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2014 DIGILAW 898 (CAL)

Ratna Saha v. State of West Bengal

2014-09-15

JYOTIRMOY BHATTACHARYA, TAPASH MOOKHERJEE

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JUDGMENT : This mandamus appeal is directed against an order passed by the Learned Single Judge of this court on 15th May, 2014 in W.P. No. 4458(W) of 2003 at the instance of the appellant/writ petitioner. 2. By the impugned order, direction was given upon the concerned District Inspector of Schools (SE) to refix the scale of pay of the writ petitioner in the trained graduate scale with effect from 1st May, 1992. The school authorities were directed to forward all necessary documents to the concerned District Inspector of Schools (SE) for the purpose of such refixation of the petitioner's scale of pay in the trained graduate scale with effect from 1st May, 1992. It was also directed that the petitioner would be paid her monthly salary in the re-fixed trained graduate scale. The direction which was given by the concerned authority for recovery of the amount drawn in excess, was quashed. Thus, the impugned demand notice issued by the concerned authority claiming refund of the excess payment made to the writ petitioner was quashed. 3. The present appeal is directed against that part of the direction of the Learned Trial Judge by which the respondent no. 3 was directed to refix the scale of pay of the petitioner in the trained graduate scale with effect from 1st May, 1992 and direction was also given for payment of her monthly salary in the refixed trained graduate scale. 4. The managing committee of the said school has also filed another appeal being MAT 1089 of 2014 (The Managing Committee, Palaspai Anchal Gita Rani Dhara Balika Vidyalaya v. Ratna Saha & Ors.) challenging the legality of that part of the impugned order by which recovery of the excess amount paid to the writ petitioner was quashed by the Learned Trial Judge. 5. Both the mandamus appeals are taken up for hearing for the sake of convenience and also for avoiding conflict of decisions. Let us now consider the merit of those two appeals in the facts of the present case. 6. Admittedly, the writ petitioner was an organiser teacher. Subsequently, she was appointed as the Headmistress of the said school, before the school received recognition from the West Bengal Board of Secondary Education. The said school was recognised by the West Bengal Board of Secondary Education provisionally with effect from 1st May, 1992. 6. Admittedly, the writ petitioner was an organiser teacher. Subsequently, she was appointed as the Headmistress of the said school, before the school received recognition from the West Bengal Board of Secondary Education. The said school was recognised by the West Bengal Board of Secondary Education provisionally with effect from 1st May, 1992. The writ petitioner was appointed as a teacher-in-charge of the said school and her appointment was provisionally approved by the concerned District Inspector of Schools with effect from 1st May, 1992. The provisional approval of the service of the writ petitioner as a teacher-in-charge of the said school was communicated to the school authority vide the letter of the District Inspector of Schools (S.E.), Hoolghly, on 30th December, 1993. In the said approval letter, her educational qualification was mentioned as M.A. (Double), B.Ed. The scale of pay of Rs. 1780/- - Rs. 3780/- which was admissible to the teacher-in-charge as per ROPA, 1990 was given to her. Though it is not disputed that the writ petitioner had the requisite qualification for being appointed as the Headmistress of the said school at the time of approval of her appointment, but she could not be appointed as the Headmistress in the said school as she was lacking ten years teaching experience in approved service as on the date of approval of her appointment. Admittedly, she had Master Degree in two subjects, i.e. Political Science and Music. 7. Undisputedly, the writ petitioner was receiving her salary in the scale of Rs. 1780/- - Rs. 3780/- which was given to her by the concerned District Inspector of Schools. Problem started when the guardians of some students of the said school raised a dispute about admissibility of the said scale of pay to the writ petitioner. They filed a writ petition being W.P. No. 12314(W) of 2002 before this Court. 1780/- - Rs. 3780/- which was given to her by the concerned District Inspector of Schools. Problem started when the guardians of some students of the said school raised a dispute about admissibility of the said scale of pay to the writ petitioner. They filed a writ petition being W.P. No. 12314(W) of 2002 before this Court. After entertaining the said writ petition, an interim order was passed by a Learned Single Judge of this Court on 17th September, 2002 directing the concerned District Inspector of Schools (S.E.) to look into the pay fixation of the writ petitioner alongwith another teacher of the said school and decide the same strictly in accordance with ROPA, 1990; after taking note of appendix 'C' thereto, with this rider that in the event, the District Inspector of Schools (S.E.) finds that the pay fixation of the writ petitioner and the other teacher has not been done in accordance