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2018 DIGILAW 775 (CAL)

MD Serajuddin v. State Of West Bengal

2018-11-13

PROTIK PRAKASH BANERJEE

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JUDGMENT : PROTIK PRAKASH BANERJEE, J. 1. If there is a legislation governing a field, how far can an order made by the executive, even under the provisions of the legislation, alter the benefit given by the statute or override the legislative provision? This is the main question among the other issues which arise for consideration before me in these writ petitions. Since they raise common questions of fact and law in case of Assistant Teachers of Arabic, duly recruited in the pass-graduate category of such teachers in West Bengal, with the consent of the parties I heard the matters analogously. The records were produced and arguments were advanced on all issues discussed herein, and written notes of argument filed, regardless of whether they had been pleaded by the petitioners or expressly prayed in all the writ petitions. Therefore, the State had sufficient notice of even those issues which were not expressly pleaded in the writ petition and have addressed them, and cannot be said to have been taken by surprise. 2. The Petitioners before this Court have all passed their Mumtazul Muhaddethin (in short “M.M.”) examination on diverse dates between 1998 and 2008. This is a degree conferred by Madrasahs in West Bengal. Whether it is equivalent to a graduate degree or a post-graduate degree appeared to the writ petitioners to be material - because they say that due to orders passed by the government, it had become a post graduate qualification, entitling them to a higher scale of pay, without their having to do anything. The State on the other hand, has opposed the entitlement not on the ground that the said qualification is less than that of a post-graduate but because the post to which the writ petitioners were appointed, was not one, which would allow them to get a higher scale of pay if they could show that they possessed a qualification which was higher than that of a pass graduate. 3. Perhaps I should begin slightly earlier, with Islamic education in general. Since the goal of Islamic education was never mere memorization, but understanding and applying God’s word and submitting to His Will, its pedagogy never placed as much emphasis on formal degrees, as on actual understanding and application of what was taught. 3. Perhaps I should begin slightly earlier, with Islamic education in general. Since the goal of Islamic education was never mere memorization, but understanding and applying God’s word and submitting to His Will, its pedagogy never placed as much emphasis on formal degrees, as on actual understanding and application of what was taught. Who taught was as important as what he taught, because it was thought that only a person who lived a righteous life could teach properly, not just by his words but by example. However, with the modernization of the world and its education, it became important to teach secular subjects as well as theology and throughout the world, Islamic pedagogy was modified to achieve these goals. Studies show, this pedagogy came to consist of a level of schooling roughly corresponding to the secondary level, and then to a higher secondary level, and except in India, in most other jurisdictions including in Egypt and Pakistan, to what is there the highest level - that of the “Kamil”, which in Pakistan has the same status as a post-graduate degree, and incorporates the graduate level. Strangely enough, in traditional Islamic pedagogy, before modernization, the person who could teach a student, was someone who had been given that “Authority”, and he was generally known as an “Aalim”, which in the modern sense means having qualified at the secondary level. 4. In India, even from the time of Calcutta Madrasah during the time of the Hon’ble Company of Traders, Madrasahs offered degrees of “aalim” and “faazil” “corresponding roughly to Secondary, Higher Secondary levels. Prior to the West Bengal Board of Madrasah Education Act, 1994, the Board of Madrasah Education which was established in this State, offered a degree called Mumtazul Muhaddethin. This so-called MM degree corresponded roughly to the baccalaureate degree. 5. Research shows that the Indianized phrase which is abbreviated as “MM” (as aforesaid), has actually three parts - Mumtaz al Muhaddethin. In Arabic, Muhaddethin is usually translated as “traditionalist”, but it refers to a scholar of Arabic theology who collects and knows the Hadiths and has memorized at least 4 lakh narrations of the hadiths and their chain of provenance. Mumtaz is usually translated as “excellent” or “exalted”. 6. However, the Review Committee set up in 1977 made recommendations in respect of the senior madrasah system. Mumtaz is usually translated as “excellent” or “exalted”. 6. However, the Review Committee set up in 1977 made recommendations in respect of the senior madrasah system. The third interim report recommended specific changes in the syllabi and curricula of all the courses under the senior madrasah system. The intention was to ensure an equivalence with the courses of the general system. Thus, Alim was to be considered at par with the Madhyamik, Fazil Part I with the Higher Secondary, Fazil Part II with the Bachelor’s Degree and the so-called MM with the Master’s Degree, for which the syllabus was to be modified to include a much larger proportion of general subjects and reduce the proportion of the theological subjects. 7. However, though this recommendation was made by the Review Committee in 1977 even in 2002, the Kidwai committee found anomalies even at the Alim level. Ultimately, after the anomalies were removed, and new syllabi and courses were instituted, there were four degrees that a Madrasah could award - Alim, equivalent to Secondary, Fazil, equivalent to Higher Secondary, Kamil, equivalent to Graduate, after a three-year course (both Pass and Honours) and MM, equivalent to Post-Graduate or Master’s Degree, after a further 2 years after obtaining Kamil degree. 