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2016 DIGILAW 1000 (CAL)

MD. AHMADULLAH v. STATE OF WEST BENGAL

2016-12-14

SAHIDULLAH MUNSHI

body2016
JUDGMENT : Sahidullah Munshi, J. 1. In this writ petition the petitioner has made out a case that – (a) Before completion of his ‘Alim’ examination and during the continuance of the same, his father unfortunately died in harness as a teaching staff of Kanupat Pallimangal Harendra Sikshayatan and after his death the petitioner made an application before the concerned authority for compassionate appointment in place of his father in the died-in-harness category. The school issued a letter dated 22nd July, 1988 informing the petitioner that he has been substantively appointed in the additional post of Class-IV staff vide Director of School Education’s Memo No.2012/(149) GA dated 9th December, 1986. The petitioner duly joined the said institution as a Class-IV staff and subsequently, appointment of the petitioner was also approved by the District Inspector of Schools (S.E.), Howrah, initially for a period of two years subject to extension. (b) The petitioner is an approved Group-D staff of the said Institution since 1988 and he completed his B.A. Degree in the year 2000. He also completed M.M. and M.F. examination under the West Bengal Madrasah Education Board in the year 1995 and 1996. (c) The petitioner sought for permission for conducting Master of Arts in the subject Bengali. Thereafter, the Headmaster of the Institution forwarded all relevant papers with regard to the same before the concerned District Inspector of Schools (S.E.), Uluberia sub-Division for permission from the Managing Committee of the Institution and the Managing Committee, by a Resolution dated 19th September, 2014, permitted the petitioner for pursuing M.A. course. The petitioner duly completed his M.A. Degree in 2006 from Netaji Subhas Open University. (d) The petitioner appeared before the 3rd State level selection test, 2009 under the West Bengal Madrasah Service Commission and he duly passed the said selection test. The Commission recommended the name of the petitioner in Kushadanga Anwarul Ulum Siddiquia Senior Madrasah (hereinafter referred to as the said Senior Madrasah) against regular vacancy in the post of Arabic (Madrasah) (Pass) and informed respondent no.8 to issue appointment letter in favour of the petitioner. The appointment letter was duly issued by the respondent no.8 on 18th August, 2010 in pursuance whereof the petitioner duly joined the said Madrasah on 21st August, 2010 in the post of Assistant Teacher for the subject Arabic. The said appointment was subsequently, approved by the District Inspector of Schools (S.E.), Howrah. The appointment letter was duly issued by the respondent no.8 on 18th August, 2010 in pursuance whereof the petitioner duly joined the said Madrasah on 21st August, 2010 in the post of Assistant Teacher for the subject Arabic. The said appointment was subsequently, approved by the District Inspector of Schools (S.E.), Howrah. (e) The petitioner made an application before the Administrator of the said Senior Madrasah on 9th March, 2013 and prayed for M.A. scale of pay. The said application was forwarded to the District Inspector of Schools (S.E.), Howrah, for favourable action by the Administrator of the said Madrasah. (f) The District Inspector of Schools (S.E.), Howrah, by his Memo dated 10th June, 2015, addressed a letter to the Director of Madrasah Education praying for sanction of higher scale of pay in Bengali in favour of the petitioner. By the said Memo the District Inspector of Schools forwarded necessary papers submitted by the Madrasah authority on the question of grant of M.A. scale of pay in Bengali in favour of the petitioner. By the said Memo the District Inspector of Schools sought for necessary instruction from the Director of Madrasah Education. (g) By a Memo dated 27th August, 2015, the Director of Madrasah Education, on the question of grant of higher scale of pay in favour of the petitioner, has held that the petitioner was not an existing teacher when the higher qualification was acquired by him. He has referred to the circular dated 30th November, 2000 on the strength of which the petitioner and the school authority sought for grant of benefit of higher scale of pay, could not be available to the petitioner since he was not an existing teacher when the higher qualification was acquired by him. The circular which is referred to relates to grant of Post-Graduate scale of pay in favour of a teacher, namely, Mr. Riyazuddin Gazi who was in service as an existing teacher as on 31st March, 1981 and, therefore, in his case the abovementioned circular was made applicable to grant him higher scale of pay. By such Memo the Director of Madrasah Education has further observed that the petitioner was initially appointed as a clerk and subsequently, he became qualified for the post of Assistant Teacher and joined Kushadanga Anwarul Ulum Siddiquia Senior Madrasah on 21st August, 2010, i.e., prior to the said date, he was a non-teaching staff. By such Memo the Director of Madrasah Education has further observed that the petitioner was initially appointed as a clerk and subsequently, he became qualified for the post of Assistant Teacher and joined Kushadanga Anwarul Ulum Siddiquia Senior Madrasah on 21st August, 2010, i.e., prior to the said date, he was a non-teaching staff. Therefore, the question of considering him as an existing teacher does not arise and as such, his claim for allowing Post-Graduate scale of pay in his favour in terms of the aforesaid Government Order cannot be considered. On such consideration, the Director of Madrasah Education, West Bengal, refused to grant higher scale of pay in favour of the petitioner taking advantage of the said Government Order being No.2135-S.E. (B) dated 30th November, 2000 as prayed for by the Madrasah authority through a letter dated 27th April, 2015. 