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2019 DIGILAW 509 (CAL)

Bhim Chandra Panja v. State of West Bengal

2019-04-18

ABHIJIT GANGOPADHYAY

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JUDGMENT : 1. In this writ application the writ petitioner, Assistant Teacher of a School has prayed for a mandamus directing the District Inspector of Schools (Secondary Education), South 24 Parganas (DI, in short, hereafter) for withdrawn/ rescinding his order No. LC-354A/1(6) dated 21.03.2014 passed in compliance with the order of this Court dated 7th February, 2014 in W.P. No. 15813 (W) of 2009 (Bhim Chandra Panja vs. the State of West Bengal & Ors). 2. By the said order dated 21st March, 2014 the said DI rejected the prayer of the petitioner for higher scale of pay which was prayed by the petitioner as the School authority shifted his engagement as the teacher from the of Bio Science Group to Social Science Group since the petitioner after his joining School as an Assistant Teacher on 23rd July, 1990 as a pass Graduate Teacher Science Group (for Bio Science) passed special B.A. in the year 1998 and passed M.A. in History in 2002 and M.A. in Islamic History in 2005. 3. The School was a Junior High School which was upgraded to a High School (X-class) on and from 1st May 2008. 4. The School authority without taking any approval from the concerned DI shifted the engagement of the petitioner to the post of Teacher in History in Social Science Group as one Md. Azizar Rahman Sardar retired from the said post. 5. Challenging the rejection order (of the DI) of higher scale of pay the petitioner has filed this writ application by making out the case that as he acquired higher qualification of M.A. in History and Islamic History and as he was taking classes of History in the School and as the School was utilising his service as a History Teacher and as the Managing Committee took a resolution in his favour by changing the staff pattern by including him in the post of a Teacher of Social Science Group, he is entitled to higher scale of pay. 6. In support of his claim the petitioner has relied upon one Government circular No. GN 14.12 (800) dated 14.01.2019 9which he has not discussed and on which he has not relied on the time of hearing) and one government order No. 57 SE (S) dated 21.07.1995. 7. 6. In support of his claim the petitioner has relied upon one Government circular No. GN 14.12 (800) dated 14.01.2019 9which he has not discussed and on which he has not relied on the time of hearing) and one government order No. 57 SE (S) dated 21.07.1995. 7. The respondent No. 2 and 3 being the DI and the Commissioner of School Education have filed a single affidavit denying and disputing the claim of the petitioner enclosing therein the relevant circulars and Acts in terms of which higher scale of pay is not payable to the petitioner. 8. In respect of the arrangement made by the School by engaging the petitioner as a Teacher of Social Science Group the respondents have stated in their affidavit "as per the provisions laid down in the West Bengal School Service Commission Rules issued Vide Notification No.936-L dated. 01.04.1997, a teacher in a recognized Govt. aided School can only be appointed to the vacant post of a teacher either in Pass Graduate category or in Hons. / Post Graduate category subject to identification and justification of the vacancy by the District inspector of Schools (SE) of the concerned District in terms of the approved Staff Pattern and accordingly sends prior permission to the West Bengal School Service Commission for recommendation of suitable candidates selected through the Regional Level Selection Test. Therefore, the vacancy caused with effect from1st February, 2007 in the said school due to retirement of Md. Azizar Rahman Sardar an Assistant Teacher in History of Social Science Group should have been reported to the District Inspector of schools (Secondary Education), South 24 Parganas for issue of Prior-Permission against the said vacancy, but the School authority for reasons best known to them did not submit the same to the concerned District Inspector of Schools (Secondary Education), South 24 Parganas". 9. It has been further stated in the said affidavit-in-opposition that the staff pattern dated 10 February 2009 submitted by the School for approval of the same, shifting the petitioner from Science Group to Social Science Group and subsequently showing a vacancy in the Science Group in the place of the petitioner was out and out illegal for which the teaching learning process in Science Group was hampered to a great extent. 