Calcutta High Court (Appellete Side)
Birinchi Kumar Ghosh vs The State Of West Bengal & Ors on 25 February, 2022
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IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA 8509 of 2016
Birinchi Kumar Ghosh
Versus
The State of West Bengal & Ors.
Mr. Biplab Guha
Mr. Nittogopal Mukherjee
.....For the Petitioner
Mr. Arindam Chattapadhyay
Ms. Lipika Chatterjee
.....For the State
Heard on : 21.02.2022
Judgment on : 25.02.2022
Krishna Rao, J.: The petitioner claims pay protection on the basis of the
Memo vide No. 151-SE (B)/1M-136/2005 dt. 12.05.2006 issued by the
Government of West Bengal School Education Department by setting aside
the impugned order issued vide Memo No. 159-LS/IC-LS-772/10 dt.
17.03.2015.
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The petitioner was appointed as an Assistant Teacher Kurunnahar
High School, District- Birbhum on 05.06.1965 and the salary was fixed at
Rs. 210/- per month in the Scale of Rs. 210-10-450/-.
On obtaining higher qualification i.e. M.A in Philosophy, the pay of the
petitioner fixed at Rs. 745 i.e. Rs. 745-730-15 (Buster Pay).
The petitioner exercised option under ROPA 1990 under revised scale
of pay w.e.f. 03.04.1989 as accordingly the school authorities revised the
scale of pay of the petitioner time to time in accordance with law till the
retirement of the petitioner on 31.10.2002.
At the time of retirement of the petitioner, the Managing Committee of
the School forwarded the pension paper to the District Inspector of School
and the same was also again forwarded to the Director of School Education
for approval. The Director of School Education returned the pension file of
the petitioner with the note that the option exercise by the petitioner dt.
03.04.1989 is not acceptable and directed to change the option of the
petitioner.
The petitioner was going to be retired from his service on 31.10.2002
and accordingly the Director of Pension, Provident Fund and Group
Insurance, Government of West Bengal issued pension payment order dt.
22.10.2002 and in the said order it was shown that the gratuity amount of
Rs. 1,06,882/- as over drawn amount.
On receipt of the P.P.O, the petitioner made representation to the
concern authorities. In reply, the Director of School Education vide Memo
No. 1261-GA/4G-74/81 dt. 17.06.2008 informed that the request of Pay
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Protection of the petitioner cannot be accepted due to non fulfilment of
conditions (3) of Government Order No. 151-S.E(B) dt. 12.05.2006.
The private respondent no. 6 was appointed as an Assistant Teacher
in the same school on 24.08.1966 and was having the qualification of
Graduate only but the authorities have fixed higher scale of pay of the
respondent no. 6 than the petitioner.
Being aggrieved with the decision of the authorities, the petitioner had
preferred a writ application before this Court being WP No. 13357(w) of
2010. The writ petitioner was disposed of by the Coordinate Bench on
02.07.2014 by passing following order:-
"The said respondent is directed to consider the claim of the
petitioner for pay protection regarding fulfilment of condition (3) of
Govt. Order No. 151-SE(B)/1M-136/2005 dated 12th May, 2006 and
disposed of the same preferably within a period of four weeks from
date. The petitioner is directed to furnish the particulars required to
the said respondent along with a copy of this order. The impugned
Memo dated 17th June, 2008/2nd July, 2008 is set aside."
Though the respondents failed to comply with the order passed by the
Coordinate Bench dt. 02.07.2014, the petitioner has filed a contempt
application and immediately the Commissioner of School has passed an
order rejecting the claim of the petitioner vide 159-LS/IC-LS-772/10 dt.
17.03.2015.
Mr. Biplab Guha, Ld. Counsel appearing on behalf of the petitioner
submitted that till the retirement, the petitioner was enjoying the higher pay
scale than the private respondent. The petitioner was having higher
qualification than the private respondent and the private respondent was
appointed subsequent to the petitioner but the respondent authorities have
with the malafide intention lower down the scale of pay of the petitioner at
the time of retirement.
