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2010 DIGILAW 1386 (CAL)

STATE OF WEST BENGAL v. Mustaque Ahmed

2010-12-01

AMIT TALUKDAR, MRINAL KANTI CHAUDHURI

body2010
JUDGMENT Amit Talukdar, J. 1. BLACK is dark. White is crystal. They remain so. So long they are not bemused with each other. Once it is so, they lose their individual identities and at once they form the character of grey. 2. IN such colour cauldron, the Order rendered by a learned Trial Judge, has been carried at the instance of the State of West Bengal, which thought the same was not Just Desert. To have a whole hog of the entire issue before us, it would be profitable at the outset to advert to the logistics, which has formed the confection of the entire case. 3. ONCE upon a time an educated young man sought a teaching career after graduation. His discipline was Political Science with Honours. He also did his Masters on the said subject. This saw him imparting lessons in the Institution of the Respondent No.2. Time saw him propelled in the chair of the Teacher -in -Charge. 4. QUEST for knowledge catapulted him as a Double Masters, this time In History. Armed with the same, he approached the Managing Committee of the said School, which by its resolution adopted by the body, forwarded the Papers for the purpose of recognition of the Respondent No. 1 as Headmaster of the school under reference. The Resolution was forwarded to the Appellant No.3 by the Respondent No.2 herein on 01/06/2006, who transmitted the same to the Appellant No.2 on 19/09/2006. 5. APATHY and if we may say so, cruel inaction of the Appellant No.2 morphed the entire perspective of this young man. Left with no other choices and having no recourse from a stone end Appellant No.2 he had his foray his access to Justice, which saw him as a Petitioner before the Writ Court carrying his grievances set out earlier. 6. INDIFFERENCE of attitude of a callous Appellant No.2 simply multiplied agony of the Respondent No. 1 till such time fortunes smiled on him 19/04/ 2010 when the Hon'ble Writ Court found "............ Therefore, petitioner was entitled to get Post Graduate scale of pay with effect from January 14, 2006 under the provisions of sub-section 14 of the West Bengal Schools (Control and Expenditure) Act, 2005...." His Lordship concluded with the further direction "........... Therefore, petitioner was entitled to get Post Graduate scale of pay with effect from January 14, 2006 under the provisions of sub-section 14 of the West Bengal Schools (Control and Expenditure) Act, 2005...." His Lordship concluded with the further direction "........... the respondent authority to recognize the petitioner as Headmaster of Dabuapukur Junior High School, District Purba Medinipore with Post Graduate scale of pay with effect from January 14, 2006 as also to pay the arrear benefits to him as a consequential relief within a period of six weeks from the date of communication of this order." 7. SEEKING to avenge the same, the Appellants has brought the same before us on a number of grounds, which we would enumerate. 8. SHRI Wasef Ali Mondal, learned Advocate on Record of the State of West Bengal argued the Appeal on behalf of the Appellants. We must say that SHRI Wasef Ali did a splendid job. We, at the very inception, must put on Record that not only did he take great pains to build up his case, we were very much impressed by his sincere efforts to present the case of the Appellants before us in a very inimitable fashion. Shri Wasef Ali assailed the verdict returned by the Hon'ble Single Judge on the ground that it is an admitted position that when the Respondent No.1 began his teaching career, he was not an M.A. in History. 9. INVITING our attention to section 14(3) of The West Bengal Schools (Control of Expenditure) Act, 2005 that every teacher of a School will be entitled to draw Post Graduate Scale, If the appointment has been made in the Honours Graduate or Post Graduate category after acquiring a Post Graduate degree. 10. LEARNED counsel for the Appellants, on the basis of the same stressed that at the relevant point of time, since the Respondent did not have an M.A. degree in History, nor was an Honours Graduate in the said subject but later on he cleared his M.A. - he cannot claim such privilege and the benefit extended by the learned Single Judge was misconceived. He also referred to Memo No. 593-SE(B)/ES/O/B/ 1M-98/2007 dated 27/11/2007 to show that a teacher appointed in Honours Graduate/Post Graduate scale of pay will be entitled to claim any additional increment and higher scale of pay upon acquiring Post Graduate or any Higher Diploma/ Degree under section 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005. 