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2024 DIGILAW 1175 (CAL)

Debtosh Natta v. State of West Bengal

2024-06-24

SUBHENDU SAMANTA

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JUDGMENT : Subhendu Samanta, J. 1. Both the petitioners were engaged by the respondent College Authority as Accompanist (Tabolchi) in Music Department of the College. Both of them are receiving their respective pay from the College Authority on regular basis. 2. The Joint Secretary to the Government of West Bengal Vide Memo dated 3rd September, 2019 requested director of Public Instructions (W.B), for the purpose of restructure of the Service Conditions and other benefits of the Government Approved Part Time Teachers (PTTS), Government Approved Contractual Whole Time Teachers (CWTTs) and Guest Teacher, in any nomenclature engage in different Government/Government Aided Colleges in the State of West Bengal upto 13.07.2019, ask the Principals/Teacher-in-Charge, Vice Principals/Officer-in-Charge of State Colleges to submit details of those teachers through a prescribed format (one for each candidates) to be uploaded online in a specific portal within 25.09.2019. 3. In terms of Memorandum dated 23rd of December, 2019 the State has restructure the service conditions along with changed of nomenclature of all category teachers as State Aided College Teachers Category (SACT-I) and State Aided College Teachers, Category (SACT-II). The Memo dated 23.12.2019 is set out as follows: Memorandum “The manner of restructuring of service conditions and other benefits for Government approved Part Time teachers (PTTs), Government approved Contractual Whole time teachers (CWTTs) and Guest teachers, in any nomenclature, engaged in different Government/Government aided colleges in the State of West Bengal up to 13.07.2019, was under active consideration of the State Government for sometimes past. After careful consideration of the matter, the Governor is hereby pleased, in supersession of all previous orders in this regard, to restructure the service conditions along with the change of nomenclature of the aforesaid category of teachers commensurate with their qualifications and period of service rendered in the following manner : 1. Part Time Teachers, Contractual Whole Time Teachers and Guest Teachers having qualification for being appointed as teachers in the colleges as prescribed by the University Grants Commission and as followed by the West Bengal College Service Commission, on the date of issuance of this order, will be renamed as State Aided College Teacher, Category -1, and will be entitled for the following remuneration : a. Rs. 31,000/-(consolidated) per month for those served the college less than 10 years; b. Rs. 35,000/-(consolidated) per month for those served the college more than 10 years; 2. 31,000/-(consolidated) per month for those served the college less than 10 years; b. Rs. 35,000/-(consolidated) per month for those served the college more than 10 years; 2. Par time Teachers, Contractual Whole Time Teachers and Guest Teachers don’t having qualification for being appointed as teachers in the colleges as prescribed by the University Grants Commission, and as followed by the West Bengal College Service Commission on the date of issuance of this order, will be renamed as State Aided College Teacher, Category –II and will be entitled for the following remuneration : c. Rs. 20,000/-(consolidated) per month for those served the college less than 10 years; d. Rs. 25,000/-(consolidated) per month for those served the college more than 10 years; 3. Remuneration of existing Government approved PTTs and CWTTs, who are getting higher remuneration at present, shall be protected. 4. Remuneration of above mentioned category of teachers will be enhanced @ 3% of the total remuneration per year on 1st July of every year. 5. Such category of teachers will be entitled for Rs. 5.00 ( Five Lakh) only on attaining the age of 60 years. Provided the teacher concerned has rendered service for a period not less than 10 years. 6. State Aided College Teacher, Category-II, on acquirement of UGC qualifications subsequently will be considered as State Aided College Teacher, Category –I with effect from the date of acquiring such qualification, subject to the approval of DPI, West Bengal. 7. General conditions in respect of approval of all the state aided College authority teachers mentioned above : I. Fresh letter of engagement will be issued by the college authority to all category of teachers mentioned hereinabove after obtaining approval of the Director of Public Instructions, West Bengal. II. Notional vacancies are to be created to accommodate all State Aided College Teachers who are engaged as per 7(1) above and these posts would be treated as personal and supernumerary ones. III. Both the above two category of teachers (i.e, State Aided College Teacher, Category -I & Category –II) will be allowed to continue their engagement till they attain the age of 60 years. III. Both the above two category of teachers (i.e, State Aided College Teacher, Category -I & Category –II) will be allowed to continue their engagement till they attain the age of 60 years. However, service of any particular teacher of above categories may be terminated by the Governing Body, with the approval of the State Government