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2025 DIGILAW 746 (CAL)

Saikat Ghosh v. State of West Bengal

2025-10-28

RAI CHATTOPADHYAY

body2025
JUDGMENT : Rai Chattopadhyay, J. 1. The writ petitioner was appointed as an Assistant Teacher in Physical Education subject, at Nawadwip Hindu School vide the recommendation dated March 15, 1999, made by the West Bengal Regional School Service Commission and joined therein on March 26, 1999. The writ petitioner was recommended as a pass graduate teacher and his service was approved later on mentioning him as a “B.A/B.P.Ed qualified teacher. 2. According to the writ petitioner however, even before entering into the service, he completed successfully his Master’s Degree, in Physical Education subject [M.P.Ed]. according to him, since none of the posts in the State were earmarked for the Master’s Degree holder so far as the subject Physical Education is concerned and required qualification for all available posts in the said subject was graduate degree only, the petitioner was inducted therein as a pass graduate teacher of Physical Education subject. 3. Mr. Roy learned advocate appearing for the petitioner has submitted that, in view of the provisions of ROPA 1990, ROPA 1998 and Notification No. 795-Edn(S) dated November 22, 1993, [in short “No.795”] the writ petitioner is entitled to get higher pay scale commensurate to a teacher, possessing Master Degree, as he already was qualified as such, before entering into the service. He has also referred to a judgment of this Court in W.P.No. 6608 (w) of 2022 dated June 9, 2008 [Subrata Kumar Ghosh vs State of West Bengal & Others] The Court has held therein that the government orders pertaining to the staff pattern have nothing to do with the salary and the allowances of the teachers. Rather the same is dependent on the qualification of the teacher and modifiable with change in the same. Rather the same is dependent on the qualification of the teacher and modifiable with change in the same. The following portion thereof be extracted as the same may be relevant for the purpose of this case: "Where all Assistant Teachers constitute a single class, and as per the Government Orders pertaining to salary and allowances, there scales are to be fixed on the basis of qualifications in the relevant teaching subject, payment of different scales to two teachers with the same qualifications, teaching the same subjects in the same classes, in the same or in different aided non- government schools or Madrasahs, on the basis of the requisite qualification for the teaching post, as per the approved staff pattern, which is in no way related to the duties and responsibilities pertaining to the teaching posts, would amount to denial of equal pay for equal work and offend Article 14 of the Constitution of India." 4. According to Mr. Roy, learned advocate for the writ petitioner, depriving him of the higher pay scale commensurate to a Post Graduate Degree for an Assistant Teacher amounts to gross infringement of the right to equality of the writ petitioner and his legal and statutory rights too. Hence, appropriate relief has been prayed for in this case for the petitioner, by granting him the higher pay scale. 5. The respondent/State has not raised any objection as to the fact that prior to entering into the service, the petitioner duly completed and qualified in the Post Graduate course. The respondent’s first contention is that, on December 30, 2021, the petitioner was appointed on transfer in another school for the subject Physical Education, in normal section, in place of an Assistant Teacher which pass graduate qualification. Secondly, with reference to the notification No. 155-SE(B) dated July 13, 1999 [in short “No.155”], it has been stated that not all Physical Education teachers, who have been appointed with higher qualification in the subject, should be eligible for grant of higher pay scale, until and unless the riders as provided in the said notification is duly fulfilled. Secondly, with reference to the notification No. 155-SE(B) dated July 13, 1999 [in short “No.155”], it has been stated that not all Physical Education teachers, who have been appointed with higher qualification in the subject, should be eligible for grant of higher pay scale, until and unless the riders as provided in the said notification is duly fulfilled. The notification as mentioned above provides inter alia as follows: “ 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, w.e.f. 01 st Jan- 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. 6. Therefore, according to the notification No.155, firstly the higher qualified teacher in the relevant subject to should be justified as per the approved staff pattern of the school. In this regard the judgment of this Court as quoted above, in Subrata Kumar Ghosh (supra), would bear relevance and the ratio decided therein would be squarely applicable in the instant case too. Hence, it can be stated that staff pattern of the institution has no relevance as regards the salary and allowances of the respective teachers are concerned but on their qualification only, which even would be subject to change according to their change in qualification. Rather, it has been held that all the Assistant Teachers constitute a single class and to differentiate amongst them the factor of intelligible differentia must exist. To this extent, the court finds no applicability of the said notification No. 155, in case of the present petitioner. 