8. On September 20, 2007, the Directorate of Madrasah Education, Government of West Bengal, issued a notification bearing Memo No. 215- ME. It provided and recorded as follows: - Sub: Introduction of pay scale for Kamil degree holders and removal of discrepancy in pay scale of MM/MF degree holders serving in educational institutions including Madrasahs of different types. Sir, With reference to above, we would like to inform that ‘Kamil’ is an eligible qualification for the post of Assistant Teacher in Arabic, Theology and Islamic Culture (Islam Parichay) in High Schools and Madrasahs. The regional school Service Commission has been selecting and recommending suitable candidates for appointing as Assistant Teachers in Secondary School and Madrasahs mentioning their qualification as ‘Pass Graduate’. The University of Calcutta accepted the qualification as equivalent to graduate degree of Calcutta University and eligible qualification for admission into M.A. courses in Arabic, and Islamic History and Culture. In fact, it is a 3-year course (Pass & Hons.) after Fazil course (10+2). But at the time of ROPA ‘98, there was no out-put (i.e. Pass-out) of this course. The University of Calcutta accepted the qualification as equivalent to graduate degree of Calcutta University and eligible qualification for admission into M.A. courses in Arabic, and Islamic History and Culture. In fact, it is a 3-year course (Pass & Hons.) after Fazil course (10+2). But at the time of ROPA ‘98, there was no out-put (i.e. Pass-out) of this course. Therefore, the question of pay scale for the said degree holder did not arise. As a result, most of such degree holders were allowed undergraduate scale of pay. This problem now need be solved. Secondly, MM/MF degree holders without experience and serving in Senior Madrasahs have been enjoying pass-graduate scale of pay from the date of appointment in terms of G.O. No. 1155- Edn(M)/5M/-8/78 dt. 29.8.80 and 220- Edn(B)/IM-25/82, dt. 29.5.82 (copy enclosed) whereas restriction of 5 years teaching experience was imposed on the teachers having same qualification but serving in Jr. High/High Madrasahs for being eligible to get graduate scale of pay. Even in ROPA ‘98, this discrepancy was not removed. It is now a 2-year course after Kamil degree (i.e., 10+2+3+2-- --Alim, Fazil, Kamil and MM/MF/MF respectively). The old MM/MF course is equal to 2-year pass graduate course. The two year degree course holders are allowed pass graduate scale of pay from the date of appointment while MM/MF degree (of equal duration) holders are being deprived of the same scale for first years and become prey to discrimination throughout their service career. The government also has to face many court cases unnecessarily for this discrepancy. This anomaly need be removed. Under the facts stated above and reasons, as aforesaid we would like to request you to kindly take necessary steps for instance of a G.O. prescribing the scale of pay of Kamil degree & removing the bar of five years service in case of MM/MF degree holders in schools and Madrasahs in the manner as follows: Sl. no. DEGREE SCALE OF PAY 1. Kamil(pass) Rs. 4650/- -- 10,175/- 2. Kamil(Hons.) Rs. 5500/- -- 11,325/- 3. MM/MF(Old) Rs 4650/- -- 10,175/- 4 MM/MF/MU (Revised) i.e., with Kamil Degree) Rs. 6000/- -- 12000/- 9. no. DEGREE SCALE OF PAY 1. Kamil(pass) Rs. 4650/- -- 10,175/- 2. Kamil(Hons.) Rs. 5500/- -- 11,325/- 3. MM/MF(Old) Rs 4650/- -- 10,175/- 4 MM/MF/MU (Revised) i.e., with Kamil Degree) Rs. 6000/- -- 12000/- 9. On July 17, 2008, the State of West Bengal issued a notification under Memo No. 1040-MD whereby inter alia the 2-year degree in MM examination held from 1998 onwards was made equivalent to a Master’s Degree of different Indian Universities for all purposes inclusive of employment facilities. The exact terms of the notification are extracted below: - NOTIFICATION WHEREAS an expert Committee was constituted by the Govt. vide Notification no. 25-MD dated 8.1.2008 to examine the equivalence of Kamil &M.M course of studies/ related issues in connection with Senior Madrasahs. AND WHEREAS the committee after detailed deliberation have furnished recommendations after the Govt. have accepted the same. Now therefore the undersigned is directed by order of the Governor to state as follows: (1) Fazil Examination held up to 1992 be treated as equivalent to Higher Secondary Examination of WBCHSE for the purpose of granting admission to B.A. course of studies or Kamil course of studies. (2) Fazil Examination held from 1993 onwards be treated as equivalent to the Higher Secondary Examination of WBCHSE for all purpose inclusive of employee facilities. (3) Two year Kamil and three year Kamil (General) be treated as general Bachelor Degree of different Indian Universities for all purpose inclusive of employment facilities. (4) Three year Kamil (Hons.) Examination be accepted as Three Year Honours Bachelor Degree of different Indian Universities for all purpose inclusive of employment facilities. (5) 2 year M.M. held up to 1997 be treated as General Bachelor Degree of different Indian Universities for all purposes inclusive of employment facilities. (6) 2 year M.M. held from 1998 onward be treated as Master Degree of different Indian Universities for all purpose inclusive of employment facilities Fazil Examination held from 1993 onwards be treated as eligible qualification for appointment as Assistant teacher of Arabic and Theology in the primary section of the Sr. Madrasah. The Kamil under re-oriented syllabus, Kamil (General), Kamil (Honours), M.M. (old) & M.M., be treated as eligible qualification for appointment to post of Teacher in Arabic and Theology in Madrasah and Schools. 10. Madrasah. The Kamil under re-oriented syllabus, Kamil (General), Kamil (Honours), M.M. (old) & M.M., be treated as eligible qualification for appointment to post of Teacher in Arabic and Theology in Madrasah and Schools. 