Calcutta High Court (Appellete Side)
Dr. Sankar Kumar Dalui vs State Of West Bengal & Ors on 23 April, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P.16610 (W) of 2003
Dr. Sankar Kumar Dalui
...Petitioner
Versus
State of West Bengal & ors.
...Respondents
Mr. Goutam Chakraborty Mr. Bibhutosh Dutta ...for the petitioner Mr. Kesab Bhattacharya Ms. Banani Mukherjee ...for the respondents 1,2,4 and 7 Heard on : 5.2.2009 and 6.2.2009 Judgment on : 23.4.2009 The petitioner was an Assistant Teacher in Belgachia Mahatma Aswini Dutta Vidyapith (hereafter the School). After rendering service for long 37 years, the petitioner retired on attaining the age of superannuation on 28.2.2002. At the time of his retirement, his basic pay was Rs.10,625/-.
While the petitioner was in service, on 24.12.1995, he was conferred Ph. D in Arts by Jadavpur University. It is claimed by the petitioner that consequent thereto, he was entitled to two additional increments. The issue relating to grant of such additional increments was taken up by the Headmaster of the school who forwarded necessary papers to the District Inspector of Schools (S.E.), Howrah. The concerned District Inspector on receipt of the papers solicited instructions from the Director of School Education, West Bengal in this behalf.
It is not disclosed as to how the matter traveled to the School Education Department of the Government, which had to occasion to regret the prayer of the petitioner for grant of two additional increments on 4.6.2001. However, on re-examination, the said Department on or about 10.1.2002 opined that the petitioner would be entitled to two additional increments from the date of convocation. The order passed in this regard reads thus:
"To The Director of School Education, West Bengal Sub : Admissibility of two additional increments in favour of Sri sankar Kr. Dalui, Asstt. Teacher of Belgachia Mahatma Aswini Dutta Vidyapith for obtaining Doctorate Degree.
In supersession of this Department's previous Order No.782-SE(S)/SP-35/98 dated 4-6- 2001 the undersigned is directed to refer to his Memo No.1833-GA dt. 31-7-2001 on the above noted subject and to say that after careful re-examination of all the relevant papers of the Doctorate Degree in Arts obtained by Shri Sankar Kumar Dalui, the Government in the School Education Department is of the opinion that Shri Dalui, Asstt. Teacher of Belgachia Mahatma Aswini Dutta Vidyapith, Howrah, is entitled to two additional increments from the date of the Convocation on which such degree is awarded in terms of clause 16(5) laid down in G.O. no.33-Edn(B) dt. 7-3-1990".
Since in the meantime the petitioner had exercised option on 7.3.1998 to come under ROPA 1998 scale of pay with effect from 1.1.1996, the Headmaster of the school again forwarded all necessary papers to the concerned District Inspector, inter alia, with a prayer to allow the petitioner to submit a fresh revised option to come under ROPA 1998 scale of pay with effect from 1.4.1996 instead of 1.1.1996. However, the Director of School Education, West Bengal by an order as contained in Memo dated 22.11.2002 disallowed the prayer for change of date of option. The order of the Director reads as follows:
"To The District Inspector of Schools (SE), Howrah, 18, Nityadhan Mukherjee Rd., 3rd Floor, Howrah Sub : Charge of date of option in favour of Sri Sankar Kumar Dalui, Asstt. Teacher, Belgachia Mahta Aswini Dutta Vidyapith, 100 'K' Road, Belgachia, Kolkata-711108 Ref. : His Memo No.293/D dated 8.3.2002.
In connection with the subject mentioned above, the undersigned has to state that according to the Govt. norms, permission for change of date of option is given to these teachers to minimize their excess drawal of pay at the time of their retirement instead of refunding. But the instant case is not come under the said norms. Moreover, if he is permitted to change which is beyond the govt. policy. As such his case could not be recommended to the School Education Deptt. The service book of Sankar Kumar Dalui, Asstt. Teacher of above noted school which was submitted along with the proposal is returned herewith for his information and necessary action."
The petitioner having retired in the meantime, his pension was fixed at Rs. 5,313/- per month (without two additional increments) and his other retiral benefits were computed on the basis thereof. It is the petitioner's further claim that had he been allowed to change the date of option with two additional increments with effect from 24.12.1995 i.e. the date of convocation, he would have drawn a salary of Rs. 11,175/- per month on the date of his retirement and thereby would be entitled to draw pension at Rs. 5,583/- per month together with enhanced retiral benefits on the basis of enhanced pension. Thus, he was deprived of a substantial extent of financial benefits.
Further representation was addressed to the Director of School Education after the order dated 22.11.2002 was passed by him requesting him to consider the petitioner's prayer but the same did not yield any result. Feeling aggrieved thereby, the petitioner approached this Court with the present writ petition praying for, inter alia, the following substantial relief:
"(a) A writ in the nature of Mandamus directing the Respondents Nos. 1, 2, 4 & 7 to allow the petitioner two additional increments with effect from 23-12-95 in the then time scale of pay for obtaining the Ph.D. degree on 24-12-95 (i.e. the date of convocation) and also to allow the petitioner to change the date of option with effect from 01-04-1996 (instead of 01-
01-1996) to come under the revised scale of pay of 1998 and with payment of all consequential arrear salary and pensionary benefits with interest @ 18% p.a. for delayed payment".
