Calcutta High Court (Appellete Side)
Shivaji Chakraborty vs The State Of West Bengal & Ors on 23 June, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
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23.06.2010
kc. 1478 W.P.9657(W) of 2009
Shivaji Chakraborty vs. The State of West Bengal & Ors.
Mr. S. M. Ali ....for the petitioner.
Dr. Sambuddha Chakraborty
Mr. K. K. Chakraborty ....for the State
On the recommendation of the School Service Commission (Eastern Region), the
petitioner was appointed as Assistant Teacher of Language Group (Bengali) in Konnagar High
School on 15.1.1999. His service was approved by the District Inspector of Schools (SE),
Hooghly vide memo dated 16.3.1999.
It is to be noted that in terms of staff pattern introduced vide G.O. No.772 Edn.(S)
dated 4.9.1998, 8.7.1974 read with G.O.No.670-SE(S) the school shall be entitled to four
teachers in the Language Group out of which two posts are required to be filled in by pass
graduates and two posts by holders of Honours/Master's degree. The petitioner was appointed
in one out of two posts meant to be filled up by post-graduate.
While discharging duty as Assistant Teacher in the school the petitioner had expressed
interest to enhance his qualification by taking the M.A. Examination in Bengali during the
sessions 2002-04, conducted by the University of Burdwan through correspondence mode of
study. His prayer for permission to take such examination was considered by the Managing
Committee of the school at its meeting held on 28.06. 2003. The Managing Committee
resolved to allow his prayer and to move the Additional District Inspector of Schools (SE),
Serampore, Hooghly to allow him to pursue the Master's Course in Bengali. Upon receipt of
the request of the Managing Committee, the said Additional District Inspector of Schools vide
memo dated 4.11.2003, addressed to the Teacher-in-Charge of the School, replied as follows.
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"In reference to above, the undersigned has to inform him that Sri Shivaji
Chakraborty, Assistant Teacher of his School, has been allowed to sit for the M.A.
Examination in Bengali, under the University of Burdwan through correspondence mode of
study, vide G.O.No.548-SE(S) dated 24.6.1997.
Sri Shivaji Chakraborty may be informed accordingly".
It is not in dispute that the petitioner pursued the Master's Course and appeared in the
M.A. Part-II Examination, 2004 which concluded on 18.09.2004. Thereafter he was declared
qualified and Master's Degree was conferred on him by the University.
In terms of the extant Leave Rules, the West Bengal Board of Secondary Education to
which the school is affiliated is required to approve leave obtained by a teacher. The
Managing Committee had, accordingly, moved in this direction and the Board had also
granted post-facto approval to the proposal of the Managing Committee for sanctioning study
leave on full pay to the petitioner in terms of Rule 5(2) of the Leave Rules. This was
communicated to the Secretary of the school by the Secretary of the Board vide memo dated
18.08.2005.
In the meantime, however, the petitioner by his letter dated 29.07.2005 requested the
Secretary of the school to allow him higher scale of pay commensurate with the Master's
qualification acquired by him. The prayer of the petitioner was forwarded by the school to the
said Additional District Inspector of Schools vide memo dated 21.09.2005. It is on receipt of
this request of the Managing Committee that memo dated 21.11.2005, impugned herein, was
despatched to the Secretary of the school. Contents of the memo read as follows.
"The undersigned has to inform him that the prayer for granting of higher scale of pay
in favour of Shivaji Chakraborty Asstt. Teacher of the school can not be considered at present,
as G.O-772 Edn(S) dt.8-7-74 and 670-SE(S) dt. 4.9.98".
I have heard Mr. Ali, learned advocate for the petitioner and Dr. Chakraborty, learned
advocate for the State respondents.
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The prayer for granting higher scale of pay in favour of the petitioner has been rejected based on Government Orders dated 8.7.1974 and 4.9.1998, referred to above. The said Government Orders only lay down the staff pattern of a school and, therefore, do not have any material bearing in so far as a prayer made for grant of higher scale of pay based on enhanced qualification is concerned. Based on the said Government Orders only, the Additional District Inspector's orders impugned herein cannot be sustained.
However, it appears from the affidavit in opposition filed by the said Additional District Inspector that provisions contained in the West Bengal School (Control of Expenditure) Act, 2005 have been sought to be pressed into service for sustaining the impugned order.
It appears that notification in respect of contents of the Act was published in the Gazette on 19.08.2005. In terms of Section 1(3) of the Act, Section 1 would come into force at once and the remaining sections would come into force on such date or dates and in such area or areas as the State Government may, by notification, appoint. By a further notification dated 6.10.2005, it was notified that the Governor had been pleased to appoint 27.12.2005 as the date on which provisions of Sections 2 to 22 of the Act would come into force in the whole of West Bengal.
Section 14 of the Act has been relied in the affidavit which reads 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 of 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.4
(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.
It would appear from the aforesaid extract that sub-section (1) could have been relevant for a decision on this case provided it had been made operative by notification published in the Gazette prior to submission of prayer made by the petitioner for grant of higher scale of pay. Undisputedly, the permission to the petitioner to pursue the Master's Course was accorded by the Additional District Inspector on 4.11.2003. Pursuant thereto, the petitioner completed the Master's Course and obtained the Master's Degree by July, 2005.
I am of the view that provisions of section 14 of the Act cannot be retrospectively applied to deprive the petitioner the benefit of higher scale of pay. Reliance placed on Section 14 of the Act by the Additional District Inspector in her affidavit is, therefore, mis-placed.
There is another aspect of the matter which requires serious consideration.. The staff pattern introduced vide Government Orders dated 8.7.1974 and 4.9.1998 is for the purpose of equitable distribution of the available posts so as to enable pass degree holders to also compete for appointment as Assistant Teacher. Once a teacher with pass-degree is appointed, the object for which such Government Orders were introduced is sub-served. The said Government Orders do not lay down any restriction on a teacher from enhancing his educational qualification. It has to be remembered that enhancing of educational qualification by a teacher serves two-fold purpose: (i) the likelihood of hike in pay in the absence of available channel of promotion a teacher encourages to enhance his qualification and thereby the prospect of stagnation in service is averted and (ii) to some extent at least the students to whom lessons are imparted are benefited by the knowledge the teacher has derived after successfully obtaining the Master's Degree. At the time the petitioner was appointed or when he enhanced 5 his qualification after permission was accorded, there was no statutory provision in the field that could stand in the way of he being granted the higher scale of pay for acquiring higher qualification. The petitioner was granted permission by the Additional District Inspector and based on such permission, he obtained necessary study leave in accordance with the Leave Rules and his leave has also been sanctioned by the Board. The ultimate success that the petitioner achieved by obtaining Master's Degree would be set at naught if the State respondents are now allowed to deny his claim based on a law which was not in existence on the date right accrued in his favour to have higher scale of pay offered to him. It is settled law that a vested right cannot be taken away by an enactment, unless of course, such enactment has retrospective operation. As already been noted, the Act has not been given retrospective operation provisions of Section 16 of the Act may also be taken note of in this connection which reads 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 post held by them immediately before the commencement of this Act".
Therefore, the act cannot stand in the way of the petitioner being offered the higher scale of pay.
In the result, the order impugned stands set aside. The writ petition stands allowed. The State respondents shall now proceed to grant him higher scale of pay commensurate with his qualification as early as possible but not later than 12 (twelve) weeks from date of receipt of a copy of this order. Financial benefits shall flow to the petitioner on and from the date of acquiring Master's degree.
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Urgent xerox certified copy of this order, if applied for, be supplied to the parties, as early as possible.
(DIPANKAR DATTA,J.)