10. Subsequently, the State of West Bengal issued yet another notification on January 30, 2009, bearing Memo No.150-MD whereby it provided as follows: - NOTIFICATION WHEREAS an expert committee was constituted by the Govt. vide notification no. 25-MD dated 8.1.2008 to examine the equivalence of Kamil & MM course of studies/ related issues in connection with senior Madrasahs; AND WHEREAS the committee after detailed deliberation have furnished recommendations and the Govt. have accepted the same; Now therefore the undersigned is directed by order of the government to state as follows: The scale of pay for teachers holding qualification of Fazil, Kamil and MM will be as follows w.e.f. 1. 1. 2009. QUALIFICATION SCALE OF PAY Fazil (w.e.f. 1993 onwards) Rs.3,350-90-3,800- 100-4,700-125- 6,325 Kamil (upto 2008), Kamil (General) [w.e.f. 2009 onwards] 4650-150-5,100-175-6,325-200- 7925-225-10,175 Kamil (Honours) (w.e.f. 2009 onwards) Rs.5500-200-6, 300- 225-8,325- 250-11325 MM(Old syllabus upto 1997) 4650-150-5,100-175-6,325-200- 7925-225-10,175 MM (w.e.f. 1998 onwards) Rs. 6000-225- 7,800- 250-9, 800-275-12000 This has the concurrence of Finance Department vide U.O. No. 1879 Group P (pay) dated 29.1.09. By Order of the Government Sd/- Joint Secretary 11. On the basis of the above notifications, the writ petitioners claim that since they have all acquired their MM degrees from or after 1998, they are entitled to the said Post-Graduate scale of pay with effect from January 1, 2009 as stated in the notification dated January 30, 2009 (as in paragraph 10 above). They say that the subsequent clarificatory circular, on which the respondent State authorities have relied, among other things, to deny them that scale of pay, cannot be so applied as to take away the benefit which has already accrued to or vested in them. 12. The said clarificatory circular dated March 31, 2010 bearing no. 560-MD/0/6M-40/07, was issued by the State of West Bengal ostensibly in a bid to clarify the above notifications as in paragraphs 9 and 10 above. It provides that the existing teachers of Madrasah having M.M. (post 1998) qualification will not automatically enjoy the pay scale mentioned in the aforesaid notifications but they may appear before the West Bengal Madrasah Service Commission against the vacancies notified for post-graduate posts as in-service candidates. It provides that the existing teachers of Madrasah having M.M. (post 1998) qualification will not automatically enjoy the pay scale mentioned in the aforesaid notifications but they may appear before the West Bengal Madrasah Service Commission against the vacancies notified for post-graduate posts as in-service candidates. In all the writ petitions, arguments have been advanced challenging the nature, effect and validity of this circular dated March 31, 2010. 13. In the writ petitions before me, each of the writ petitioners separately applied to the concerned authorities of the State of West Bengal to grant them the post-graduate scale of pay in terms of the above notifications. The authorities did not respond to such representations. In some of the cases the writ petitioners concerned approached this court by an earlier round of writ petitions. In such cases there were orders by coordinate benches directing the respondents to consider and dispose of the representations in a time-bound manner by a reasoned order after giving a reasonable opportunity of being heard to those writ petitioners. In those cases, separate reasoned orders were passed, where the concerned authorities rejected the representations, both on the basis of the circular dated March 31, 2010 as also the provisions of Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005. These have been challenged before me. In the other cases, where the non-consideration of the representations has been made the subject matter of the challenge before me for the first time, the writ petitioners have challenged the circular dated March 31, 2010. In none of the cases has the vires of Section 14 of the Act of 2005 or any part thereof been challenged. 14. It would be apposite to quote the provisions of Section 14 of the Act of 2005 as aforesaid, on which the State Respondents have relied before me: - “(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 for 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 or Postgraduate teacher category, be entitled to draw pay of Postgraduate teacher category, upon acquiring Post-graduate degree, in the manner as may be specified by order.” 15. To my mind, it is perfectly clear that if the writ petitioners can demonstrate that they were appointed to any post or vacancy in the Honours Graduate or Post Graduate Teacher category, Section 14(3) of the Act of 2005 would by itself give them the right to draw the pay of a post graduate teacher category as in paragraph 10 of this judgment, from January 1, 2009. That they did not acquire the degree, but the State of West Bengal itself classified their MM degrees obtained on or after 1998 as equivalent to a Master’s Degree (Post Graduate Degree) by the order as in the Memoranda at paragraphs 9 and 10 of this judgment, would not prejudicially affect their entitlement. This is the plain meaning of Section 14(3) of the Act of 2005 and is so free of ambiguity that it requires no interpretation. Unfortunately, the necessary corollary is that those who are governed by Section 14(2) of the Act of 2005 cannot get a higher scale of pay even if they obtain or are deemed to have obtained qualifications which are higher than that of a pass-graduate. 16. However, from the records I find that each of the writ petitioners was appointed by the concerned Madrasah as an assistant teacher of Arabic/Theology in the Language group in the “Pass Category”. I have also ascertained from the records that these were pursuant to advertisements for a Pass-Graduate Category Assistant Teacher and not for Honours or Post-Graduate category. The prior permission for appointment is also for a pass-category Assistant Teacher for such subject, and not Honors or Post Graduate category. 17. Thus, the submissions made by Mr. I have also ascertained from the records that these were pursuant to advertisements for a Pass-Graduate Category Assistant Teacher and not for Honours or Post-Graduate category. The prior permission for appointment is also for a pass-category Assistant Teacher for such subject, and not Honors or Post Graduate category. 