Calcutta High Court (Appellete Side)
Md. Rahim Sk vs The State Of West Bengal & Ors on 4 September, 2015
W.P. No. 33293 (W) of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Md. Rahim Sk.
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Mohinoor Rahaman, Advocate
Sk. Abumusa, Advocate
For the Respondents : Mr. S. Chattopadhyay, Advocate
Mrs. Ranjana Guha, Advocate Hearing concluded on : August 24, 2015 Judgment on : September 4, 2015 DEBANGSU BASAK, J.:-
The writ petitioner is an Assistant Teacher in a Madrasah. He has sought higher pay scale from the authorities. His request for higher pay scale has been denied by the impugned Memo dated December 20, 2013. He seeks quashing of the impugned Memo and a higher pay scale, in this petition.
It is contended on behalf of the writ petitioner that, the writ petitioner had applied to the Managing Committee of the Madrasah on September 2, 2008 for prosecuting higher studies. The Managing Committee of the Madrasah had taken a resolution on September 13, 2008 and had given him permission to prosecute higher studies. After obtaining such permission the writ petitioner had prosecuted higher studies and had obtained a Master Degree. The Madrasah stood upgraded as Secondary Madrasah and subsequently as a Higher Secondary Madrasah. Due to such upgradation the writ petitioner was asked to take History classes of Class XI and XII. The writ petitioner is teaching History for Classes XI and XII since July 2011.
Reliance has been placed on 2013 Volume 2 Calcutta High Court Notes (Cal) page 632 (Akhtar Hossain Chowdhury v. State of West Bengal) to submit that the promulgation of West Bengal School (Control of Expenditure) Act, 2005 is no bar to the writ petitioner receiving higher pay scale.
It is contended that, the Circular bearing No. 548-SE (S) dated June 24, 1997 is also not a bar to the writ petitioner receiving higher pay scale.
Reliance has also been placed on 2012 Volume 2 Calcutta Law Times page 282 (Subhasis Naskar v. The State of West Bengal & Ors.) as well as 2012 Volume 1 Calcutta High Court Notes page 605 (Bimal Kumar Das v. State of West Bengal) and an unreported decision rendered in W.P. 2167(W) of 2011 (Pampa Das v. State of west Bengal & Ors.) on behalf of the writ petitioner.
On behalf of the State it is contended that, the writ petitioner did not obtain prior permission of the concerned District Inspector of Schools through the Managing Committee of the school for obtaining such higher qualification. In view of the West Bengal School (Control of Expenditure) Act, 2005 and the Government Order bearing No. 593 S.E. (B) dated November 27, 2007 the writ petitioner not having obtained such prior permission, he is not entitled to higher pay scale.
The hearing of the writ petition was concluded on August 12, 2015 and judgment was reserved. In course of delivery of judgment I had came across a decision of the Hon'ble Supreme Court reported at 2010 Volume 3 Supreme Court Cases page 616 (Ashok Kumar Das v. University of Burdwan). Since I had considered the ratio laid down therein to be relevant for the purpose of deciding the present writ petition I had placed the writ petition for hearing in the cause list. The parties had appeared and had made their respective submissions on August 24, 2015.
The learned Advocate for the writ petitioner submits that, the ratio laid down in Ashok Kumar Das (supra) is not relevant in the facts of this case. He submits by referring to 2004 Supreme Court Cases (Cri) page 551 (Mehboob Dawood Shaikh v. State of Maharashtra) and All India Reporter 2002 Supreme Court page 834 (State Financial Corporation & Anr. v. M/s. Jagdamba Oil Mills & Anr.) that a judgment must be read as a whole and the observations of the judgment have to be considered in light of the questions which were before the Court.
I have considered the rival contentions of the parties and the materials made available on record.
The writ petitioner is an Assistant Teacher of a Madrasah. The concerned Madrasah is presently a Higher Secondary Madrasah subsequent to its upgradation. The writ petitioner had applied to the Managing Committee of the concerned Madrasah for prosecuting higher studies. The Managing Committee of the concerned Madrasah had given the writ petitioner permission to do so by a resolution dated March 3, 2012. The records made available do not suggest that the school authorities had forwarded the request for permission to the District Inspector of Schools.