11. ACCORDING to Shri Wasef All, the Respondent No.1 was not having qualified for the said position, the Order under Appeal should be set aside. 12. HE placed reliance on Annexure-A of his Reply to his buttress his submission in this effect. Shri Wasef Ali took us to Annexure P-2 of the Stay Petition. He showed the approval accorded for appointment in respect of the Respondent No. 1 by the Appellant No.3 on 27/05/2001. He showed the name of the Respondent No.1 figured as Item No.5 in the said approved List. 13. ACCORDING to Shri Wasef Ali, the Respondent No. 1 was classified as a "B.A. B.Ed." He argued that leave alone the Respondent having any Post Graduate degree, he was not even an Honours Graduate and as he was a Pass category teacher, the Circular relied upon by the Hon'ble Single Judge was not correct. 14. ROUNDING up his submission Shri Wasef Ali further contended that in view of the provisions of section 5 of the West Bengal Schools (Control of Expenditure) Act, 2005 the School did not have any Authority to appoint a teacher in contravention of the provisions of the said Act and the West Bengal School Service Commission Act, which was wholly applicable in the present case. Lastly, Shri Wasef Ali submitted on the strength of the decision of Supreme Court in R.N. Gosain v. Yashpal Dhir = (1992) 4 SCC 683 to show that he cannot Approbate and Reprobate at the same time having accepted his appointment as a Pass Course teacher. He did not have any scope to oscillate his claim. Per Contra: 15. SHRI Golam Mustaffa with SHRI Tara Shankar Samanta for the Respondents have put up a formidable cover in the wake of the heat and dust raised by SHRI Wasef Ali. 16. STRAIGHT away, Shri Golam Mustaffa took us to his Return. He did not have any scope to oscillate his claim. Per Contra: 15. SHRI Golam Mustaffa with SHRI Tara Shankar Samanta for the Respondents have put up a formidable cover in the wake of the heat and dust raised by SHRI Wasef Ali. 16. STRAIGHT away, Shri Golam Mustaffa took us to his Return. Shri Mustaffa showed from the contents thereof that since he had been successful in making out a proper case in his favour, the Hon'ble Single Judge very correctly extended to him the benefits, which he has been pursuing since the time he became an M.A. in History. Shri Mustafa showed from Annexure R- 1 of the said Return that the Respondent No. 1 by the own reckoning of the Appellant No.3, was an "M.A. B.Ed." 17. WHILE relying on Memo No. 429-S dated 19/09/2006 issued by the Appellant No.3 to the Appellant No.2 for the purpose of seeking approval of appointment of Respondent No.1 as Headmaster in terms of the resolution adopted by the Managing committee, Shri Mustaffa submitted that everything was there on Record, as it would be evident from Paragraph 3 of the Memo No. 429-S (supra) that at the relevant point of time the Respondent No.1 was an M.A. in Political Science. Subsequently, he also obtained an M.A. degree in History with prior permission of the Office vide Memo No. 1589-S dated 28/12/2004. 18. HARPING on the fact that after all, we were exercising our Power of Letters Patent, Shri Mustaffa submitted that we must be cautious and should not interfere with a finding rendered by the learned Single Judge on the basis of his subjective satisfaction, since there was nothing wrong in the same. Way back in 1992, when the Respondent No. 1 was absorbed in the teaching career, according to Shri Mustaffa, neither there was The West Bengal Schools (Control and Expenditure) Act, 2005 nor there was The West Bengal School Service Commission Act was in force. On the strength of the same, Shri Mustaffa discounted the submissions of Shri Wasef Ali on this score. 19. On the strength of the same, Shri Mustaffa discounted the submissions of Shri Wasef Ali on this score. 19. EXPRESSING his wonder Shri Mustaffa was at a loss to understand even though the Appellant No.3 duly recommended the case of the Respondent No. 1 in furtherence of the decision of the Managing Committee for the purpose of approval in the Post of the Headmaster - it is not understood as to why the Appellant No.2 kept silent. In the process. Shri Mustaffa submitted with much emphasis that an approved teacher since 2000, who has been working for all these period, his fate remained hanging for the inaction of the Appellant No.2. 