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2014 DIGILAW 984 (CAL)

Biswanath Karmakar v. State Of West Bengal

2014-10-29

ASHIM KUMAR ROY

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JUDGMENT : Ashim Kumar Roy, J. It is the case of the writ petitioner since the year 1985, as an approved Assistant Teacher in Science Group, he has been teaching Mathematics at Patkiabari Higher Secondary School. Thereafter intending to improve his qualification that too in the teaching subject, he approached the Managing Committee of the School for granting him necessary permission to join a Post-Graduate course, i.e. M.Sc. in Mathematics, at B.N. Mondal University and the Managing Committee of the School vide Annexure 'P-2' to this writ petition on 5th February, 1993 in its meeting took a resolution permitting the writ petitioner to go for higher study. Accordingly, he joined the M.Sc. course and successfully obtained the Post-Graduate degree in Mathematics in the year 1998. 2. It is contended by the learned Counsel for the petitioner that after having acquired the Post-Graduate degree, the petitioner then approached the Managing Committee of the School for higher scale of pay as per the existing Rules. The Managing Committee of the School also took a resolution in his favour and forwarded his case to the concerned District Inspector of Schools. He then pointed out that in this regard it is pertinent to note that the West Bengal Board of Secondary Education also vide Annexure 'P-6' to this writ petition granted study leave to him for appearing in the examination. It is then contended that since no response was received from the respondent-authority, the writ petitioner, by his letter being Annexure 'P-7' to this writ petition on September 16, 2005, approached the District Inspector of Schools (SE), Murshidabad for considering his case but he was never informed what happened to his such prayer. 3. On the other hand, the learned Additional Government Pleader, Mr. Sadananda Ganguly, submitted already on 30th November, 2005 the District Inspector of Schools (SE), Murshidabad has taken a decision in the matter and rejected the petitioner's prayer for higher scale of pay. In this regard, he handed over to this Court the instruction, the learned Counsel for the State received from the concerned District Inspector of Schools, which is already with the records. In this regard, he handed over to this Court the instruction, the learned Counsel for the State received from the concerned District Inspector of Schools, which is already with the records. He contended that taking prior permission from the District Inspector of Schools before joining any higher course, according to the provision of the West Bengal School (Control of Expenditure) Act, 2005, is mandatory and in this case, no such permission was obtained by the petitioner before he joined the school. He contended that, therefore, the petitioner is not entitled to the benefit of higher scale of pay. 4. In reply, the learned Counsel for the petitioner submitted that such decision was never communicated to him by the concerned District Inspector of School and only after the matter is taken up for hearing before the Bench, he, for the first time, has come to learn about the same. He vehemently, contended that claim of the writ petitioner cannot be denied by taking advantage of the embargo put under the West Bengal School (Control of Expenditure) Act, 2005 because he accrued the right to claim higher scale of pay much prior to the said Act came into force. 5. Heard the learned Counsel appearing on behalf of the parties. Perused the impugned decision. 6. Now, going through the decision of the District Inspector of Schools filed before this Court in the form of instruction to the Counsel appearing on behalf of the respondent/State, it appears initially the said respondent was in dilemma as to whether the writ petitioner is entitled to higher scale of pay or not for his improved qualification in the teaching subject and then taking the plea that prior permission is mandatory according to the provisions of West Bengal Schools (Control of Expenditure) Act, 2005, rejected his prayer. 7. It may also be noted that Mr. Ganguly also urged that the petitioner is not entitled to any higher scale of pay because he has not taken any prior permission from the concerned authority, according to the provisions of West Bengal Schools (Control of Expenditure) Act, 2005. 8. This Court is unable to accept the contention of Mr. 7. It may also be noted that Mr. Ganguly also urged that the petitioner is not entitled to any higher scale of pay because he has not taken any prior permission from the concerned authority, according to the provisions of West Bengal Schools (Control of Expenditure) Act, 2005. 8. This Court is unable to accept the contention of Mr. Ganguly, for the simple reason that petitioner joined the course in the year 1993 and qualified in the examination in the year 1998 and immediately thereafter approached the authority concerned for higher scale of pay that is much before the West Bengal Schools (Control of Expenditure) Act, 2005 came into force. 9. It needs no debate that a legal right already accrued to a person cannot be denied by the State by giving retrospective effect to any statutes, which subsequently made such right conditional. Any embargo put under the West Bengal Schools (Control of Expenditure) Act, 2005, as regards to the enhanced scale of pay against improved qualification has no application in the case in hand. Inasmuch as such qualification was acquired much before the Act came into force. 10. Furthermore, the petitioner has not only improved his qualification in the teaching subject, i.e., Mathematics, but nothing has been brought to the notice of this Court, while pursuing his studies he hampered the studies of the students, thus, there will be no justifiable reason to deny him higher scale of pay and more particularly when, he acquired such qualification, the West Bengal Schools (Control of Expenditure) Act, 2005, was never into force. 11. Having regard to above, the order passed on 30th November, 2005 by the District Inspector of Schools (SE), Murshidabad stands quashed. 12. The respondent-authorities are directed to immediately grant him higher scale of pay in accordance with law. 13. This writ application stands allowed. 14. Needless to mention that such benefits be accorded to the writ petitioner with effect from the last day of the examination in which he obtained the master degree in Mathematics. Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application. Application is allowed.