17. Thus, the submissions made by Mr. Biswaroop Bhattacharya learned counsel appearing for the writ petitioners in WP No. 4981(W) of 2017, WP No. 21874(W) of 2017, WP No. 14766(W) of 2017, WP No. 14778(W) of 2017, WP No. 14775(W) of 2017, WP No. 14773(W) of 2017, WP No. 28622(W) of 2017, WP No. 14764(W) of 2017, WP No. 28621(W) of 2017, WP No. 4709(W) of 2017, WP No. 8096(W) of 2018, WP No. 8094(W) of 2018 and WP No. 8095(W) of 2018 that the essential qualification for an Assistant Teacher in different types of Madrasahs in Hons./Post Graduate category is Kamil (Hons) or M.M. with Kamil does not really help his clients. The posts to which his clients were duly appointed were not Honours Graduate or Post Graduate category posts as advertised regardless of what the essential qualifications for the post were. Therefore, it would not allow a prospective candidate who applied for the post of Assistant Teacher in the pass graduate category to turn around after he was so appointed and then say that he should get the same benefit which the statute had intended should go to only those who had applied for and were appointed to the post in the Honours Graduate or Post Graduate category. The distinction is too broad to be ignored. It is clear that the said Act of 2005 read with the said notifications as in paragraphs 9 and 10 would only allow a prospective candidate who was applying for the post in the category of Honours or Post Graduate to rely upon his MM qualification obtained or after 1998 as a Post-Graduate degree, for which he could get a higher scale of pay. This he could not have done earlier before the notifications as in paragraphs 9 and 10 were issued. Therefore, whether the essential qualifications for the posts of Assistant Teachers in different types of Madrasahs in the Honours/Post Graduate category are Kamil (Hons) or MM becomes immaterial, as long as the writ petitioners did not apply for such category of posts and were not appointed to them. 18. Though Mr. Therefore, whether the essential qualifications for the posts of Assistant Teachers in different types of Madrasahs in the Honours/Post Graduate category are Kamil (Hons) or MM becomes immaterial, as long as the writ petitioners did not apply for such category of posts and were not appointed to them. 18. Though Mr. Bhattacharya relied upon the Schedule-I, Sl. No. 6 of the West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of persons for Appointment and Transfer to the post of Teachers and non-Teaching staff) Rules, 2010 (in short “the 2010 Rules), I do not see how it can help him. The said 2010 rules were framed under section 18 read with sections 8, 9 and 24 of the West Bengal Madrasah Service Commission Act, 2008 (in short “2008 Act”). However, none of the writ petitioners in the series of cases before me - whether represented by Mr. Bhattacharya or Mr. Banerjee - was appointed after 2010 or when the 2010 rules were in vogue. Each of them was engaged before that. The 2010 rules, I have ascertained, are wholly prospective. They therefore do not apply. Even otherwise, Serial No.6 of those rules would not have governed the case of writ petitioners even if those rules were applicable to the writ petitioners. This is because, at serial numbers 5 and 6, the essential qualification for the post of Assistant Teacher in Arabic for a Honours Graduate or Post Graduate Category is shown to be Kamil (Hons) or MM, but there is a separate post of Assistant Teacher for Arabic in the Language group meant for Pass graduate categories, in serial numbers 10 and 11 of the same schedule. The writ petitioners were all appointed in the posts of Assistant Teacher, Arabic, in the “pass graduate category” - and they were recommended for appointment in that category - where too MM is an essential qualification. Hence what were the essential qualifications for the posts of Assistant Teacher for an Honours Graduate or Post Graduate category cannot be relevant in their case. 19. As a matter of fact, even before the 2008 Act was enacted, the teachers in the Madrasah were appointed on the basis of recommendation made by a Commission - the West Bengal School Service Commission. 19. As a matter of fact, even before the 2008 Act was enacted, the teachers in the Madrasah were appointed on the basis of recommendation made by a Commission - the West Bengal School Service Commission. This was pursuant to the provisions of the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Act, 1997, which, prior to 2008, included “madrasahs” in the definition of “Schools” in Section 2(n) to which such Act of 1997 applied. In 2008, when the separate Madrasah Service Commission was established by the 2008 Act, Section 2(n) of the 1997 Act was amended to omit the reference to Madrasahs. At any rate, in the Rules under the 1997 Act, including the West Bengal School Service Commission (Selection of Persons for Appointment to the Post of Teachers) Rules, 2007 made there under (the 2007 Rules for short) also, there were separate provisions for Pass Vacancies in Madrasahs (Serial No.4) and Honours and Post Graduate Vacancies (Serial No.5).So regardless of which recruitment rules were applied, this distinction between the pass category and honours/post graduate category of posts continues to fatally prejudice the writ petitioners’ claim for higher scale of pay on the basis of the qualification they have been recognized as being higher than that of a pass-graduate. 20. Once I hold as above, it is clear that the writ petitioners have not been able to demonstrate what I have held they had to demonstrate, in paragraph 15 of this judgment. In such case they are relegated to a truly difficult proposition. They have to demonstrate that regardless of what Section 14(2) of the Act of 2005, the memoranda/notifications as in paragraphs 9 and 10 read with that in paragraph 8 of this judgment, have to be given effect to, to give them the higher scale. Only if they succeed in that endeavour, would they be entitled to have the circular dated March 31, 2010 adjudged illegal or ultra vires. 