Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 357 (CAL)

Sribas Samanta v. State of West Bengal

2014-04-17

SAMBUDDHA CHAKRABARTI

body2014
Judgment : Sambuddha Chakrabarti, J. By this writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to grant him higher scale of pay as an approved teacher in Bengali in the school concerned and to release all arrear dues to him and for other reliefs. The case of the petitioner inter alia is that on July 6, 1996 he was appointed as an Assistant Teacher in the language group in Krishnaganj Krishi Shipla Vidyalaya in the district of Purba Midnapore. His appointment was subsequently approved by the District Inspector of Schools (SE), Purba Midnapore. The petitioner wanted to prosecute M.A. studies in Bengali. The school authority granted permission to do the same from the university as a private candidate and leave was granted by the West Bengal Board of Secondary Education. He passed the Part I of the M.A. examination in 1997 and the Part II examination in 1998. The date of publication of the result was February 19, 1999. The Part II examination ended on November 26, 1999. After passing the M.A. examination he made prayer to the authorities to grant higher scale of pay in the relevant subject. The school authorities issued certificates in favour of the petitioner inter alia to the effect that he was eligible to enjoy the higher scale of pay after enhancing his qualification in a subject relevant to his teaching and the school authorities had in fact allotted him several classes in Bengali from Class IX to XII. According to the petitioner by an office order, dated November 22, 1993 it was clarified that all such teachers of the secondary schools and junior high schools including Madrasahs with higher qualification of post-graduate degree or the equivalent in the relevant subjects would get higher scales of pay in relaxation of the staff pattern as noted in the said circular. According to him since he was appointed as an Assistant Teacher in Bengali and had improved his qualification in the relevant subject of teaching the authorities could not deny to legitimately the right of enjoying higher scale of pay from 1998 taking into consideration the office order referred to above. The petitioner further states that in terms of Clause 12(3) of ROPA 1998 he is entitled to higher scale of pay. The petitioner further states that in terms of Clause 12(3) of ROPA 1998 he is entitled to higher scale of pay. Clause 12(3) states that all teachers of secondary schools who have improved or will improve their qualifications shall get higher scale of pay appropriate to their qualifications with effect from January 1, 1996 or the date of improving the qualification whichever is latter. He has further alleged that the requirement of taking prior permission from the District Inspector of Schools (SE) through the Managing Committee of the school also did not apply as he had appeared as a private candidate and as such there was no question of taking any prior permission from the authority concerned for prosecuting his higher studies. The authorities concerned, however, rejected the claim of the petitioner which is the subject matter of challenge in this petition. It may be mentioned that in spite of liberty granted more than once the respondents have not filed any affidavit-in-opposition and have not even appeared to contest the application. Thus the version of the respondents in the form of an affidavit is not available to the court. The petitioner’s case has already been recorded. It appears that the Managing Committee of the school made repeated approaches to the appropriate authority to grant higher scale of pay in favour of the petitioner for the qualification enhanced by him in the respective subject of teaching. Mr. Banerjee, the learned advocate for the petitioner has relied on the case of Subhasish Naskar –Vs.- State of West Bengal & Ors., reported in 2012(4) CHN (Cal) 732 where it had been held that the West Bengal School (Control and Expenditure) Act came into force on December 26, 2005 and the claim of the petitioner was made long before the said Act. As such that Act cannot obviously be applied to the facts of the present case. In the case of Sutanu Tirki –Vs.- The State of West Bengal & Ors., reported in 2008(4) CHN 224 a learned single Judge of this court had held that after the commencement of the Act higher scale of pay is affordable by reason of a teacher acquiring higher qualification than that which was necessary for the purpose of appointment to the post. It has been held that a teacher appointed by the School Service Commission would not be entitled to the benefits conferred by orders standing prior to the Act of 2005 came into effect. But if a teacher obtains a higher qualification prior to the Act of 2005 came into effect and if a teacher obtained a higher qualification after the Act of 2005 came into shall not be eligible to get higher scale of pay. Thus it has been conclusively decided in several judgements that the West Bengal School (Control and Expenditure) Act, 2005 has no retrospective effect and if a teacher has improved qualification before the Act came into being it will not be just for the authorities to refuse the higher scale of pay to which the petitioner is otherwise entitled to. In the case of Akhtar Hossain Chowdhury –Vs.- The State of West Bengal & Ors., reported in 2013(2) CHN (Cal) 632 the appellant had improved the post-graduate qualification through correspondence course without affecting the school duties. The order of rejection of the higher scale of pay was set aside by the Division Bench in appeal primarily on the ground that the teacher concerned had improved his qualification without affecting his studies in the school. In such view of it I find sufficient merit in the writ petition. The only problem here is that the reason for not granting the higher scale of pay in the present case is not available from the side of the State-respondents. They have neither filed any affidavit nor have they rejected the case of the petitioner on any specific ground. The only correspondence made in this behalf is by the District Inspector of Schools (SE), Purba Midnapore on August 9, 2005 by which the concerned school was asked to submit a copy of the order granting prior permission for enhancement of qualification from the competent authority. This is a case, as noted earlier, where prior permission should not be insisted upon inasmuch as the petitioner had improved his qualification as a private candidate and as such the question of taking any prior permission to prosecute the post-graduate studies was not relevant. I find sufficient merit in the writ petition and the same is allowed. This is a case, as noted earlier, where prior permission should not be insisted upon inasmuch as the petitioner had improved his qualification as a private candidate and as such the question of taking any prior permission to prosecute the post-graduate studies was not relevant. I find sufficient merit in the writ petition and the same is allowed. The respondents are directed to forthwith grant the appropriate scale of pay in accordance with law as an approved Assistant Teacher on the basis of the qualifications he had improved. The respondents are further directed to release all the arrear dues to the petitioner from the date he became eligible for the higher scale of pay within a period of six weeks from the date of communication of the order and to go on paying the same month by month as admissible to him in terms of the relevant circulars and Acts. There shall be no order as to costs.