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2022 DIGILAW 732 (CAL)

Subodh Kumar Biswas v. State Of West Bengal

2022-05-17

KRISHNA RAO

body2022
JUDGMENT Krishna Rao, J. - The petitioner has completed his Post Graduation course in History in the year 1986 and in Bengali in the year 1990 under Rabindra Bharati University. After obtaining degree, the petitioner had enrolled his name in the Employment Exchange. 2. In the year 1994, the District Inspector of Schools (SE) Nadia has granted permission for recruitment of teachers and non teaching employees in recognised Non Governmental Secondary Schools. According to the said approval the Headmaster, Nasara High School issued an interview letter to the petitioner for appointement for the post of Assistant Teacher B.A. (Bengali). The petitioner had appeared in the interview and accordingly vide letter dt. 04.03.1996, the petitioner was appointed as Assistant Teacher (Bengali). The District Inspector of Schools vide letter dt. 22.07.1996 had approved the appointment of the petitioner as Assistant Teacher (Bengali). 3. Though the petitioner was appointed as Assistant Teacher (Bengali) but the petitioner was allowed to teach Bengali in class 9th to class 12th also. As the petitioner was having the qualification of Post Graduate in Bengali and accordingly, the petitioner had made representations for grant of Higher Pay Scale. 4. The request of the petitioner was not considered by the school authorities and accordingly, the petitioner had preferred a Writ Application before this Court being WP No. 7333 (w) of 2013 and the Coordinate Bench of this Court had disposed of the said writ application with the liberty to the petitioner to file a represenation along with all documents and the District Inspector of Schools and was directed to dispose of the representation of the petitioner with in eight weeeks by giving an opportunity of hearing to the petitioner. 5. In compliance of the order passed by the Coordinate Bench of this Court the District Inspector of Schools (SE), Nadia had disposed of the representation of the petitioner on 18.11.2014 by rejecting the claim of the petitioner for grant of Higher Pay Scale. 6. Mr. Supriyo Chattopadhyay, Ld. Counsel representing the petitioner submits that the respondents have erroneoulsy decided that the petitioner is not taking classes of Higher Secondary with the prior peemission of the District Inspector of School. 7. Ld. 6. Mr. Supriyo Chattopadhyay, Ld. Counsel representing the petitioner submits that the respondents have erroneoulsy decided that the petitioner is not taking classes of Higher Secondary with the prior peemission of the District Inspector of School. 7. Ld. Counsel for the petitioner further submits that assuming that after the enactment of the School Service Commission Act, 1997, the teachers are recruited through the selection test in a separate manner and method for Honours Category and Post Graduate Category but it would be evident from the facts and circumstances of the case, the petitioner was admittedly recruited under the SSC Rules and procedure and there must not have been any bar to grant Higher Pay Scale to the petitioner. 8. Ld. Counsel for the petitioner relied upon clause 12 (3) of the Government Order dt. 9th September,1998 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 latter.' 9. Ld. Counsel for the petitioner further relied upon clause 3 of the Memorandum dt. 13th July, 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 latter. 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.' 10. Ld. Counsel for the petitioner relied upon the following Judgments Passed in : 'i. WPA No. 144658 of 2013 (Animesh Choudhary -versus- The State of West Bengal & Ors.) dt. 25th March, 2021. ii. W.P. No. 21909 (w) of 2012 (Raghunath Mondal -versus- State of West Bengal & Ors.) reported in (2013) 3 WBLR(Cal) 556. iii. Ld. Counsel for the petitioner relied upon the following Judgments Passed in : 'i. WPA No. 144658 of 2013 (Animesh Choudhary -versus- The State of West Bengal & Ors.) dt. 25th March, 2021. ii. W.P. No. 21909 (w) of 2012 (Raghunath Mondal -versus- State of West Bengal & Ors.) reported in (2013) 3 WBLR(Cal) 556. iii. W.P. No. 10102 (w) of 2003 (Partha Chaterjee -versus- State of West Bengal & Ors.) reported in (2004) 2 CAL 610. iv. FMA No. 354 of 2014 with CAN No. 1146 of 2014 (Shyam Paul -versus- State of West Bengal) reported in 2014 (3) CHN (CAL) 160.' 11. Ms. Iti Dutta representing the respondent authorities submits that the selection process was conducted for recruitment of a teacher of Graduate Pass Category and at the time of selection, the petitioner was already obtained Post Graduate Degree and had participated in the selection process knowing well that post is earmarked for recruitment of teacher having Graduate Degree. 12. Ld. Counsel for the respondent further submits that after the enactment of SSC Act, 1997, the teachers are recruited through selection test differently either in Honours/PG or possessing Graduation Degree. 13. Ld. Counsel for the respondent further submits that at the time of recruitment the petitioner has supressed the fact of having Post Graduation Degree as the petitioner has only declared about her Graduation Degree and after his appointment as Assistant Teacher, the petitioner is now claiming Higher Pay Scale which is not permissible. 