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2012 DIGILAW 360 (CAL)

STATE OF WEST BENGAL v. Ranjit Kumar Maity

2012-04-25

J.N.PATEL, SAMBUDDHA CHAKRABARTI

body2012
Judgment J.N. Patel, Sambuddha Chakrabarti, J. 1. AGGRIEVED by an order of the District Inspector of Schools (Secondary Education) Paschim Medinipur withdrawing the post-graduate scale of pay the respondent no. 1 herein filed a writ petition. The writ petition succeeded. The learned single Judge directed that the order impugned in the writ petition could not be sustained and the same was set aside with consequential orders. 2. THIS has left the State of West Bengal and its concerned officials aggrieved. The result is the present appeal. The respondent no. 1 was appointed an Assistant Teacher of Bio Science of a secondary school on January 2, 1980. In the year 1982 he obtained the M.A. degree in Islamic History which obviously was not relevant to the subject of his teaching. On an application made by him the District Inspector of Schools (SE) (the appellant no. 3 herein) sanctioned him the post-graduate scale of pay with effect from September 5, 1987. While he was enjoying the post-graduate scale of pay for about a decade the appellant no. 3 issued an order reviewing and canceling the earlier order with retrospective effect with a direction to deposit the amount overdrawn. THIS was assailed in the writ petition. 3. IN this connection we have to consider the relevant portions of three Office Memoranda issued by the Department of Education, Budget Branch, Government of West Bengal. Memorandum no. 372 Edn (B) dated July 31, 1981 is the first of such memoranda. Clauses 2(b) and 2(c) of such memorandum read as follows: "2(b). All existing Secondary school teachers who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale on qualification basis after five years' teaching continuing from the date on which higher qualification was obtained." "2(c). IN future, Secondary school teachers will be allowed higher pay scale on qualification basis only when they obtain such higher qualification in the subject relevant to their teaching/appointment." 4. THE second memorandum no. 253 Edn (B)/IM12/84 dated September 17, 1984 had clarified the earlier office memo of 1981 with regard to the date of obtaining higher qualification. THE third memorandum was issued on September 10, 1991. By this the memorandum of 1981 was again amended with effect from April 1, 1981. Clause 2(b) of the said 1981 office memorandum was amended as follows: "........ THE third memorandum was issued on September 10, 1991. By this the memorandum of 1981 was again amended with effect from April 1, 1981. Clause 2(b) of the said 1981 office memorandum was amended as follows: "........ (b) All existing Secondary School teachers who were appointed with higher qualifications in subjects not relevant to their teaching or who improved their qualifications subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from 1st April, 1981 or after five years' teaching counting from the date on which higher qualification was obtained which ever is earlier." 5. THE first memorandum cannot be applied to the respondent no. 1. This circular was issued on July 31, 1981 which stipulated that all existing secondary school teachers who have improved their qualifications would be allowed higher scale of pay after five years' teaching counting from the date on which the higher qualification was obtained. THE use of the tense of the verb clearly showed that this applied only to such school teachers who had by the date the circular was issued had improved their qualifications. THE petitioner obtained his M.A. degree in the year 1982. So he could not avail himself of the benefit of this circular. So far as it is applicable to the case of the petitioner, by the 1991 amendment the said memorandum was amended to the effect that the existing Secondary School teachers who had improved their qualifications subsequent to their appointment in subjects not relevant to their teaching would be allowed higher scale of pay on qualification basis after five years' teaching counting from the date on which the higher qualification was obtained. 6. THE learned single Judge while allowing the writ petition had held that the expression "existing teachers" has to be constructed to mean a teacher already in service as on the date on which the concerned Government memo was issued. Such teachers, the learned single Judge continued, would be entitled to higher scale of pay after five years' of continuous teaching after the improvement of qualification. According to the learned single Judge the Government Orders meant that teachers appointed in future would be granted pay relating to higher qualification if the same were obtained in a relevant teaching subject. Such teachers, the learned single Judge continued, would be entitled to higher scale of pay after five years' of continuous teaching after the improvement of qualification. According to the learned single Judge the Government Orders meant that teachers appointed in future would be granted pay relating to higher qualification if the same were obtained in a relevant teaching subject. THE learned single Judge also reiterated a well-settled principle of law that if any Government Order was capable of two interpretations of which one had earlier been accepted the interpretation could not have been arbitrarily changed and without giving the petitioner an opportunity of hearing and thus, it was concluded in the judgment and order impugned that in no circumstances the pay given to the petitioner on the basis of a possible interpretation of a Government Order could be recovered. We are in respectful disagreement with the view expressed by the learned single Judge. We have seen that the 1981 memorandum could not be applied to the petitioner as he had obtained his post-graduate qualification subsequent to the said Government Order. 