7. Fact remains that in the State, all the posts of Assistant Teachers in the subject Physical Education are meant to be filled in by the person qualified with graduate degree only. There is no post available or advertised, in the subject Physical Education, in Post Graduate category. 7. Fact remains that in the State, all the posts of Assistant Teachers in the subject Physical Education are meant to be filled in by the person qualified with graduate degree only. There is no post available or advertised, in the subject Physical Education, in Post Graduate category. On the other hand, all the Teachers meant to be appointed in either graduate or honours graduate/postgraduate posts, have been subjected to qualify in the same examination without any relaxation advanced to the candidates appearing for the posts meant for lesser qualified teachers. Hence, indeed the Court has no hesitation to find that the instant writ petitioner should be considered to belong to the same class with the other similarly qualified teachers in the State and therefore no discriminatory treatment can be meted out to him which is not justified with an intelligible differentia. As a matter of fact, there is none available in the instant case to segregate the petitioner in any manner from those others similarly placed like him. 8. At the same time the following provisions of ROPA and the Government Notification, support the writ petitioner’s case: ROPA 1990 - "16(3) All teachers and librarians of Secondary Schools who have improved or will improve their qualification or who were appointed with higher qualification in the subject or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications with effect from the 1st January, 1986 or the date of improving qualification whichever is later." ROPA 1998 – “ 12(3) All teachers, including Physical Education Teachers and Librarians of Secondary Schools who have improve their, qualifications 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 qualification, with effect from the 1st January, 1996 or the date of impro ving qualifications whichever is later.” ** ** ** ** "*No. 795-Edn(S), Dated, Calcutta, the 22 Nov., 1993 Sub: Higher Scale of Pay to the teachers of Physical Education. 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 Physical Education teachers having higher qualification of Master Degree in Physical Education. 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 Physical Education teachers having higher qualification of Master Degree in Physical Education. This is presumably due to nonexistence of any provision for post- Graduate teacher in Physical Education in terms of the staff pattern laid down in G.O., No. 772-Edn(S) dated the 8 July, 1974. In this Department Memo No. 372-Edn(B) dated the 31 July, 1981 read with Memo No. 33-Edn (B) dated the 7 March, 1990 the higher scale of pay to the teachers of Secondary Schools having higher qualification has already been granted. It is now clarified that all such Physical Education teachers including those of Madrasahs of various types having Master Degree in Physical Education from recognized Universities will be entitled to get higher scale of pay in relaxation of the above noted staff pattern. This order will take effect from the date of issue of this clarification. All concerned have been informed. Sd/Illegible, (Assistant Secretary)" 9. For the reasons as above the Court finds that there is no applicability of the notification No. 155, in the instant case as against the petitioner’s prayer. Rather, the provisions of ROPA as mentioned above which has the force of the statute as well as that of the notification No.795, eloquently speak about the entitlement of the writ petitioner for the benefit which he has prayed for in the instant case and has been deprived of for years together. In such circumstances the Court finds that the instant writ petition should succeed. 10. Hence, WPA 11776 of 2004 is allowed and disposed of with the following directions: a. The writ petitioner is entitled to the Post Graduate scale of pay, with effect from the date of his appointment; b. The writ petitioner shall be immediately disbursed with such benefit and necessary pay fixation/pension fixation (as the case may be), with issuance of revised Pension Payment Order (if applicable), shall be done by the respondent No.3, positively within a period of 3 weeks from the date of communication of copy of this judgment; c. The writ petitioner shall be granted with the arear amount of pay/pension as per the higher scale, within a period of 2 months from the date of communication of copy of this judgment. 11. 11. Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.