The writ petitioner had by a writing dated April 16, 2011 requested the Additional District Inspector of Schools of the concerned council to sanction higher pay scale. The concerned Madrasah by a writing dated May 7, 2012 had forwarded the necessary papers to the Additional District Inspector of Schools for higher pay scale of the writ petitioner. The Additional District Inspector of Schools not informing the result of such request, the writ petitioner through his Advocate had applied under the Right to Information Act, 2005 by an application dated November 22, 2013. In response thereto by the impugned Memo dated December 20, 2013 the Additional District Inspector of Schools has rejected the request of the writ petitioner for higher pay scale citing the Government Order bearing No. 593 S.E. (B) dated November 27, 2007.
As the preamble to the West Bengal Schools (Control of Expenditure) Act, 2005 states, the Act of 2005 provides for the control of expenditure in the schools in the State and the matters connected therewith or incidental thereto. Section 14 of the Act of 2005 deals with scale of pay of a teacher. Section 14(3) lays down that:-
"14(3). Every teacher of a school shall, if appointed in the Honours Graduate or Postgraduate 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 14(3) of the Act of 2005 allows every teacher of a school, if appointed in the Honours Graduate or Post Graduate teacher category, to be entitled to draw pay of Post Graduate teacher category upon acquiring Post Graduate degree in the manner as may be specified by order. Therefore, the Post Graduate degree has to be obtained in the manner as specified by a Government order for a teacher to be entitled to draw pay of Post Graduate teacher category.
The Government of West Bengal has issued a Government Order bearing No. 593-SE (B) dated November 27, 2007 specifying the manner in which a teacher would be entitled to claim additional increment and higher scale of pay upon acquiring Post Graduate/ or any Higher Diploma/Degree under Section 14(3) of the Act of 2005. The Government Order is as follows:-
"The School Education Department, Government of West Bengal considers it necessary to publish an order specifying the manner in which a teacher appointed in Honours Graduate/Post Graduate scale of pay will be entitled to claim any additional increment and higher scale of pay upon acquiring Post Graduate / or any Higher diploma / Degree under Section 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005.
1. All the teachers teaching in different State Aided Schools will have to take prior permission from the Managing Committee / Ad-hoc Committee / Administrator as the case may be to enroll themselves and to appear for any examination for enhancement of educational qualification. The Managing Committee being 'Competent Authority' in such cases will take a decision in its next meeting and convey its decision to the teacher concerned immediately. A copy of the decision of the Managing Committee will be forwarded to the officer of the DI of Schools (SE) of the concerned district.
2. The applicant-teacher thereafter, will, if necessary, apply for leave /Special Leave/Study Leave as the case may be (along with the resolution of Managing Committee) to the West Bengal Board of Secondary Education (which is the Competent Authority in this case) though the Managing Committee of the School.
3. The teacher is required to seek prior permission of concerned District Inspector of Schools (SE) (only when he/she wants to claim additional increment/higher scale of pay etc. for obtaining such higher qualification) through the Managing Committee of the School.
4. Provided further that no such permission can be granted on any ground to any teacher who has entered the service/joined the school with Graduate Degree and with a graduate scale of pay [Any Managing Committee of any school recommending such case and/or any District Inspector of Schools granting such prayer will be treated as an 'Offender' under West Bengal Schools (Control of Expenditure) Act, 2005].
5. The courses to be studied should be relevant to the subjects studied in Undergraduate Honours/Post Graduate course of the Applicant Teacher and none other. The Deemed University / University etc. conducting the examination must be affiliated to UGC.
