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2019 DIGILAW 875 (CAL)

Meheboob Hassan v. State of West Bengal

2019-09-20

MD.NIZAMUDDIN

body2019
JUDGMENT : 1. Heard learned Advocates appearing for the Parties. 2. This writ petition has been filed by the petitioner challenging the impugned Memo dated 7th December, 2012 read with Memo dated 10.06.1994, issued by the respondent concerned rejecting the claim of the petitioner of Higher Scale of pay according to his qualification of M.Sc in Anthropology. Facts involved in brief in the instant case are hereunder. The petitioner passed B.Sc examination (pass course with Botany and Zoology and Anthropology) as combination of the subjects in the year 1985 and passed M.Sc examination in anthropology in 1989. The petitioner was appointed as organizing Assistant Teacher of Mandra Hazer Ali Smitri Vidyapith Junior High School on 29th September, 1992. Appointment of the petitioner as M.Sc (anthropology Bio) was approved by the District Inspector of School North 24 Parganas with effect from 1st May, 1992. The aforesaid school was recognized as a second class junior high school on 12th February, 1987 and on 1st May, 2001 the aforesaid school was recognized as a high school and on 16th September, 2009 the aforesaid school was recognized as a Higher Secondary School and the petitioner obtained PHD degree in anthropology in the year 1995. 3. On 22nd November, 1993, Government of West Bengal, Department of Education, issued a memorandum in clarification of the Memo Bearing No. 372-Edn(s) dated 7th March, 1990, wherein it was declared, inter alia, as under: "All such teachers of Secondary Schools and Junior High Schools including Madrasas of various types with higher qualification of Post Graduate degree or the equivalent in relevant subject will get higher scale of pay in relaxation of the afore noted staff pattern." 4. Grievance of the petitioner is that even after issuance of the aforesaid memorandum dated 22nd November, 1993 by the Government of West Bengal the petitioner is not being paid his salary and allowances in the scale of pay of a post Graduate. Grievance of the petitioner is that even after issuance of the aforesaid memorandum dated 22nd November, 1993 by the Government of West Bengal the petitioner is not being paid his salary and allowances in the scale of pay of a post Graduate. In this regard the petitioner made a representation on 17th March, 1988, before the Secretary of the said School praying for Post Graduate Scale of pay and the Managing Committee of the School Authority considered and approved such prayer of the petitioner by a resolution as adopted on 21st April, 1998 and forwarded the said application of the petitioner dated 17th March, 1998 along with the aforesaid resolution dated 21st April, 1998 with other relevant documents to the District Inspector of Secondary Education, 24 Parganas (North) for the purpose of approval and necessary decision on the same. Against inaction in taking decision on the part of the District Inspector of the School Secondary Education on the aforesaid application of the petitioner and resolution of the school authority, petitioner filed a writ petition being No. W.P. 22556 (W) of 1998 which was disposed of by this court by order dated 3rd August, 2012, directing the District Inspector of School concerned to consider the petitioner's claim of Higher Scale of pay in accordance with law within 8 weeks from the date of communication of the said order. Pursuant to the aforesaid order of the court dated 3rd August, 2012, the District Inspector of Schools concerned disposed of the representation of the petitioner for higher scale of pay by the impugned order dated 7th December, 2012, rejecting the claim of the petitioner by relying on a memo No.74-SE(S) dated 07.02.1995 in clarification of the G.O. No. 447-Edn (5) dated 10.06.1994 issued by the Education Department by saying that prayer of Higher Scale of pay to the petitioner for having M.Sc degree in anthropology could not be considered at that stage. Relevant portion of the said impugned order dated 7th December, 2012, are as follows: "P.N. Bhandar, Joint Secretary, School Education Department in his Memo No.74-SE(s) dated 07.02.1995 stated regarding the question of relevance of Post Graduate qualification in Anthropology with the curricular and syllabi of Life Science and Bio-Science taught in the Secondary Schools in West Bengal. Relevant portion of the said impugned order dated 7th December, 2012, are as follows: "P.N. Bhandar, Joint Secretary, School Education Department in his Memo No.74-SE(s) dated 07.02.1995 stated regarding the question of relevance of Post Graduate qualification in Anthropology with the curricular and syllabi of Life Science and Bio-Science taught in the Secondary Schools in West Bengal. On careful examination of the matter in consultation with the West Bengal Board of Secondary Education and in consideration of the expert opinion of the Board in the matter the Govt. has taken the following decision:- (a) Post Graduate Qualification anthropology shall not be treated as requisite and sufficient qualification for appointment to the post of Life Science/Bio-Science Teachers in the Secondary Schools in West Bengal. (b) Such candidates having Botany/Zoology at the Graduation Level, as a regular combination subject, will however be eligible for such appointment for Teaching life Science and Bio-Science in such Schools as Graduate Teachers. (c) Any such Graduate Bio-Science Teachers who have obtained or will obtain Post Graduate Degree in Anthropology shall not be entitled to the higher scale of pay for such improvement of qualification since such improvement is not relevant to their appointment/Teaching. 