Calcutta High Court (Appellete Side)
In Re: Md. Mostafa Kamal vs The State Of West Bengal & Ors on 4 January, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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04.01.18
Item No.12
Court No.15
Avijit Mitra
W.P. No. 30622 (W) of 2017
In re: An application under Article 226 of the Constitution of India filed on 13.12.2017;
And
In re: Md. Mostafa Kamal
- Versus -
The State of West Bengal & Ors.
Mr. Kashikanta Maitra
Mr. Aloke Ghosh
Mr. Goutam Banerjee
Md. Mojnu Sk.
Sk. Nayeem Haque
For the Petitioner
Mr. Tapan Kumar Mukherjee
Ms. Saheli Mukherjee
For the State
Mr. Rabiul Islam
For the School
Affidavit of service filed by the petitioner be kept on record.
The present writ petition has been preferred challenging inter alia the
memoranda dated 24th August, 2015 and 28th June, 2017 issued by the respondent no.3.
Mr. Maitra, learned senior advocate appearing for the petitioner submits that the petitioner was appointed to the post of an assistant teacher of Arabic under pass category in the Mahismara Ghoramara High School (H.S.) (in short, the first school). Such appointment of the petitioner was duly approved by the respondent no.4 and he was enjoying the pass graduate scale of pay. Subsequent thereto, the petitioner enhanced his qualification in a non-relevant subject (Bengali). Upon acquiring honours degree in Bengali he was sanctioned the honours graduate scale of pay by a memo dated 7th November, 1997. Upon acquiring masters degree, the petitioner was granted the post 2 graduate scale of pay by a memo dated 1st April, 1999. Subsequently, the petitioner applied for transfer in terms of the West Bengal School Service commission (General Transfer Rules), 2013 (in short, the said Rules of 2013). Such application of transfer was allowed and the petitioner was transferred to the post of an assistant teacher of Arabic (Pass) in the Bali Gramin High School (in short, the second school). Such appointment in the second school was approved by the respondent no.4 vide memo dated 30th December, 2014. As prior to such transfer, the petitioner was enjoying the post graduate scale of pay, a last pay certificate to that effect was issued by the first school. On the basis of the said last pay certificate, the petitioner was also granted the post graduate scale of pay upon transfer to the second school. Surprisingly, the respondent no.3 issued a memo dated 24th August, 2016 to the respondent no.4 observing, inter alia, that the petitioner cannot be allowed the higher scale of pay. By a subsequent memo dated 26th October, 2017, the said respondent no.3 instructed the respondent no.7 that no higher scale of pay can be allowed to the petitioner and the respondent no.7 was also instructed to calculate the amount overdrawn by the petitioner on and from 6th December, 2014 and to ask the petitioner to refund the said amount.
Mr. Maitra submits that prior to issuance of the direction to reduce the petitioner's pay, the respondent no. 3 ought to have granted an opportunity of hearing to the petitioner. As such, the orders impugned in the present writ petition are violative of the principles of natural justice. It was within the knowledge of the authorities at the time of transfer that the petitioner was getting the post graduate scale of pay on the basis of a valid sanction order issued by the competent authority. There was no suppression of any material fact by the petitioner.
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Drawing the attention of this Court to a memo dated 10th November, 2017 issued by the respondent no.4 to the respondent no.2, Mr. Maitra submits that the respondent no.2 is yet to pass any final order upon considering the points of clarification detailed by the respondent no.4 in the memo dated 10th November, 2017 and prior thereto the petitioner's pay cannot be reduced.
Per contra, Mr. Mukherjee, learned advocate appearing for the State respondents submits that the petitioner at the time of applying for transfer was conscious that he was seeking transfer in a post which is carrying a pass graduate scale of pay. Upon availing such transfer, the petitioner cannot now insist that he shall continue to enjoy the post graduate scale of pay which he was enjoying in the first school.
Mr. Islam, learned advocate appearing for the school authorities submits that the requisition was sent by the second school for payment of salary to the petitioner in the pass graduate scale of pay but the respondent no.4 continued to sanction the post graduate scale of pay in favour of the petitioner and as such the school authorities are not at fault.
In reply, Mr. Maitra submits that the petitioner has enjoyed a post graduate scale of pay till the month of December, 2017 on the rudiments of valid sanction order issued by the competent authority and the said order is still subsisting.
Indisputably, the petitioner applied for transfer in a pass graduate post. The said Rules of 2013 also provides for transfer only in respect of same category post and in same category of vacancy. As the petitioner's approval was against a graduate category post in the first school, the authorities accepting the petitioner's application for 4 transfer, transferred him to a graduate category post in the second school and such appointment of the petitioner in the graduate category post in the second school was approved by the respondent no.4.
Prima facie, as the petitioner's appointment in the second school has been approved in a pass graduate category post, the petitioner cannot claim post graduate scale on the basis of such approval. However, the petitioner was given the post graduate scale of pay in a non-relevant subject by an order of the competent authority which has not yet been modified or set aside and as such it would be iniquitous to direct the petitioner to refund any amount already disbursed in his favour.
Accordingly, the respondents are directed to pay the monthly salary of the petitioner in the pass graduate scale of pay on and from the month of January, 2018 till the disposal of the present writ petition. The issues as regards entitlement to the post graduate scale of pay and refund of salary pertaining to the period from 6th December, 2014 till the month of December, 2017 needs to be decided finally upon exchange of affidavits. As such, the respondents shall not take steps for recovery of the alleged overdrawn amount from the petitioner till the disposal of the writ petition.
The respondents are directed to file their affidavit-in-opposition within a period of four weeks from date; reply, if any, be filed within a period of two weeks thereafter.
The parties would be at liberty to mention the matter for final hearing after expiry of the period, as specified above, towards exchange of affidavits.
(Tapabrata Chakraborty, J.) 5