for non-performance, incapacitation, delinquency, misconduct, involvement in any criminal case or any other culpable offence, in such manner as may be prescribed by the State Government. IV. The above category of teachers will be required to take classes, along with works related to examination etc, as per the following schedule : a. State Aided College Teacher, Category –I: 15 hours per week. b. State Aided College Teacher, Category – II : 15 hours per week. V. The benefit of this Order shall be allowed to the Part Time Teachers, Contractual Whole Time Teachers and Guest Teachers who were engaged in the college on or before 13.07.2019. VI. If required, the above category of teachers may be deployed in any other Govt. Aided colleges in the interest of public service. VII. The financial benefit will however, be effective from the 1st day of January, 2020. This order is issued with the concurrence of Finance Department vide their U.O. No. 1232/1 dt. 16.08.19 and U.O. No. 1644 dt. 19.11.19”. 4. Petitioners claim their status as SACT-II in terms of Memorandum dated 23rd December, 2019, but their names were not uploaded by the College Authority within 25.09.2019. 5. However, in response to the prayer of the petitioners the College Authority send the names of the petitioners through a letter to the concerned State Authority only on 28th September, 2020. 6. The prayer was not considered. Thus, the petitioners approached this Court for necessary direction. 7. A Co-ordinate Bench of this Court in WPA Nos. 4817 of 2022 and 4818 of 2022 Vide order dated 23rd March, 2022 directed the concerned State Authority to form a reasoned decision. 8. The State Authority being respondent No. 3 passed the impugned decision on 24.08.2022, inter alia, rejected the claim of the petitioners. 9. Hence this writ petition. 10. Learned advocate for the petitioners submits that on the self same ground other candidates of various other Colleges are being absorbed as SACT-II by the same State respondent authority and they were enjoying the benefits of Memo dated 23.12.2019. 9. Hence this writ petition. 10. Learned advocate for the petitioners submits that on the self same ground other candidates of various other Colleges are being absorbed as SACT-II by the same State respondent authority and they were enjoying the benefits of Memo dated 23.12.2019. Though the present petitioners were standing on the same footing but their prayer was not considered erroneously in violation of the principles of natural justice. Learned advocate for the petitioners further submits that the names of the present petitioner was not uploaded which is the fault of the College Authority. The services of the present petitioners have taken by the College Authority like a Guest Teachers. 11. He further argues it would be evident from the statement of the College Authority at the time of hearing before the concerned State respondent, that due to the ignorance of the Principal of the College the names of the present petitioners were not uploaded. He further argued that the College Authority has admitted the fact that the present petitioners were engaged as a Guest Teachers of that College for a considerable period. He further argued that the present petitioners are receiving remuneration from the College Authority regularly and their performance of the college is as similar of a Guest Teachers. Thus, the prayer of the present petitioner was illegally turned down by the respondent State Authority. 12. The respondent State Authority used affidavit-in-opposition against the writ petition containing, inter alia, that pursuant to the data available in the official portal of Higher Education Department, Government of West Bengal, maintained by NIC; it is evident that as per relevant government order the details along with documents of the present petitioners had not been uploaded by the respondent College Authority for the purpose of approval of SACT. Learned advocate for the State submits that the matter was examined categorically by the Director of Public Instruction, Government of West Bengal in response to the direction of this Court wherein it appears that the present petitioners were engaged in the said Colleges at the post of Accompanist (Tabalchi) which never regarded as a teaching posit. 13. Learned advocate appearing on behalf of the State further submits that the present petitioners were never a guest teachers or guest lecturers at the said institution. Thus, they were paid less than the other Part Time Teachers or Guest Teachers. 13. Learned advocate appearing on behalf of the State further submits that the present petitioners were never a guest teachers or guest lecturers at the said institution. Thus, they were paid less than the other Part Time Teachers or Guest Teachers. Their engagement in the said College as accompanist (Tabalchi) was never considered as a teacher or its equivalent. Thus, the present petitioners are not entitled to get the benefit of Memo dated 23.12.2019. Learned advocate for the State further argued that the Director of Public Instruction has arrived at a reasoned decision after giving sufficient opportunity of the parties of being heard. Now, such decision cannot be challenged before this Writ Court as the decision is not at all perverse. 