The State respondents have opposed the writ petition by filing an affidavit-in-opposition. According to them, the petitioner had exercised option on 7.3.1998 to be effective from 1.1.1996 thinking it to be more beneficial and change of decision later to have the option effective from 1.4.1996 is not at all possible. However, from the entire affidavit it does not appear as to whether there is a legal bar that stands in the way of the prayer for change of date of exercise of option being allowed. To put it differently, the order of the Director dated 22.11.2002 has not been justified by referring to any provision having the force of law.
Mr. Bhattacharya, learned Counsel representing the State respondents was specifically invited by the Court to draw its attention to any circular/notification whereby the decision of the Director dated 22.11.2002 extracted above could be justified. However, no such circular/notification was brought to this Court's notice.
Having heard learned Counsel for the parties, this Court is of the considered view that the petitioner has not been justly and fairly treated. Government norms, which do not exist, could not have been relied on to refuse permission for change of date of option to the petitioner. The observation of the Director in the order dated 22.11.2002 that if the petitioner "is permitted to change of date of option he will get more pay than to his actual drawal which is beyond the govt. policy" and as such his case could not be recommended to the School Education Department, manifests arbitrary action on his part coupled with total non-application of mind. No Government policy has been brought to the notice of this Court which says that even when a teacher has been held to be entitled to better financial benefits by reason of enhanced qualification, the same may not be extended to him simply because the same would result in drawal of higher pay than what has actually been drawn by him. In fact, there can be no such policy and even if there is one, the same must be ultra vires Article 14 of the Constitution. Higher scale of pay is given only to a deserving few on enhancement of qualification relevant to the teaching subject. According to Government policy, a teacher is encouraged to enhance his educational qualification (be it post- graduate or doctorate) so that he is in a position to impart lessons of better quality to the students. What the teacher gets in return is a pay package better than his colleagues who do not have to their credit the same qualification. A teacher who is a post-graduate or doctorate degree holder cannot be treated at par with a graduate teacher. Unless incentives are given, no teacher would feel the urge of enhancing his qualification, which in turn could prove beneficial to the students. A teacher of a recognized non-government aided School like the petitioner, who has during his service career enhanced his qualification, cannot be subjected to shabby treatment as in the present case. Technicalities cannot stand in the way of such benefit being granted. It is incomprehensible as to what weighed in the mind of the Director to observe that the prayer did not deserve to be recommended to the School Education Department on the face of the earlier order dated 10.1.2002 whereby the issue stood concluded that the petitioner is indeed entitled to two additional increments from the date of convocation. The Director has no power to deride the order of the School Education Department. Since the petitioner has not prayed for setting aside of the Director's order, it is not set aside but having regard to the order of the School Education Department, it is held that it cannot be given effect.
The petitioner had been conferred the Ph.D. in Arts on 24.12.1995 and the decision of the School Education Department that he would be entitled to two additional increments with effect from that date was reached just a month before his retirement. It is not a case that the petitioner was told before he exercised option that he would be entitled to two additional increments and even then, he declared the date of option to be effective from 1.1.1996. Since the decision to grant him two additional increments undisputedly was taken by the School Education Department near about four years after option was exercised, the petitioner could not have reasonably foreseen that exercise of option from 1.1.1996 would not be beneficial for him. Thus, he cannot be held to be at fault. A person cannot be deprived of the benefits of a favourable decision taken on his prayer on the ground that in the interregnum, he had volunteered to have revision of pay effective from a particular date and that in view thereof, even after the said decision, such date has to be rigidly followed without any scope for change. Importantly, learned Counsel for the Director has failed to justify his action by referring to any legal bar and, accordingly, it is held that the petitioner deserves relief as claimed. There shall be a Mandamus in terms of prayer (a) of the petition except the interest component for which provision is made hereafter.
Necessary action shall be initiated by the State respondents to compute and extend to the petitioner all financial benefits to which he is entitled consequent to enhancement of qualification from 24.12.1995, within a period of six months from date of receipt of a copy of this order. The time limit is peremptory. All formalities shall be completed without requiring the petitioner to attend the office of the respondents. The Principal Secretary to the Govt. of West Bengal, School Education Department is directed to ensure that if the petitioner is required to sign on any document, it is presented for his signature at his residence. The school authority is also directed to co-operate with the Department of School Education and the other official respondents to secure compliance of this order.
The petitioner shall be entitled to interest at the rate of 10% on the arrears of salary as well as pensionary benefits with effect from the date of filing of this petition (11.11.2003) till date of actual payment.
The writ petition stands allowed without any orders as to costs.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant within four days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)