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2008 DIGILAW 762 (CAL)

Sampa Sahu(Mondal) v. STATE OF WEST BENGAL

2008-07-31

INDIRA BANERJEE

body2008
Judgment :- (1.) This writ application is directed against the refusal of the authorities concerned to grant the petitioner, an Assistant Teacher of Bengali of an aided recognized Non-Government School, the higher post-graduate scale. (2.) The petitioner appears to have passed the B.A. Examination with Honours in Bengali from the Calcutta University in the year 1983-84. The petitioner obtained high second class in Bengali. Mark sheets have been annexed to the writ petition. (3.) The petitioner also obtained the B.Ed, degree from the Calcutta University in 1989 and qualified for appointment as Assistant Teacher of Bengali of an institution recognized by the West Bengal Board of Secondary Education. (4.) The petitioner obtained the Master of Arts degree in Bengali from Rabindra Bharati University in 1990-91 and later in 1993, the petitioner obtained the M.Phil. degree from Rabindra Bharati University. (5.) The West Bengal School Service Commission Act, 1997, hereinafter referred to as the 1997 Act came into force in November, 1997. (6.) The said Act provides for appointment of Assistant Teachers of recognized Government aided School on the recommendation of the School Service Commission. (7.) The West Bengal Central School Service Commission issued advertisements inviting applications for the post of Assistant Teachers of the Language group (Bengali). (8.) According to the petitioner, the petitioner applied for the post of Assistant Teacher, pursuant to the advertisements, disclosing her qualifications. (9.) The petitioner emerged successful in the Regional level selection test of the year 1998 and was ultimately recommended for appointment to Mohula Velian High School in Birbhum, which is hereinafter referred to as the School. The petitioner was recommended on 26th August, 1999. A letter of appointment dated 6th September, 1999 was issued to the petitioner and the petitioner ultimately joined the School on or about 10th September, 1999. (10.) By an order dated 18th November, 1999 of the District Inspector of Schools concerned, the appointment of the petitioner was approved. The qualification of the petitioner was, however, shown as Pass-Graduate in Bengali and the petitioner was granted the Pass-Graduate scale of pay. (11.) The scale of pay of Teachers of aided recognized Non-Government Schools are governed by the Revision of Pay and Allowance Rules (ROPA Rules) framed from time to time pursuant to recommendations of different Pay Commissions. The qualification of the petitioner was, however, shown as Pass-Graduate in Bengali and the petitioner was granted the Pass-Graduate scale of pay. (11.) The scale of pay of Teachers of aided recognized Non-Government Schools are governed by the Revision of Pay and Allowance Rules (ROPA Rules) framed from time to time pursuant to recommendations of different Pay Commissions. (12.) From the time the Second Pay Commission made its recommendation, the ROPA Rules have contained provisions to the effect that teachers who had been appointed with higher qualifications in a relevant teaching subject, and/or teachers who improved their qualifications in a relevant teaching subject would be entitled to higher scale of pay pertaining to their qualifications. (13.) By a Government Order No. 25-SE(B)/IM-102/98 dated Calcutta, the 12th February, 1999 the Government of West Bengal accepted the recommendation of the Fourth Pay Commission. The said Government Order, 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 groups 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." (14.) A Government Order No. 155-SE(B)/10Mr102/98 Pt.l dated Calcutta, the 13th July, 1999 was issued by the Government amending Paragraph-12(3) of the Government Order of 12th February, 1999 referred to above. Paragraph-13(3) as amended provides as follows :- All teachers, including Physical Education teachers and Librarians of Secondary Schools who have improved/will improve their qualification or who are 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 of the date of improving qualification, whichever is later, provided that such higher qualified teachers in the relevant subjects or group is justified as per approved staff pattern of that school, if such teacher is appointed through West Bengal School Service Commission, his/her pay will be fixed in the scale of pay as per his/her qualification mentioned by the West Bengal School Service Commission." (15.) The petitioner who had been appointed teacher after 13th July, 1999, has been denied the post-graduate scale of pay on the ground that the School Service Commission did not mention the Higher qualification in its recommendation. (16.) As observed by a Division Bench of this Court in State of West Bengal v. Sauvik Ghosh,/eported in 2008(1) Calcutta Law Journal 810, the School Service Commission, being a statutory authority constituted under the 1997 Act, is bound to act fairly, reasonably and in accordance with law. The School Service Commission is obliged to record correctly the educational qualifications of the candidates, subject however, to verification. When candidates with higher qualifications apply for teaching posts, for which the minimum qualification is lower, the School Service Commission might, in its discretion, choose not to give any credit for the higher educational qualification. The School Service Commission cannot, however, omit to record the higher qualification. In no circumstances can the educational qualification of an Honours graduate be mentioned as Pass Graduate. In the instant case, this is exactly what has been done. It is difficult to appreciate how the qualification of the petitioner could have been mentioned as Pass Graduate in the recommendation of the School Service Commission, when, in fact, the petitioner was an Honours Graduate. Moreover, the M.A. qualification the M. Phil. qualification and B.Ed qualification should also have been recorded, whether or not any credit was given for those qualifications. (17.) When the School Service Commission, a statutory authority, selects candidates upon verification of marks sheet and certificates, there is a prima facie presumption that the educational qualifications have correctly been recorded. (18.) Thus, a policy decision might have been taken, to fix salary and allowances as per the qualification recorded by