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2014 DIGILAW 500 (CAL)

Barunjyoti Roy v. State of West Bengal

2014-06-10

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Judgment Jyotirmay Bhattacharya, J. This mandamus appeal is directed against an order passed by the Learned Single Judge of this Court on 2nd May, 2006 in W.P. No. 5280 (W) of 2006. Admittedly, he was appointed as an Assistant Teacher in the normal section. At the time of his appointment, he was graduate. Subsequently, he passed B.Ed. examination in the year 1984. He also enhanced his educational qualification after passing M.Sc. (Education) examination in the year 1989. The concerned school authority was accorded provisional recognition for introducing Higher Secondary General Stream courses with effect from 2004-2005 academic session. Since he had requisite qualification for teaching the students of Higher Secondary Section, the school authority submitted an application to the concerned District Inspector of Schools (SE), Barrackpore for conversion of one post from normal section to Higher Secondary Section so that the petitioner who had requisite qualification for teaching students in Higher Secondary Section, can be transferred to the higher secondary section. No decision was taken by the concerned District Inspector of Schools (SE) on the said application submitted by the school authority. Hence, the petitioner filed the writ petition seeking issuance of direction upon the concerned District Inspector of Schools (SE) for early consideration of the school’s proposal for conversion of one post from normal section to Higher Secondary Section. The said writ petition was ultimately dismissed by the Learned Single Judge of this Court on 2nd May, 2006 holding, inter alia, that the petitioner cannot be granted higher scale of pay for his enhanced educational qualification in view of the provision contained in the West Bengal Schools (Control & Expenditure) Act, 2005. The legality and/or propriety of the said order of the Learned Single Judge is under challenge in this mandamus appeal. In course of hearing of this appeal, we are informed by the Learned advocate appearing for the appellant that the appellant has already retired on superannuation in the year 2012. Having regard to the fact that the appellant has already retired during the pendency of this appeal, we are of the view that the application which was submitted by the school authority, need not be considered as the cause of action which had arisen for submission of such an application does no longer survive. Accordingly, we hold that the appeal has now been rendered infructuous. Accordingly, we hold that the appeal has now been rendered infructuous. Before parting with, we feel it necessary to mention here the submission of Mr. Bhattacharya, Learned advocate appearing for the State-respondents who contends that having regard to the fact that School Service Commission Act, 1997 came into operation in November 1997, no teacher could have been appointed even in the Higher Secondary Section by bypassing the provision of the School Service Commission Act, 1997. He thus contends that the service of the petitioner could not have been regularised in higher secondary section after the said Act came into operation. We find substance in such contention of Mr. Bhattacharya. Accordingly, we hold that the appeal does not deserve any merit for consideration. However, since the petitioner has already retired, we direct the respondents to pay all retiral dues of the petitioner including all arrear pension positively within a period of four months from the date of submission of the requisite pension papers of the petitioner by the school authority to the concerned District Inspector of Schools (SE). The school authority is directed to complete the pension papers of the writ petitioner/appellant within four weeks from date and submit the same before the concerned District Inspector of Schools (SE) within a week thereafter. It is thus, clarified that while calculating his retiral dues, the concerned District Inspector of Schools (SE) is also required to settle the petitioner’s claim for higher scale of pay for his enhanced educational qualification in the light of the provision contained in Ropa 1981 and settle his admissible dues on the basis of his admissible last drawn salary as per the said Ropa 1981. It is thus, made clear that in the event it is found that the benefit under Ropa 1981 is admissible to the petitioner for his enhanced qualification, then his pay scale is also required to be revised in terms of the Ropa 1981 and arrear salary which is admissible to him on the basis of such revised pay scale, should also be paid to him along with payment of the retiral dues. The school authority, District Inspector of Schools (SE) and the Director of Pension, Provident Fund & Group Insurance, West Bengal are directed to act in terms of the order strictly. The appeal is thus, disposed of. I agree.