Mrityunjoy Bandyopadhyay vs State Of West Bengal & Ors
2022 Latest Caselaw 5457 Cal

16.08.2022 Court No.13 Item No.1 sp WPA 22777 of 2010

Mrityunjoy Bandyopadhyay Vs.

State of West Bengal & Ors.

Mr. Ekramul Bari, Sk. Imtiaj Uddin ...for the petitioner

Mr. Malay Singh, Mr. Bibekananda Tripathi ....for the State

The writ petitioner is aggrieved by the stoppage

of higher pay of scale granted to him pursuant to his

having acquired a post graduate degree in physical

education in the year 1998.

The petitioner joined the Manihara High

School (H.S.), Purulia, on 20th September, 1989,

approved by the D.I. of Schools (SE), Purulia, with

effect from September 28, 1991.

Pursuant to the higher qualification acquired

by the petitioner, the school forwarded the salary of

inter alia the petitioner, recommending the higher

scale of pay and the concerned D.I. of Schools has

allowed the same.

The petitioner was drawing higher pay scale

from 1998 till 2009. Sometime in the year 2006, the

D.I. of Schools (SE), Purulia, wrote to the Secretary,

Manihara High School (H.S.), Purulia, aksing for a

copy of the prior permission of the D.I. to permit the

petitioner to enhance his qualification to post

graduate scale.

The school was unable to do so. The

petitioner's post graduate scale of pay was stopped in

the year 2009 and was reverted his original graduate

scale of pay.

Mr. Ekramul Bari, learned counsel appearing

for the petitioner submits that in terms of ROPA

1998, particularly, the clarification under notification

25-SE dated February 12, 1999 at Clause 12(3), all

teachers enhancing higher qualification became

entitled to receive post graduate scale of pay.

The requirement of prior permission of the D.I.,

before any such enhancement was brought into the

Court in prior permission by notification no. 548

dated 24.06.1998. The said notification came to be

interpreted by the Division Bench of this Court in the

case of Rabi Kanta Barman Vs. District Inspector

of Schools (SE), & Ors. being judgment dated

January 31, 2014 in W.P. 14760 (W) of 2004. It

was held that prior permission of the D.I. as

conceived of under the aforesaid notification, was not

required for a teacher to acquire Post-Graduation

and to seek higher pay scale. It is clear and evident

that the impugned communications of the year 2006

and 2009 of the D.I., were most likely based on the

notification issued before coming into force of the

West Bengal Schools (Control of Expenditure) Act,

2005 and the West Bengal School Service

Commission Act of 1997. The petitioner having been

appointed prior to coming into force of the Act of

2005 and the 1997 was not therefore required, to

obtain any prior permission of the D.I. for the

purpose of receiving higher pay scale pursuant to

higher qualification.

Mr. Malay Singh, learned counsel appearing for

the State, however, draws the attention of this Court

to paragraph 5 of the writ petition, where an

erroneous statement has bee made that the school

has given prior permission to the petitioner to acquire

higher qualification. Annexure P/2 to the writ

petition only indicates that the petitioner had only

been granted leave to pursue academic training for

the higher qualification.

This Court is of the view that the said

omission, is not seriously relevant in the facts of the

present case.

The next argument of the learned counsel for

the State, by reference to the extract of the resolution

dated August 19, 1998 at annexure P/5 of the writ

petition that the school itself requested the D.I. for

prior approval for refixation of pay and therefore, the

petitioner cannot turn back and contend that no

prior approval of the State is required, is not

sustainable in law. Statutory and fundamental

rights cannot be waived even if a stray statement is

made by the school, seeking prior approval of the pay

fixation in the Post-Graduate scale of the petitioner,

of the D.I., the same firstly cannot be deemed to be

an acceptance of any requirement of prior

permission. Nor can it in any way water down the

rights that already accrued to the petitioner under

ROPA 1998. The school has informed the D.I. about

the refixation of the petitioners' pay on account of his

having acquired post graduate qualification. The D.I.

has acted upon the same and the petitioner has been

receiving post graduate scale of pay until the year

2009.

This Court is, therefore, of the view that the

stand taken by the D.I. that prior permission of his

office is necessary for acquiring post graduate

qualification and/or for seeking post graduate scale

of pay is, therefore, illegal and incorrect and is set

aside. The order, stopping post graduate scale of pay

from 2009 to the petitioner, is equally illegal and also

quashed and set aside.

The petitioner shall be entitled to refund all

arrears of post graduate scale of pay, that has not

been paid to him from August 2009 till date, within a

period of three months from the date of

communication of a copy of this order.

The arrears shall carry interest @6% per

annum. The petitioner's pay shall be refixed on the

basis of his last drawn post graduate scale of pay and

all increments and revisions, in accordance with law,

shall be calculated and made available to him. The

petitioner's current pay scale and salary shall be on

the basis of his revised pay scale based on the

aforesaid directions.

Accordingly, the writ petition is allowed and

disposed of.

There shall be no order as to costs.

All parties shall act on the server copy of this

order duly downloaded from the official website of

this Court.

(Rajasekhar Mantha, J.)