the School Service Commission. However, the presumption of correctness of the educational qualification recorded by the School Service Commission is rebuttable. If a teacher can satisfy the concerned authorities that his or her educational qualification in a relevant teaching subject was higher, the teacher would have to be granted the scale of pay, pertaining to the higher qualification. (19.) It would perhaps not be out of context to take note of the fact that the School Service Commission is a recommendatory authority created under governed by the West Bengal School Service Commission Act, 1997. The function of the School Service Commission is to select and recommend candidates for appointment. The School Service Commission is not the appointing authority. Nor does the School Service Commission have anything to do with payment of salary and allowances of teachers, recommended by the School Service Commission. The function of the School Service Commission is to select and recommend candidates for appointment. The School Service Commission is not the appointing authority. Nor does the School Service Commission have anything to do with payment of salary and allowances of teachers, recommended by the School Service Commission. In fact, once a recommendation is made and the recommended candidate is given appointment, the School Service Commission has nothing more to do, so far as that candidate is concerned. (20.) The question is, whether teachers appointed after 13th July, 1999 and/or teachers who improved their qualifications after 13th July, 1999, can be denied the scale of pay pertaining to their higher qualification, either on the ground that the School Service Commission concerned did not mention the higher qualification in its recommendation or on the ground that the higher qualification was not necessary for the teaching post held by the concerned teacher, having regard to the approved staff pattern of that School. (21.) The staff pattern of Schools including Madrasahs were, at all material times governed by Government Circulars and/or Orders issued in this regard from time to time. The relevant Government Orders indicate that qualifications for the same teaching post were to be fixed percentage wise. Out of two posts of Language Group teachers in a Junior High School, the minimum requisite qualification for one post was Pass Graduate and the minimum requisite qualification for the other Honours Graduate/Masters degree. When additional posts were sanctioned, the same percentage ratio was maintained. Thus, if a School was sanctioned two posts of Bengali Teachers who were required to teach Bengali in the same classes, the minimum requisite qualification for one post could be Pass Graduate and the minimum qualification for the other post could be Honours/Masters degree in Bengali. (22.) There were teaching posts in Junior High Schools/Madrasahs for which the requisite qualification was Pass Graduate and there were teaching posts, also, in Junior High Schools/Madrasahs for which the minimum qualification was Honours Graduate and/or Post Graduate degree. The fixation of a higher qualification for some posts and lower qualification for others, apparently had nothing to do with the teaching duties pertaining to the post, at least at the material time. The fixation of a higher qualification for some posts and lower qualification for others, apparently had nothing to do with the teaching duties pertaining to the post, at least at the material time. (23.) It also appears that although there has recently been some change in the rules of appointment through the School Service Commission, at the material time, Honours Graduates and Pass Graduates had to compete in a common selection test. (24.) In the aforesaid circumstances, the payment of scale pertaining to qualification to one teacher and denial of scale pertaining to qualification to another teacher, teaching the same subject in the same class in the same school or in different aided recognized Non-Government schools would violate the principle of equal pay for equal work and offend Article 14 of the Constitution of India. (25.) If the minimum requisite qualification for some posts of Assistant Teachers of Language Group was B. A. (Honours) and/or M. A. degree, the minimum qualification for the teaching post for the aforesaid category could have to be deemed as B.A. (Honours)/M.A. degree. (26.) Mr. Bhattacharya, learned Advocate appearing on behalf of the State cited a Division Bench judgment of this Court in Tarak Chandra Roy v. State of West Bengal and Ors., reported in 2008(2) Calcutta Law Times 240 (HC). (27.) In the aforesaid case, the Division Bench was of the view that after the enforcement of the West Bengal School Service Commission Act, 1997, the circulars dated 22nd November, 1993 and 8th March, 2000 pertaining to teachers of Physical Education had no manner of application. (28.) There could be no doubt that the salary might be fixed on the basis of scale of pay as mentioned by the School Service Commission, upon verification of mark sheets and certificates, as there is a presumption of correctness in the same. However, in the instant case, it appears that the School Service Commission has not recorded the academic qualification of the petitioner correctly. (29.) Be it noted that the Division Bench was concerned with the case of a teacher of Physical Education. The requisite minimum qualification for all posts of teachers of Physical Education is Pass Graduate. Therefore, no case was made out before the Division Bench of discrimination between two sets of teachers performing the same duties and functions and possessing the same educational qualification. (30.) The writ application succeeds. The requisite minimum qualification for all posts of teachers of Physical Education is Pass Graduate. Therefore, no case was made out before the Division Bench of discrimination between two sets of teachers performing the same duties and functions and possessing the same educational qualification. (30.) The writ application succeeds. The petitioner shall subject to verification of her mark sheets and certificates, be entitled to the post graduate scale of pay on and from the date of her appointment. The scale of pay of the petitioner shall be re-fixed within six weeks from the date of communication of this order. All arrears due and payable to the petitioner shall be released to the petitioner within six months from the date of communication of this order.