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2015 DIGILAW 331 (CAL)

ABBAS ALI MONDAL v. STATE OF WEST BENGAL

2015-04-09

TAPABRATA CHAKRABORTY

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JUDGMENT : The instant writ application has been preferred challenging an order dated 27th of January, 2006 passed by the respondent no.5. 2. The undisputed facts are that the petitioner was appointed and approved as an Assistant Teacher in Language/Literature Group with effect from 4th of September, 1995 in the Arab Badkanai High Madrash (hereinafter referred to as the said Madrash), as would be explicit from the approval memoranda at pages 38 and 39 of the writ application and that as the petitioner was appointed with Honours qualification relevant to his group, he was granted Honours scale of pay by the respondent no.5 with effect from 4th of September, 1995 and that subsequent thereto, the petitioner sought for permission to pursue the post-graduate course in the relevant group and that such prayer was considered and allowed by the school authorities by a resolution dated 19th of January, 2000 and for necessary prior permission, the school approached the respondent no.5 by a memorandum dated 14th of November, 2000 but the said respondent no.5 sat tight over the matter and subsequent thereto, the petitioner passed M.A. Part-I Examination and the M.A. Part II Examination, as would be explicit from the documents at pages 49 and 53 of the writ application. 3. Upon enhancement of such qualification, the respondent no.5 was again approached for grant of post-graduate scale of pay by the petitioner as well as by the school authorities and the said representations were duly received by the said respondent no.5. 4. Responding to such representation, the respondent no.5 issued a memorandum dated 30th of September, 2003 calling for certain records for consideration of the petitioner’s claim and pursuant thereto the school authorities duly forwarded such documents as prayed for by a memorandum dated 6th of December, 2003 and thereafter, the respondent no.5 by a memorandum dated 27th of January, 2006 rejected the petitioner’s claim. 5. Mr. Das, learned advocate appearing for the petitioner submits that the post-graduate qualification was acquired by the petitioner prior to the promulgation of the West Bengal Schools (Control and Expenditure) Act, 2005 (hereinafter referred to as the said Act of 2005) and that the Government Order dated 24th of June, 1997 cannot stand in the way towards grant of post-graduate scale of pay to the petitioner. 6. 6. He further submits that for the inaction on the part of the respondent no.5 to consider the representation seeking prior permission to pursue the post-graduate course, the petitioner cannot be deprived of the post-graduate scale of pay to which he is duly entitled. 7. In support of his arguments, Mr. Das has relied upon the following judgements:- (a) Mahbub Rahaman –vs- The State of West Bengal and others, reported in (2013) 3 WBLR (Cal) 635. (b) Akhtar Hossain Chowdhury –vs- State of West Bengal, reported in 2013(2) CHN (Cal) 632. (c) An unreported judgement delivered in W. P. 87 (W) of 2009. 8. In spite of direction towards exchange of affidavits passed by this Court on 23rd of April, 2007, the respondents have not filed any affidavit-in-opposition. 9. Mr. Pal, learned advocate appearing for the respondent no.5 submits that the petitioner did not avail necessary permission from the respondent no.5 in terms of the Government order dated 24th of June, 1997 and that the said Act of 2005 stands in the way of the petitioner to avail the benefits of post-graduate scale of pay. 10. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. 11. It would be explicit from the written instruction furnished by the respondent no.5 that the petitioner was appointed on 4th of September, 1995 as a Bengali Teacher, having Bengali as a subject under Language and Literature Group. A copy of this said written instruction be kept on record. 12. Records reveal that the petitioner was granted permission by the managing committee of the said Madrash for acquiring the higher qualification and that the petitioner pursued the said course without hampering and ignoring his normal duties and that such improved qualification has immensely benefitted the students at large. 13. A perusal of the impugned order reveals that the petitioner’s claim has been rejected on the sole ground to the effect that under the government order dated 27th June, 1997 there is no provision for according permission, on post–facto basis. 14. 13. A perusal of the impugned order reveals that the petitioner’s claim has been rejected on the sole ground to the effect that under the government order dated 27th June, 1997 there is no provision for according permission, on post–facto basis. 14. It has been categorically laid down by the Hon’ble Division Bench of this Court in the case of Akhtar Hossain Chowdhury (Supra) that the said Government order dated 24th of June, 1997 relates to recognition of correspondence course conducted by the different Universities in India and that the same is not related to grant of any benefit for improving the academic qualification through correspondence course. 15. Applying the legal proposition, as laid down in the judgements referred to by Mr. Das, to the undisputed facts of the instant case, I am of the opinion that the Government order dated 24th of June, 1997 cannot stand in way towards grant of post-graduate scale of pay to the petitioner. Furthermore, the said Act of 2005 has no manner of application in the instant case since the post-graduate degree was obtained by the petitioner much prior to the promulgation of the said Act of 2005, which has not been given any retrospective effect. 16. For the reasons discussed above, I am of the opinion that the order dated 27th of January, 2006 issued by the respondent no.5 is not sustainable in law and the same is, accordingly, set aside. 17. The respondents are directed to extend the benefits of post-graduate scale of pay to the petitioner for obtaining the higher qualification of Master of Arts in Bengali, with effect from the day following the date on which the last post-graduate examination was completed, within a period of 6 weeks from the date of communication of this order. 18. The wF 19. There shall, however, be no order as to costs.