering the experience gathered prior to the training has wrongfully fixed. This order was set aside by the Court. The corporation thereafter issued another order to the same effect. The same was stayed by the Court. The Corporation then passed the impugned order after hearing the parties. Then Corporation have taken the stand that experience of 5 years is required post training. The persons who have been paid the salary on the prescribed pay-scale taking into consideration the experience prior to the training will, however, not to be disturbed in the sense that no recovery would be made. However, the pay-scale will be reduced. The consequential benefits will be calculated on the basis of the reduced pay- scale.
Two petitioners before me adequately reflect the problem at hand. They were appointed in 1980. The requirement to have training was introduced in 1984. At the time of their appointment, therefore, there was no requirement for a teacher to be trained. During their service period they have undergone the requisite training. After successfully completing the training, they are to be considered as trained teachers. In such circumstances whether the past experience of the teachers would be wiped out for the purpose of consideration of "trained teachers with 5 years experience" in terms of circular dated July 09, 1985 is the issue.
In my view, the circular dated July 09, 1985 cannot discriminate between an existing teacher on the pay roll of the corporation authorities and a new appointee. An existing teacher did not have the requirement to be trained at the time of its appointment particularly when such appointment was prior to 1984. In the case at hand the two petitioners with the introduction of required training had undergone the training in 1984. Their appointment was on 1980.
Consequent to the completion of their training the past experience is required to be considered for the prescribed pay-scale for a trained teacher in terms of the circular dated July 09, 1985. An experience gathered by a person continues to remain with the natural person. The petitioners concerned were teachers of the corporation. They had gathered 5 years experience working as such prior to their undergoing the training. The experience gathered prior to the training should be taken into consideration, as on the date when they were given appointment there was no requirement for a teacher to undergo a training. In such circumstances the impugned office order dated April 28, 2008 is modified to the extent that an existing teacher prior to the introduction of the circular dated July 09, 1985 will be entitled to have his/her past experience taken into consideration for the purpose of calculation of experience of 5 years in terms of such circular.
The petitioners have since superannuated from their services. They are receiving their pensionery benefits. The pensionery benefits are on the basis of a pay-scale which does not consider them to be a trained teachers with 5 years experience.
In view of the interpretation of the circular dated July 09, 1985 the authorities are directed to revisit the pay- package of the petitioners by treating them as trained teachers with 5 years experience in terms of circular dated July 09, 1985. The authorities will revise the pension payment order in respect of the petitioners accordingly." The observations made by the learned Single Judge, as quoted above, will clearly reflect that the circular dated July 9, 1985 was correctly interpreted in the factual backdrop of the instant case where the two writ petitioners were appointed in the year 1980. As rightly observed by the learned Single Judge, the circular dated July 9, 1985 cannot discriminate between an existing teacher on the pay roll of the KMC authorities and a new appointee. An existing teacher did not have the requirement to be trained at the time of his appointment particularly when such appointment was prior to 1984. In the instant case, the two writ petitioners - with the introduction of required training - had undergone such training in the year 1984. Their appointment was in the year 1980. Consequent to completion of their training, the past experience was required to be considered for the prescribed pay scale for a trained teacher in terms of the circular dated July 9, 1985. As such, it was rightly held by the learned Single Judge that an experience gathered by a person continues to remain with the natural person. The writ petitioners concerned were teachers of the KMC. They had gathered 5 years of experience working as such prior to their undergoing the training. The learned Single Judge, therefore, held that the experience gathered prior to the training should have been taken into consideration since on the date when they were given appointment, there was no requirement for a teacher to undergo training.
In an Intra-Court Mandamus Appeal no interference is usually warranted unless palpable infirmities or perversities are noticed. In the instant case, no such infirmities or perversities are noticed. Moreover, the judgment of the learned Single Judge is supported with cogent reasons and is perfectly justifiable for issuance of appropriate directions upon the KMC. We, therefore, find no necessity to interfere with the impugned judgment and order. The appeal is liable to be dismissed and is accordingly dismissed.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.
(BISWANATH SOMADDER, J.) I agree.
(SANKAR ACHARYYA, J.)