10. In respect of the vacancy created by retirement of the History Teacher of the School namely Md. 10. In respect of the vacancy created by retirement of the History Teacher of the School namely Md. Azizar Rahman Sardar the said respondent has referred to Section 7 (2) of the School service Commission Rules 1997 published under notification No. 8633-SE (S) dated 3rd October 1997 which is a follows: "(2) Every school shall report the vacancies as on the date of report and as will arise up to the second day of next January to the Regional Commission with a copy to the District Inspector of Schools (Secondary Education) who shall scrutinise the same and forward it to the Regional Commission with or without modifications, as may be necessary, within a month of receipt thereof. In case of delay in receipt of the recommendation of the district Inspector of Schools (Secondary Education) the commission may take final decision on the basis of the guidelines of the Government without consulting the requisition of the school or the recommendations of the District Inspector of Schools. (3) In reporting the vacancies as aforesaid, the school shall follow the 100-point roster as prescribed for direct recruitment by the Department of Scheduled Castes and Tribes Welfare of the State Government and shall indicate the position of each vacancy in the said 100-point roster". 11. The petitioner in his affidavit-in-reply has failed to counter the statements made by the respondents in their affidavit: From a perusal of the said Rule it is evident that the engagement of the petitioner as History Teacher in the School with his enhanced qualification is wholly illegal because such a vacancy created due to retirement of the previous History Teacher was to be reported to the DI and was to be filled up by the School Service Commission. Such unilateral conversion of the petitioner from a Bio Science Teacher to a History Teacher does not make the petitioner a History Teacher at all. The petitioner remains Bio Science Teacher of the School. 12. The respondent on the question of conversion of a Teacher has referred to one circular of the Government of West Bengal No. 57-SE (S) dated 27th January 1995 (the petitioner has also relied on the same). From the said circular dated 27th January 1995 it is found that such arrangements could only be made with the prior-permission of the DI. Here in the case of the petitioner there was no prior-permission of the DI. From the said circular dated 27th January 1995 it is found that such arrangements could only be made with the prior-permission of the DI. Here in the case of the petitioner there was no prior-permission of the DI. Apart from the above the respondents have relied upon Section 19 (2) of the West Bengal School Service Commission Act 1997 which has laid down that appointment of a Teacher of a school under the Act in contravention of the provisions of the Act shall be invalid and shall have no effect and the Teacher so appointed shall not be a Teacher within the meaning of the said Act. 13. Therefore in respect of the petitioner's claim that he is a Teacher of History in the Social Group in the said School is wholly illegal. 14. In respect higher scale of pay the said respondent have referred to Section 14 (2) of the West Bengal School (Control of expenditure) Act 2005 which is quoted herein below: "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". 15. According to this provision of the aforesaid Act of 2005, the petitioner is not entitled to claim higher scale of pay for acquiring of M.A. in History. It was not the subject for which he was appointed in the School as a Teacher. The respondents have also referred to GO No. 593-SE (B) dated 27.11.2007. Wherein it has been stated that "No such prayer for higher scale of pay for any teacher with Graduate Degree and Graduate scale of pay at the time of entry into service/joining the schools will be entertained no matter whether he/she has secured this higher qualification before or after introduction or West Bengal Schools (Control of Expenditure) Act 2005". 16. Petitioner has not challenged the vires of the statutory provisions not has challenged the legality of the Government orders, notifications and circulars In view of the Government orders and notification and the Acts referred to by the respondents the claim of the petitioner for higher scale is liable to be rejected and is hereby rejected. 16. Petitioner has not challenged the vires of the statutory provisions not has challenged the legality of the Government orders, notifications and circulars In view of the Government orders and notification and the Acts referred to by the respondents the claim of the petitioner for higher scale is liable to be rejected and is hereby rejected. The petitioner can also not be treated as the Teacher of History of the School. 17. The writ application is dismissed. No costs.