The District Primary School ... vs Bhriguram Karmakar & Ors
2021 Latest Caselaw 1335 Cal

SL 9, wt 10
Wt 11
11.02.2021
Ct. No. 12
Kole
                           (Via Video Conference)

                                MAT 714 of 2020
                                    With
                                 CAN 1 of 2021
                                   With
                                 CAN 2 of 2021

                    The District Primary School Council & Anr.
                                       -Vs.-
                           Bhriguram Karmakar & Ors.

                                       WITH
                                   MAT 715 of 2020
                                        With
                                    CAN 1 of 2021
                                        With
                                    CAN 2 of 2021

                                       WITH
                                   MAT 716 of 2020
                                        With
                                    CAN 1 of 2021
                                        With
                                    CAN 2 of 2021



              Mr. Kishore Datta, Ld. A.G.
              Mr. Sarwar Jahan, Adv.
              Sk. Nayeemul Haque, Adv.
              Md. Firoze Hassan, Adv.
                                                    ... for the appellants.


               Mr. Ekramul Bari, Adv.
               Md. Syed Mansur, Adv.

                                    ... for the writ petitioners/respondents.

Ms. Chaitali Bhattacharya, Adv.

Mr. Kartick Ch. Kapas, Adv.

... for the State in MAT 714 of 2020 and in MAT 715 of 2020.

Ms. Chaitali Bhattacharya, Adv.

Mr. S. Roy Chowdhury, Adv.

... for the State in MAT 716 of 2020.

The three identical matters concerning parties who

have been similarly benefited by the order under challenge

are heard together. At this stage, we are considering the

prayers made on behalf of the District Primary School

Council, Murshidabad for stay of operation of the impugned

order. Each of the writ petitioners have joined the school as

Assistant Teacher before September 1, 2001. At the instance

of the District Primary School Council the writ petitioner

joined PTT course for the academic session 2005-06. The

Government Order dated 8th August, 2005 records that

teachers which include writ petitioners were selected for

deputation to undergo primary teachers training through the

session July 2005-06 at Berhampore, Murshidabad

Government Primary School. The writ petitioners have

joined the said course but the examination could not be held

at the end of the academic session. The final examination

held in February 2011 and the results were published in July

2011. By a memo dated 18th September, 2012 issued by the

Chairman, Murshidabad Primary School Council, they were

all considered eligible to be as Head Teachers in accordance

with seniority and were granted category 'A' scale of pay to

May 2018. Thereafter, the benefit extended to them for

category 'A' scale of pay was withdrawn by a circular dated

13th June, 2013 issued by the Murshidabad District Primary

School Council. The said communication in so far it affected

the writ petitioners reads as follows:-

" The teachers who have already joined AND yet to be joined the post of HT having passed one year PTT examination, 2011 are also not to be included in Annexure - 'I' and "II" and the particulars are urgently required for transferring profit and Fixation of pay & allowances of the newly appointed Head Teachers."

Aggrieved by this circular, the writ petition was filed.

The writ petitions were heard together. The Learned Single

Judge allowed the writ petition on the basis of a

memorandum dated 18th September, 2012 and as clarified in

the notification dated 4th March, 2013 issued by the

Government of West Bengal School Education Department

(Elementary Education Branch). The Learned Single Judge

relied on paragraph (iii) of the said notification which

provides the following stipulation:

"(iii) Teachers who have attained 1yr./2 yrs. Diploma in Elementary Education from State recognized institutions and appointed as teacher on or before 31.12.2005 shall be treated as 'trained teacher'."

The learned Single Judge observed that the writ

petitioners who were appointed before the cut-off date i.e.,

31st December, 2005, are entitled to "A" category scale of pay

and thus eligible to be included in Annexures 1 and 2 for the

profile transfer for drawn of salary to be prepared by the

Sub-Inspector of Schools of the concerned circle at

Murshidabad.

The learned Single Judge also relied on a decision

delivered by us in The Chairman, District Primary

School Council, Nadia-vs.-Tapan Kumar Halder &

Ors. in FMA 804 of 2019 in which this Division Bench

construed the said paragraph (iii) of the notification dated

4th March, 2013 to hold that considering the writ petitioners

in the said matter that the writ petitioners in FMA 804 of

2019 posses the qualification of primary teachers for the

academic session 2005-06 for which examination was held

in the year 2011. There is no bar in extending the benefit of

'A' scale of pay in favour of the writ petitioners in the said

matter.

The appellants are aggrieved by the said order. The

arguments on behalf of the appellants/applicants were

advanced by the learned Advocate General assisted by Mr.

Sarwar Jahan, Advocate. The contention of the appellant is

that in the previous decided matters as well as before the

Learned Single Judge relevant circulars of the National

Council for Teacher Education issued by the Education

Department of the State were not brought. Mr. Advocate

General has submitted that the notification dated 4th

September, 2011 issued by the National Council for Teacher

Education makes it mandatory that for appointment of

teachers for primary class basic teachers training

programme of two years duration is required.

In the State of West Bengal Basis Teachers' Training

Course is one year duration. The candidate has to

participate in their training programme from a State

recognized institutions. The writ petitioners have joined the

course in the session 2005-06 and accordingly by no stretch

of imagination they could have attained one year or two

years diploma in elementary education by 31st December,

2005. It was on such consideration it was submitted that

the order impugned shall be stayed.