5. This order is issued in clarification of this Department G.O. No.447-Edn(S) dated 10.06.1994. 6. Under the circumstances considering the submission and perusing the Govt. Orders I am of the opinion that in terms of Memo No. 74-SE(S) dated 07.02.1995 of the School Education Department as Dr. Meheboob Hassan, the petitioner was appointed as Bio- Science Teacher of a Junior High School in the Pass Graduate Scale of pay his prayer for High Scale of pay for having M.Sc. Degree in Anthropology cannot be considered at this stage. Hence no relief can be given to the petitioner. The matter is thus disposed of. All concerned be informed accordingly". 7. Degree in Anthropology cannot be considered at this stage. Hence no relief can be given to the petitioner. The matter is thus disposed of. All concerned be informed accordingly". 7. Petitioner has challenged the said impugned order of the District Inspector of School dated 7th December, 2012 read with the said Government Order dated 10th January, 1994, mainly on the ground that the memorandum relied upon by the District Inspector of School rejecting the claim of the petitioner cannot apply in the case of the petitioner retrospectively since the petitioner had joined the said school on 1st May, 1992 and approval of his appointment was given by the District Inspector of School in the Post of Assistant Teacher on 29th September, 1992 with effect from 1st May 1992, as Assistant Teacher with his qualification as Post Graduate in M.Sc (anthropology Bio) which was obtained by the petitioner much prior to the aforesaid memorandum dated 7th February, 1995 as appears from Annexure 'P-3' at Page 46 of the writ petition and the petitioner had relied on a circular on a memorandum dated 22nd November, 1993 issued by the Govt. of West Bengal Education Department as Annexure 'P-4' to the writ petition at Page 47 which is as follows: "GOVERNMENT OF WEST BENGAL Education Department Secondary Branch Bikash Bhavan, Salt lake, Cal-91. No.796-Edn (S) Dated Calcutta the 22nd Nov, 1993 5P-78/93 From: Shri P. Bhattacharyya, Assistant Secretary to the Govt. of West Bengal To: The Director of School Education, West Bengal Bikash Bhavan, Salt Lake, Calcutta-91 Sub: Higher scale of pay to the teachers. 1. The undersigned is directed to say that it has come to the notice of this Department that higher scale of pay is not being granted to some teachers of Secondary schools despite their having higher qualifications of post-graduate degree or the equivalent in the relevant subjects. This is Presumably due to lack of suitable provisions for teachers with higher qualifications in Social-Science Group and for adequate number of teacher with higher qualifications in Language Group and Science in terms of the stage pattern laid down in G.O. No. 772-Edn(s) dated 8th July, 1974 and G.O. No. 60-ED(S) dated 15th January, 1972 for High Schools and Junior High Schools respectively. 2. 2. In this Department Memo No. 372-Edn(S) dated the 31st July, 1981 read with Memo No.33-Edn(S) dated the 7th March, 1990 the higher scale of pay to the teachers of Secondary Schools having higher qualification has already been granted. 3. It is now clarified in all such teachers of Secondary Schools and Junior high Schools including Madrasahs of various types with higher qualification of post-graduate degree or the equivalent in relevant subjects will get higher sales of pay in relaxation of the above noted staff pattern. 4. The order will take effect from the date of issue of this clarification. Sd/- Assistant Secretary" 8. It has been contended by the petitioner and which is an admitted position that the B.Sc degree which the petitioner obtained in 1985 had a combination of Botany, Zoology and Anthropology and Post Graduate degree i.e. M.Sc the petitioner passed the M.Sc in 1989, appointed and approval of his appointment as M.Sc in Anthropology was approved by the District Inspector of School on 29.02.1992 with effect from 1.5.1992 as appears from Annexure 'P-3' to the Writ Petition which is much prior to the aforesaid Government memorandum dated 7th February, 1995 upon which respondent/District Inspector of Schools has relied for rejecting the claim of the petitioner for higher scale of pay of the post graduate in Anthropology. 9. The petitioner has relied upon several unreported decisions of this court in support of his contention that the aforesaid Govt. memo dated 7th February, 1995 cannot be given retrospective effect to those teachers including the petitioner who have obtained Post Graduate degree in Anthropology even before his appointment on 1.5.1992 and his appointment was approved prior to the aforesaid memo dated 7th February, 1995. 10. Petitioner further contends that persons having qualification of M.Sc in anthropology and having the combination of Botany and Zoology in B.Sc cannot be called by the authority as not relevant science subject for the purpose of teaching science in the said school as Assistant Teacher. Petitioner has annexed to the Writ Petition various documents of the university authorities certifying/confirming that the Anthropology is a Science subject which could not be disputed by the Respondents. 