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2008 DIGILAW 496 (CAL)

Trilachan Jana v. State Of W B

2008-05-07

SANJIB BANERJEE

body2008
Judgment :- (1). THE writ petitioner obtained appointment on the basis of his masters degree as a secondary teacher in Bengali. The appointment was in the year 1994. (2). THE writ petitioner thereafter applied to the Managing Committee of the school for permission to obtain the doctorate degree in Bengali. The petitioner says that such permission was received and the petitioner proceeded to obtain the doctorate degree in March, 2005. (3). AT the time that the petitioner was appointed, the Revision of Pay and Allowances Rules (ROPA), 1990 was in force. Clause 16 (5) of the ROPA, 1990 provided as follows ; "16 (5) Secondary teachers, Headmasters/headmistress with doctorate degree in the subject taught or in an allied subject shall get two additional increments from the date of the convocation on which such degree is awarded : provided that those who obtained this degree prior to the date of coming over to the revised scale shall get two additional increments from the date with effect from which they elect fo draw pay in the revised scales. " (4). THE petitioner says that such career advancement scheme and the benefits thereof were carried over in the Revision of Pay and Allowances rules (ROPA), 1998 that became effective from April 1,1997. Clause 12 (5) of ropa, 1998 provides as follows : "12 (5) Secondary teachers/headmistresses with Doctorate degree in the subject taught or in an allied subject shall get two additional increments from the date of the convocation on which such degree is awarded : provided that those who obtained this degree prior to the date of coming over to the revised scale shall get two additional increments from the date with effect from which they elect to draw pay in the revised scales. " (5). THE petitioner says that upon the petitioner demanding the two increments that the petitioner thought was his due, the Managing Committee of the school forwarded the petitioners case to the relevant District Inspector of Schools. The petitioner also applied before the relevant District Inspector of schools for expeditious disposal of the petitioners request. The petitioner followed it up with an earlier writ petition which was disposed of by an order dated April 12, 2006 requiring the District Inspector of Schools to attend to the petitioners request. (6). The petitioner also applied before the relevant District Inspector of schools for expeditious disposal of the petitioners request. The petitioner followed it up with an earlier writ petition which was disposed of by an order dated April 12, 2006 requiring the District Inspector of Schools to attend to the petitioners request. (6). THE order passed on July 20, 2006 in compliance with the Writ courts order dated April 12, 2006 has been challenged in the present proceedings. The District Inspector of Schools (SE) Purba Medinipur is of the opinion that in view of the West Bengal Schools (Control of Expenditure) Act, 2005 that has come into force on December 27, 2005 and particularly in view of Sections 14, 16 and 20 thereof, a secondary teacher is not entitled to claim the benefit of additional increment or higher scale of pay on having or acquiring any qualification other than the qualifications specified for the post. The District inspector of Schools has expressed the view that the said Act of 2005 has overriding effect and anything contrary thereto in any regulations in force prior thereto would be deemed to have been washed away by the said Act of 2005. (7). SECTION 14 of the Act of 2005 relates to under graduate teachers in its first subsection. It relates to graduate teachers in its second sub-section and it relates to honours graduate or post graduate teachers in its third sub-section. The third subsection stands apart from other two sub-sections. "14 (1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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. " (8). SUB-SECTIONS 1 and 2 of Section 14 are of similar import though they apply to undergraduate and graduate teachers, respectively. What they imply is that undergraduate or graduate teachers would not be entitled to claim any additional increments or higher scale of pay for acquiring any qualifications other than the qualifications specified for such posts. Though it is not relevant in the context, the word "acquiring" would imply that what sub-sections 1 and 2 of Section 14 deal with are the subsequent acquisition of additional qualifications by undergraduate or graduate teachers. Such sub-sections would not, in terms, apply to teachers who had been appointed with qualifications in excess of what was required for the posts or the benefits that such teachers with additional qualifications at the time of appointment were entitled to under the previous regulations. (9). BEFORE coming to sub-section 3 of section 14, it is necessary to appreciate this aspect of the matter. Even if it is possible to urge that a subsequent enactment may do away with certain benefits that had been conferred by earlier regulations on an employee, but the provision by which it is sought to be taken away is subject to strict construction and any benefit of doubt has to be given to the person whose benefit is sought to be taken away. (10). SUB-SECTION 3 is worded differently and the effect of it is quite distinct from subsections 1 and 2 of Section 14. (10). SUB-SECTION 3 is worded differently and the effect of it is quite distinct from subsections 1 and 2 of Section 14. Sub-section 3 equates honours graduate and postgraduate teachers and says that teachers of either category would be entitled to draw the pay of post graduate teachers upon acquiring post graduate degree. Sub-section 3 of Section 14 does not reflect on the rights conferred under clause 16 (5) of ROPA, 1990 as preserved or modified by clause 12 (5) of ROPA, 1998. Section 16 and Section 20 are the savings and overriding provisions of the Act of 2005. Section 16 preserves the previous rights in the limited manner as specified therein. Section 20 is the omnibus overriding provision : "20. The provisions of this Act or any rules or orders made thereunder shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, custom or usages to the contrary. " (11). SECTION 20 will apply in a case where there is any express provision in the Act of 2005 which is in conflict with any provision or any contract or custom or usage contrary to such provision existing at the time of coming into effect of the said Act of 2005. Since Section 14 (3) of the said Act of 2005 does not detract from clause 16 (5) of ROPA, 1998 as preserved in a slightly modified form by clause 12 (5) of ROPA, 1998. Section 20 has no manner of application in the matter of curtailing any right that the writ petitioner had under the relevant clause of the earlier regulations. (12). THE State respondents have relied on a memorandum of June 24, 1997 Such memorandum says that all teachers who seek to obtain the benefit of higher scale of pay or increments should apply through the Managing committee to the relevant District Inspector of Schools prior to obtaining the additional qualification. The memorandum of June 24, 1997 does not spell out the consequence of a teacher not making a prior application. The memorandum of June 24, 1997 does not spell out the consequence of a teacher not making a prior application. Though the State submits that it is implicit in such memorandum that upon a prior application not being made, the candidate would not be entitled to either the increment or the revised pay scale that he seeks upon obtaining the higher qualification, the memorandum of June 24, 1997 has to be read down inasmuch as it seeks to modify ROPA, 1998 without specifying the consequence of a prior application not being made. The effect of the said memorandum is that if a candidate does not seek prior permission, the candidate will not be entitled to increment or revised pay scale unless the candidate subsequently obtains permission and the application for permission has to be considered in accordance with law upon being presented. (13). IN such view of the matter, the application made by the writ petitioner to the District Inspector of Schools (SE) Purba Medinipur has to be considered as an application for sanction to obtain the higher qualifications made ex-post facto. The said District Inspector will consider the matter in the light of the observations contained above and will not reject the application merely because an application was not made prior to the date of the petitioner obtaining the higher qualification. (14). THE District Inspector will consider the application as if it had been made prior to the date of the petitioners obtaining higher qualifications (or enrolling for the relevant course or taking the examination)and if there is no impediment to sanction being accorded to the petitioner by considering the petitioners application to have been made prior in point of time, the District inspector of Schools will accord permission and take necessary steps to ensure that the petitioner gets the benefit of clause 12 (5) of ROPA, 1998 to the extent that it preserves and continuous clause 16 (5) of ROPA, 1998. (15). THE entire exercise has to be completed by the District Inspector of Schools within a period of four weeks from the date of receipt of an authenticated copy of this order. (16). THE impugned order dated July 20, 2006 is set aside. (17). W. P. 14392 (W) 2007 is disposed of without any order as to costs.