Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 374 (CAL)

Parama Sardar v. State of West Bengal

2014-04-23

TAPABRATA CHAKRABORTY

body2014
JUDGMENT Tapabrata Chakraborty, J. 1. The subject matter of challenge in the instant writ application is an order dated 3rd July, 2010 passed by the respondent no.1 as contained in the memorandum dated 6th July, 2010. 2. Mr. Sen, learned advocate appearing for the petitioner submits that the writ petitioner was appointed to the post of Assistant Teacher in Geography at Bikram Nagar Haranath Niroda Sundari Ghosh Vidyamandir (H.S.) (hereinafter referred to as the said School), after the emerging to be successful in the selection process conducted on the basis of the prior permission memorandum dated 2nd April, 1997 issued by the respondent no.3. Such appointment of the petitioner was duly approved by the respondent no.3 vide memorandum dated 9th December, 1997 and he was granted the graduate scale of pay. Though the petitioner disclosed his qualification to be Bachelor of Arts (Hons.) in Geography he was erroneously granted the graduate scale of pay. Pointing out such irregularities, the petitioner approached the school authorities and upon consideration of the petitioner’s claim, the school authorities recommended towards grant of Honours Scale of pay to the petitioner and subsequent thereto, the petitioner was duly placed in the Honours Scale of pay and was granted the consequential benefits by the competent authority. 3. Mr. Sen further contends that the petitioner was granted the Honours Scale of pay on and from the year 1999 till February, 2005 and in support of such contention, Mr. Sen drew the attention of this Court to the Acquittance Roll at pages 76 and 78 of the writ application. Mr. Sen also draws attention of this Court to page 77 of the writ application and submits that from the said annexure it would be explicit that the grant of Honours Scale of pay in favour of the petitioner stood admitted by the respondent no.3. Surprisingly thereafter, the grant of Honours Scale of pay to the petitioner was discontinued with effect from March, 2005 without any grant of opportunity of hearing and aggrieved by such action of the respondents, the petitioner approached this Court through a writ application being W.P. No.6173 (W) of 2008 and the same was disposed of by an order dated 8th February, 2010 and pursuant to such order the respondent no.2 pass the impugned order which had been challenged in the instant writ application. 4. Mr. 4. Mr. Sen draws the attention of this Court to the order dated 8th February, 2010 passed in W.P. No.6173 (W) of 2008 and submits that the matter was relegated to the respondent no.2 and the consideration was restricted to ascertainment of the fact as to whether the petitioner disclosed her Honours qualification at the time of application for appointment to the concerned post. The Court further observed that if the respondent no.2 arrives at a finding that such disclosure was made by the petitioner, her Honours Scale of pay should be restored and all arrears should be paid. 5. Mr. Sen submits that though the respondent no.2 in the impugned memorandum dated 6th July, 2010 arrived at a finding that the petitioner had disclosed her Honours qualification at the time of appointment, the said respondent no.2 illegally rejected the petitioner’s claim only by incorporating a statement to the effect that the issue towards grant of such Higher Scale is sub-judice. According to Mr. Sen, there was no embargo towards grant of such Honours Scale of pay in favour of the petitioner as per the Recruitment Rules operative at the time of the petitioner’s appointment and that there was also no bar under the said Recruitment Rules (pages 53 to 66) towards participation of a higher qualified person in a post earmarked for lower qualification. In the said Recruitment Rules there was also no provision towards grant of any additional marks for the higher qualification held by the candidates. 6. Mr. Sen further submits that the Revision of Pay and Allowances Rules, 1990 (hereinafter referred to as the said ROPA Rules) were operative at the time of the petitioner’s recruitment and paragraph 16 (3) of the said ROPA Rules provides as follows:- “16(3) All teachers and librarians of Secondary Schools who have improved or will improve their qualification or who were appointed with higher qualification in the subject or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications with effect from the 1st January, 1986 or the date of improving qualification whichever is later. This principle shall apply mutatis mutandis to the teachers/librarians of other institutions/organizations as mentioned in Annexure-I.” 7. According to Mr. This principle shall apply mutatis mutandis to the teachers/librarians of other institutions/organizations as mentioned in Annexure-I.” 7. According to Mr. Sen, there are three sanctioned teaching posts in the Social Science Group and amongst the three approved teachers in the said posts, including the petitioner, only one teacher is enjoying the post graduate scale of pay and that the staff pattern memorandum dated 4th September, 1998 permits the grant of Honours Scale of pay to the petitioner. 8. Mr. Sen, in support of his argument, places reliance upon the judgement delivered in the case of Sri Astopada Rit Versus The State of West Bengal & Ors. reported in 2014 (1) CLJ (Cal) 448. 9. According to Mr. Sen, the judgments referred to in the impugned order passed by the respondent no.2 are distinguishable on facts. 10. Ms. Chaitali Bhattacharya, learned advocate appearing for the State respondents, submits that having accepted the appointment and approval in a post of Graduate Teacher, the petitioner cannot turn back and claim Honours Graduate Scale of pay. 11. According to Ms. Bhattacharya, the order dated 8th February, 2010 passed in W.P. No.6173 (W) of 2008 did not restrict the consideration of the petitioner’s claim by the respondent no.2 on any particular issue inasmuch as it could be explicit from the said order that all points were left open to be dealt with by the respondent no.2. 12. According to Ms. Bhattacharya, the petitioner had not categorically defined the period during which she was granted the benefits of Honours Graduate pay and the absence of such specific averment renders the petitioner’s claim to be vague. Furthermore, the Assistant Inspector of Schools in course of hearing of the matter before the respondent no.2 had categorically stated that no order was issued by the respondent no.3 towards grant of Honours Scale of pay to the petitioner. 