21. For this purpose, the writ petitioners have relied upon the provisions of Section 13 of the said Act of 2005. They contend that the memoranda and the notifications as in paragraphs 9 and 10 read with that in paragraph 8, amount to fixation of pay within the meaning of Section 13 of the Act of 2005. 21. For this purpose, the writ petitioners have relied upon the provisions of Section 13 of the said Act of 2005. They contend that the memoranda and the notifications as in paragraphs 9 and 10 read with that in paragraph 8, amount to fixation of pay within the meaning of Section 13 of the Act of 2005. For convenience, let me extract Section 13 of the Act of 2005 here in below: - “13. Power to determine fixation of pay and age of superannuation The State Government may - (a) determine and approve the case of fixation of pay of the teacher or non-teaching staff of a school in the manner, as may be prescribed; (b) determine the age of superannuation and the benefits payable after superannuation to the teachers and non-teaching staff of a school in the manner as may be prescribed.” 22. The writ petitioners submit that by the notification as in paragraph 10 the State has fixed the pay of those assistant teachers who hold the qualification of MM which they obtained on or after 1998 as that of a Master’s Degree Holder or a Post Graduate, at the post-graduate scale, and those who hold the MM Degree obtained in 1997 or before that, at the graduate scale, with effect from January 1, 1999. They say that this is pursuant to the equivalence fixed by the State of West Bengal by the notification as in paragraph 9 of this judgment. They say that the said notifications fixing the pay did not specify that these would apply only to the cases where the incumbent had been appointed to Honours Graduate or Post Graduate category of Assistant Teachers. They cannot, therefore, be interpreted to be so restricted. Both the sets of writ petitioners contend that the clarificatory circular dated March 31, 2010 was in the nature of an answer to a query raised by the officials of the State of West Bengal, and the internal answer to a query by one government official to another cannot take away that to which coordinate benches of this court have held those similar to the writ petitioners to be entitled. They submit that no separate government order has been issued taking away such benefit. There has been no government order which has been published in the official gazette. They submit that no separate government order has been issued taking away such benefit. There has been no government order which has been published in the official gazette. The writ petitioners submit that the clarificatory circular is an administrative instruction which cannot prevail over statutory rules or government orders. Even if there is a decision in the nature of March 31, 2010, it cannot take effect retrospectively. They challenge the clarificatory circular as in paragraph 12 both as being violative of Section 13 of the Act of 2005 as also of the general principle of law relating to divesting of vested rights, for which they have cited various authorities. 23. Mr. Sagar Bandopadyay, appearing for the writ petitioners in W.P. No. 31348 of 2017, 31352 of 2017 and 31351 of 2017 has also submitted what I have summarized above and has further submitted that the notification dated January 30, 2009 having been issued with prior concurrence of the Finance Department is in the manner prescribed under Section 13(a) of the Act of 2005. Mr. Bandopadhyay categorically refers to judgments of coordinate benches where similarly circumstanced Assistant Teachers of Madrasahs have been given the same benefits which the respondents are denying to his clients. 24. Let me first deal with the authorities cited by the writ petitioners in support of the proposition that a clarificatory order cannot repudiate the prayers of the petitioners as a benefit once bestowed cannot be subsequently taken away in the garb of clarifying the previous order. Perhaps a simpler way to re-state the proposition submitted would be to say that where a service benefit has been granted to a person in service by an implemented policy or administrative order, it cannot be taken away retrospectively by a subsequent policy or administrative order. 25. Perhaps a simpler way to re-state the proposition submitted would be to say that where a service benefit has been granted to a person in service by an implemented policy or administrative order, it cannot be taken away retrospectively by a subsequent policy or administrative order. 25. The first judgment is the decision of the Hon’ble Supreme Court in the case of Chairman, Railway Board and Others-v-C. R. Rangadhamaiah and Others reported in, (1997) 6 SCC 623 where the amendment of a provision of the Railway Establishment Code with retrospective effect was held to be violative of both statutory and fundamental rights, on the basis of the following ratio: - “It can, therefore, be said that a rule which operates in future so as to govern future rights of those already in service cannot be assailed on the ground of retrospectivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.” 26. The petitioners have further relied upon the decision of the Hon’ble Supreme Court in Amarjit Singh Ahluwalia-v-State of Punjab and Others reported in, AIR (1975) SC 984. Therein, the law was laid down that a memorandum, even if in the nature of an administrative instruction and not having the force of law, could not be departed from by the State Government at its own will without rational justification. The petitioners went on to submit that in the instant case, it did have a force of law, in terms of Section 13(a) of the Act of 2005. 27. Though it is the case of the writ petitioners that the clarificatory order of the State of West Bengal referred to in paragraph 12 of this judgment is not an “order” within the meaning of Article 13 of the Constitution of India as required by the hierarchy of “law” for the purposes of the Constitution of India, even as a decision taken by the Executive, it could not be made operative with retrospective effect. For this, they relied upon the judgment of the Hon’ble Supreme Court in the case of Govind Prasad-v-R.G. Prasad reported in, (1994) 1 SCC 437 where it was held that “it is settled law that an executive order of the Government cannot be made operative with retrospective effect.” 