20. WRAPPING up, Shri Mustaffa implored us to have the finding returned by the learned Single Judge on as it is basis. By way of a finishing touch, Shri Wasef Ali for the Appellants pointed out that even if for argument's sake it is accepted that the Respondent is an M.A. in Political Science - it would be of very little help for him as under the new Rules he must have either an Honours degree or a Post Graduate degree in the subject concerned. 21. WHILE giving his feed back to Shri Mustaffa, Shri Wasef Ali also submitted that the Respondent No.1 had secured M.A. degree in Political Science way back in 1993, why did he approach the Writ Court after such length of time (in 2006)? Which shows that he had accepted his position and also on that score he had no remedy. 22. IN the Forecourt of the Jurisdiction exercised by us as an Appellate Authority, more so in a one where we have the Power of Mandamus and roll out the extended Power of Judicial Review which has already been cast before the Court of First Instance - neither a sense of pedagogy nor a subaltern view should bind our objective assessment. At the same time we cannot turn a Nelson's Eye to situations that have surfaced at the instance of the Appellant. Balancing the odds, we have to arrive at a even, which must, not only be consistent with our sense of Justice but must be within the precincts of the Power of an Appellate Court. Slices of the rendering by the Hon'ble Single Judge have been already set out by us in the foregoing paragraphs. Balancing the odds, we have to arrive at a even, which must, not only be consistent with our sense of Justice but must be within the precincts of the Power of an Appellate Court. Slices of the rendering by the Hon'ble Single Judge have been already set out by us in the foregoing paragraphs. Since those were the cherry on the cream of the decision, we had thought it appropriate to cull out the same from an otherwise reasoned Order of the Hon'ble Single Judge. We need not repeat the same so as to avoid unnecessary verbose. 23. MUFFLED in the mesh of counter reasoning of Shri Wasef Ali, stands the reasoning of the Hon'ble Single Judge, which we would be necessitated to evaluate in this Appeal. 24. ADMITTEDLY, the Respondent is an Honours Graduate but in Political Science (See : the Resolution adopted by Respondent No.2 on 31/07/2006 forwarded to the Appellant No.3 - Page 39 of the Stay Petition). It is also correct that he obtained M.A. degree in the same discipline. It is also equally correct subsequently he acquired a Double Masters, this time in History. The Respondent No. 1 has been functioning in the Institution of Respondent No.2 since 2.1.1993. 25. FACTUALLY, on the strength of the position in black and white, the stand taken by Shri Wasef Ali for the Appellants is quite sustainable on account of the various materials he has shown before us borne out from the relevant provisions of the West Bengal Schools (Control and Expenditure) Act, 2005 and The West Bengal School Service Commission Act. 26. BUT as we have said it is not simply black and it is not simply white. In the maze of the mind and passage of the Orders, which has seen the Respondent No. 1 advancing his academic career, which now fructifies Shri Sk. Mustaque Ahmed acquiring M.A. (Double) preceded by an Honours degree and a Bachelor's degree in Education. Pausing here slightly, we cannot break bread with Shri Wasef Ali to a limited score. In his reply he has sought to strengthen his case on the basis of Annexure-A, which is nothing but a Memo No. 593-SE(B)/ES/O/B/ 1M.98.2007 on the basis of sub-section (3) of section 14 of The West Bengal Schools (Control of Expenditure) Act, 2005. 27. Pausing here slightly, we cannot break bread with Shri Wasef Ali to a limited score. In his reply he has sought to strengthen his case on the basis of Annexure-A, which is nothing but a Memo No. 593-SE(B)/ES/O/B/ 1M.98.2007 on the basis of sub-section (3) of section 14 of The West Bengal Schools (Control of Expenditure) Act, 2005. 