7. IT was strenuously sought to be argued by the learned Advocate for the respondent no. 1 that the circular dated September 10, 1991 may in any case be invoked and that was much the same as the 1981 circular. This submission, however, ignores a very basic aspect of the memorandum. The memorandum had clearly said that the amendment was made with effect from April 1, 1981. Thus it had been given retrospective effect. In other words, the amendment related back to April 1, 1981. There was no question for the petitioner to improve his qualification on April 1, 1981. Thus he cannot avail himself of the benefit of this amended circular of 1991 either. 8. WE also accept submission made by Mr. Banerjee that the difference between clause 2(b) and 2(c) of the 1981 circular related to two categories of teachers. Under clause 2(b) secondary school teachers who had already improved their qualifications on the date of the notification were stipulated while clause 2(c) related to secondary school teachers who would improve their qualifications in future. 9. THE learned single Judge found serious anomaly in the conduct of the appellant authorities inasmuch as a benefit which the respondent no. 1 was enjoying for a long time was taken away without giving him an opportunity of hearing. 9. THE learned single Judge found serious anomaly in the conduct of the appellant authorities inasmuch as a benefit which the respondent no. 1 was enjoying for a long time was taken away without giving him an opportunity of hearing. Infraction of basic principles of natural justice was thus easily discovered. 10. MR. Banerjee seeks to counter the same by submitting that there were compelling reasons to review all the decisions taken by the then District Inspector of Schools and on September 11, 2001 the Joint Secretary, School Education Department, Vigilance Branch had passed an order to that effect. The order recited that it had come to the notice of the Government that there were cases of illegal orders/ actions/ decisions made by Sri Birendra Nath Burman, the then District Inspector of Schools, in respect of approval of appointment of teaching and non-teaching staff, granting higher scale of pay, approving panel, release of arrear salaries etc. which invited legal implications and had the effect of jeopardizing for his administration along with other implications. In the said office order it was further recorded that few of such cases had been detected and several such cases had come to the office of the present District Inspector of Schools. In such circumstances, the said order recorded, that the Governor had been pleased to direct the present District Inspector of Schools to review any action, decision, or order made by Sri Birendra Nath Burman. MR. Banerjee submitted that since the order granting higher scale of pay to the respondent no. 1 was also issued by the said Sri Birendra Nath Burman the District Inspector of Schools had reviewed the orders and by a reasoned order dated December 3, 2003 held that the respondent no. 1 was not entitled to draw post-graduate scale of pay as mistakenly allowed earlier and withdrew and cancelled the same with retrospective effect. 11. IF this was the occasion for reviewing the order the question arises about the justification of passing it unilaterally without any reference to the respondent no. 1, In other words the moot question was whether by not affording any opportunity of hearing to the respondent no. 1 the principles of natural justice had been violated. The learned single Judge gave an answer in the affirmative and held that there was flagrant violation of the principles of natural justice in the instant case. 12. 1, In other words the moot question was whether by not affording any opportunity of hearing to the respondent no. 1 the principles of natural justice had been violated. The learned single Judge gave an answer in the affirmative and held that there was flagrant violation of the principles of natural justice in the instant case. 12. IN this respect too we are in respectful disagreement with the views taken by the learned single Judge. The order impugned in the writ petition was passed after reviewing the case of the petitioner. It is true that it would have been better if the writ petitioner had been heard before the benefit he was enjoying was ordered to be withdrawn. But that not having been done the order could not be set aside on the ground of the infraction of the principles of natural justice. The order passed was made on the basis of the existing government orders. Any act of the petitioner was not in question. The whole thing was matter of record and it turned on the question of interpreting the government orders. 13. WE have examined the relevant office memoranda. WE are of the view that no other construction could be placed on the same than that made by the appellant no. 3 herein by the order impugned in the writ petition. Since the whole exercise related to the interpretation of government orders giving an opportunity to the petitioner could have been an empty formality. 