28. I do not think that there is any dispute about any of these propositions of law as settled by the Hon’ble Supreme Court. The question is not and never has been about whether benefit given by an administrative order can be taken away retrospectively by another administrative order or even executive fiat, though the writ petitioners would submit it is. The question is whether an administrative order can override the express provision of a legislation or depart from it. The question is whether an order passed by the executive (paragraphs 9 and 10 of this judgment) can override the provisions of Section 14(2) of the Act of 2005, when the order is not one under the circumstance mentioned in Section 14(3) of the Act of 2005. The writ petitioners have not shown that it can so override, except for submitting that the notifications as in paragraphs 9 and 10 of this judgment having the concurrence of the Finance Department of the State of West Bengal, amounts to a fixation of pay and its approval for those such as the writ petitioners in the “manner prescribed” under Section 13(a) of the Act of 2005 since it is without reference to the category of posts. 29. Let me now test this submission on the anvil of the legal provisions. Section 13(a) of the Act of 2005 speaks of determination and approval in the case of fixation of pay of the teacher or non-teaching staff of a school “in the manner as prescribed”. The word “prescribed” has been defined by Section 2(j) as “prescribed by rules made under this Act” which is to say, by rules made under the Act of 2005. The writ petitioners have not produced or relied upon any rule which shows that “concurrence of the finance department” in the matter of the government accepting any expert committee’s recommendation is in the manner prescribed under Section 13(a) of the Act of 2005. The writ petitioners have not produced or relied upon any rule which shows that “concurrence of the finance department” in the matter of the government accepting any expert committee’s recommendation is in the manner prescribed under Section 13(a) of the Act of 2005. On the contrary the provisions of the Act of 2005 and rules made there-under are non-obstante anything to the contrary contained in any other law, by virtue of Section 20 of the Act of 2005. 30. Therefore, on the face of it, the said notifications as in paragraphs 9 and 10 of this judgment, including the notification dated January 30, 2009 were not issued in the manner prescribed under Section 13 of the Act of 2005. Therefore, the submission of the writ petitioners, rather weak though it was, that they were setting up a fixation made under statute against a bar under another provision of the statute, which had to be harmonized in a manner as would extend the benefit for the welfare purpose, also fails. The fixation referred to by the notification dated January 30, 2009 did not have the writ petitioners or those similarly situated in mind. 31. To take a concrete example: it is nobody’s case that before the notifications as in paragraphs 9 and 10 (January 30, 2009 being referred to in paragraph 10 of the judgment) the degree of MM was that of a pass rather than a graduate. The said notifications did not make it equivalent to an Honours Graduate degree for the first time. They made the new syllabus MM equivalent to a Masters’ Degree. So, if a deserving and eligible candidate applied for a category of post advertised as “honours graduate or Masters category” or “honoursor master’s category” having a MM qualification which he had acquired on or after 1998, then the notifications as in paragraphs 9 and 10 of this judgment would have the effect of fixation of his pay in the higher scale of Post Graduate, if he was also duly appointed on the basis of that MM Degree in such category of post. 32. 32. So, the object of the welfare measure, were these persons, who had applied for a honours graduate category post and had been appointed on the basis of MM degrees obtained on or after 1998, but were drawing the scale of a graduate teacher instead of a master’s scale, and for them the notification dated January 30, 2009 were issued, read with the notification as in paragraph 9 of this judgment. This perfectly harmonizes the intentions behind such notification and each provision of Section 14 of the Act of 2005. The classification is therefore rational, and based on reasonable differentia. 33. I have also considered the submissions of the writ petitioners that in terms of the Memorandum dated February 27, 2009 bearing no. 298- MD they are entitled to the protection of the pay fixed with effect from January 1, 2009, as in paragraph 10 of this judgment. It is true that there is a revised pay band plus grade pay corresponding to the prerevised scale no.15, where the said pre-revised basic pay started from Rs.6000, as in the case of holders of the degree of MM (with effect from 1998 onwards) in paragraph 10 of this judgment. It is also true that there is a revised pay band plus grade pay corresponding to the prerevised scale no.11 which started from Rs.4650 as in the case of holders of the degree of MM (upto 1997). It is true that these are given in Annexure VIII to the said memorandum no. 298-MD dated February 27, 2009 which pertain to the recommendations of the Pay Commission which the State of West Bengal accepted and adopted in case of teaching and non-teaching staff of non-government, aided recognized madrasahs upto to Class XII standard and Senior Madrasahs upto MM Standard. However, I have to extract three provisions of the said memorandum, here in below: - Paragraph 3 (d): - “existing scale” means- (i) In relation to any post, the scale of pay shown against that post in Col. 3 of Annexure-VIII. (ii) In relation to an employee the scale of pay to which the employee was entitled on 1st January, 2006 in terms of Government Order No. 25-SE(B) dated 12th February, 1999 and any other order or orders which might have been issued in this regard. 