Mr. Arindam Chattapadhyay representing the respondent authorities
submitted that the petitioner initially exercised option under ROPA 1990 to
come under revised scale of pay with effect from 03.04.1989 in terms of
Note-1 of serial 5 of ROPA 1990.
It is further submitted that the petitioner had no scope to exercise
option under ROPA 1990 to claim revised scale of pay from any date after
availing the Post Graduate scale of pay and when the same was detected,
the pay fixation of the petitioner was revised.
The Counsel for the respondent further submitted that petitioner
obtained M.A degree in philosophy on 21.01.1987 but the private
respondent was always as Hons. Graduate in Chemistry and accordingly the
pay of private respondent was fixed in higher scale than the petitioner. The
qualification of the petitioner and the private respondent was not same in
terms of Clause (3) of Government Order No. 151-SE(B)/M-136/2005 dt.
12.05.2006 and thus the petitioner cannot claim parity with the private
respondent.
This Court considered the rival submission of the parties and the
documents available on record.
The petitioner was appointed as Assistant Teacher on 05.06.1965.
Subsequent to the appointment, the petitioner obtained Post Graduate
Degree in Philosophy in the year 1987 and accordingly, the school
authorities have awarded higher pay scale to the petitioner. The pay scale of
the petitioner was revised from time to time and the petitioner was enjoying
the same till his retirement.
The petitioner retired from his service w.e.f. 31.10.2002 and just
before his retirement on 22.10.2002, pension paper was issued in favour of
petitioner wherein the petitioner came to know an amount of Rs. 1,06,882/-
was deducted from gratuity as an overdrawn amount.
The Commissioner, School Education has passed the impugned order
on 17.03.2015 rejecting the request of the petitioner stating inter alia:-
"At the time of pay protection prayed by the petitioner his
qualification was M.A.(philosophy), P.G.BT. Whereas the qualification
of junior teacher was B.SC.(Hons. In Chemistry), B.ED. Since the
qualifications of the senior and junior teachers are different the
condition (3) is not fulfilled for consideration of pay protection. Hence,
the prayer of the petitioner for protection of pay in comparison with
the junior teacher cannot be considered."
The authorities have rejected the request of the petitioner relying upon
Clause (3) of Government Order No. 151-SE(B) dt. 12.05.2006 which reads
as follows:-
"Both of them (in respect of Teaching Posts) should have the
same qualification like Pass Graduate/Hons. Graduate/Post Graduate
etc. at the time when such 'Pay Protection is being considered."
The authorities have relied upon Clause (3) of Government Order dt.
12.05.2006, though the same is not applicable in the case of the petitioner
as the petitioner retired much prior to the said Government Order i.e.
31.10.2002.
The petitioner was appointed in the year 1965 that is much prior to
the appointment of private respondent. At the time of appointment both
were having Graduation Degree. The petitioner has obtained Post
Graduation Degree in the year 1987 and thereafter the petitioner was
awarded higher pay scale. The private respondent has not obtained any
Post Graduation Degree and the private respondent was having only
Graduate Degree. Till the retirement, the petitioner was enjoying higher pay
scale. It is admitted fact that the petitioner has not obtained higher pay
scale by practicing fraud or suppressing any material fact.
The school authorities have awarded higher scale of pay on obtaining
Post Graduate Degree and subsequently the pay scale was revised from time
to time till his retirement and without any notice or opportunity of hearing
an amount of Rs. 1,06,882/- was deducted from the gratuity of the
petitioner and lower down the scale of the petitioner than the private
respondent admittedly he is junior and having only Graduation degree.
In view of the above, the impugned Memo No. 159/IC-LS/772/10 dt.
17.03.2015 issued by the Commissioner, School Education is not
sustainable under law and accordingly, the same is set aside and quashed.
The respondent No. 2 is directed to release the amount of Rs.
1,06,882/- in favour of petitioner and to re-fix the pension of the petitioner
in terms of last pay drawn within 8 (eight) weeks from the date of
communication of the copy of this order.
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.
(Krishna Rao, J.)
