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2002 DIGILAW 327 (CAL)

Sulata Bhowmick v. State of West Bengal

2002-05-10

Indira Banerjee

body2002
JUDGMENT Indira Banerjee, J.: This writ application is directed against the failure and/or refusal of the concerned respondents to grant the petitioner the higher scale of pay applicable to Assistant Teachers of Recognized Aided Non-Government Institutions, with a Master of Arts degree in the teaching subject. 2. The facts pertaining to the writ application are briefly as follows: 3. The petitioner graduated with Honours in English from North Bengal University and thereafter obtained the Master of Arts degree in English from B.N. Mandal University, Laloo Nagar, Madhipura in Bihar. 4. By a letter of appointment dated 23rd October, 1997, the petitioner was appointed as an Assistant Teacher of Hili Girls High School at Hili in Dakshin Dinajpur district in the English language and literature group. 5. The appointment of the petitioner was duly approved by the District Inspector of Schools vide Memo No. 51/11/97-98 dated 19th March, 1998, a copy of which has been annexed to the petition. 6. From the said memo, it appears that the qualification of the petitioner was shown as B.A. (Hons.) and she was granted the scale of pay pertaining to the said qualification, although she had obtained her Master of Arts degree in English from B.N. Mandal University as aforesaid. 7. By a Memo No. 25-S.E. (B)/ IM-208/ 98 dated Calcutta the 12th February, 1999, the recommendations of the Pay Commission constituted by Resolution No. 11831-F dated 27th November, 1995 of the Finance Dept. (commonly referred to as the Fourth Pay Commission) were accepted with some modifications. 8. The said Memo, inter alia, provided as follows: "12.(3) All teachers, including physical education teachers and librarians of secondary schools who have improved/will improve their qualifications who were appointed with higher qualification in the subjects or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications, with effect from the 1st January, 1996 or the date of improving qualifications whichever is later." 9. Thereafter, the petitioner made representations to the concerned authorities requesting them to grant the petitioner the higher scale of pay of Assistant Teachers with a Master of Arts degree in the concerned teaching subject. 10. On or about 7th June, 2000, the Teacher-in-Charge-cum-Headmistress of this school forwarded the claim of the petitioner for enhancement of scale of pay to the District Inspector of Schools (S.E.), Dakshin Dinajpur with a request to take necessary action in the matter. 11. 10. On or about 7th June, 2000, the Teacher-in-Charge-cum-Headmistress of this school forwarded the claim of the petitioner for enhancement of scale of pay to the District Inspector of Schools (S.E.), Dakshin Dinajpur with a request to take necessary action in the matter. 11. According to the petitioner, the District Inspector of Schools (S.E.), Dakshin Dinajpur has not taken any action on the application of the petitioner for enhancement of her scale of pay in spite of repeated requests and reminders. The petitioner has, therefore, been constrained to initiate the instant proceedings under Article 226 of the Constitution of India. 12. Counsel appearing on behalf of the petitioner has drawn my attention to a decision dated 20th September, 2001 of a Single Judge of this Court in W.P. No. 1532 (W)/2000 holding that teachers who had obtained higher qualification prior to their appointment were also entitled to higher scale of pay with effect from 1st January, 1996 in view of the said Memorandum dated 12th February, 1999 referred to hereinabove. A copy of the said decision has been annexed to the petition as Annexure P-8. 13. Ms. Sima Sengupta, appearing on behalf of the respondents, submits that the Government of West Bengal does not recognise any degree obtained from B.N. Mandal University, Laloo Nagar, Madhipura through the correspondence course. 14. Ms. Sengupta has, in this context, drawn my attention to a Government Order being Memo No. S.E. (Apptt.)/10 M-51/99 dated Calcutta the 21st March, 2001 issued by the Joint Secretary, Government of West Bengal, School Education Department, Appointment Branch, the contents of which are set out hereinbelow: "The undersigned is directed to say that the certificates awarded by the Indira Gandhi National Open University, Vidyasagar University, Burdwan University, other universities in this State engaged in providing distant education/correspondence courses and West Bengal Netaji Subhas Chandra Open University is hereby recognised by this Govt. The undersigned is further directed to say that this Govt. have no objection to recognise the certificates of the successful candidates of National Open School, New Delhi and Rabindra Mukta Vidyalaya, West Bengal having compulsory subjects in the examination similar to those as in the Madhyamik Examination of the West Bengal Board of Secondary Education or its equivalent. This order cancels all the previous orders issued in this matter so far." 15. This order cancels all the previous orders issued in this matter so far." 15. The petitioner, having been denied the higher scale of pay on the sole ground that she obtained the M.A. degree through correspondence course from B.N. Mandal University, which according to the respondents is not recognised by the Government of West Bengal, this writ application can be disposed of without affidavits. No useful purpose would be served by keeping the writ application pending. 16. The right of an institution to use the word "University" with its name as also the right to confer degrees is regulated by the provisions of the University Grants Commission Act, 1956, which is hereinafter referred to as the U.G.C. Act. 17. The relevant provisions of the U.G.C. Act are set out hereinbelow for convenience: 'Section 2.(f) "University" means a University established or incorporated by or under a Central Act, a Provincial Actor a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act. Section 22. Right to confer degrees.–– (1) The right of conferring or granting degree shall be exercised only by a University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees. (2) Save as provided in sub-section (1), no person or authority shall confer, or grant, or hold himself or itself out as entitled to confer or grant, any degree. (3) For the purposes of this section, "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette. Section 23. (3) For the purposes of this section, "degree" means any such degree as may, with the previous approval of the Central Government, be specified in this behalf by the Commission by notification in the Official Gazette. Section 23. Prohibition of the use of the word "University" in certain cases.