6. Prayers from teacher who have already secured higher qualification observing the procedure mentioned above and who have submitted his / her claim to concerned District Inspector of Schools with a complete set of papers like certificate, resolution of Managing Committee etc. before the introduction of West Bengal Schools (Control of Expenditure) Act, 2005 may be considered only by the District Inspectors of Schools (SE) with the approval of Director of School Education, west Bengal only after examining the staffing pattern, vacancy positions etc. of the school concerned.
7. No such prayer for higher scale of pay from any teacher with Graduate Degree and Graduate scale of pay at the time of entry into service / joining the schools will be entertained no matter whether he / she has secured this higher qualification before or after introduction of West Bengal Schools (Control of Expenditure) Act, 2005.
8. Henceforth no permission will be accorded for securing higher qualification for obtaining higher scale of pay to any Assistant Teacher and / or to any Assistant Teacher over 50 years of age serving in any Junior High School or any school respectively.
9. This order will replace all earlier orders published in the matter before the date of coming into effect of West Bengal Schools (Controls of Expenditure) Act, 2005.
1595 SE (S) dated 26-12-2005 also stands modified." A teacher governed by the Government Order is required to take prior permission from the Managing Committee to enroll himself and to appear for any examination for enhancement of educational qualification. The Managing Committee is required to take a decision in its meeting next to receipt of the application from the teacher and to convey its decision to the teacher as well as to the District Inspector of Schools of the concerned district.
The Government Order dated November 27, 2007 allows a teacher of less than 50 years of age to apply for permission to obtain higher qualification. A teacher fulfilling the other criteria laid down in the Government Order dated November 27, 2007 can apply for permission to obtain higher qualification with or without financial benefit accruing to him. In the event, the teacher seeks to acquire higher qualification in order to claim additional increment/higher scale of pay for obtaining such higher qualification, he is required to seek prior permission of the concerned District Inspector of Schools (S.E.) specifying therein such intention of the teacher.
The applicant teacher is required to apply for leave/special leave/study leave as the case may be to the Board through the Managing Committee of the school.
The Government Order has specified that a teacher requires "prior permission" of the District Inspector of Schools to acquire the higher qualification in order to be entitled to higher pay scale.
The words "permission", "prior approval" and "approval" had come up for consideration before the Hon'ble Supreme Court in 2010 Volume 3 Supreme Court Cases page 616 (Ashok Kumar Das v. University of Burdwan). It has been held that, "11. In Black's Law Dictionary (5th Edn.), the world "approval" has been explained thus:
"Approval.- The act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another."
Hence, approval to an act or decision can also be subsequent t the act or decision.
12. In U.P. Avas Evam Vikas Parishad this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow: (SCC pp. 458-59) "6. This Court in LIC v. Escorts Ltd., considering the distinction between 'special permission' and 'general permission', 'previous approval' or 'prior approval' in para 63 held that: (SCC p. 313) '63. ............we are conscious that the word "prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) [of the Act].' Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous act. As to the word 'approval' in Section 32(2)(b) of the Industrial disputes Act, it was stated in Lord Krishna Textile Mills v. Workmen, that the management need not obtain the previous consent before taking any action. The requirement that the management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1)."
13. Following the decision in U.P. Avas Evam Vikas Parishad, this Court again held in High Court of Judicature for Rajasthan v. P.P. Singh in para 40: (SCC p. 255) "40. When an approval is required, an action holds good. Only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)"
14. Section 21(xiii) of the Burdwan University Act, 1981 is quoted hereinbelow:
"21. Powers and functions of the Executive council.- Subject to the provisions of this Act, the Executive Council shall exercise the following powers and perform the following functions:
(i)-(xii) * * *
(xiii) to determine, with the approval of the State Government, the terms and conditions of service of Librarians and non-teaching staff;"
15. The words used in Section 21(xiii) are not "with the permission of the State Government" nor "with the prior approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then without the permission of the State Government the Executive Council of the University could not determine the terms and conditions of service of the non-teaching staff. Similarly, if the words used were "with the prior approval of the State Government", the Executive Council of the University could not determine the terms and conditions of service of the non- teaching staff without first obtaining the approval of the State Government", the Executive Council of the University could determine the terms and conditions of service of the non-teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise."
