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2012 DIGILAW 951 (CAL)

Akhtar Hossain Chowdhury v. STATE OF WEST BENGAL

2012-10-16

PRANAB KUMAR CHATTOPADHYAY, TARUN KUMAR DAS

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JUDGMENT Re: Application for Stay (CAN 8487 of 2012) 1. This application has been filed in connection with the appeal preferred from the order dated 17th April, 2012 whereby and whereunder a learned Judge of this Court dismissed the writ petition on merits. Going through the records we find that the appellant/petitioner herein claimed benefit of higher scale of pay by acquiring the post-graduate degree in Mathematics. 2. The appellant/petitioner herein has joined the school as an Assistant Teacher in the year 1986 when his academic qualification was B.Sc. (Honours) in Mathematics and B.Ed. degree. The appellant/petitioner subsequently improved his qualification and acquired post-graduate degree in Mathematics. The claim for higher scale of pay for acquiring post-graduate degree in Mathematics was initially rejected by the District Inspector of Schools (SE), Paschim Medinipur under office memorandum dated 15th March, 2011 mainly on the ground that the appellant/petitioner did not seek prior permission from the concerned District Inspector of Schools through the managing committee of the school for obtaining such higher qualification in the light of The West Bengal Schools (Control of Expenditure) Act, 2005 read with Para 3 of G.O. 593-SE (B) dated 27th November, 2007 and also under the provisions as laid down in the Circular being No. 548-SE (S) dated 24th June, 1997. 3. Mr. Moitra, learned senior counsel representing the appellant/petitioner submits that the circular dated 24th June, 1997 has no manner of application in the facts of the present case. 4. The aforesaid circular is set out hereunder: GOVERNMENT OF WEST BENGAL School Education Department, Secondary Branch No. 548-SE(S) 24th June, 1997 To: Recognition of correspondence courses conducted by the different Universities of India. The undersigned is directed by the order of the Governor to say that henceforth all the teachers teaching in different state-aided schools will have to take prior permission from the District Inspector of Schools (SE) through the Managing Committee, Ad hoc Committee/Administrator as the case may be if they like to enrol themselves and to appear for the examination conducted through Correspondence/Distance Mode of education from the UGC-affiliated universities. The Managing Committee of the concerned school shall send such cases to D.I. (SE) for approval along with their comments, including, inter alia, the relevance of the subject of higher studies and also whether such higher studies are likely to affect the duties of the teacher in the school. The Managing Committee of the concerned school shall send such cases to D.I. (SE) for approval along with their comments, including, inter alia, the relevance of the subject of higher studies and also whether such higher studies are likely to affect the duties of the teacher in the school. Sd/- B.M. Thakur O.S.D. & Ex-Officio Deputy Secretary. 5. The aforesaid circular relates to recognition of correspondence courses conducted by the different Universities of India and not relating to grant of any benefit for improving the academic qualification through correspondence course. 6. Furthermore, in the aforesaid circular, it has been mentioned that the Managing Committee of the school concerned while sending the case for approval should also mention the relevance of the subject of higher studies and also whether such higher studies would affect the duties of the teacher in the school. 7. In the present case, it has never been alleged that the teacher concerned conducted the higher studies through correspondence course affecting the duties in the school. The teacher concerned improved his qualification in Mathematics subject which is also a relevant subject in the said school. 8. Needless to mention that the teacher concerned with improved qualification helped the students of the school which immensely benefited the students. 9. The aforesaid circular, in our opinion, does not stand on the way to grant the benefit of higher scale of pay to a teacher on acquiring higher qualification through correspondence course. 10. Mr. Moitra further submits that the appellant/petitioner herein duly applied before the District Inspector of Schools (SE), Paschim Medinipur seeking prior permission for obtaining the higher qualification namely, post-graduate degree in Mathematics. 11. From the records we find that the Secretary of the managing committee of the school concerned by the written communication dated 3rd January, 2006 had forwarded the prayer of the appellant/petitioner for granting permission to undergo M.Sc. Course in Mathematics subject. The managing committee of the school also passed a resolution allowing the appellant/petitioner to undergo the aforesaid M.Sc. Course in Mathematics and the said resolution was forwarded to the District Inspector of Schools concerned. 12. The District Inspector of Schools concerned in spite of receipt of the aforesaid communication did not refuse the prayer made on behalf of the appellant/petitioner or the school authorities for allowing the said appellant to undergo post-graduate studies in Mathematics. 13. The appellant/petitioner admittedly completed M.Sc. 12. The District Inspector of Schools concerned in spite of receipt of the aforesaid communication did not refuse the prayer made on behalf of the appellant/petitioner or the school authorities for allowing the said appellant to undergo post-graduate studies in Mathematics. 13. The appellant/petitioner admittedly completed M.Sc. Course in Mathematics from Netaji Subhas Open University and, thereafter, claimed the benefit of higher scale of pay in view of improving the academic qualification. The aforesaid objection raised on behalf of the District Inspector of Schools for not seeking prior permission in terms of Para 3 of the Circular dated 27th November, 2007 is not factually correct since the appellant/petitioner through the managing committee has submitted an application seeking permission from the said District Inspector of Schools and the managing committee specifically forwarded such application together with the resolution passed by the managing committee of the said school in this regard. The said District Inspector of Schools did not refuse the prior permission to the appellant herein for undergoing the higher studies. 14. Mr. Moitra also submits that Para 3 of the aforesaid circular dated 27th November, 2007 cannot over right the provisions of The West Bengal Schools (Control of Expenditure) Act, 2005. 15. Mr. Moitra invites our attention to section 14(3) of the aforesaid Act, 2005 and submits that the appellant/petitioner is entitled to draw pay of post-graduate upon acquiring post-graduate degree. The said section 14(3) is set out hereunder: (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. 16. It is true that a circular cannot override the specific provisions of the Act. In the present case, the appellant/petitioner was admittedly appointed in the school as Honours Graduate with B.Ed. degree. As a matter of fact, at the time of joining the school qualification of the appellant was Honours Graduate in Mathematics and B.Ed. Subsequently the said appellant acquired post-graduate degree. Therefore, in terms of section 14(3) of The West Bengal Act, XIV of 2005 appellant herein is entitled to draw pay of post-graduate teacher. degree. As a matter of fact, at the time of joining the school qualification of the appellant was Honours Graduate in Mathematics and B.Ed. Subsequently the said appellant acquired post-graduate degree. Therefore, in terms of section 14(3) of The West Bengal Act, XIV of 2005 appellant herein is entitled to draw pay of post-graduate teacher. Furthermore, Para 3 of the Office order dated 27th November, 2007 has not been specifically violated in the present case since the appellant also sought for prior permission from the concerned District Inspector of Schools for undergoing post graduate studies through the managing committee of the school and such permission was never denied by the said District Inspector of Schools. 17. Considering the aforesaid facts, we are of the opinion that the District Inspector of Schools should not have rejected the claim of the appellant/petitioner for higher scale of pay even after acquiring higher qualification i.e. M.Sc. in Mathematics. 18. Accordingly, we set aside and quash the decision of the District Inspector of Schools, as communicated to the appellant/petitioner, under office memorandum dated 15th March, 2011. 19. For the identical reasons, we also set aside the impugned order under appeal passed by learned Single Judge. 20. We direct the District Inspector of Schools (SE), Paschim Medinipur to allow the benefit of higher scale of (Post-graduate scale) to the appellant/petitioner herein in view of acquiring higher qualification i.e. M.Sc. in Mathematics without any further delay but positively within a period of four weeks from the date of communication of this order. 21. Needless to mention that the appellant/petitioner will be entitled to receive the aforesaid benefit of higher scale of pay from the day following the date on which the last Post-Graduate Examination was completed which is deemed to be the date on which the appellant/petitioner acquired the Post-Graduate Degree in Mathematics in view of Government Order being No. 253-Edn. dated 17th September, 1984. 22. With the aforesaid directions, we allow both the application as well as the appeal upon treating the said appeal as on day's list. Let a photostat plain copy of this order duly counter signed by the Assistant Registrar (Court) be handed over to the learned advocates for the parties on usual undertaking.