13. Ms. Bhattacharya further submits that the grant of Honours Scale of pay to the petitioner is also not permissible under the staff pattern of the concerned school. 14. I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. 13. Ms. Bhattacharya further submits that the grant of Honours Scale of pay to the petitioner is also not permissible under the staff pattern of the concerned school. 14. I have heard the submissions made by the learned advocates appearing for the respective parties and I have considered the materials on record. A perusal of the order dated 8th February, 2010 passed in W.P. No.6173 (W) of 2008 reveals that the Hon’ble Court had categorically observed that “If the respondent no.1 comes to a finding that the petitioner made the disclosure in her application for appointment as a Teacher in Social Science Group in Geography that she was an honours graduate, her honours scale of pay shall be restored and arrear shall be paid. However, if it is in the negative, reasons shall be given.” 15. In the impugned memorandum dated 6th July, 2010 the respondent no.2 had quoted in paragraph 8(a), the application made by the petitioner for the concerned post and the same reveals that the petitioner did disclose her Honours qualification in the said application itself since the B.A. Part-II examination at page 46 of the writ application reveals that the petitioner passed the Honours examination on 14th August, 1997. Ms. Bhattacharya had also not disputed the fact that the petitioner disclosed her Honours qualification at the time of application for the concerned post. 16. As the matter was relegated for consideration to the respondent no.2 only on the limited issue as to whether the petitioner had disclosed her Honours qualification at the time of application for the concerned post and that the respondent no.2 having ascertained the said fact to be true, could not have rejected the petitioner’s claim. 17. The argument of Ms. Bhattacharya to the effect that the staff pattern of the said school does not permit the Honours Scale of pay to the petitioner is not sustainable inasmuch as under the ROPA Rules, 1990 there was no restriction towards grant of higher qualification pay on the basis of the staff pattern of the school and that the said Government order dated 4th September, 1998 cannot override the provisions of the relevant ROPA Rules. Furthermore, as admittedly there are three sanctioned posts in the Social Science Group and as only one teacher is enjoying the post graduate scale of pay in the said group and as between the petitioner and the other teacher in the said group, the petitioner holds the Honours qualification, the said Government order dated 4th September, 1998 does not debar the petitioner to avail the Honours Scale of pay. It also needs to be pointed out that in the impugned order, no specific ground was taken to the effect that the entitlement of the petitioner to avail the Honours Scale of pay is not justified as per the approved staff pattern of the said school. 18. The pendency of the appeal against the judgments referred to in the impugned memorandum dated 6th July, 2010 had been cited as a ground towards rejection of the petitioner’s claim but the said judgments are distinguishable on facts. 19. In the case of State of West Bengal Versus Sauvik Ghosh, reported in 2008 (1) CLJ 810 , the writ petitioner was appointed in terms of the provisions of the West Bengal School Service Commission Act, 1997 and that the State authorities cited the provisions of West Bengal Schools (Control of Expenditure) Act, 2005 in urging that the petitioner was not entitled to higher scale of pay. 20. In the case of Santanu Tirki Versus State of West Bengal & Ors., reported in 2008 (2) CLJ (Cal) 514, the writ petitioner acquired the higher qualification in the year 2004 and admittedly subsequent to his appointment the post of Assistant Teacher. 21. In the case of State of West Bengal & Ors. Versus Md. Sohidullah & Ors., reported in 2008 (2) CHN 234 , the writ petitioner was appointed in terms of the provisions of the West Bengal School Service Commission. 22. Another ground for rejection of the petitioner’s claim, as contained in the impugned memorandum dated 6th July, 2010 is that the petitioner having applied for a Pass Graduate post cannot claim the benefit of Honours Scale but such ground does not stand fortified through any statutory provision or any Government order. 22. Another ground for rejection of the petitioner’s claim, as contained in the impugned memorandum dated 6th July, 2010 is that the petitioner having applied for a Pass Graduate post cannot claim the benefit of Honours Scale but such ground does not stand fortified through any statutory provision or any Government order. On the contrary a perusal of the Recruitment Rules (pages 53 to 66) would reveal no such restriction and furthermore the ROPA Rules, 1990 categorically provides that all teachers who were appointed with higher qualification in the subject or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications. As the petitioner possesses the Honours Graduate degree in Geography being her relevant teaching subject at the time of appointment, she would be entitled to the scale pertaining to her Honours graduate qualification irrespective of the qualification as recorded by the respondent no.3 in the approval memorandum dated 16th October, 1997. 23. Thus, in my opinion, the petitioner’s entitlement to Honours Scale of pay stands established and the respondent no.1 had illegally denied to confer the benefits of Honours Scale by the impugned memorandum. 24. For the foregoing reasons the impugned order dated 3rd July, 2010 passed by the respondent no.1 as contained in the memorandum dated 6th July, 2010 is set aside and quashed and the respondents are directed to refix the petitioner’s scale of pay and to restore the Honours Graduate Scale of pay in favour of the petitioner and to disburse the arrears of pay on and from March, 2005 till date and thereafter the respondents shall continue to disburse the petitioner’s monthly salary in the Honours Graduate scale of pay. 25. The respondents are directed to disburse the arrears of pay to the petitioner within a period of 12 weeks from the date communication of this order. 26. The writ application is accordingly disposed of. 27. In the facts of the present case, there shall be no order as to costs.