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2019 DIGILAW 394 (CAL)

DIPALI MANDAL v. STATE OF WEST BENGAL

2019-03-20

ABHIJIT GANGOPADHYAY

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JUDGMENT : ABHIJIT GANGOPADHYAY, J. 1. This is an application claiming higher scale of pay. The petitioner is a Teacher who joined in a post of an Assistant Teacher which was earmarked for pass graduate candidate. Subsequently the petitioner in 2006 acquired M.A. qualification through Distance Education. She was appointed as an Assistant Teacher on 25.05.1988 and got approval from the District Inspector of Schools (Secondary Education), Purulia (hereinafter referred as to the D.I.). 2. The petitioner prayed to the administrator of the concerned School for permission to appear in the M.A. examination on 14.02.2004 which was not granted. She again prayed for such permission on 15.10.2004. From letter of the petitioner written to the School dated 08.10.2005 it is found that she appeared in M.A. part-I examination in the subject History and intimated the School that for appearing in the examination she would not be able to attend the classes from 20.10.2005 to 26.10.2005. She appeared in the M.A. part-II examination in the said subject and for taking examination, she intimated the School by a letter dated 25.09.2006 that she would not be able attend the classes from 10.10.2006 to 17.10.2006. 3. The Additional District Inspector of School through his Memo No. 698 dated 31.05.2005 intimated the School that permission to the petitioner to seat in the M.A. examination may not be considered as the School Authority did not consider the case. 4. From a letter of the petitioner written to the School dated 29.03.2007 it is found that when she joined the School she was only B.A. pass candidate. Subsequently she acquired M.A. (History) qualification and the M.A. examination was concluded on 19.10.2006, the result was published on 09.03.2006. In this letter the petitioner prayed for M.A. scale of pay from 20.10.2006 and requested the administrator of the School to move the D.I. for sanctioning higher scale of pay. 5. As this was not done, the petitioner filed a writ application being W.P. No. 20099 (W) of 2012 wherein this Hon'ble Court directed the School to forward the application of the petitioner to the D.I. and further directed the D.I. to dispose of the said application by a reasoned order after giving the petitioner an opportunity of hearing. 6. 5. As this was not done, the petitioner filed a writ application being W.P. No. 20099 (W) of 2012 wherein this Hon'ble Court directed the School to forward the application of the petitioner to the D.I. and further directed the D.I. to dispose of the said application by a reasoned order after giving the petitioner an opportunity of hearing. 6. In compliance with the said order of this Court dated 19.12.2012 the D.I. considered the matter and did not allow the higher scale of pay for the reason sated therein including no procedure was followed by the petitioner while obtaining M.A. in History and no higher classes were allotted to the petitioner by the School and the School already had one Teacher with higher qualification to teach the Subject History. The service of the petitioner, it was held, was not utilised and there was no question of any benefit to the students. Challenging this order of the D.I. Contained in Memo No. 27/1/(3)/l /Plr dated 25.03.2013, this writ application has been filed for granting higher scale of pay. 7. It is admitted fact that the petitioner was appointed as an Assistant Teacher in History in the post earmarked for pass graduate. It is on record that she was not granted permission either by the School or by the D.I. as appears from the letter of the D.I. dated 31.05.2003. 8. The petitioner has stated in one of her letters that examination was concluded on 19.10.2006 and prayed for higher scale of pay. 9. Regarding higher scale of pay an Act namely West Bengal Schools (Control of Expenditure) Act 2005 (hereinafter referred to as the Act of 2005) which came into effect form 19.08.2005, is required to be referred, especially section 14 (2) thereof, which is quoted below: Section 14 (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”. 10. In view of this Section 14 (2) of the aforesaid Act the petitioner is not entitled to claim any additional increment or higher scale of pay for acquiring the qualification other than the qualifications specified for such post. 10. In view of this Section 14 (2) of the aforesaid Act the petitioner is not entitled to claim any additional increment or higher scale of pay for acquiring the qualification other than the qualifications specified for such post. The qualifications specified for such post i.e. post of graduate teacher category is pass graduate which becomes clear from Section 14 (3) of the said Act which speaks of Honours Graduate and Post Graduate Teacher category. Thus Section 14 (2) of the said Act deals with pass graduate Teacher category. The petitioner had qualification specified for such post of graduate teacher category and that is why she was appointed in the School and thus on acquiring higher qualification, which was not required for graduate teacher category she is not entitled to claim higher scale of pay. 11. In support of his case the petitioner has relied upon the following seven judgments which he has mentioned in his written notes of argument also. Now it is to be checked whether the petitioner gets any benefit from any of the above judgments: (i) Nibir Kumar Som versus- The State of West Bengal & Ors., (2013) 3 WbLR 856 (Cal). In this matter the Court dealt with circular No. 670-SE(S) dated September 04, 1998 and the question