14. The petitioner used supplementary affidavit in this case, containing inter alia, that the Higher Education Department has approved the accompanist of the different Colleges under the category of (SACTII). In support of their contentions, the petitioner produced some documents of Netaji Satabarshiki Mahavidyalaya which was affiliated to West Bengal State University wherein persons, namely, Shri Raju Sarkar and Shri Amal Chakraborty have been shown as Accompanist under (SACT-II). 15. Learned advocate for the petitioners further argued that the fact suggests that the Accompanist are approved as State Aided College Teacher (SACT-II) by the Higher Education Department, the petitioner should not be treated in different manner. Learned advocate for the petitioners further argued that such an action of in-equal treatment amongst the equals completely de-hors to the provisions of Articles 14 and 16 of the Constitution of India. As such, the petitioners ought to be approved as State Aided College Teachers category (SACT-II). 16. The State did not use affidavit-in-opposition against the supplementary affidavit filed by the petitioners. 17. Heard the learned advocates perused the pleadings as well as the Memos. 18. Learned advocate for the State submits that the present petitioners cannot come under the purview of a teacher or guest teacher of any nomenclature, they lacking educational qualification for being a teacher and they were not appointed by a process of appointment. They were merely engaged in the College at the whims of the College Authority they do not have any legal right to prefer the instant writ petition. They were merely engaged in the College at the whims of the College Authority they do not have any legal right to prefer the instant writ petition. He submits that the Hon’ble Apex Court in Mani Subrat Jain & Ors V. State of Haryana reported in (1977) 1 SCC 486 has observed that: “No one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something”. 19. Learned advocate for the State also cited a decision of Hon’ble Apex Court passed in Census Commissioner and Others Versus R. Krishnamurthy reported in (2015) 2 SCC 796 . “A. Constitution of India-Art. 226-Writs-Mandamus-To frame policy in a particular manner-Impermissibility-Held, interference with policy decision on ground that it is ultra vires/arbitrary/invalid, etc., and, issuance of mandamus to frame policy in particular manner are absolutely different-Issue of mandamus commanding appellant to carry out census in particular manner-Impermissibility-Courts have jurisdiction to declare law unconstitutional where called for, and may also fill gaps in certain spheres applying doctrine of constitutional scheme or abeyance but they cannot plunge into policy-making by adding something to policy by way of issuing mandamus-Judicial restraint is called for in such circumstances”. 20. In this case, the reasoned order of State respondent Authority dated 24.08.2022 was challenged by the writ petitioners. The petitioners also prayed for necessary direction upon the State Authority, so that the petitioners may be approved as State Aided College Teacher with effect from 01.01.2020. The necessary paragraph of the impugned order is required to be set out as follows: “VI. On close scrutiny of the Governing Body Resolution dated 27.07.2020 it is found that on 20.07.2020 Subrata Natta and Debtosh Natta, both Accompanists/ Tabalchies made a prayer before the G.B of the college for being considered as Guest Teacher by saying that others doing the same job had been approved as SACT by the Higher Education Department and in that background the G.B was persuaded to adopt a resoluti8on of forwarding the case of the two Accompanists top the Director of Public Instruction for necessary approval as SACT. Pursuant to that G.B Resolution dated 27.07.2020, the Principal of the said college wrote a letter to the Director of Public Instruction, West Bengal under No. GHC/601/20-21 dated 28.09.2020 with some face saving excuses. Thus, after meticulously examining all the materials placed by the college authority, the undersigned is constrained to hold that the Petitioner Sri Subrata Natta was never engaged in the Gobardanga Hindu College as teacher of its equivalent and that the post of Accompanist/ Tabalchi was never regarded as a teaching post and it was for that reasons he was paid less than what was paid to other Part Time Teacher and Guest Teacher. In view of what are discussed herein above the under signed is constrained to hold that the Petitioner Subrata Natta is not entitled to the benefit of the Higher Education Department’s Memo No. 2081-Edn (CS)10M-83/2019 dated 23.12.2019 and his prayer is considered and rejected. The Principal’s Petition under Memo No. GHC/601/20-21 dated 28.09.2020 is disposed of accordingly. Let a copy of this order be sent to the Petitioner Subrata Natta forthwith the and all other concerned be informed accordingly”. 21. On perusal of the reasoned order it appears to me that the Director of Public Instruction has denied the prayer of the petitioners on two grounds; Firstly: There names were not uploaded in the portal by the College Authority on or before 25.09.2019. Secondly: The present petitioners were never engaged in a teaching post in terms of Memo of the State Aided teaching post. For that reason, they were paid less than what was paid to other Part Time Teachers and Guest Teachers. 