Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 594 (CAL)

Sudipta Mukhopadhyay v. State of West Bengal

2016-08-02

DEBANGSU BASAK

body2016
JUDGMENT : DEBANGSU BASAK, J. 1. The petitioner has assailed an Order dated July 2, 2008 negating his claim for higher scale of pay. 2. Learned Advocate for the petitioner has submitted that, the petitioner was appointed as a school teacher on October 5, 1999. He had subsequently obtained higher qualification in the relevant subject and group. The petitioner should be given the higher scale of pay. 3. Learned Advocate for the petitioner has referred to the impugned order. He has submitted that, the impugned order has negated the claim on the ground of the provisions of the West Bengal Schools (Control of Expenditure) Act, 2005. He has submitted that, the Act of 2005 was not in operation at the point of time when the petitioner had enrolled in the M.A. course in 2004. Consequently, the same cannot be made applicable so far as the petitioner is concerned. 4. Learned Advocate for the petitioner has relied upon an unreported decision of the Court rendered in W.P. 6563 (W) of 2014 (Chaitali Banerjee v. The State of West Bengal & Ors.) dated February 1, 2016 and has submitted that, the petitioner is similarly situated and circumstanced as that of Chaitali Banerjee (supra). The petitioner in Chaitali Banerjee (supra) was given the higher scale of pay and, therefore, the petitioner should be afforded the same facility. 5. Learned Advocate for the State has submitted that, the Act of 2005 had come into operation with effect from December 27, 2005. The petitioner had received his higher qualification in 2007 which is subsequent to the date of the coming into effect of the Act of 2005. Consequently, the petitioner is not entitled to higher scale pay inasmuch as the pre-condition laid down in the Act of 2005 has not been fulfilled. 6. Learned Advocate for the State has relied upon 2013 Volume 4 Calcutta High Court Notes (Cal) page 386 (Tushar Subhra Mandal v. State of W.B.) as well as 2013 Volume 4 Calcutta High Court Notes (Cal) page 553 (Joy Krishna Murmu v. State of West Bengal) in support of his proposition that, the petitioner is not entitled to higher scale of pay on obtaining higher qualification. 7. I have considered the rival contentions of the parties and the materials made available on record. 8. A school teacher would be entitled to higher scale of pay on obtaining higher qualification. 7. I have considered the rival contentions of the parties and the materials made available on record. 8. A school teacher would be entitled to higher scale of pay on obtaining higher qualification. Such a proposition is not absolute. The right of a school teacher to ask for and obtain higher scale of pay was governed by various Government Orders prior to the promulgation of the West Bengal Schools (Control of Expenditure) Act, 2005. Subsequent to its promulgation and coming into effect of the Act of 2005, the right of a school teacher to receive higher scale of pay on obtaining higher qualification was guided and governed by the provisions of the Act of 2005. The Act of 2005 has come into effect from December 27, 2005 by virtue of a notification dated October 6, 2005. In the impugned order the provisions of Sections 14, 16 and 20 of the Act of 2005 have been stated as the reason for negating the claim of the petitioner for higher scale of pay. 9. In Joy Krishna Murmu (supra) the Court has considered the provisions of Section 14 of the Act of 2005. The Court has found that, the petitioner therein had acquired the higher qualification in the year 2006 after the coming into effect of the Act of 2005. In such circumstances, the negation of the claim for higher scale of pay has been upheld. 10. In Tushar Subhra Mandal (supra) it has been held that, no ban can be imposed on any teacher to prevent him from improving his higher education. The teacher concerned there was not granted leave to complete higher education in view of a Government Order dated November 27, 2007. In such facts the managing committee of the school was directed to grant leave to the petitioner in order to complete his course and appear in the examination. The District Inspector of Schools was also directed to grant such approval on the condition that the petitioner before Court will not claim any additional increment for obtaining such higher qualification unless permissible in accordance with law. 11. It appears that the teacher concerned in Tushar Subhra Mandal (supra) was seeking permission to continue with his higher studies subsequent to the coming into effect of the Act of 2005. 12. In Chaitali Banerjee (supra) the Court has considered Memo No. 593 dated November 27, 2007. 11. It appears that the teacher concerned in Tushar Subhra Mandal (supra) was seeking permission to continue with his higher studies subsequent to the coming into effect of the Act of 2005. 12. In Chaitali Banerjee (supra) the Court has considered Memo No. 593 dated November 27, 2007. It has held that, a candidate intending to enhance his qualification is required to enroll for the Post Graduate qualification once and pursuant to such enrollment such candidate was entitled to appear to the examination connected to such course. It has noted that, a teacher is obliged to take one permission from the managing committee and that such permission will govern both the field of enrollment to the course as also appearing for any examination in such enrolled course. 13. In the present case, the petitioner had enrolled for the M.A. Bengali course in 2004. The enrolment to the Post Graduate course being prior to the coming into effect of the Act of 2005, the rigors of the Act of 2015 will not visit the petitioner. The petitioner had applied for permission by a writing dated August 2, 2005. The school authority did not grant him such permission. He had proceeded to receive the higher qualification without requisite permission from the school authorities. The petitioner had, therefore, obtained his higher qualification during a period of his unauthorized absence from the school. In my view, when a school teacher absents himself without permission to acquire a higher qualification, such an action on his part should not be countenanced. He should not be allowed to reap the usufructs of his unauthorized absence. His acquisition of higher qualification is a usufruct of his unauthorized absence. 14. A teacher is excepted to adhere to lawful and valid administrative direction and discipline. The refusal to grant leave is not under challenge. What the petitioner seeks is that, notwithstanding the refusal of leave by the authorities, since he has acquired the higher qualification during his unauthorized absence, he should be granted higher scale of pay. Accepting such a stand would permit all teachers not to adhere to any administrative direction. Such teachers would be free to absent themselves with impunity and obtain greater financial benefit on completion of higher qualification. Such a situation is not desirable. 15. Accepting such a stand would permit all teachers not to adhere to any administrative direction. Such teachers would be free to absent themselves with impunity and obtain greater financial benefit on completion of higher qualification. Such a situation is not desirable. 15. In view of the fact that, the school authorities did not give the petitioner permission to continue with the higher qualification, I am not inclined to interfere with the impugned order. W.P. No. 23108 (W) of 2008 is dismissed. No order as to costs. 16. Urgent certified website copy of this order, if applied for, be given to the parties on priority basis.