14. Ld. Counsel for the respondent further submits that the order passed by the Hon'ble Division Bench in the case FMA Nos. 583-585 of 2006 (State of West Bengal & Ors. -versus- Md. Sohidullah & Ors.) dt. 16th & 22nd November, 2007, the respondent Sohidullah had preferred an appeal before the Hon'ble Supreme Court being Civil Appeal Nos. 3040-3041 of 2017 (Md. Sohidullah & Ors. -versus- The State of West Bengal & Ors.) and the Hon'ble Supreme Court had disposed of the appeal on 25th July, 2019 by passing the following order :- 'Mr. Rakesh Dwivedi, learned senior counsel appearing for the State of West Bengal submits that the subject matter of these appeals is pending consideration in other cases before the Full Bench of the Calcutta High Court. Rakesh Dwivedi, learned senior counsel appearing for the State of West Bengal submits that the subject matter of these appeals is pending consideration in other cases before the Full Bench of the Calcutta High Court. An order of reference dated 22.08.2008 in which the following questions were formulated is placed before us: '(a) Whether, in view of the fact that acquisition of higher qualification or qualifications during the service career of an individual is his right and the same acts as an incentive to career advancement as well as acquiring a higher status of academic brilliance, can such a person be forced to stagnate on lower status perennially and forced to continue to work on a lower scale of pay which is not commensurate to the high qualification(s) acquired subsequent to his appoint? (b) Whether, in view of Question No. (a) above, should it not be held that the ratio decided in Tarak Chandra Roy's case supra, read with the provisions of Section 14 and 20 of 'The West Bengal (control of Expenditure) Act, 2005', amount to creating an unreasonable embargo upon an individual's freedom and right to acquire higher educational qualification(s) and therefore, runs counter to the provisions of Article 14 of the Constitution of India? (c) If the answer to Questions No. (a) is in the negative and to 'Question No. (b) in the affirmative, then should it not be held that the provisions of section 14 and 20 of 'The West Bengal (control of Expenditure) Act, 2005', are ultra vires the relevant provision of the constitution of India referred to above? (c) If the answer to Questions No. (a) is in the negative and to 'Question No. (b) in the affirmative, then should it not be held that the provisions of section 14 and 20 of 'The West Bengal (control of Expenditure) Act, 2005', are ultra vires the relevant provision of the constitution of India referred to above? (d) Whether, in view of the aforesaid, should it not be held that the ratio decided in Tarak Chandra Roy's case supra, holding that 'the Petitioner having been appointed in the pass category clearly therefor, cannot get the benefit of his post graduate qualification' is not the proper proposition and that the correct proposition is the one that has been decided in Sauvik Ghosh's case supra, holding, inter alia in Para 35 therein that 'If, the Government Order dated 13th July, 1999 were to mean initial fixation would be on the basis of the educational qualifications mentioned in the recommendation of the school 'Service Commission, and a teacher appointed on the recommendation of School Service Commission would be bound by the qualification as mentioned in the recommendation for all time to come and even an enhancement of qualification the teacher would not be entitled to the higher scale of pay only because the School Service Commission had mentioned a different qualification in its initial recommendation, the Government Order would have to be struck down as totally arbitrary, discriminatory and violative of Article 14 ?' 15. Ld. Counsel for the respondent further submits that after the order passed by the Hon'ble Supreme Court, a Full Bench has been constituted by the Hon'ble Chief Justice of this Court on 11th December, 2019 and the Hon'ble Full Bench has taken the connected matters on 15th January, 2020 and now the matter is pending before the Hon'ble Full Bench for taking decision in the matter. 16. Ld. Counsel for the respondent has relied upon the judgment reported in 2008 (2) CHN (Cal) 973 (Tarak Chandra Roy -versus- State of West Bengal & Ors.) and submits that in the said case the Hon'ble Division Bench held that :- '10. 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 22 November, 1993 and 8 March, 2000. 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 22 November, 1993 and 8 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 22 November, 1993 and 8 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.' 17. Ld. Counsel for the respondent further submits that the case of Tarak Chandra Roy was also referred by the Hon'ble Supreme Court in its order dt. 25.07.2019 and further submits that this matter may also be referred to the Hon'ble Full bench of this Court for taking appropriate decision. 18. Considered the rival submissions of the parties, documents available on record and the judgment relied by the parties. 19. Several orders have been passed by the Hon'ble Division Benches and Hon'ble Single Judges holding that the Assiatant Teachers aftter aquiring Post Graduate Degree are entitled to get Higher Pay Scale. 20. In the case of Shohidullah, he was also having Post Graduate Degree in Zoology but had applied for Assistant Teacher and accordingly, he was selected. After his selection, he has prayed for grant of Higher Pay Scale but the authorities have rejected the request and accordingly, Shri Shohidullah had preferred Writ application before this Court. The writ petition was allowed and being aggrieved with the order, the State had preferred an intra- court appeal. After his selection, he has prayed for grant of Higher Pay Scale but the authorities have rejected the request and accordingly, Shri Shohidullah had preferred Writ application before this Court. The writ petition was allowed and being aggrieved with the order, the State had preferred an intra- court appeal. The Hon'ble Division Bench has taken up the appeal along with the connected appeal and the Hon'ble Division Bench held that Shohidulla is not entitled to claim Post Graduate Scale as he was selected in Pass Category on the basis of his application. Being aggrieved with the order of the Hon'ble Division bench, Shri Shohidullah had preferred Civil Appeal before the Hon'ble Supreme Court and in terms of the order passed by the Hon'ble Supreme Court, the Hon'ble Chief Justice then of this Court had constituted Full Bench to decide the issue and the matter is pending before the Hon'ble Full Bench of this Court. 21. In view of the above, the Registry is dirceted to place the instant writ petition being WPA No. 4698 of 2016 (Subodh Kumar Biswas -versus- The State of West Bengal & Ors.) before the Hon'ble Chief Justice to assigned this matter before the Hon'ble Full Bench for taking appropriate decision. 22. Parties shall be entitled to act on the basis of a server copy of the Judgment and Order placed on the official website of the Court. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.