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2018 DIGILAW 518 (CAL)

Smriti Das v. State of West Bengal

2018-07-24

SHEKHAR B.SARAF

body2018
JUDGMENT : 1. This is an application under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by an order dated May 31, 2017 passed by the District Inspector of Schools (SE), Alipurduar (hereinafter referred to as ‘DI of Schools’). 2. It is the petitioner’s case that she was recommended by the West Bengal Regional School Service Commission in the year 2000 and was appointed in the School in the year 2001 wherein she joined on February 5, 2001. Subsequently, the petitioner passed her Master in Arts in the subject of History through correspondence course in the year 2004. 3. According to the petitioner, the Managing Committee had granted permission to the petitioner to appear for the examination of MA prior to the examination being conducted. However, no document has been annexed to the writ petition showing the exact date of such prior permission. The writ petitioner thereafter shows that the West Bengal Board of Secondary Education (hereinafter referred to as ‘the Board’) by a letter dated October 16, 2009 sanctioned the study leave for Part-I and Part-II examination taken by the writ petitioner in the year 2003-04 on full pay. Thereafter after a long gap of seven years the writ petitioner filed a writ petition bearing W.P. 5876 (W) of 2014 (Smriti Das vs. The State of West Bengal & Ors.) before this High Court wherein this Court directed the DI of Schools to consider and decide the representation for grant of higher scale of pay by way of a reasoned order. 4. On May 31, 2017, DI of Schools passed an order rejecting the claim of the writ petitioner for grant of higher pay scale on the following two grounds as delineated below : “The petitioner passed the M.A in History in relevant subject in the year 2004 taking prior permission from the Managing Committee and from the then ADI of Schools(SE), APD where it is clearly mentioned that the permission was given only for improvement of qualification not for claiming higher scale of pay. The school where the petitioner is working now is a secondary school till date. So the question does not arise for taking classes of higher secondary students where the enhancement of qualification is essential for her and also for the institution. In this instant case the petitioner has improved her qualification for her own interest. The school where the petitioner is working now is a secondary school till date. So the question does not arise for taking classes of higher secondary students where the enhancement of qualification is essential for her and also for the institution. In this instant case the petitioner has improved her qualification for her own interest. After considering pros and cons of the case District Inspector of Schools (SE), Alipurduar is not in a position to give her any relief.” 5. From a bare reading of the impugned order, it seems that there was a permission granted by the DI of Schools in the year 2004. Unfortunately, the writ petitioner has neither pleaded the same in the writ petition nor annexed any copy of the said document. The said document was produced before this Court on a query raised by this Court with regard to the above permission granted by the DI of Schools. The order dated February 6, 2004 passed by the Additional District Inspector of Schools (SE), Alipurduar is as follows:- “With reference to the subject indicated above, the permission for appearing the examination of M.A from the Burdwan University is hereby accord in favour of Smt. Smriti Das, A.T of the School without hampering the normal business of the School. As this permission for improving of qualification shall neither any guarantee nor a ground for claiming higher scale of pay. This is for his information on the subject.” 6. The petitioner, in Para 10 of the petition, argues against the order dated 31.05.2017. The petitioner states that there is no requirement of permission for obtaining post graduate degree and hence there is no nexus in refusing post graduate scale of pay. However, the petitioner has not mentioned the permission taken by her from the appropriate authorities before appearing for the exam. 7. It is quite evident that the order mentioned in Para 5 of this order, clearly indicated that the permission of improving the qualification shall be no guarantee nor a ground for claiming higher scale of pay. Unfortunately, it seems that this document was neither revealed in the earlier writ petition nor was annexed to this writ petition. In my opinion this was a material fact that had to be made a part of the writ petition for the writ petitioner to claim any relief. Unfortunately, it seems that this document was neither revealed in the earlier writ petition nor was annexed to this writ petition. In my opinion this was a material fact that had to be made a part of the writ petition for the writ petitioner to claim any relief. The principle of Uberrima fides – matters that which are said to require the utmost degree of good faith [see: Rex vs. Income Tax Commissioner; (1917) 1 KB 486; per Cozens Hardy M. R.], applies to all persons who file writ petition before this High Court and any suppression of material facts disentitles a writ petitioner from seeking any relief. In fact, the High Court in its writ jurisdiction should be wary of such attempts and castigate such persons. 8. In S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors. reported in (2004) 7 SCC 166 , Justice Ruma Pal dealt with aspect of what should be a material fact in case of a writ petition for suppression of material fact. The relevant paragraph is delineated below :- “13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken. Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed. Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioner had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order. 14. Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.” 9. Counsel on behalf of the respondents have also placed the Supreme Court judgment in S.P. Chengalvaraya Naidu(dead) by LRS. Vs. Jagannath (Dead) by LRS. & Ors. reported in (1994) 1 SCC 1 , wherein the Supreme Court held that a litigant who approaches the Court is bound to produce all the documents in his possession which are relevant for the litigation. The Court further observed that if he withholds a vital document in order to gain an advantage on the other side, then he will be guilty of playing fraud on the Court as well as on the opposite party. On this score itself, this writ petition deserves to be dismissed in limine with exemplary costs. 10. The Court further observed that if he withholds a vital document in order to gain an advantage on the other side, then he will be guilty of playing fraud on the Court as well as on the opposite party. On this score itself, this writ petition deserves to be dismissed in limine with exemplary costs. 10. On the merits of this case, it may be indicated by me that the impugned order passed by the DI of Schools is as per the ROPA, 1998 which contains the relevant rules governing higher scale of pay when an employee improves his qualification. The relevant Rule is Rule 12 (3) of the Memorandum bearing No.25-SE(B)/IM-102/98 dated 12th February, 1999 which reads as follows:- “(3) All teachers, including physical Education teachers 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 the 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/her pay will be fixed in the scale of pay as per his/her qualification mentioned by the West Bengal School Service Commission.” 11. It is noted that the DI of Schools has categorically held that the petitioner was working in a secondary school and therefore no question could arise for taking classes of higher secondary students where the enhancement of qualification was essential for her and also for the institution. The DI of Schools further held that in this particular case the petitioner has improved her qualification for her own interest and not for the interest of students. Apart from this reason, the DI of Schools had also mentioned that the permission in the year 2004 by the DI of Schools had been granted only for improvement of qualification and not for claiming higher scale of pay. Based on the above two reasons, he had rejected the claim of the writ petitioner. 12. Apart from this reason, the DI of Schools had also mentioned that the permission in the year 2004 by the DI of Schools had been granted only for improvement of qualification and not for claiming higher scale of pay. Based on the above two reasons, he had rejected the claim of the writ petitioner. 12. On a plain reading of the above Rule 12(3), it may be further noted that the enhancement of qualification and subsequently getting higher scale of pay is subject to the same being justified as per the approved staff pattern of the school. 13. On examination of the said order, it is clear that the same is a reasoned order and does not require any interference in the writ jurisdiction. 14. Apart from the merits of this case, as pointed out earlier, there has been a clear case of suppression of material facts and accordingly, this writ petition is dismissed with costs assessed as Rs. 5,000/- to be paid to the State Legal Services Authority, West Bengal (Mediation Fund). The writ petitioner is directed to file the proof of payment with the concerned Department within a period of three weeks. 15. As the writ petition is disposed of without calling for an affidavit, none of the allegations contained therein shall be deemed to have been admitted. 16. All parties to act on the website copy of this order.