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2010 DIGILAW 1251 (CAL)

Iqbal Ahmed v. STATE OF WEST BENGAL

2010-10-05

DIPANKAR DATTA

body2010
Judgment : The petitioner was appointed as Assistant Teacher in Urdu in Bengali Bazar High School (hereafter the school) on 15.2.1988. At the time of his appointment, the petitioner had taken the final examination in respect of Master of Arts Course in Urdu. The degree of Master of Arts was conferred on him sometime in June, 1988. From the date of his appointment, the petitioner was given a scale of pay drawn by simple graduates. Upon acquiring Master’s degree, the petitioner applied for scale of pay meant for post graduates. The District Inspector of Schools (S.E.), Kolkata (hereafter the DIoS) vide Memo dated 7.3.1992 conveyed to the Secretary of the school that the petitioner is entitled to Master’s degree scale of pay with effect from 15.2.1998 in terms of G.O. No.401-Edn.(B) dated 10.9.1991. Consequent upon such order being passed, the petitioner was paid arrears of salary as well as current salary treating him as entitled to scale of pay meant for post graduates. However, by an order dated 6.5.1994, the DIoS conveyed to the Secretary of the school that in terms of G.O. No.796 Edn.(S) dated 22.11.1993, the petitioner is entitled to scale of pay meant for post graduates w.e.f. 22.11.1993, and not from 15.2.1988. The Secretary was further directed to deduct excess amount paid to the petitioner. It is alleged in the petition that the DIoS did not extend opportunity of hearing prior to passing the aforesaid order and the petitioner was not aware of the same. However, coming to learn of the same, he had approached the Director of School Education, West Bengal (hereafter the Director) once deduction in his basic pay in terms of the said order dated 6.5.1994 was effected. The Director was urged to restore the scale of pay meant for post graduates, w.e.f. the date of his appointment and to cancel the order dated 6.5.1994. Upon receipt of the petitioner’s representation dated 29.1.1999 the Director vide Memo dated 2.9.2003 sought for comments of the DIoS on the following points: “(1) whether the post was meant for pass graduate or for P.G. Degree holders, (2) whether the concerned teacher disclosed his P.G. qualification before, (3) which language the teacher teaches, (4) whether such P.G. qualification will improve his teaching ability.” The DIoS replied to the Director vide Memo dated 2.6.2004. The concluding paragraph thereof reads as follows: “As the incumbent joined the school with post-graduate qualification in the subject for which he was appointed hence in terms of G.O. No.33-Edn(B) dt.7-3-90 the post graduate scale of pay in favour of Mr. Iqbal Ahmed, w.e.f. 15-2-88 as prayed for is admissible.” The DIoS mistakenly observed that the petitioner joined with post-graduate qualification. However, despite the observation that the petitioner was entitled, higher scale of pay was not restored in his favour. Further representation dated 19.6.2009 made to the Director and the DIoS having proved abortive, the petitioner invoked the writ jurisdiction of this Court by filing W.P. 18077 (W) of 2009. On 17.11.2009, this Court directed the Director to take an appropriate decision in respect of grant of appropriate scale of pay to the petitioner upon consideration of Memo dated 2.6.2009 issued by the DioS. The decision was directed to be placed before the Court by the next date. The writ petition directed to be listed in January, 2010. The writ petition was taken up for consideration on 15.7.2010. It was brought to the notice of the Court that the Director had passed an order dated 26.3.2010 rejecting the claim of the petitioner for post graduate scale of pay w.e.f. 15.2.1988. The writ petition was dismissed granting liberty to the petitioner to question the correctness of the decision of the Director by filing a fresh petition. In this writ petition dated 20.7.2010, the petitioner has challenged the aforesaid order of the Director. It was considered on 9.8.2010. The Court recorded its satisfaction that the official respondents can not improve their case by filing an affidavit. Mrs. Gutgutia, learned advocate for the official respondents, was apprised of the relevant circulars governing the petitioner’s entitlement to higher scale of pay and she was directed to obtain appropriate instructions on the same. The writ petition was directed to be listed ‘For Orders’ on 12.8.2010. Thereafter, hearing of the petition was adjourned on a couple of occasions due to absence of Mrs. Gutgutia. Ultimately, it was finally heard on 14.9.2010. Mr. Jana, learned advocate for the petitioner, referred to the Court G.O. No.372-Edn. The writ petition was directed to be listed ‘For Orders’ on 12.8.2010. Thereafter, hearing of the petition was adjourned on a couple of occasions due to absence of Mrs. Gutgutia. Ultimately, it was finally heard on 14.9.2010. Mr. Jana, learned advocate for the petitioner, referred to the Court G.O. No.372-Edn. (B) dated 31.7.1981 [note 2(a) appended to Annexure I] as well as G.O. 33-Edn(B) dated 7.3.1990 [Clause 16(3)] to contend that the petitioner was entitled to the scale of pay meant for post graduates w.e.f. date of his appointment and the Director by not accepting the observation of the DIoS committed gross error. The only contention raised by Mrs. Gutgutia is that the petitioner, with his eyes wide open, had accepted appointment on a post which was meant to be filled up by a pass graduate and having accepted appointment without demur, cannot now turn around and claim scale of pay meant for post graduates. This is also the stand taken by the Director in the impugned order. Reference in the context was made to G.O. No.772-Edn(S) dated 8.7.1974 laying down the staff pattern for a recognised high school. She accordingly prayed for dismissal of the writ petition. This Court has heard learned advocates for the parties. The portion of G.O. dated 8.7.1974 relied on by Mrs. Gutgutia reads as follows: “In the language group the maximum number of posts, for which Honours or Master degree may be admitted, should be limited to 