11. Petitioner has annexed to the Writ Petition various documents of the university authorities certifying/confirming that the Anthropology is a Science subject which could not be disputed by the Respondents. 11. The petitioner has relied on an unreported judgment of this Court dated 10th November, 2006 in C.O. No. 2391 (W) of 1995 (Madhusudan Biswas -vs- State of West Bengal and Others) where similar issue was involved relating to application of the said circular dated 10th June, 1994, retrospectively by the authorities denying the benefit of higher scale of pay as per Post Graduate Degree to the petitioner on the ground that Anthropology in M.Sc. with B.Sc. in Bio-Science (Botany and Zoology) is not a science subject and not relevant and was not taken into consideration for the purpose of granting pay higher scale to the Post Graduate Degree obtained by the petitioner prior to the date of the aforesaid circular dated 10.06.1994 to which this court has held that the said Circular cannot be given retrospective effect and the petitioner cannot be deprived of the higher scale of pay when the petitioner has obtained the post Graduate degree and joined service prior to the date and issuance of the said memorandum/circular. 12. The petitioner has relied on another unreported judgment of this Court, dated 19.12.2007, in a similar case being W.P No. 503(W) of 1999 (Rafikul Islam -vs- State of West Bengal and Others) where this court has taken a similar view. 13. Petitioner has relied on another unreported judgment dated 10th November, 2006 in C.O. No. 5690 (W) 1995 (Abdus Sattar -vs- State of West Bengal and Others). In the said case petitioner had obtained M.Sc degree in Anthropology in 1985 and petitioner was appointed on 11th June, 1985 and respondent authority by applying the said circular/memorandum dated 10th June, 1994 retrospectively had deprived the petitioner of higher scale of pay by refusing to take into consideration petitioner's Post Graduate Degree of M.Sc. in Anthropology and in the said case also Managing Committee of the School had adopted a resolution in favour of the petitioner for granting Post Graduate Scale of pay. in Anthropology and in the said case also Managing Committee of the School had adopted a resolution in favour of the petitioner for granting Post Graduate Scale of pay. In the said case also respondent authority had similarly contended that the Post Graduate degree in M.Sc in anthropology was not sufficient qualification for appointment to the post of Life Science/Bio Science as an Assistant Teacher in Science Group ( Bio Science) and he was not entitled to the Post Graduate Scale of pay in connection with his said Service and in the said case petitioner had Botany and Zoology combination in Graduation and court not accepting the contention of the state respondents allowed the writ petition by passing the order relevant portion of which as follows: "9. ....................................... (ii) On a perusal of the circular dated 10th June, 1994 it will appear that the same is prospective in nature and is not to be given retrospective effect." 14. It is not in dispute that the petitioner fulfilled the criteria of the relevant Government circulars of possessing requisite qualification at graduate level, i.e. combination of Botany and Zoology in B.Sc. examination and possessing Post Graduate Degree of M.Sc. in Anthropology at the time of his appointment on 1st May, 1992 and which is already recorded in the order of approval of his appointment and as such he is entitled to the scale of pay of a Post Graduate and this benefit cannot be denied to him by applying the impugned circular retrospectively. 15. In present case the state respondents could not deny the fact that the appointment of the petitioner was properly approved with effect from 1st May, 1992 and that the petitioner had combination of Botany and Zoology in B.Sc. and M.Sc. in Anthropology which he had obtained prior to the appointment in the school in question and much prior to the date of issuance of the aforesaid impugned memorandum dated 7th February, 1995 and which cannot be given a retrospective effect in the case of the petitioner. 16. and M.Sc. in Anthropology which he had obtained prior to the appointment in the school in question and much prior to the date of issuance of the aforesaid impugned memorandum dated 7th February, 1995 and which cannot be given a retrospective effect in the case of the petitioner. 16. Considering the facts and circumstances of the case and submission of the parties and respectfully following the aforesaid judgments of this Court, Writ Petition is disposed of by setting aside the impugned order dated 7the December, 2012, passed by the District Inspector of Schools (S.E), North 24- Parganas and I direct the respondents concerned to make payment to the petitioner at the pay scale of Post Graduate from the date of his appointment and all the consequential benefits and to pay all arrears to the petitioner within 8 weeks from the date of communication of this order. 17. This writ application W.P. No. 6914 (W) of 2014 is disposed of. There will be no order as to costs. 18. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.