27. ACCORDING to Shri Wasef Ali, it shows the manner in which a teacher appointed in Honours Graduate/Post Graduate scale of pay will be entitled to claim any additional increment and higher scale of pay upon acquiring Post Graduate or any Higher Diploma/ Degree. He was of the view that since the Respondent No.2 did not have an Honours degree and that too in the concerned subject i.e. History - he could not seek to advance his career on a subsequent period of time having acquired a Masters on the subject as he did not have Honours in that discipline. 28. A conjoint reading of the first portion of the said Memo being No. 593- SE(B)/ES/O/ B/1M-98/2007 dated 27.11.2007 reads to the effect ".......in which a teacher appointed in Honours Graduate/Post Graduate scale of pay" does not specify in particular, the name of the discipline of the Honours subject. Section 14(3) of the The West Bengal Schools (Control of Expenditure) Act, 2005, upon which the said Memo has been based, reads as".........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." 29. ON a plain reading of the said provision of section 14(3) of The West Bengal Schools (Control of Expenditure) Act, 2005, in our opinion, would, at once steal the thunder out of the storm of the Appellants case. This position would have been otherwise, had the Respondent No. 1 was a simple Pass Graduate, as sought to have been impressed upon us by the learned counsel for the Appellants on the strength of the Appointment Letter (Page 16 of the Stay Petition). 30. This position would have been otherwise, had the Respondent No. 1 was a simple Pass Graduate, as sought to have been impressed upon us by the learned counsel for the Appellants on the strength of the Appointment Letter (Page 16 of the Stay Petition). 30. BUT as we have found from the Resolution of the Managing Committee (Page 39 of the Stay Petition), that Respondent No. 1 admittedly, is an Honours graduate at the relevant point of time followed by a Bachelors in Education - even if we weed out from our consideration the fact that he obtained Double Masters, the fact in issue remained that he was an Honours graduate, although the same did not receive its acceptance by the Authorities in the fashion that we have noted in Page 16 of the Stay Petition. We would put it more simply. 31. THE Resolution of the Managing Committee, the Respondent No.2 herein passed on 31/07/2006, which was duly forwarded by the Appellant No.3 to Appellant No.2 contained the very fact that".......Sk. Mustaque Ahmed had already obtained Graduate degree with Hons, in Pol. Sc. and combination (read combination) subjects were History, Economics (1986). There after he passed the MA Exam. in Pol. Sc. in 1988 and he was appointed as headmaster of Dabuapukur Junior High School on 2nd January, 1993." 32. SHRI Sk. Mustaque Ahmed B.A. Honours in Political Science, later on M.A. in Political Science was an accepted position. The Appellant No.3 on the strength of such Resolution of the Managing Committee, sought for according permission from Appellant No.2 for approval of appointment as Headmaster w.e.f. 30/04/2006 in favour of Respondent No.1. 33. ONCE we find that the Respondent No.1 was an Honours graduate on the relevant point of time, even if we leave aside the question of his obtaining Double Masters at a subsequent stage, reliance by Shri Wasef Ali in sub-section (3) or section 14 of The West Bengal Schools (Control of Expenditure). 34. WE have to make a literal construction of the word "Honours Graduate" and a purposive interpretation thereof cannot be conceived so as to accommodate the views of Shri Wasef Ali to read after the words "Honours Graduate" - the subject, discipline etc. which he has emphasised. In our opinion, it would be stretching the Legislative intent militating against the text of the same. which he has emphasised. In our opinion, it would be stretching the Legislative intent militating against the text of the same. Inaction and cold apathy of the Appellant No.2, although in a way resulted in the fiasco but we feel that would not have any impinging effect on our decision. For this purpose we have to refer to the Reply submitted by the Appellant No.3 and say 'curiouser and curiouser' land express our wonder with Alice. We will not be lost in the Rabbit hole visualised by Lewis Carrol in his famous creation Alice in Wonderland. But we have to face the ground realities. 35. PARAGRAPH 5 of the Reply, which the Appellant No.3 has affirmed as 'information derived from record' shows that exception was taken by him as to why the Respondent failed to approach the Court earlier and accepted his appointment in the Pass category notwithstanding his claim for an Honours and Post graduate in Political Science. 