Calcutta High Court (Appellete Side)
Supriya Jana vs The State Of West Bengal & Ors on 23 July, 2013
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
23.07.2013.
srm
W.P. No. 1210 (W) of 2013
Supriya Jana
Versus
The State of West Bengal & Ors.
Mr. Soumya Majumder,
Ms. Aditi Bhattacharyya
...For the Petitioner.
None appears on behalf of the respondents when the matter is called
on. No accommodation is prayed for.
This writ application is directed against an order passed by the respondent No.2 under his Memo No.1293/G dated November 8, 2012. By virtue of the impugned order, the prayer of the petitioner for extending the benefit of two additional increments in connection with his service as an Assistant Teacher of Swami Vivekananda High School, District‐North 24‐ Parganas, was rejected.
Having heard the learned Counsel appearing for the petitioner as also after considering the facts and circumstances of this case, I find that the prayer of the petitioner was rejected taking recourse to the G.O. No.37‐ S.E./ES(S) dated January 5, 2012.
The aforesaid Government Order was quashed and set aside by an order dated June 1, 2012 passed in the matter of Dr. Vivekananda Mukherjee 2 vs. The State of West Bengal & Ors. (In Re : W.P. No.6937 (W) of 2007) and the relevant portions of the above decision are set out below:
"There is no provision in the Act of 2005 which debars the grant of two additional increments to a teacher who has been appointed in post‐graduate scale of pay upon his acquiring Ph.D. degree under the provisions of ROPA applicable to the said teacher. Hence, the coming into force of the Act of 2005 shall not eclipse the relief claimed by the petitioner on such score.
It is trite law that the impugned Government Order which is in the nature of an administrative instruction cannot go beyond the scope of the Act of 2005 and create a restriction which was never envisaged in the primary legislation itself. For the aforesaid reasons, the impugned Government Order being No.37‐SE/ES(S)/5P‐37/2010 dated 5.1.2012 which creates an embargo beyond the scope of the primary legislation is clearly illegal and ultra vires the provisions of the said legislation. In view of the aforesaid discussions, I hold that the petitioner's prayer for two additional increments upon acquiring Ph.D. degree in the facts of the instant case cannot be said to have stood eclipsed by the provision of the Act of 2005 or the impugned Government Order, as aforesaid.
I, therefore, set aside the impugned order dated 17.10.2006 passed by the respondent no.2 herein. I further direct the respondent no.2 herein to pass appropriate order granting two additional increments to the petitioner upon his acquiring higher educational qualification, namely, Ph.D. in his teaching subject, namely, Economics in the light 3 of the provisions of ROPA applicable to the petitioner within four weeks from the date of communication of this order. With the aforesaid directions, the instant writ petition is disposed of. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.
(Joymalya Bagchi, J.)"
In view of the above settled principles of law, the reason assigned in the impugned order for rejecting the prayer of the petitioner cannot be sustained in law and the same is quashed and set aside.
I direct the respondent No.2 to extend the benefit of two additional increments in favour of the petitioner within two months from the date of communication of this order as also arrears from the date the same was due and payable till the date of its actual payment together with interest @ 9% per annum.
Let it be recorded that the rate of interest is fixed at 9% taking into consideration the highest prevailing rate of interest payable on fixed deposit by a nationalised bank.
The above interest shall be paid to the petitioner from the public exchequer at the first instance and the Secretary to the Government of West Bengal, Education Department, is directed to recover the aforesaid amount of 4 interest from the concerned District Inspector of Schools (SE), Barrackpore, District‐North 24‐Parganas from his salary within three months or by way of raising public demand in case of his retirement from the above service.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )