JUDGMENT: ASHIM KUMAR BANERJEE, J. (1) ALL these three cases involve identical point of law with certain dissimilarities on facts : md. Sahidullah this writ petitioner was admittedly a post-graduate decree-holder in Zoology. He competed for the post of Assistant Teacher in Zoology in Pass category in the northern region. From the advertisement it appears that there were thirteen male vacancies in honours/post-graduate category whereas in pass category there were thirty-four male vacancies. Although he was post-graduate decree-holder, to have a better chance he competed for the pass category. He was accordingly selected. He obtained 47% marks in the examination whereas in the honours/post-graduate category the last ranked candidate got 58. 67% marks. From the said fact it is clear that had he applied for the honours/post-graduate category, he could not have been selected. . Smt. Nirupama Bairagi this writ petitioner was B.Sc. (Hons.) in Geography. She also competed for the post in pass category and she was selected as such. She subsequently obtained post-graduate degree, however, she was not allowed postgraduate scale as she was not selected in honours/post-graduate category to have the benefit of circular dated June 3, 2002. Shyam Sundar Mohanto this writ petitioner was a candidate under died-in-harness category. He was admittedly pass-graduate. He competed for the post in Pass category. He later on improved his qualification by obtaining post-graduate degree. He passed out M.A. Part I from Burdwan University (correspondence course) prior to his selection in the post. After joining he applied for permission to sit for M. A. Part ii examination. The school committee forwarded his application to the District inspector of Schools. The District Inspector of Schools by a letter dated June 13, 2003 appearing at page 48 of the paper book asked for clarification from the higher authority being Director of School Education. From the available records it does not appear that any such clarification at all came from the Director of school Education or communicated to Mohanto. Mohanto sat for the examination and successfully obtained post-graduate qualification. However, he was not given the benefit of higher scale on the ground that he was selected in pass category. From the available records it does not appear that any such clarification at all came from the Director of school Education or communicated to Mohanto. Mohanto sat for the examination and successfully obtained post-graduate qualification. However, he was not given the benefit of higher scale on the ground that he was selected in pass category. (2) ALL three writ petitioners succeeded before the learned Single Judge and the learned Single Judge allowed the writ petitions on the ground that there should not have been any discrimination between the teachers obtaining higher qualification being appointed prior to the School Service Commission act coming into force and the teachers appointed through School Service commission. (3) BEING aggrieved by, and dissatisfied with, the judgment and order of the learned Single Judge, all the three appeals have been preferred by the State. (4) MR. Tarun Roy, learned Senior Counsel has appeared for the State in all three appeals. Mr. Kalyan Bandyopadhyay, learned Senior Counsel has appeared for Shohidullah and Nirupama Bairagi. None has appeared on behalf of Shyam Sundar Mohanto. (5) MR. Roy in support of the appeals has contended that the State as a matter of policy decision wanted to give incentives to the teachers who wanted to acquire higher qualification for the betterment of the students in large. He however contends that such benefit is restricted to the teaching staff appointed prior to the School Service Commission coming into force. After the said Act 1997 coming into force the Government as a policy decision categorized the post of teaching staff in different educational institutions. (6) SINCE Shohidullah although being a higher qualified candidate, opted for pass category he was not entitled to the benefit of his post-graduate qualification. (7) MR. Roy also contends that. Nirupama should also be denied higher pay scale as she, although obtained honours qualification, did not compete for the post in honours/post-graduate category. (8) WITH regard to Mohanto Mr. Roy contends that as per circular dated june 3, 2002 read with other two circulars dated February 12, 1999 and July 13, 1999 Mohanto should also be denied higher pay scale as he was not appointed in the honours/post-graduate category as per staff pattern. (9) MR. (8) WITH regard to Mohanto Mr. Roy contends that as per circular dated june 3, 2002 read with other two circulars dated February 12, 1999 and July 13, 1999 Mohanto should also be denied higher pay scale as he was not appointed in the honours/post-graduate category as per staff pattern. (9) MR. Bandoupadhyay while opposing the first two appeals has sought to raise the following issues: I) On a combined reading of three circulars it is clear that the Government wanted to give incentives to the teaching staff who wanted to improve their qualification. Hence, there could not be any discrimination between the pre 1997 appointees and post 1997 appointees. II) The discrimination if any, sought to be created by way of staff pattern violates the basic principles of Article 14 of the Constitution and as such, is illegal. III) The circulars are ambiguous as they did not clearly extend the benefit to the post 1997 appointees. Hence, beneficial interpretation should be given in favour of the grantee being the teaching staff in question. IV) The staff pattern is for administrative convenience and cannot in any way deny equal pay for equal work and appropriate pay should be given in accordance with the admitted qualification. (10) MR. Roy in support of his contentions has relied on a decision of the apex Court in the case of State of Haryana vs. Haryana Civil Secretariate personal Staff Association, reported in AIR 2002 Supreme Court page 2589, whereas Mr. Bandyopadhyay has relied on Apex Court decisions in the case of government of West Bengal vs. Tarun Kumar Roy and Ors. , reported in 2004 volume 1 Supreme Court Cases page 347 and in the case of Union of India and ors. vs. Kaumudini Narayan Dalai and Anr., reported in 2001 Volume 10 Supreme court Cases page 231. (11) TO decide the issue let us first discuss the cases cited by the parties: "in paragraphs 9 and 10 of the decision in the case of State of Haryana (supra)the Apex Court observed that equation of post, determination of pay scale and other allied decisions should be left to the executive and not open for judicial review. In the case of Government of West Bengal (supra) the Apex Court in paragraph 14 of the decision observed, "the holders of a higher educational qualification can be treated as a separate class. In the case of Government of West Bengal (supra) the Apex Court in paragraph 14 of the decision observed, "the holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently. " The third decision in the case of Union of India and Ors. (supra) is cited in support of Mr. Bandyopadhyays contentions that since similar decision of the learned Single Judge in other cases were complied with by the State, these appeals should be held to be not maintainable. (12) PRIOR to 1997 Act coining into force different educational institutions could appoint teaching and non-teaching staff directly subject to the approval of the State when aid was extended to such institutions by the State. Admittedly, for a teaching staff graduation is the minimum eligible qualification. The State has its financial constraint. It has to allocate funds as per revenue collection and other financial resources. Hence, when any benefit is financial in nature and is extended by the State, we feel that the State must have a say in the matter. The State, despite their constraint as a matter of policy, wanted to give incentives to the teaching staff being pre 1997 appointees, so that they acquired higher qualification for the benefit of the students in large. (13) IF we read all three circulars together, we would find no ambiguity therein. The first circular dated February 12, 1999 clearly provides that higher pay scale would be given to the teaching staff who would improve or have improved his/ her qualification. It means, a teaching staff who had acquired higher qualification after his appointment, was only entitled to such benefit. This benefit was given with effect from January 1, 1996. Hence, School Service commission appointees cannot come within the zone of consideration in any way. In the second circular dated July 13, 1999 it was provided that School service Commission appointees would get their pay fixation as per their qualification so intimated by the Commission. The benefit was also extended on and from January 1, 1996 therein. The third circular makes it more clear where identical benefit was given for the post 1997 appointees who appeared in post-graduate examination prior to appointment and was selected in Honours category and the result was not published till his/her appointment. The benefit was also extended on and from January 1, 1996 therein. The third circular makes it more clear where identical benefit was given for the post 1997 appointees who appeared in post-graduate examination prior to appointment and was selected in Honours category and the result was not published till his/her appointment. (14) ON a combined reading of three circulars we feel that although shohidullah and Nirupama did have requisite higher qualification being postgraduate and honours, as the case may be, they chose to compete for the pass category. Hence, they are not entitled to the benefit of the higher pay scale. (15) MR. Bandyopadhyays contention that it violates article 14 of the constitution, in our view, does not hold good. If a litigant who has a right knowingly does not contemporaneously exercise such right, cannot complain before the Court that he is not being given the benefit for the right which he did not contemporaneously exercise. (16) IN the case of Tarun Kumar Roy (supra) the Apex Court clearly observed that somebody discharging equal duty may be given higher pay because of his higher qualification. In the instant case, if any graduate candidate while discharging his duties as a teacher is able to acquire higher qualification after appointment with prior consent from the State, he must be given higher pay. That is the dictum of the Apex Court as expressed in paragraph 14 of the said judgment. (17) IF we read the observation of the Apex Court in the case of Tarun Kumar roy (supra) we would find that the submission of Mr. Bandyopadhyay is not at all tenable. (18) THE matter can be looked into from another angle. Assuming those three circulars violate the principles of Article 14 of the Constitution, in absence of any challenge to those circulars the argument of Mr. Bandyopadhyay on that score cannot be accepted. (19) THE State is funding the schools by providing inter alia the salary for the teaching staff. They have their financial scheme through their annual budget. They prepare their budget as per financial resources they have in their hands. They, in their wisdom, wanted to give additional incentives to those teaching staff, who wanted to acquire higher qualification which would ultimately enure to the benefit of the students at large. They have their financial scheme through their annual budget. They prepare their budget as per financial resources they have in their hands. They, in their wisdom, wanted to give additional incentives to those teaching staff, who wanted to acquire higher qualification which would ultimately enure to the benefit of the students at large. However, the teachers who had already higher qualification and did not utilize such qualification at the time of entry in service, they cannot get benefit of those circulars and in our view, the State is right in denying such benefit to those teaching staff. (20) IT is true that in the case of Sohidullah his qualification was not mentioned in the recommendation made by the Commission. We feel that this was a mistake on the part of the Commission. Sohidulluah did disclose his postgraduate qualification in his application. He however, despite mentioning such higher qualification, had chosen to compete in pass category. Hence, the commission while recommending him should have mentioned his post-graduate qualification coupled with a note that he was selected in pass category as applied for. (21) IN such view of the matter, Sohidullah is not entitled to claim postgraduate scale as he was selected in pass category on the basis of his application. The learned Judge, in our view, erred in allowing the writ petition of Sohidullah. (22) IN the case of Nirupama it is true that she obtained post-graduate qualification after she was selected for the post. She also despite having honours qualification did choose to compete in pass category. Hence, she was also not entitled to benefit of the circular dated June 3, 2002. She had honours in geography. She should have competed in honours/post-graduate category. Had she done so, she would have been entitled to post-graduate scale after acquiring the same in course of her service. (23) HENCE, in our view, Nirupama should also be denied post-graduate scale on the same logic for which we deny benefit to Sohidullah. We feel that the learned Judge erred in allowing her writ application. (24) WE, however, intend to take a different view in the case of Mohanto considering the facts and circumstances of his case. Mohanto was admittedly a pass graduate. Accordingly, he had no other option but to compete in pass category. He subsequently passed out M. A. examination. We feel that the learned Judge erred in allowing her writ application. (24) WE, however, intend to take a different view in the case of Mohanto considering the facts and circumstances of his case. Mohanto was admittedly a pass graduate. Accordingly, he had no other option but to compete in pass category. He subsequently passed out M. A. examination. Before sitting in M. A. Part II examination he applied for appropriate permission from the appropriate authority through the managing committee. We do not find any objection raised by the appropriate authority at any point of time prior to his examination. Hence, he should be given benefit of post-graduate scale and we agree with the conclusion arrived at by the learned Judge in his case. (25) IN the result, FMA No. 584 of 2006 fails and is hereby dismissed. (26) FMA No. 583 of 2006 and FMA No. 585 of 2006 are allowed. The orders of the learned Single Judge impugned in both the appeals are set aside. The writ petitions filed by the petitioners in both these cases respectively are dismissed. (27) THERE would be no order as to costs in any of the appeals. (28) IN all three cases the operation of this judgment and order would remain stayed for a period of six weeks from date. FMA Nos. 583 and 585/06 allowed. FMA No. 584/06 dismissed.