22. It is true that the names of the present petitioners were not uploaded in the portal by the College Authority within 25.09.2019. It is also true that only Rs.2,500/-was paid to the present petitioner monthly for their performance. The College Authority has unequivocally admitted that not uploading the name of the present petitioner in the said portal within 25.09.2019 is inadvertent mistake of the College Authority as they were under dilemma whether an Accompanist (Tabalchi) would fall in the category of Teacher or not. So entirely the fault for not uploading the names of the petitioner is on the part of the College Authority. Giving less payment to the petitioners is no doubt a deprivation of the petitioners by the College Authority. So entirely the fault for not uploading the names of the petitioner is on the part of the College Authority. Giving less payment to the petitioners is no doubt a deprivation of the petitioners by the College Authority. The College Authority has recommended their names to the concerned State Authority only on 28th September, 2020 for the first time, which suggests that they were engaged in the College as accompanist and they were performing since long with a meagre remuneration. 23. By virtue of argument on behalf of the State regarding the fact whether any legal right accrued in favour of the petitioner to prefer this writ petition, I observe that, in this case, it has admitted by all concerned that present petitioners are performing in the said Colleges as accompanist. It further appears from the supplementary affidavit of the petitioner that the State Authority has approved the accompanist of other Colleges, namely, Netaji Satabarshiki Mahavidyalaya as State Aided College Teachers Category-II. The present petitioners are standing on the same footing that of the other persons in favour of whom, the State Authority has approved them as State Aided College Teacher-II. So, it is clear that the State Authority has in equally treated the present petitioners to that of the other persons of other Colleges of same nomenclature. 24. In such view, the present petitioner has got a valuable legal right to maintain a mandamus. Let me consider whether the approval of the present petitioners as a (SACT-II) would be de-hors to the policy decision of the State. 25. The State of West Bengal has issued memorandum on 23.12.2019 for the purpose of restructuring of service conditions and other benefits of PTTs, CWTTs and Guest Teachers in any nomenclature, engaged in different Government/Government Aided Colleges in the State of West Bengal up to 13.07.2019. Prior to the said Notification the Government is under active condition of framing the pay structure and other benefits of all teachers of any nomenclature and designation. For the purpose of such decision, the Government tried to conclude the entire procedure by asking different Colleges to upload the particulars of all the teachers engaged to the different Colleges in a prescribed format and directed the College Authority to upload the same within 25.09.2019 in the website. For the purpose of such decision, the Government tried to conclude the entire procedure by asking different Colleges to upload the particulars of all the teachers engaged to the different Colleges in a prescribed format and directed the College Authority to upload the same within 25.09.2019 in the website. So, it is the decision of the State to restructure the service conditions and other benefits of the teachers of different Colleges. The policy decision has directed a specific date for conclusion of the entire exercise. It is true that the names of the present petitioners were not reached to the State within that particular time frame. But, it appears that if the names of the present petitioners were uploaded within that period (25.09.2019), they would have considered as SACT-II. The fact suggests that the present petitioners had no laches regarding uploading their names in the portal. 26. Thus, I am of the clear view that inclusion of the names of the present petitioners as a SACT-II cannot be regarded the violative of policy decision of the State. Merely not sending the names within a specific time cannot debar the present petitioners to get their benefits which they were otherwise entitled to. 27. Considering the same, it appears to me that the present writ petitions are meritorious and they are liable to be succeed. 28. Considering the above aspects, the impugned decision of the State respondent dated 24.08.2022 is hereby set aside and quashed. 29. The State Authority is directed to give approval of the present petitioner as State Aided College Teachers (Category-II) as per Memo dated 23.12.2019 with effect from the date when such decision shall be taken by the concerned authority. 30. The concerned State authority shall take the aforesaid decision within eight weeks from date of communication of this order and shall intimate the same to the petitioners College Authorities within two weeks thereafter. 31. The writ petitions are disposed of according to the above observation. 32. All connected applications, if any, stand disposed of. 33. Interim orders, if any, stand vacated. 34. Parties to act upon the server copy and urgent certified copy of this order be provided on usual terms and conditions.