3 of Annexure-VIII. (ii) In relation to an employee the scale of pay to which the employee was entitled on 1st January, 2006 in terms of Government Order No. 25-SE(B) dated 12th February, 1999 and any other order or orders which might have been issued in this regard. Paragraph 15:- Over-riding effect of the order: The provisions of this order shall have effect notwithstanding anything to the contrary contained in any other rules, orders and notifications for the time being in force, and all such rules, orders and notifications shall have effect subject to the provision of this order. Paragraph 16: - Relaxation: Where the Government is satisfied that the operation of all or any of the provisions of this order causes undue hardship in any particular case or class of cases, he may, by order, dispense with or relax the requirement of all or any of the parts of the order to such extent and subject to such conditions as he may consider necessary for dealing with the case or class of cases in a just and equitable manner. 34. Unfortunately, none of the writ petitioners can be shown to have that scale of pay (as in paragraph 10 of this judgment) as on January 1, 2006 in terms of the government order dated February 27, 2009. The government order dated January 30, 2009 fixed their pay with effect from January 1, 2009 and not January 1, 2006. So, these were not the existing scales of the writ petitioners which were sought to be protected or upwardly revised by the Memo dated February 27, 2009. Again, it must be remembered that memo dated February 27, 2009 was issued after January 30, 2009 and related to fixation of pay. The State of West Bengal must be presumed to know the earlier orders passed by it on the subject. Nonetheless, it neither referred to the notification dated January 30, 2009 nor referred to the date of fixation as January 1, 2009, but kept the date as January 1, 2006. Therefore, the intention in terms of Paragraph 16 of the said Memorandum dated February 27, 2009 is clear, that the government did not intend this to operate in case of those persons whose scales of pay were not as stated in the memorandum dated January 30, 2009 as on January 1, 2006. Therefore, the intention in terms of Paragraph 16 of the said Memorandum dated February 27, 2009 is clear, that the government did not intend this to operate in case of those persons whose scales of pay were not as stated in the memorandum dated January 30, 2009 as on January 1, 2006. This of course, would not prevent the State of West Bengal to relax the conditions of the said order in particular cases or classes. However, such order of relaxation cannot be a matter of right for which mandamus would issue. I make it clear, by way of abundant caution, in view of the order which I propose to pass and that which I have held so far as the law is concerned, that nothing contained in this judgment will prevent the writ petitioners from applying to the State of West Bengal for such relaxation of the conditions of the memorandum dated February 27, 2009, and if the same is done, nothing shall prevent the State of West Bengal from considering and disposing of it in accordance with law, as expeditiously as possible, but no later than 3 months from the date of such representation being received by it. 35. I will now deal with the judgments of the coordinate bench referred to by the writ petitioners. First in order is the case being WP No.1914 (W) of 2016 [Akmal Hossain-v-The State of West Bengal and Others] decided by a coordinate bench on December 1, 2016. The writ petition on almost similar facts, was allowed by the coordinate bench. 36. In fact, on the same point, as relied upon by the State of West Bengal before me,another coordinate bench, in WP No.19433 (W) of 2016 [Md. Azizul Haque-v-State of West Bengal] by a decision dated December 7, 2016, has been pleased to record as follows: - While quoting the Division Bench in the case of State of West Bengal and Others-v-Md. Sohidullah and Others reported in, (2008) 2 Cal HN 234: “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. 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. 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. 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.” (emphasis supplied by me). Further, while quoting Tarak Chandra Roy-v-State of West Bengal and Others reported in, (2008) 2 Cal HN 973, His Lordship was pleased to follow and consider the following proposition: - “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.”(emphasis supplied by me) On the above basis, His Lordship, in the case of Md. Azizul Haque (supra) was pleased to dismiss a writ petition in case of petitioners similarly situated as the petitioners before me, holding that: - “When a teacher appointed in a particular category, he will get the pay-scale of that category only irrespective of his higher qualification. Azizul Haque (supra) was pleased to dismiss a writ petition in case of petitioners similarly situated as the petitioners before me, holding that: - “When a teacher appointed in a particular category, he will get the pay-scale of that category only irrespective of his higher qualification. In the said decision the petitioner-teacher, although, a Post-Graduate, appeared in the interview as a Pass category candidate and, therefore, pay-scale of Post-Graduate teacher cannot be made available to the petitioner” (emphasis supplied by me). 37. Both Mr. Bhattacharya and Mr. Bandyopadhyay Learned Advocates for the two sets of writ petitioners tried to distinguish the judgment in the case of Md. Azizul Haque (supra) and the division bench judgments on which it relied upon by showing that Tarak Chandra Roy (supra) was not under the provisions of the West Bengal Board of Madrasah Education Act, 1994, and that the question before me is not which category of post was applied for, but what was the qualification on the basis of which the increase in pay was sought and how that qualification came about; in other words, this circular argument is that since the government itself, in 2008 and 2009 decided to recognize the qualification as a post graduate qualification, the writ petitioners could not have applied for any post whose category was “Honours Graduate or Post Graduate/Masters” since MM degree was not recognized as such prior to July 17, 2008 and the pay for such qualification was not fixed with effect from January 1, 2009 until January 30, 2009. On this basis, they would submit that I should follow the case of Akmal Hossain, supra. 