Calcutta High Court (Appellete Side)
Lakshmi Kanta Manna vs State Of West Bengal & Ors Opposite Party on 25 January, 2011
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1.11 W.P. 2349 (W) OF 2010
Mr. Ekramul Bari
Mr. Shamimul Bari
Mr. S.M. Ali...for Petitioner
Mr. Bhudev Bhattacharya(Sr.Advocate)
Ms.Arati Ghosh
... for State
The petitioner was appointed as an Assistant Teacher under Science
and Mathematics group in Jara High School (Higher Secondary) in the
District of Paschim Midnapur on 30th June 1989. The appointment of the
petitioner was duly approved by the concerned District Inspector of School.
At the time of his appointment the petitioner's educational qualification
was Physics Honours and B.Ed. Subsequently, he passed M.Sc. in Physics
in the Evening Course from Jadavpur University after obtaining permission
from the managing committee of the said school without hampering his
normal work load in the said school. The last date of M.Sc. final
examination in which he appeared was 25th July 1998. Admittedly, the
West Bengal Board of Secondary Education sanctioned his leave for
appearing in his M.Sc. examination. After passing the M.Sc. examination in
Physics, the petitioner prayed for post-graduate scale of pay. The school
authority duly forwarded the said papers to District Inspector of School
(Secondary Education), Paschim Medinipur, who in turn forwarded the
matter to the Director of School Education, West Bengal. Initially, the
Director of School Education held that the petitioner's claim for post-
graduate scale of pay could not be considered. The said decision of the
Director of School Education was earlier challenged by the petitioner by
filing a writ petition being W.P. No. 17150 (w) of 2006. The said writ
petition was disposed of with a direction upon the Director of School
Education, West Bengal to consider the petitioner's prayer for grant of
post-graduate scale of pay afresh by passing a reasoned order within 8
weeks from the date of communication of the order. Pursuant to the said
direction passed by Justice Pal on 12th September 2008, the petitioner's
prayer for grant of post-graduate scale was again considered by the
Director of School Education who by his subsequent order dated 31st
August 2009 refused to allow the petitioner's prayer for grant of post-
graduate scale as he had not taken permission from the concerned District
Inspector of School (Secondary Education) for prosecuting his studies in
M.Sc. in Physics in the Evening Course from the Jadavpur University.
Fact remains that though the petitioner prosecuted his studies in
M.Sc. in Evening Course from Jadavpur University after obtaining
permission from the managing committee of the said school, but such
permission was neither applied for by the petitioner nor was granted by
the concerned District Inspector of School to the petitioner. Mr.
Bhattacharya, the learned senior counsel appearing for the State wanted to
disclose the aforesaid fact by affidavit but since Mr. Bari, the learned
advocate appearing for the petitioner admits that such permission was not
granted by the concerned District Inspector of School, to his client, this
Court does not feel any necessitity to grant any leave to the State-
respondents to file any affidavit in this matter for disclosing of aforesaid
fact by affidavit.
Be that as it may, this Court is now required to consider as to whether the petitioner's claim can be allowed even though such permission was not granted by the concerned District Inspector of School. The Director of School Education refused to grant the higher scale of pay to the petitioner by relying upon a Government order being G.O. No.5935E (B) dated 27th November 2007. In my view, the said Government order has no application in the facts of the instant case as the said Government order was not in existence on the date when the cause of action for the petitioner's claim for higher scale of pay arose in 1998. This Court is of the view that the Director of School Education ought to have considered the petitioner's claim on the basis of the relevant Rules/Circulars which were in operation on the date of enhancement of the petitioner's qualification.
Mr. Bhattacharya wanted to support the decision of the concerned Director of School Education by referring to the communication no.548- SE(S) dated 24th June 1997 of the Officer of Special Duty and Exofficio Deputy Secretary of the Government of West Bengal, School Education Department (Secondary Branch) whereby the Director of School Education, West Bengal was informed that prior permission of the concerned District Inspector of School is necessary if Assistant Teachers like to enroll themselves and appear for the examination conducted through correspondence/distance mode of education from the U.G.C. affiliated University.
Since admittedly, the petitioner prosecuted his studies in M.Sc. in Physics in the Evening Course from Jadavpur University and not through any correspondence/distance mode of education from any University this Court is of the view that even the aforesaid communication dated 24th June 1997 cannot help the authority to support the ultimate conclusion which was arrived at by the concerned Director of School Education in the impugned order. Mr. Bhattacharya has also failed to produce any other Government order and/or notification to show that if an Assistant Teacher wanted to enhance his educational qualification in the relevant subject by prosecuting his studies in the Evening Course from any recognized University, at the relevant time, he/she was required to take permission from the concerned District Inspector of School. As such the said communication, in my view, is irrelevant for this present purpose.
Here is the case where this Court finds that the managing committee of the said school granted permission to the petitioner to prosecute his studies in the Evening Course under Jadavpur Universwity. Fact remains, that he completed his M.Sc. course without affecting his normal work load in the school. The Board has also approved his study leave and consciously permitted the petitioner to appear in the final examination in M.Sc. in Physics in 1998.
Under such circumstances, this Court holds that since the petitioner enhanced his educational qualification in the relevant subject while in service after obtaining permission from the managing committee of the said school without affecting his work load in the school and further since he appeared in the said examination after his study leave was approved by the Board, this Court holds that petitioner is entitled to get higher scale of pay admissible to an Assistant Teacher having Master degree in the relevant subject with effect from the date of improvement of his qualification in view of the ROPA Rules of 1999 framed as per the recommendation of 4th Pay Commission. The concerned authority is thus directed to refix the pay scale of the petitioner in the line of discussion as aforesaid immediately and pay the salary to the petitioner as per such refixation of his scale of pay. The concerned authority is also directed to pay all arrear salary to the petitioner within 8 weeks from the date of refixation of the petitioner's pay scale and such refixation should be made within four weeks from date.
Accordingly, the writ petition is disposed of. The impugned order is set aside.
Since the writ petition is disposed of without inviting any affidavit from any of the parties, the allegations made in this writ petition are not admitted by the respondents.
Urgent Xerox certified copy of this order, if applied for, be supplied to the learned advocates appearing for the parties.
(JYOTIRMAY BHATTACHARYA-J) First Sheet HIGH COURT AT CALCUTTA Civil Appellate Side CASE NO. WP/2349W of 2010 In the matter of LAKSHMI KANTA MANNA Petitioner versus STATE OF WEST BENGAL & ORS Opposite Party For Petitioner : TANUJA BASAK For Respondent :
BEFORE : Hon'ble JUSTICE JYOTIRMAY BHATTACHARYA ________________________________________________________________________________ Noting by Office|Serial| Date|Office Notes,orders or proceedings with signature or Advocate |no | | ________________________________________________________________________________ 25/01/11