with the mandate of the aforementioned ROPA, he will forthwith take steps to refix the same in the manner as the same was required to be fixed in terms of the ROPA within a time bound period. In pursuance of such direction passed by a Learned Single Judge of this Court, the admissibility of the scale which was granted to the writ petitioner was considered by the concerned District Inspector of Schools by his order dated 5th March, 2003 and held that since the writ petitioner obtained Post Graduate Degree in Political Science and Music which are non-relevant subject in the normal section of a school, Post Graduate scale of pay which was granted to the writ petitioner as teacher-in-charge of the said school was not admissible to her. Accordingly, direction was given upon the writ petitioner for refund of the amount drawn in excess to the Government. Direction was also given for payment of her salary in the scale admissible to the teacher having graduate qualification only. Though such an order was passed by the concerned District Inspector of Schools but the same was not implemented because of some interim order passed in connection with the writ petition out of which the present appeal has arisen. 8. Fact remains that ultimately the said writ petition was dismissed on contest by another Learned Single Judge of this Court on 16th September, 2004. 8. Fact remains that ultimately the said writ petition was dismissed on contest by another Learned Single Judge of this Court on 16th September, 2004. While dismissing the said writ petition, His Lordship held that the writ petitioners being the guardians of the students of the said institution have no locus standi to move the writ petition, inasmuch as, they are neither the persons aggrieved, nor they are pre-judicially affected by the pay fixation made by the concerned authority in favour of the writ petitioner. Being aggrieved by the said order, an appeal was taken out by the writ petitioners therein. The said appeal being FMA 1955 of 2007 was also ultimately dismissed by the Appeal Court on merit on 23rd September, 2009. Since even after dismissal of the said writ petition, which was also affirmed in appeal, the said respondents were taking steps for implementing the order of the concerned District Inspector of Schools whereby the concerned authority proposed to recast the pay scale of the writ petitioner and also ordered to recover the excess payment made to the writ petitioner, the writ petitioners filed the present writ petition challenging the legality of the said order and/or the enforceability thereof, after the dismissal of the writ petition. 9. In this context, a question is raised as to whether the order which was passed by the concerned District Inspector of Schools (S.E.), in pursuance of an interim order passed in the earlier writ petition, can be given effect to, after dismissal of the writ petition. 10. On perusal of the impugned order we find that though argument was made by all the parties exhaustively before the Learned Trial Judge with regard to the admissibility of the scale which was granted to the teacher at the time of approving her service provisionally in the context of her educational qualification, but we find that this exercise was unwarranted, as in our view, the effect of order passed by the concerned District Inspector of Schools (S.E.) in pursuance of the interim order passed by this Court lost its force and/or existence with the dismissal of the writ petition by following the principle of merger of all interlocutory orders with the ultimate decision on the writ petition. When the said ultimate order of dismissal of the writ petition passed by the Writ Court was approved in appeal by the Learned Appeal Court, we have no hesitation to hold that the order of the concerned District Inspector of Schools (S.E.) lost its existence and as such it cannot be implemented by the concerned authority. If we look at the problem from this angle, then we have no hesitation to hold that the order passed by the concerned District Inspector of Schools (S.E.) on 5th March, 2003 appearing at page 123 of the stay application became ineffective. As such, the said order cannot be implemented. 11. Thus, we dispose of this appeal by quashing the impugned order passed by the concerned District Inspector of Schools on 5th March, 2003 appearing at page 123 of the stay application. 12. The impugned order, thus, stands set aside. The instant appeal being MAT 966 of 2014 is allowed. Re : MAT 1089 of 2014. The Managing Committee, Palaspai Anchal Gita Rani Dhara Balika Vidyalaya Versus Ratna Saha & Ors. 13. Having regard to the fact that we have quashed the order of the concerned District Inspector of Schools (S.E.) dated 5th March, 2003 as a whole, the direction given by the concerned District Inspector of Schools (S.E.) upon the writ petitioner for refund of the excess payment made to her cannot be given effect to. 14. As such, this appeal stands dismissed. 15. We are informed by Mr. Chatterjee, Learned Senior Counsel, appearing for the writ petitioner that three months salary has not been paid to the writ petitioner. 16. We, thus, direct the concerned authority to release payment which was withheld by the concerned authority for those three months, immediately. Appeal allowed.