38. The judgments in the case of Akmal Hossain, supra and Azizul Haque, supra, appear on the first glance to be contradictory. Since both are by coordinate benches, I am equally bound by both, unless I can show a feature in any one of them which robs either of its binding effect. 39. While the facts in the case of Akmal Hossain, supra are very similar to the present case, and the said notifications were all considered by the coordinate bench, it does not appear that the attention of the court was drawn to the provisions of Section 14(2) of the Act of 2005. 39. While the facts in the case of Akmal Hossain, supra are very similar to the present case, and the said notifications were all considered by the coordinate bench, it does not appear that the attention of the court was drawn to the provisions of Section 14(2) of the Act of 2005. The judgment does not reflect that Section 14(2) of the Act of 2005 was considered, while deciding whether an administrative order was to be given effect to, even if it was contrary to primary legislation. Therefore, the provisions of Section 14(2) of the Act of 2005 and also the provisions of Section 20 thereof, containing the non-obstante clause, passed sub silentio. There was no argument in respect of an administrative order being capable of overriding a primary legislation which expressly contained a non-obstante provision. 40. Recently a Division Bench of which I was a part has held, in the case of Subrata Karak and Others-v-The State of West Bengal and Others reported in, 2018 4 Cal HN 131 while deciding an appeal after remand by the Hon’ble Supreme Court, following the precedents laid down by the Hon’ble Supreme Court, that “precedents sub silentio and without argument are of no moment. This rule has ever since been followed.” 41. Therefore, I conclude with the greatest of respect to the coordinate bench, that the case of Akmal Hossain, supra cannot be an authority for the proposition that an administrative order can override a primary legislation which itself has overriding effect over any other law to the contrary nor an authority for the proposition that the notifications as in paragraphs 9 and 10 of this judgment overrode and made ineffectual the provisions of Section 14(2) read with Section 20 of the Act of 2005. Therefore, I am bound to follow the case of Md. Azizul Haque, supra. 42. Therefore, I am bound to follow the case of Md. Azizul Haque, supra. 42. Even if it is contended that other persons similarly situated as the writ petitioners have been given the benefit of the said notifications as in paragraphs 9 and 10 of this judgment, though they too had applied for pass category posts on the basis of the self-same MM degree obtained on or after 1998, the law is well settled that invocation of Article 14 of the Constitution of India for propounding a negative equality or for granting of a relief contrary to law merely because someone else has obtained it, is not permissible, particularly when invoking the jurisdiction of the court under Article 226 of the Constitution of India or Article 32 thereof. 43. Without multiplying precedents, I note only two judgments, of the legion cited by the learned Advocates for the State of West Bengal, being State of Orissa and Another-v-Mamata Mohanty reported in, (2011) 3 SCC 436 and Chandigarh Administration and Another-v- Jagjit Singh and Another reported in, AIR (1995) SC 705, for the proposition that “it is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.” 44. In view of the aforesaid, on the question of law whether the writ petitioners are entitled to higher scale of pay equivalent to that of postgraduate, when they applied for and obtained appointment in pass-category posts, contrary to Section 14(2) of the Act of 2005 read with Section 20 thereof, I hold against them. Thus, even if the circular dated March 31, 2010 cannot take away an vested right, retrospectively, I hold that the said right did not vest in any of the writ petitioners circumstanced as aforesaid and so the said circular does not take away any right vested in any of them. The right vested in that category of employees referred to in paragraphs 31 and 32 of this judgment. None of those persons have come before me challenging that they have not been given a post-graduate scale due to the said circular dated March 31, 2010. The right vested in that category of employees referred to in paragraphs 31 and 32 of this judgment. None of those persons have come before me challenging that they have not been given a post-graduate scale due to the said circular dated March 31, 2010. Thus, the challenges to the reasoned orders by the writ petitioners represented by Mr. Bhattacharya fail. For the same reason, the challenges to the circular dated March 31, 2010 also fail. 45. As a result, all the writ petitions stand dismissed. However, in the facts of the case and the sterling quality of assistance I have received from all the appearing counsel, there shall be no order as to costs. 46. A photocopy of this judgment, pronounced in WP No.4981 of 2017, which governs all the writ petitions which were heard analogously as aforesaid, shall be retained in the file of each of the writ petitions decided by me analogously being W.P. No. 4981 of 2017, W.P. No. 4709(W) of 2017, W.P. No.28621(W) of 2017, W.P. No. 21874 (W) of 2017, W.P. No. 14764 (W) of 2017, W.P. No. 28622 (W) of 2017, W.P. No. 14766(W) of 2017, W.P. No. 14773 (W) of 2017,W.P. No. 14775 (W) of 2017, W.P. No. 14778 (W) of 2017, W.P. No. 8096(W) of 2018, W.P. No. 8094 (W) of 2018, W.P. No. 8095 (W) of 2018, W.P. No. 31352 (W) of 2017, W.P. No. 31351 (W) of 2017 and 31348 (W) of 2017.