2. By a Memo dated 27th August, 2015 the District Inspector of Schools passed a reasoned order and rejected the petitioner’s claim for grant of higher scale of pay. 3. In the above backdrop of the case, the petitioner has made a prayer for quashing of the said Memo dated 27th August, 2015 issued by the Director of Madrasah Education, West Bengal and for a further direction upon the concerned authorities to grant to the petitioner higher scale of pay. 4. In support of his case the petitioner has submitted that the authority concerned has failed to take into consideration of the relevant circular which was passed by the Government on 30th November, 2000 for granting higher scale of pay and without considering the same, the respondent Director of Madrasah Education has passed an order against the petitioner. 5. Mr. Jaharlal Dey, appearing for the respondent-State, submitted that the petitioner was a clerk but not an existing teacher and, therefore, he is not entitled to get benefit of higher scale of pay in terms of the abovementioned circular of November, 2000. According to Mr. Dey, the writ petition does not call for any interference by this Hon’ble Court. 6. I have heard the parties and considered the materials on record in detail. According to Mr. Dey, the writ petition does not call for any interference by this Hon’ble Court. 6. I have heard the parties and considered the materials on record in detail. In this case, the undisputed case is – (1) The petitioner was appointed as a Group-D employee before his name was recommended by the Service Commission and he improved his qualification while he was a Group-D staff with the permission of the Managing Committee of the school where he employed as a Group-D staff. (2) The petitioner was recommended for being appointed as an Assistant Teacher in the Pass category by the Regional Level Service Commission and has passed in the Pass category scale of pay which was approved by the District Inspector of Schools (S.E.), Howrah. (3) The Director of Madrasah Education, while passing the impugned order on the question of grant of higher scale of pay in favour of the petitioner, has held that the petitioner was not an existing teacher when higher qualification was acquired by him. (4) The school authority referred to the circular dated 30th November, 2000 on the strength of which the petitioner and the school authority sought for grant of benefit of higher scale of pay but since the petitioner, at the relevant point of time, was not a teacher but he was a Group-D employee of the school, he is not entitled to get benefit of the said circular which is meant for the existing teachers only. Therefore, so far this point is concerned, the finding so arrived by the Director of Madrasah Education does not call for any interference and the petitioner’s plea cannot be accepted. 7. This apart, it appears from Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005, a teacher, who is appointed in the Pass category, cannot automatically switch over to Post-Graduate category only on the ground that he had higher qualification on the day of his initial appointment. Sub-Section 2 of Section 14 of the said Act says that when a teacher of a schools shall, if appointed in the Post-Graduate teacher category, be entitled to draw in the scale of pay in which he is appointed and he will not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the qualifications specified for such post. Sub-Section 3 of Section 14 says that every teacher of a school shall, if appointed in the Honours Graduate or Post-Graduate teacher category, be entitled to draw pay of Post-Graduate teacher category upon acquiring Post-Graduate Degree, in the manner as may be specified by order. Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005 is set out herein below for the purpose of convenience :- “14. (1) Every teacher of a school shall, if appointed in the post of Undergraduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay of acquiring any qualification other than the qualifications specified for such post. (2) Every teacher of a school shall, if appointed in the post of Graduate teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the qualifications specified for such post. (3) Every teacher of a school shall, if appointed in the Honours Graduate for Post-graduate teacher category, be entitled to draw pay of Post-graduate teacher category, upon acquiring Post-graduate degree, in the manner as may be specified by order.” 8. According to this circular, although, the present petitioner acquired higher qualification prior to his appointment he cannot claim for such grant of higher scale of pay owing to the bar created under Section 14 of the aforesaid Act. In this connection, a reference may be made to a circular being No.25-SE(B)/IM/102/98 dated 12th February, 1999, issued by the Government of West Bengal through School Education Board (Budget Branch). The said circular provides for revision of pay-scale in terms of the Pay Commission constituted by the Government in terms of Resolution No.11831-F dated 27th November, 1995. Paragraph 4 of such circular mentions about the scale of pay of post which says that from 1st January, 1996 the revised scale of every post in the Institutions and Organizations as mentioned in Annexure 1, except the teaching and non-teaching posts in Government sponsored/aided recognized Institutions up to Class-XII standard shall be as specified against it in column (4) of Annexure 5. The scales of pay of the teaching and non-teaching post in the Government sponsored/aided recognized Institutions up to Class-XII standard shall be as specified against such posts in column (4) of Annexure 6. Paragraph 12 deals with Career Advancement Scheme and related issues. Sub-paragraph 3 of paragraph 4 says that all teachers including Physical Education teachers and Librarians of