36. LIKE Alice, we would exclaim in wonder, the outburst of Appellant No.3 to put a cosmetic consolation to their own deficiency for the failure on the part of Appellant No.2 to reply to the Memo No. 429-S dated 19/09/2006 issued by the Appellant No.3 incorporating the enhanced qualification seeking approval of the Respondent No.1 as Headmaster. It was averred in Paragraph 5 of the Reply submitted by the Appellant No.3 ".................More, so the District Inspector of Schools (SE) concerned sought for an instruction under the Annexure 'R' of the reply regarding the claim of the writ petitioner but the DSE, West Bengal did not issue any Instruction because the same was beyond sanction of law." This was stated on oath by the Appellant No.3, which was based on "information derived from record". Who is he to vouchsafe for the callous indifference of Appellant No.2? How can he hold the brief for the later ? Even if we reconcile such preposterous situation, which has been showed as "information derived from record". Which Record ? How access was had to the Record ? Where was it maintained ? All these are as grey as possible. 37. IN this context reference was drawn by Shri Shri Wasef Ali for the Appellants to the decision of Supreme Court in R.N. Gosain v. Yashpal Dhir (supra) to maintain his point that the doctrine of election would apply in the case. 38. Where was it maintained ? All these are as grey as possible. 37. IN this context reference was drawn by Shri Shri Wasef Ali for the Appellants to the decision of Supreme Court in R.N. Gosain v. Yashpal Dhir (supra) to maintain his point that the doctrine of election would apply in the case. 38. SHRI Wasef Ali was of the view that the Respondent No.1 could not Approbate and Reprobate at the same time as he had accepted his status as a Pass Graduate teacher. We feel that cannot be so and a fine distinction is required to be made in the instant case under reference. Neither acquiescence, which has also been pleaded by SHRI Wasef Ali nor there can be any application of the doctrine of electron in the issue involved before us. Admittedly the Respondent No. 1 was conferred the distinction of an Honours graduate and he read Political Science. in his Masters and subsequently, also did his M.A. in History. These are facts borne out from Record of the Appellants themselves. Simply recording showing that he is Pass graduate with Bachelors in Education, whereas he had acquired his Masters and later on Double Masters - would not estop him from setting the position right. It cannot be accepted, as argued by Shri Wasef Ali that once he has accepted a particular position, it is not open for him to come back with a fresh case because everything was on Record and not put in subsequently. 39. BEFORE we part, we must say that even though we could not share the views of Shri Wasef Ali, learned counsel for the State of West Bengal (Appellants) but we must say in all fairness that he argued the Appeal in an admirable fashion. He placed the entire case in a very neat fashion and it was only apparent that his efforts in Court were the result of a very hard work followed by detailed reading of the Affidavits and the various Rules and Regulations. 40. IN the prologue we have found that logistically white is crystal and black is dark. But in the quandary of the situation we find that due to interfusion, neither white remained crystal nor black remains dark. It has become grey. 40. IN the prologue we have found that logistically white is crystal and black is dark. But in the quandary of the situation we find that due to interfusion, neither white remained crystal nor black remains dark. It has become grey. In exercise of its Power of Judicial Review, the Hon'ble Single Judge had arrived at his Lordship's impugned decision, which has been brought under the scanner in a manner not baked up by solid stand. Definitely, while we will be well advised to address the Chemistry of the grey in the instant case, at the same time we would be rather slow to interfere with a sustainable Order. 41. IN the whirlpool of the circumstances, we feel it would be Just Justice for the Respondents if the Order under Appeal is left untouched. 42. HAVING found no merit in Appeal, the same is required to be dismissed for the reasons, which we have noticed earlier. Appeal dismissed. No order as to costs. Appeal dismissed.