Mr. Ekramul Barr, learned Counsel appearing on

behalf of the respondents/writ petitioners submitted that the

NCTE notification dated 4th September, 2001 are not

applicable in view of the fact that writ petitioners were

appointed prior to September, 2001 and they were not

pursuing the course as such but were deputed to the primary

teachers training institute at Berhampore vide letter dated

8th August 2005 for the academic session July 2005-06 and

having regard to the fact that the examination for the said

period could not be completed during the relevant year, the

writ petitioners cannot be deprived on such category "A"

scale of pay benefits. It is submitted that the appellants have

accepted the position that the present writ petitioners who

are pursuing the primary teachers training from the said

institute for the academic session 2005-06 held in the month

of February 2006 would be entitled to such higher scale of

pay and on the basis of understanding the appreciation of

the relevant position of the writ petitioners, the Chairman,

Murshidabad District Primary School Council issued a

notification dated 18th September, 2012 extending such

benefit. The writ petitioners continued to receive such

benefit until September, 2018. It is submitted that no reason

has been ascribed in justification for withdrawal of such

benefits after September 2018 in so far as the writ

petitioners are concerned. On such consideration, Mr. Bari

has prayed for dismissal of the appeal. Mr. Bari has also

relied upon an Appeal Committee decision of the West

Bengal Board of Primary Education dated 3rd December,

2019, where the teachers similarly placed were extended

higher scale of pay and the appeal of the Chirman-in-Charge,

DPSC, Murshidabad was turned down.

We have considered the rival contentions of the

parties. It is an admitted position that the writ petitioners

were appointed prior to promulgation of NCTE dated 4th

September, 2011. It is also admitted position that they were

deputed for the said course for the academic sessin 2005-06

and one of the earlier Government notifications namely, the

notification dated 13th August, 2012 as mentioned that

teachers appointed prior to 3rd September, 2001 would be

governed by the State Government norms in relation to

upgradation of their qualifications who may not possessing

the same as per requirement of NCTE. It further pointed out

that the teachers appointed between 3rd September, 2001 to

31st December, 2005 possessing academic session as per

Government norms and completed one year/two years

teachers' training course from the State recognized

institutions are not required to enhance their qualification as

per 'Note 2'.

In a subsequent notification dated 4th March, 2013 in

Clause 3 it is stated that teachers who have attained one

year/two years diploma in elementary education from the

State recognized institutions and appointed as teacher on or

before 31st December, 2005 shall be treated as trained

teacher. The question arises for consideration is whether

pursing the course for the academic session 2005-06 by the

present writ petitioners would entitle them to "A" category

scale of pay. The Appeal Committee of the West Bengal

Board of Primary Education in similar situation held that the

respondent-council was justified in withdrawing the benefit

of "A" category scale of pay from one teacher, namely,

Prasanta Kumar Mukhopadhyay, who was similarly placed

as that of the writ petitioner. Prasanta Kumar

Mukhopadhyay also joined service on 12 July, 1999 and was

extended similar benefits until it was withdrawn later. The

Appellate Authority in a well considered decision has

observed that such benefits could not have been withdrawn

from the said appellant, Prasanta Kumar Mukhopadhyay, on

relying upon a judgment delivered by a Coordinate Bench in

MAT 474 of 2014 which reads as follows:-

" If the provision of the Right of Children to Free and Compulsory Education Act, 2009 and the Central Government Notification dated 25th August, 2010 are read along with the Government Order issued by the State Government on 13th August, 2012 and 4th March, 2013 then we have no hesitation to hold that the untrained teachers who were appointed prior to 3rd September, 2001 and those teachers who were appointed between 3rd September, 2001 and 31st September, 2005 possessing academic qualification as per the State Government norms and completed one- year/two year teacher training course from State recognized institutions are eligible to be considered for the post of Head Teacher in the primary school as they are all treated at per with the trained teachers appointed as per the

norms prescribed in the notifications issued under the Central Act of 2009."

We are also of the prima facie view that the

clarificatory GO No. 209-SE(EE)/PTTI-7/2011 dated

04/03/2013 and in para (iii) of the said notification, it is

clearly stated that the teachers who had attained one year

/two year diploma in elementary education from the state

recognized institutions and appointed as a teacher on or

before 31/12/2005 shall be treated as trained teacher and in

view of the clarification, it is clear hat a teacher who was

appointed as an Assistant Teacher before 31/12/2005 and

attained one year / two year PTT Course from the State

recognized institutions are eligible to be treated as trained

teacher. In view of the fact that the writ petitioners have

received "A" category of scale of pay up to September 2018,

we dispose of the stay petition by directing the appellants to

pay salary of "A" category scale of pay to the writ petitioners

for the subsequent period and shall continue to pay till the

disposal of the appeal without prejudice to the rights and

contentions of the appellants. In the event, the appeal

succeeds, it is needless to mention that any payment made in

terms of this order from October, 2018 may be refunded or

adjusted against the future salaries of the writ petitioners

subject to fulfillment of the aforesaid conditions of the

appellants the impugned order in so far it concern payment

of the writ petitioners as Head Teacher of the Primary School

shall remain stayed.

The appellant shall file an informal paper book within

four weeks from date.

Service of notice of appeal upon Mrs. Tanuja Basak

and Mr. Kartik Chandra Kapas appearing for the writ

petitioners and for the State of West Bengal are disposed

with.

The appellant shall supply paper books upon Mrs.

Tanuja Basak appearing for the writ petitioners and Mr.

Kartik Chandra Kapas, appearing for appellants in this case.

The stay applications being nos. CAN 1 of 2021 in

MAT 714 of 2020, CAN 1 of 2021 in MAT 715 of 2020 and

CAN 2 of 2021 in MAT 716 of 2020 are accordingly disposed

of.

The appeal shall be listed after two weeks.

Urgent photostat certified copy of this order be

supplied to the parties, if applied for, as early as possible.

(Soumen Sen, J.)

(Saugata Bhattacharyya, J.)