Calcutta High Court (Appellete Side)
Anupam Samanta vs State Of West Bengal & Ors on 24 November, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
24.11.2016
Item No. 10
Court No. 14
ac
W.P. 25103 (W) of 2012
Anupam Samanta
-versus-
State of West Bengal & Ors.
(Assigned)
Mr. Sanat Chowdhury.
... For the Petitioner.
Mr. Kamalesh Bhattacharya,
Mr. Swapan Kumar Pal.
... For the State.
This writ petition has been sent to us by the Hon'ble Chief Justice on the
request for a reference made by learned Single Judge of this Court for answering
the following questions:
1. Whether the introduction of ROPA, 2009 with effect from 1st January, 2006 and
acceptance thereof by the petitioner prevented him from claiming a higher scale
of pay on the basis of a Ph.D. degree acquired on 3rd March, 2006?
2. Would paragraph 16(5) of ROPA, 1990/98 still be applicable?
The abovementioned questions were referred to us for our answer in the following
background.
The writ petitioner was appointed as an Assistant Teacher in Pahalanpur High
School on 23rd December, 2012. At the time of his appointment, his educational
qualification was M.Sc. in Botany and B.Ed. While he was in service, he
acquired Ph.D. degree. Provisional certificate for his Ph.D. degree was issued
by the concerned University on 18th May, 2005. Ultimately, such Ph.D. degree
was conferred upon him in the convocation held on 3rd March, 2006. Before the
convocation was held, he applied for grant of two additional increments for his
Ph.D. degree on 3rd January, 2006. The managing committee of the said school
adopted a resolution recommending him for grant of two additional incremental
benefits for his Ph.D. degree on 4th February, 2006.
The concerned District Inspector of schools instead of taking a decision on the
petitioner's claim for such two additional increments for his Ph.D. degree,
referred the matter to the Director of School Education on 16th October, 2006.
The Commissioner of School Education rejected the petitioner's claim for grant
of two incremental benefit for his Ph.D. degree on two fold grounds, viz. :
(i) Order passed by Justice Jayanta Kumar Biswas in a writ petition and
(ii) the West Bengal Schools Control of Expenditure) Act, 2005 stand as a bar in
grant of such incremental benefit to the writ petitioner. Such order was passed
by the Commissioner of School Education on 12th June, 2007.
The legality and/or correctness of the said order passed by the Commissioner of
School Education on 12th June, 2007 is under challenge in the writ petition at
the instance of the petitioner.
On reading the order impugned in this writ petition, we find that save and
except, the two grounds as mentioned above, no other ground was mentioned by the
Commissioner of School Education in support of his ultimate conclusion for
refusal to grant such incremental benefit to the petitioner.
In view of the decision of the Hon'ble Supreme Court in the case of Mahindra
Singh Gill & Anr. -vs- The Chief Election Commissioner & Ors., reported in
1978(1) SCC 405; we are of the view that when the Court is required to consider
the legality of the impugned order passed by the statutory functionary, the
Court is required to consider the justifiability of the Court on which the
statutory functionary refused to grant such relief and/or benefit to the writ
petitioner. The statutory functionary cannot be permitted to support its action
by fresh reason in the shape of affidavit or otherwise in supplementary to the
ground of rejection mentioned in the impugned order. The relevant portion of
the said judgment is set out hereunder :
"Para - 8 : The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity must be judged
by the reasons so mentioned, and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise.
Otherwise, an order bad in the beginning may, by the time it comes to court on
account of a challenge, get validated by additional grounds later brought out."
Keeping in mind the aforesaid principle of law laid down by the Hon'ble Supreme
Court in the case of Mahendra Singh Gill's case, we are of the view that the
fate of the writ petition depends upon the court's decision with regard to the
justifiability of the aforesaid two grounds on which the petitioner's prayer for
incremental benefits for his Ph.D. degree was rejected by the Commissioner of
School Education.
If the writ petition is considered from this angle, then the Court will have to
consider firstly as to whether the order passed by Justice Jayanta Kumar Biswas
in another writ petition can stand in the way of grant of such relief to the
petitioner.
The Court is also required to consider as to whether the provision of the West
Bengal Schools (Control of Expenditure) Act, 2005 stands as a bar in granting
the reliefs which are claimed by the petitioner in the writ petition.