Secondary Schools, who have improved/will improve their qualifications, who were appointed with higher qualification in the subjects or groups relevant to their teaching/appointment, shall get higher scale of pay appropriate to their qualification with effect from 1st January, 1996 or the date of improving qualifications, whichever is later. The said circular dated 12th February, 1999 has undergone certain amendments in July, 1999 and the amendments have been incorporated by the circular being No.155-SE (B)/10M/102/98 Pt 1. In the amended circular it has been specifically provided that all teachers including Physical Education teacher and Librarians of Secondary Schools, who have improved/will improve their qualification or who were appointed with higher qualification in the subjects or group relevant to their teaching/appointment, shall get higher scale of pay appropriate to their qualifications, with effect from 1st January, 1996 or the date of improving qualification, whichever is later provided that such higher qualified teachers in the relevant subjects or group is justified as per approved staff pattern of that school if such teacher is appointed through West Bengal School Service Commission, his or her pay will be fixed in the scale of pay as per his or her qualification mentioned by the West Bengal School Service Commission. On consideration of such amended circular it appears that the petitioner cannot get the benefit of higher scale of pay inasmuch as he was appointed in the Pass category on the basis of the recommendation of the School Service Commission and once he is appointed in the Pass category he cannot claim higher scale of pay simply saying that he has improved his qualification prior to his appointment. 9. Mr. Dey has also relied upon a decision in the case of Tarak Chandra Roy –Vs. – State of West Bengal & Ors. reported in 2008(2) CHN 973 . 10. The Hon’ble Division Bench in the said decision has categorically held as follows :- “We have considered the submission made by the learned Counsel. 9. Mr. Dey has also relied upon a decision in the case of Tarak Chandra Roy –Vs. – State of West Bengal & Ors. reported in 2008(2) CHN 973 . 10. The Hon’ble Division Bench in the said decision has categorically held as follows :- “We have considered the submission made by the learned Counsel. In our opinion, the petitioner being an appointee subsequent to the promulgation of the West Bengal School Service Commission Act, 1997 cannot be given the benefit of circular dated 22nd November, 1993 and 8th March, 2000. Petitioner having been appointed as Assistant Teacher pass category can only get the pay-scale specified by the Commission for that post. Even otherwise the benefit of circular dated 22nd November, 1993 and 8th March, 2000 would not confer any vested right upon the Assistant Teachers. No such right has been protected under the West Bengal Schools (Control of Expenditure) Act, 2005. In view of section 14 of the 2005 Act no graduate category teacher is entitled to claim any additional increment for acquiring any qualification than the qualifications specified for such post. The provision in section 16 would not be applicable to aid the claim of the petitioner as by virtue of section 20 of the 2005 Act the circulars and orders existing previously stand abrogated. That being the position of law, the petitioner would not be entitled to claim higher scale of pay. We, therefore, dismiss the writ petition.” 11. Mr. Dey, Learned advocate appearing for the State, has relied on a decision in the case of State of West Bengal & Ors. – Vs. – Md. Sohidullah & Ors., reported in 2008(2) CHN 234 . In support of the impugned order passed by the authority concerned Mr. De relies upon paragraphs 14, 15 and 21 of the said judgment and those are set out below : “14. On a combined reading of three circulars we feel that although Sohidullah and Nirupama did have requisite higher qualification being post-graduate and honours, as the case may be, they chose to compete for the pass category. Hence, they are not entitled to the benefit of the higher pay scale. 15. Mr. Bandyopadhyay’s contention that it violates article 14 of the Constitution, in our view, does not hold good. Hence, they are not entitled to the benefit of the higher pay scale. 15. Mr. Bandyopadhyay’s contention that it violates article 14 of the Constitution, in our view, does not hold good. If a litigant who has a right knowingly does not contemporaneously exercise such right, cannot complain before the Court that he is not being given the benefit for the right which he did not contemporaneously exercise. 21. In such view of the matter, Sohidullah is not entitled to claim postgraduate scale as he was selected in pass category on the basis of his application. The learned Judge, in our view, erred in allowing the writ petition of Sohidullah.” 12. Having considered the ratio discussed in the said judgments I am of the considered view that in the present case, the petitioner has failed to satisfy this Court that he is entitled to get higher scale of pay merely because he had higher qualification on the date of appointment. According to the aforesaid circular of 1999 as amended, it is only when the Service Commission recommends the name of the petitioner as a Honours or Post-Graduate candidate, he will be entitled to get benefit of the higher scale of pay. But the higher qualification having not been mentioned in the recommendation of the Service Commission, the petitioner cannot claim higher scale of pay. Although, the petitioner had higher qualification he chose to compete with the Pass category candidates and after competing with the candidates who had lesser qualification, when the writ petitioner got appointment, he cannot claim for higher scale of pay. 13. Therefore, the writ petition fails. 14. Order impugned does not call for any interference. 15. The writ petition is dismissed.