50% of the number of posts required for teaching first and second languages, in the science and mathematics groups the maximum number of posts so admissible for teachers with Honours or Master degree should be limited to 66% of the total posts sanctioned for that particular group.” The petitioner despite being an Honours graduate was appointed on a post, which in terms of G.O. dated 8.7.1974 ought to have been filled up by a pass graduate. The impugned order of the Director does not throw any light as to how the petitioner being an Honours graduate could be appointed on a post not meant for him. The Director has not returned any finding in the impugned order that the petitioner practised fraud or misrepresented facts while obtaining employment by suppressing his Honours qualification. The impugned order of the Director does not throw any light as to how the petitioner being an Honours graduate could be appointed on a post not meant for him. The Director has not returned any finding in the impugned order that the petitioner practised fraud or misrepresented facts while obtaining employment by suppressing his Honours qualification. In the absence of such a finding, the Court has no other option but to proceed on the basis that the petitioner had been offered employment and his service approved by the DIoS being fully aware of his qualifications. Once the petitioner was appointed with Honours qualification, albeit on a post meant to be filled up by a pass graduate, the limitation of 50% in respect of offering posts of teachers in the language group to holders of Honours/Post Graduate degree can not stand in the way of the petitioner being offered higher scale of pay. In the event the petitioner is denied higher scale of pay despite being a post graduate but other language teachers who are post graduates are given the scale of pay meant for post graduates, that would foul the equality clause guaranteed by the Constitution. It is settled law that when two sets of teachers with the same qualifications are required to teach the same students, one set could in no circumstances be denied qualification pay only because qualification pay can be allowed to 50% of the teachers of the group. Any such restriction would clearly tantamount to violation of the principle of equal pay for equal work and would thus violate Article 14 of the Constitution of India. There is substance in the contention of Mr. Jana that the petitioner is entitled to post graduate scale of pay in terms of G.O. dated 31.7.1981 and 7.3.1990. Any such restriction would clearly tantamount to violation of the principle of equal pay for equal work and would thus violate Article 14 of the Constitution of India. There is substance in the contention of Mr. Jana that the petitioner is entitled to post graduate scale of pay in terms of G.O. dated 31.7.1981 and 7.3.1990. Note 2(a) appended to Annexure I of G.O. dated 31.7.1981 reads as follows: “All existing Secondary School Teachers who entered service with higher qualification or who have improved their qualification relevant to their teaching subjects will get the higher scale on qualification basis without any restriction.” Once the Government as a matter of policy has decided in July, 1981 to extend to all secondary school teachers, who entered service with higher qualification, scale of pay on qualification basis without any restriction provided improvement of qualification is relevant to the teaching subject, the contents of G.O. dated 8.7.1974 would lose its significance and it is G.O. dated 31.7.1981 that should be given primacy having regard to the terms in which note 2(a) has been worded. At the time the petitioner was appointed G.O. dated 31.7.1981 was in vogue and he having improved his qualification in a subject relevant to the one for teaching which he was appointed, he is entitled in law to claim higher scale of pay. The Director while passing the impugned order failed to take note of the provisions contained in G.O. dated 31.7.1981 and thereby occasioned grave miscarriage of justice. Before parting, this Court would wish to advert to one other aspect. By the order dated 17.11.2009, the Director was directed by this Court to consider the petitioner’s claim. However, it appears from the impugned order of the Director that he had entrusted the Deputy Director of School Education (Grants-in-Aid), West Bengal to examine the claim of the petitioner. It is recorded in the order that the Deputy Director deals with such type of matters on behalf of the Director and a direction was given to him to settle the claim. The Deputy Director had observed that the petitioner was not entitled to higher scale of pay. The Director instead of taking an independent decision himself directed that the decision of the Deputy Director would be treated as final. Abdication of responsibility by the Director, in the circumstances, has to be deprecated. The Deputy Director had observed that the petitioner was not entitled to higher scale of pay. The Director instead of taking an independent decision himself directed that the decision of the Deputy Director would be treated as final. Abdication of responsibility by the Director, in the circumstances, has to be deprecated. The Director had no business whatsoever to violate the Court’s order dated 17.11.2009 and direct the Deputy Director to examine the petitioner’s claim. The impugned order for such violation has to be treated a nullity. He ought to be cautious in future while complying with order of Court. For the reasons discussed above, the impugned order cannot be sustained. The same stands set aside. The petitioner shall be entitled to scale of pay meant for post graduates w.e.f. 15.2.1988 and corresponding revision of such scale of pay. Financial benefits shall be computed and released in his favour as early as possible but not later than 3 months from date of receipt of copy of this order failing which interest at the rate of 5% p.a. shall be made available to the petitioner along with the arrears. The writ petition stands allowed with costs assessed at Rs.5,100/-. There shall be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.