With regard to the first ground our attention is drawn to the fact that the
order passed by Justice Biswas was challenged in appeal being F.M.A. No. 174 of
2008 and the Hon'ble Appeal Court was pleased to allow the said appeal by
setting aside the judgment and/or order passed by Justice Jayanta Kumar Biswas.
Appeal Court disposed of the said appeal with the following direction :
"The District Inspector of Schools (SE), Kolkata, and other respondent
authorities are directed to sanction the benefit of higher scale of pay to the appellant/petitioner in view of acquiring M.P.Ed. degree in the year 2000 without any further delay, but positively within three weeks from the date of communication of this order.
Needless to mention that the appellant/ petitioner will be entitled to receive the aforesaid benefit of higher scale of pay from the day following the date on which the last Post Graduate examination was completed which is deemed to be the date on which the appellant/petitioner acquired the M.P.Ed. qualification in view of the Government Order being no. 253-Edn, dated 17th September, 1984."
It is submitted that in view of the fact that the judgment passed by the Hon'ble Justice Jayanta Kumar Biswas was set aside by the Hon'ble appeal court in the said appeal, refusal to grant the relief which the writ petitioner claimed in the said petition, cannot be sustained on this score.
Let us now consider justifiability of the impugned order for rejection of the petitioner's claim on the other ground, mentioned in the impugned order which is linked with the question no. 1, referred to us for our answer.
The Commissioner of School Education refused to grant such relief to the petitioner by holding that the West Bengal Schools (Control of Expenditure) Act, 2005 stands as a bar in grant of such relief to the petitioner. The West Bengal Schools (Control of Expenditure) Act, 2005 came into operation on 27th December, 2005. The provision which is relevant for the present purpose is Section 14.
Section 14 runs as follows :
"14. (1) Every teacher of a school shall, if appointed in the post of Undergraduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the qualifications specified for such post.
(2) Every teacher of a school shall, if appointed in the post of Graduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the qualifications specified for such post.
(3) Every teacher of a school shall, if appointed in the Honours Graduate or Post-graduate teacher category, be entitled to draw pay of Post-graduate teacher category, upon acquiring Post-graduate degree, in the manner as may be specified by order."
Section 16 of the said Act is also required to be considered in this context as the said Section gives some protection to the teacher and/or non-teaching staff who are appointed prior to the Act came into operation. We like to mention the said section herein as admittedly the petitioner was appointed as Assistant Teacher in the said school before the said Act came into operation.
Section 16 of the said Act runs as follows:-
"16. Notwithstanding anything contained elsewhere in this Act, the terms and conditions of service of a teacher or a non-teaching staff in the employment of a school, immediately before the commencement of this Act, shall not be varied to his disadvantage in so far as such terms and conditions relate to the appointment of such teachers and non-teaching staff to the posts held by them immediately before the commencement of this Act."
Though fact remains that the writ petitioner was appointed as an Assistant Teacher in the said school before 2005 Act came into operation, but since the impugned order has nothing to do with alteration of the terms and conditions relating to his appointment, Section 16 has no application in the present case. We have already mentioned above that the said Act came into operation with effect from 27th December, 2005. As such, the said provision may create bar in claiming additional increment by any teacher acquiring Ph.D. degree provided such Ph.D. degree is acquired by him after the Act came into operation.
Here is the case where we find that the provisional certificate for the Ph.D. degree was issued by the University concerned on 18th May, 2005. However, convocation was held on 3rd March, 2006 when the Ph.D. degree was ultimately conferred upon the petitioner.
In this context, the Court will have to consider as to what will be the date which will be regarded as the effective date for grant of Ph.D. degree to the conferment. Will the date when the provisional certificate was issued by the University concerned be considered as the effective date for acquiring the Ph.D. degree by conferment? Or will it be the date when convocation is held for conferment of Ph.D. degree to the conferment is the appropriate date?
Certificate of any educational qualification is issued by the University only when a student prosecuting a particular course comes out successfully on completion of the course. Once a student comes out successfully on completion of any educational course, the concerned University recognises him as a successful candidate who completed the said course successfully. It is only when a candidate completes the said course successfully, the University concerned issues the provisional certificate. The student concerned who completed such educational course has no control over holding convocation. Convocation may be held within a year or within two years or within five years and so on and so forth. In the convocation, final degree is distributed amongst the successful candidates. No further exercise is required to be done by the University concerned in between issuance of provisional certificate and distribution of the final certificate, save and except preparation of the final certificate.