The Government Order dated November 27, 2007 lays down the manner of acquisition of a Post Graduate degree which would entitle a teacher appointed in the Honours Graduate or Post Graduate teacher category under Section 14(3) of the Act of 2005 to a higher pay scale. The notification specifies that "prior permission" of the District Inspector of Schools is to be obtained by the teacher for the teacher to be entitled to higher pay scale. Paragraph 3 of the Government Order makes it obligatory for a teacher wanting to claim additional increment/higher scale of pay etc. after obtaining higher qualification to seek prior permission of the concerned District Inspector of Schools. Acquiring a higher qualification, ipso facto, would not translate into a higher pay scale. The teacher concerned has to follow the rigours of the Government Order to obtain the higher qualification to be entitled to a higher pay scale. The right of a teacher specified in Section 14 of the Act of 2005 to a higher pay scale on acquisition of a higher qualification is recognized in Section 14(3) of the Act of 2005 is qualified by the requirement of such teacher acquiring the higher qualification in accordance with the manner specified under Section 14(3) of the Act of 2005. The Government Order dated November 27, 2007 specifies such manner.
Applying the ratio of Ashok Kumar Das (supra) the teacher concerned is not entitled to higher pay scale if the teacher acquires the higher qualification without having the prior permission of the District Inspector of Schools.
In Mehboob Dawood Shaikh (supra) the Supreme Court has held as follows:-
"12........................................................................ A decision is available as a precedent only if it decides a question of law. A judgment should be understood in the light of the facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court divorced from the context of the question under consideration and treated to be complete law decided by this Court. The Judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court."
In Mehboob Dawood Shaikh (supra) the Supreme Court was considering a judgment which had cancelled the bail granted earlier.
In M/s. Jagdamba Oil Mills & Anr. (supra) the Supreme Court was dealing with a Civil Suit filed by a borrower seeking permanent injunction restraining the Corporation from auctioning the unit of the plaintiff. It has held that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
In the present case the word "prior permission" used in the Government Order dated November 27, 2007 requires construction. The Government Order is issued in terms of exercise of powers under Section 14(3) of the Act of 2005 and has a statutory flavour. The word "permission" has been discussed by the Supreme Court in Ashok Kumar Das (supra) in the context of a similar word being used in the statute relating to the Burdwan University. The Supreme Court has explained the meaning of the words "approval" and "permission" and the effect of not obtaining an approval or a permission as the case may be. In my view the ratio laid down in Ashok Kumar Das (supra) is relevant to the facts scenario of this case.
In Pampa Das (supra) the teacher had enhanced her educational qualification prior to the coming into force the Act of 2005. In such circumstances it has been held that, the claim for higher scale of pay could not be denied by referring to the Act of 2005.
Pampa Das (supra) has been followed in Subhasis Naskar (supra) on the ground that the claim of the petitioner had arisen prior to coming into effect the Act of 2005.
In Bimal Kumar Das (supra) the teacher had obtained the higher qualification prior to the coming into effect the Act of 2005.
In the present case, the writ petitioner had applied to the Managing Committee of the Madrasah after the coming into force the Act of 2005. The three authorities cited above do not apply to the fact of this case.
In Akhtar Hossain Chowdhury (supra), the Managing Committee of the concerned school had forwarded the application of teacher seeking permission to the District Inspector of Schools who did not refuse the prior permission to the teacher to undergo the higher studies. In such circumstances, the teacher was allowed higher scale of pay. Akhtar Hossain Chowdhury (supra) is not applicable as the Managing Committee herein did not forward the application to the District Inspector of Schools.
In the present case, I do not find the writ petitioner to have acquired the higher qualification in terms of the Government Order dated November 27, 2007 thereby entitling the writ petitioner to a higher pay scale. The challenge to be impugned Memo dated December 20, 2013 therefore fails.
W.P. No. 33293(W) of 2014 is dismissed without any order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
[DEBANGSU BASAK, J.]