–– No institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, Provincial Act or a State Act shall be entitled to have the word "University" associated with its name in any manner whatsoever: Provided that nothing in this section shall, for a period of two years from the commencement of this Act, apply to an institution which immediately before such commencement, had the word" University" associated with its name. Section 24. Penalties.–– Whoever contravenes the provisions of section 22 or section 23 shall be punishable with fine which may extend to one thousand rupees, and if the person contravening is an association or other body of individuals, every member of such associations or other body who knowingly or wilfully authorizes or permits the contravention shall be punishable with fine which may extend to one thousand rupees.' 18. There can be no dispute that B.N. Mandal University has been constituted under a State Act and is a University within the meaning of section 2(f) of the U.G.C. Act. The said University is in receipt of grants from the University Grants Commission. 19. The said B.N. Mandal University has a statutory right to confer degrees under the U.G.C. Act and a Master of Arts degree granted by the said University is a valid Master of Arts degree in the eye of law. 20. The statutory provisions of the U.G.C. Act cannot be rendered nugatory merely by issuance of a Government Order recognising certificates awarded by the Indira Gandhi National Open University, Vidyasagar University, Burdwan University, other Universities in the State engaged in providing distant education, correspondence courses and the Netaji Subhas Chandra Open University. 21. The Memo dated 12th February, 1999 referred to above, whereby the recommendations of the Fourth Pay Commission have been accepted, provides that a teacher appointed with higher qualifications relevant to her teaching subject will be entitled to a higher scale of pay with effect from 1st January, 1998. 21. The Memo dated 12th February, 1999 referred to above, whereby the recommendations of the Fourth Pay Commission have been accepted, provides that a teacher appointed with higher qualifications relevant to her teaching subject will be entitled to a higher scale of pay with effect from 1st January, 1998. The said memo does not restrict the benefit of higher scale to qualifications obtained through the regular course or from select Universities separately recognised by the Government of West Bengal. 22. Under the Rules for Revision of Pay and Allowances framed by the Government of West Bengal from time to time including the Rules for Revision of Pay and Allowances, 1998 (ROPA 1998) the scales of pay of teachers are fixed on the basis of inter alia their qualification and there is no scope for denial of the scale of pay to a teacher who possesses the requisite qualification on the ground that such qualification is not recognised by the Government of West Bengal. 23. The respondent cannot, therefore, deny the petitioner higher scale of pay on the sole ground that such qualification was obtained through correspondence course from a University whose correspondence course the Government of West Bengal does not arise. A mere Government Order cannot override the statutory provisions of the U.G.C. Act from which Universities derive their right to confer degrees. 24. Furthermore, in the instant case, the Mark Sheet as also the Admit Card copies of which have been annexed to the petition as Annexure P-1 show that the petitioner had to appear in the M.A. Examination conducted by the said University in September, 1996, although the petitioner might have enrolled herself in the correspondence course and course/study materials might have been despatched to her by post. 25. There is nothing in the Mark Sheet or the Admit Card to show that any special examination was held for candidates enrolled in the correspondence course. In fact, the Mark Sheet and Admit Card do not even indicate that the petitioner did the M.A. course through correspondence. 26. The Government Order on which Ms. Sengupta has relied cannot have any application in the instant case where an M.A. degree has been conferred by a University within the meaning of the U.G.C. Act, with a statutory right to confer degrees. 27. 26. The Government Order on which Ms. Sengupta has relied cannot have any application in the instant case where an M.A. degree has been conferred by a University within the meaning of the U.G.C. Act, with a statutory right to confer degrees. 27. In this context, it may be pertinent to mention that a memo being Memo No. 904-S.E. (Secy.) dated Calcutta the 19th December, 1994 of the Government of West Bengal, School Education Department (Secondary Branch) notifying the policy decision of the Government not to recognise a degree, diploma or Master degree through correspondence course from any University as equivalent to a regular course conducted by recognised Universities or to extend the benefit of higher scale for acquiring such degree or diploma through correspondence course was set aside and quashed by this Court by an order dated 15.1.1998 in W.P. Nos. 2075 of 1995, 9764 of 1997 and W.P. No. 19484 (W) of 1997. 28. In pursuance of the aforesaid order of this Court, a Memo No. 484-S.E.(S)/5P-1/94 (N) dated 12th May, 1999 was issued confirming that the said memo dated 19th December, 1994 was non-existent and directing that the benefit of pay and allowances be granted to the petitioners in the said cases. 29. The benefit of higher scale pertaining to the qualification of a teacher cannot be withheld on the ground that such qualification has been obtained through the correspondence course and not the regular course. 30. In the circumstances, the respondents are directed to dispose of the representation made by the petitioner for higher scale of pay in the light of the aforesaid observations within a period of six weeks from the date of communication of this order and to release all arrears payable to the petitioner within two months from the date of communication of this order. 31. Writ petition is disposed of accordingly without any order as to costs. 32. A xerox certified copy of this order, if applied for, shall be supplied expeditiously subject to compliance with the requisite formalities. Writ petition disposed of with direction.