As such, we are of the view that once a candidate completes a particular course and comes out successfully on completion of the said course, the date on which the University concerned issues the provisional certificate recognising his educational qualification will be deemed to be the appropriate date for acquiring the said degree by the candidate concerned.
As such, we are of the view that the writ petitioner, in fact, acquired the Ph.D. degree on the date when provisional certificate was issued to him by the University concerned i.e. on 18th May, 2005 which was prior to the date when the West Bengal Schools (Control of Expenditure) Act, 2005 came into effect. Thus, we hold that the West Bengal Schools (Control of Expenditure) Act, 2005 cannot stand in the way of grant of such incremental benefit to the petitioner.
Be that as it may, presently we are concerned with the questions which are formulated by the learned Single Judge as referred to above.
Let us now answer the questions formulated by the learned Single Judge one by one.
With regard to the question no.1 formulated by His Lordship as mentioned above, we, by following the same analogy as mentioned hereinabove, hold that in view of the fact, the petitioner, in fact, acquired such Doctorate degree on the date when the provisional certificate was issued to him i.e. on 18th May, 2005 the provision contained in ROPA 2009 cannot stand in the way in grant of the incremental benefit to the petitioner for his Ph.D. Degree as ROPA 2009 came into effect from 1st January, 2006 i.e. after the date when, in fact, the writ petitioner acquired the Ph.D. degree.
Thus, we hold that introduction of ROPA in 2009 with effect from 1st January, 2006 and acceptance of the benefit thereof by the petitioner does not prevent him from claiming higher scale of pay for his Ph.D. degree which, in fact, was acquired by him on 18th May, 2005 when provisional certificate was given to him, notwithstanding the fact that convocation was held on 3rd March, 2006 when the final certificate was given to him.
Be it mentioned here that if somebody acquires Ph.D. Degree on 3rd March, 2006 he is not entitled to get the incremental benefits under ROPA, 2009 which is silent about grant of such benefit to any teacher acquiring Ph.D. Degree under the said ROPA which came into effect on 1st January, 2006.
We make it clear that since the petitioner, in fact, acquired Ph.D. Degree on 18th May, 2005, i.e. prior to 2009 ROPA came into effect, his claim cannot be considered in the light of ROPA, 2009.
With regard to the question no. 2 which was formulated by His Lordship as mentioned above, we hold that ROPA 1998 was the relevant provision which was in operation at the time when the petitioner acquired the Ph.D. Degree. ROPA 1998 came into effect from 1st January, 1996. ROPA 1998 was replaced by ROPA 2009. ROPA 2009 came into effect from 1st January, 2006. ROPA 1998 remained effective up to 31st December, 2005.
Since we have held that the petitioner, in fact, acquired the Ph.D. degree on 18th May, 2005; claim of the petitioner will be governed by the provision of ROPA 1998.
Rule 12(5) of ROPA 1998 is the relevant provision concerning the claim of the petitioner. Rule 12 (5) of ROPA 1998 runs as follows :-
"12(5). Secondary teachers Headmasters/Headmistresses with Doctorate degree in the subject taught or in an allied subject shall get two additional increments from the date of the convocation of which such degree is awarded.
Provided that those who obtained this degree prior to the date of coming over to the revised scale shall get two additional increments from the date with effect from which they elect to draw pay in the revised scales, provided that they have not already got such additional increments in the earlier pay-revision and provided further that in the later case, pay should be fixed at least at the third stage of the relevant scale of pay.
In view of the provision contained in Rule 12(5) of ROPA, 1998 as mentioned above, we are of the view that though the writ petitioner, in fact, acquired the Ph.D. degree on 18th May, 2005, he cannot claim the benefit of two additional increments from the date on which such provisional certificate was issued to him. In our view, the petitioner can claim such benefit of two additional increments from the date of convocation when such degree was awarded to him i.e. 3rd March, 2006, inasmuch as, his entitlement to get such benefit from the date of convocation is recognised under Rule 12(5) of ROPA 1998.
Thus, both the questions as referred to us, are answered by this Court accordingly.
Let the matter now be placed before the learned Single Judge for deciding the writ petition on merit.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) 1 1