relating to taking prior permission for acquiring higher qualification. In the present case prior permission was refused to the petitioner. Further, for the bar created by Section 14 (2) of the said Act of 2005 she is not entitled to claim higher scale of pay. The judgment of Nibir Kumar Som has not dealt with Section 14 (2) of the said Act of 2005. (ii) Raghunath Mondal -versus- the state of West Bengal & Ors., (2013) 3 WbLR 556 (Cal). Here in this matter the Court dealt with Revision of Pay and Allowances Rules 1998 and here the petitioner was appointed with higher qualification. Here also the Court has not dealt with Section 14 (2) of the said Act of 2005. This judgment also therefore, does not help the petitioner. (iii) Maleka Khatun versus- The State of West Bengal & Ors.,2009 4 CalHN 440 in which case nothing has been decided. The Court directed to consider the claim of the petitioner for higher scale of pay. (iv) Md. Ismail Mollah -versus- The State of West Bengal & Ors., (2014) 3 CalLT 1 HC. (iii) Maleka Khatun versus- The State of West Bengal & Ors.,2009 4 CalHN 440 in which case nothing has been decided. The Court directed to consider the claim of the petitioner for higher scale of pay. (iv) Md. Ismail Mollah -versus- The State of West Bengal & Ors., (2014) 3 CalLT 1 HC. In this matter also the petitioner was appointed as Honours Graduate and here only Government Order No. 670 SE(S) dated 04.09.1998 has been considered and Section 14 (2) of the said Act of 2005 has not been considered. Thus the petitioner cannot also get any help from this judgment. (v) W.P. 14760 (W) of 2004 (Rabi Kanta Barman -versus- District Inspector of Schools etc.) and unreported judgment of Division Bench decided on 31.01.2014. This judgment has been decided with reference to G.O. No. 548- SE(S) dated 24.06.1997 and subsequent Rule and/or/circular and Revision of Pay of Allowances Rules 1998. In this judgment also Section 14 (2) of the said of 2005 has not been considered. Thus this judgment also does not help the petitioner. (vi) W.P. 19734 (W) of 2005 (Saswati Majhi -versus- the State of West Bengal & Ors) which is another unreported judgment decided on 27.01.2016. This was a case of Physical Education Teacher and his higher scale of pay which was considered by the Court in respect of G.O. 795-Edn (S) dated 22.11.1993 and this judgment also does not deal with Section 14 (2) of the said Act of 2005. (vii) Union of India & Ors -versus- Tarsem Singh, (2008) 8 SCC 648 in this matter the Supreme Court has dealt with delay and laches in seeking remedy by the petitioner therein and has decided that a belated service related claim is rejected on the ground of delay and laches but one of the exception is a continuing wrong. This judgment has no applicability in the present case as here in this case there is no delay and laches on the part of the petitioner and there is no question of continuing wrong. 12. On perusal of the above judgments and the written notes of argument filed by the petitioner it is found that in none of the judgments the statutory provision of Section 14 (2) of the West Bengal Schools (Control of Expenditure) Act 2005 has been taken note of. 13. 12. On perusal of the above judgments and the written notes of argument filed by the petitioner it is found that in none of the judgments the statutory provision of Section 14 (2) of the West Bengal Schools (Control of Expenditure) Act 2005 has been taken note of. 13. In the above noted judgments our High Court has taken care of some orders, circulars and Revision of Pay and Allowances Rule 1998. 14. Beside taking note of the statutory provision being Section 14 (2) of the Act of 2005 note is also taken of Section 20 of the said Act which is set out here in below: Section 20: “The provision of this Act order any rules or orders made there under shall have effect notwithstanding to the contrary contained in any other law for the time being in force or in any contract, custom or usages to the contrary.” 15. Therefore, in respect of higher scale of pay to the candidates like the petitioner which has been dealt with Under Section 14 (2) of the said Act of 2005 all other contrary law or any contrary Customs or usages to the contrary cannot have any effect. All rules, circulars etc. considered in the above cited judgments had the force of law lost all effect for the said Section 20 of the Act of 2005. 16. Thus, no mandamus will be issued by this Court following the public policy of law of this contrary i.e. no mandamus can be issued contrary to law as any such Mandamus or order in the order in the nature of Mandamus will violate Section 14 (2) of the said Act of 2005. 17. Therefore, the petitioner is not entitled to get higher scale of pay and in the facts and circumstances of the case as has been discussed above the prayers of the petitioner to issue any writ of or in the nature of mandamus, certiorari, and prohibition etc. cannot be granted. 17. Therefore, the petitioner is not entitled to get higher scale of pay and in the facts and circumstances of the case as has been discussed above the prayers of the petitioner to issue any writ of or in the nature of mandamus, certiorari, and prohibition etc. cannot be granted. The petitioner acquired the higher qualification not before 19.10.2006 and her right to get higher scale of pay if any at all, did not arise before that date, but the above Act of 2005 which creates a statutory bar in getting higher scale of pay came into effect on 19.08.2005 i.e. before the petitioner acquired the higher qualification and therefore, the petitioner is barred by Section 14 (2) of the Act of 2005 from claiming higher scale of pay. 18. The writ application, therefore, is dismissed. No costs.