Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 279 (CAL)

Md. Mojibur Rahaman v. State of West Bengal

2018-02-28

RAJASEKHAR MANTHA

body2018
JUDGMENT : 1. The writ petitioner claims increased pay and emoluments consequent upon his acquiring higher educational qualification. 2. By an order dated 6th March, 2000 and another order dated 30th August, 2000 the Kumargunj High School in the District of Malda was granted recognition by the District Inspector of Schools, Malda as a Class IV Junior High School with effect from the year 1997 to 1998. The Writ petitioner was already engaged in and subsequently also recognized as, a Graduate teacher in the school. 3. On the 23rd July, 2004 the writ petitioner applied for permission to sit in the M.A. Part-I examination under a Distance Education Course. The said prayer was rejected by the D.I. of Schools, Malda in his letter dated 29/11/2004 on the ground that a Masters degree was not required to teach History up to Class VIII of a Junior High School. 4. Despite the above rejection the Writ petitioner once again on the 5th September 2005 requested the D.I. for approval to sit for the M.A. Part- II Examination. The said prayer denied on the 2nd January 2006 in reiteration of the D.I.’s earlier letter dated 29th November, 2004. 5. The last examination in M.A. Part-II was held on 5th October, 2005. The results of the said examination were declared on 28th December, 2005 in which the writ petitioner was successful. 6. The writ petitioner argued that at the time when he acquired the higher educational qualification, he need not have taken permission of the D.I. of Schools, Malda. The refusal on the part of the D.I. of school according to the writ petitioner was irrelevant. The writ petitioner claims to be entitled to a higher pay scale based on the ROPA 1998. 7. In support of the contention of writ petitioner relied upon a Division Bench judgment of this Court dated 31st January, 2014 in Rabikanta Barman Vs. D.I. of School and others being W.P.No.14760 of 2004. As per the said judgment, an Assistant Teacher appointed prior to coming into force of the School Service Commission Act of 1997, did not need prior permission of the D.I. of School for acquiring higher qualification to claim the higher pay of scale. The higher degree would confer an entitlement to higher pay scale based on the ROPA 1998. As per the said judgment, an Assistant Teacher appointed prior to coming into force of the School Service Commission Act of 1997, did not need prior permission of the D.I. of School for acquiring higher qualification to claim the higher pay of scale. The higher degree would confer an entitlement to higher pay scale based on the ROPA 1998. It was also held that a Government order dated 24th June, 1997 being No.549-AC(S) was confined to recognition of degrees and could not mandate prior permission of the D.I. According to the Division Bench, ROPA 1998 which came into force retrospectively from 1st January, 1996 did not mandate any such prior permission from D.I. 8. The second argument of the writ petitioner was that the relevant date for acquiring the higher qualification in this regard is the date of the Last Examination and not the date on which the result is published. Since the writ petitioner’s M.A. Part-II examination was on 5th October, 2005, the Writ petitioner was not hit by the West Bengal School (Control and Expenditure) Act of 2005 which came into force on 27th December, 2005. The date of publication of the result i.e. 28th December, 2005 according to the petitioner, is not relevant for the purpose of determining the eligibility of a higher pay scale consequent upon acquiring the higher qualification. 9. Per contra Counsel for the State relied upon a Division Bench Judgment in Tarak Nath Roy Vs. State reported in 2008 Vol.2 CHN 973, particularly Paragraph 10 thereof. This Court held that the circulars dated 28th November, 1993 and 8th March 2000 and other circulars prior to 27th December, 2005 have not been saved and stood extinguished by reason of Sections 20 of the West Bengal School (Control and Expenditure) Act 2005. The claim of the petitioner was hit by Section 14 of the said 2005 Act. 10. I have heard Counsel for the parties. 11. There is a more basic issue that is required to be addressed by this Court. One cannot lose sight of the fact that the recognition granted to the School which employed the writ petitioner, with effect from 1997-1998 was only as a Class-IV Junior High School. The school could therefore conduct classes only up to the VIII standard. Admittedly the Rules of the Board prescribe only a Graduate qualification for an Assistant Teacher teaching up to the VIII standard. The school could therefore conduct classes only up to the VIII standard. Admittedly the Rules of the Board prescribe only a Graduate qualification for an Assistant Teacher teaching up to the VIII standard. No higher qualifications are necessary for teaching students up to Class VIII under the West Bengal Board of Secondary Education. Consequently there was no occasion for the petitioner to acquire a higher qualification before March 2006. 12. The school employing the writ petitioner was granted recognition as a Secondary School up to Class X only on 31st March, 2006. The requirement of a higher qualification to teach history to student of Class IX and X therefore arose only after 31st March, 2006. Reference in this regard is made to a circular No. Dated 15th January 1972 which mandated that approval for Honours or Post Graduate Course enrolments cannot be given to Junior High School approved for up to Class VIII. It is therefore axiomatic that the writ petitioner’s claim for higher scale pay based on a higher qualification can only arise after 31st March, 2006. The West Bengal (Control and Expenditure) Act, 2005 have come into force on 28th December, 2005 and Section 14 thereof would apply to negate, bar and reject the claim of the writ petitioner for higher qualification. The claims of the writ petitioner were therefore still born as on the date of his right having crystallized. 13. In a judgment dated 17th July 2017 in Kakali Basu Chatterjee Vs. State, in FMA 1678 of 2013 at Page 14 of the server copy, it was held that the circulars or Government Orders giving Higher pay and entitlements on acquiring higher qualifications, do not survive with the promulgamation of the said 2005 Act, on 27th December, 2005. 14. The said Kakali Chatterjee Basu Case (supra) followed the Division Bench judgment in the Tarak Chandra Roy Case(supra). In the latter Case it was held that no vested right to higher pay scale conferred on any Assistant Teachers by reason of any Government Circular. It was also held that Control of Expenditure Act 2005 nullified all earlier Government Orders and Circulars. Therefore, the writ petitioner claim is liable to be rejected on this ground, as well. 15. I am not satisfied with the argument of the writ petitioner that his right for higher qualification arose in ROPA 1998 notwithstanding any other laws. It was also held that Control of Expenditure Act 2005 nullified all earlier Government Orders and Circulars. Therefore, the writ petitioner claim is liable to be rejected on this ground, as well. 15. I am not satisfied with the argument of the writ petitioner that his right for higher qualification arose in ROPA 1998 notwithstanding any other laws. It is true that in the Rabi Kanta Barman Case (supra), a Division Bench of this Court had in fact recognized that a right of higher pay on account of higher qualification, accrued to an Assistant Teacher by reason of ROPA 1998. The issue whether the relevant ROPA 1998 could survive the Act of 2005 had not come for consideration. In my view Section 14 of the 2005 Act would nullify and negate all entitlements that arose on account of acquiring higher qualifications, irrespective of how or where the right arose from or conferred. 16. For the reasons aforesaid the instant writ petition must fail. W.P. No.798(W) of 2007 is dismissed. 17. There shall be no orders as to costs. 18. Urgent Xerox certified copy of this judgment, if applied for, be supplied to the parties on urgent basis.