14. IN the case of S. L. Kapoor Vs. Jagmohan and Others, reported in (1980)4 SCC 379 the Supreme Court had very categorically held that where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. Subsequently, in the case of Aligarh Muslim University and Others Vs. Mansoor Ali Khan, reported in (2000)7 SCC 529 the Supreme Court reviewed the judgments on the point including the case of S. L. Kapoor (Supra). Explaining the observations made in S. L. Kapoor (Supra) the Supreme Court held if no other conclusion was possible on admitted or indisputable facts it is not necessary to quash the order which was passed in violation of natural justice. Explaining the observations made in S. L. Kapoor (Supra) the Supreme Court held if no other conclusion was possible on admitted or indisputable facts it is not necessary to quash the order which was passed in violation of natural justice. The Supreme Court in that judgment took note of the still later development of the principle in addition to breach of natural justice. Referring to the judgment in K. L. Tripathy Vs. State Bank of INdia, reported in (1984)1 SCC 43 the Supreme Court quoted a portion of that judgment inter alia to the effect that there must also have been some real prejudice to the complaint. There is no such thing as merely technical infringement of natural justice. The Supreme Court held that the useless formality theory is an exception to the general rule. We consider that the case of the respondent no. 1 falls within the exceptions as mentioned in the case of K. L. Tripathy (Supra). We are of the considered view that by not giving a hearing to the respondent no. 1 he has not been prejudiced in the long run and we also hold that even if he had been given an opportunity of being heard the authorities could not have come to a conclusion other than the one arrived at. We have heard the learned Advocate for the respondent no. 1 at length and are of the view that he could not show any ground which might have led the appellant no. 3 herein to come to a conclusion different from the one taken by him. 15. THUS we are compelled to hold that the learned single Judge had committed an error in not considering the matter from this angle and erred in holding that the principles of natural justice have been flagrantly violated. 16. ON behalf of the writ petitioner/ respondent no. 1 it was sought to be argued that when a benefit had already been conferred upon him it could not be taken away except without giving him an opportunity of being heard and where no opportunity of hearing is afforded that is a case of violation of the principles of natural justice. In support of this view Mr. Sikdar, the learned Advocate for the writ petitioner/ respondent had relied on the cases of Divisional Superintendent, Eastern Railway, Dinapur and Others Vs. In support of this view Mr. Sikdar, the learned Advocate for the writ petitioner/ respondent had relied on the cases of Divisional Superintendent, Eastern Railway, Dinapur and Others Vs. L. N. Kashri and Others, reported in AIR 1974 SC 1889 ; Bhagwan Shukla Vs. Union of India and Others, reported in AIR 1994 SC 2480 ; M. A. Hameed Vs. State of A.P. and Another, reported in 2001(9) SCC 261 . ON the point of recovery the learned Advocate for the writ petitioner/ respondent no. 1 has relied on the cases of Syed Abdul Qadir and Others Vs. State of Bihar and Others case, reported in 2009 (Supreme) 163 and L. Parameswaran Vs. Chief Personnel Officer and Others, reported in 2008(2) (Supreme) 186 . Relying on the case of D. N. Nakara and Others Vs. Union of India and Others, reported in AIR 1983 SC 130 it has been sought to be urged that the concept of cut off pay for beneficial legislation and for beneficial orders against the same class of employees was given go bye by the Hon'ble Supreme Court. 17. SO far as the principles of natural justice are concerned they are far to well-known to be reiterated. In more recent times in several judgments the concept of empty formality and real prejudice theory have been evolved as noted earlier. Thus if it is found that the result of the hearing would in any case have been the same or affording an opportunity of being heard would have been an empty formality strict adherence to the principles of natural justice has very frequently been departed from. 18. SO far as the case of Syed Abdul Qadir (Supra) is concerned that case is easily distinguishable on facts as in that case the Finance Department had admitted in its affidavit that it was a bona fide mistake on their part. The excess payment was made was the result of a wrong interpretation of the rule but here there is no such wrong interpretation nor has any department of the Government come forward to admit their own mistake. Again what was submitted to have been held in the case of L. Parameswaran (Supra) on the question of recovery does not find place in that judgment and as such that decision too does not apply. Again what was submitted to have been held in the case of L. Parameswaran (Supra) on the question of recovery does not find place in that judgment and as such that decision too does not apply. Moreover, the case of D. S. Nakara (Supra) has also no application as persons holding different posts have not been treated differently in the matter of their pay in the present case. 19. WE have no manner of doubt that the submission made by the writ petitioner about the importance of observing the principles of natural justice is the general position of law. But as we have found that the case of the respondent no. 1 falls within the exception we find no need to quash the order impugned in the writ petition and refer the matter back to the appropriate authority for a fresh decision. That again will be an act of useless formality. The appeal is thus allowed. The judgment and order of the learned single Judge is set aside. 20. THERE shall, however, be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.