Calcutta High Court
Dilip Kumar Ghosh vs State Of West Bengal And Ors on 15 July, 2022
ORDER SHEET
OD-1
WPO 998 OF 2016
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
DILIP KUMAR GHOSH
VS.
STATE OF WEST BENGAL AND ORS.
BEFORE:
The Hon'ble JUSTICE ANIRUDDHA ROY
Date: 15th July, 2022
Mr. Syed Shamsul Arefin, Adv.
Miss Maniz Kulsum, Adv.
For petitioner
Mr. Sirsanya Bandapadhyay,
Jr. Standing Counsel
Ms. Tapati Samanta, Adv.
For State
The Court : The writ petition has been filed assailing a
decision/order dated July 8, 2016, Annexure P14 to the writ petition,
passed by the third respondent, whereunder the petitioner was declined
from receiving the higher scale.
The petitioner at the relevant point of time was appointed and had
been working as an Assistant Teacher in the Work Education Stream at
Bhandarhati B.M. Institution (for short, the said school) since November 3,
1997 with the approval from the third respondent dated May 8, 1998. The
petitioner had qualified Masters of Commerce ( M.Com) from university of
Burdwan and the B.P.Ed. and Semister Examination 1990. The petitioner
was appointed as a Work Education Teacher in the normal section i.e.
Class (V) to (X). In view of the paucity of teachers, at the request of the
relevant school authority of the said school, the petitioner used to take
commerce classes for classes (XI) and (XII). The routine by which petitioner's
classes were fixed was also made known to the Concerned District Inspector
of School, Annexure P-7 to the writ petition. Though the petitioner used to
take several classes for classes (XI) and (XII) in commerce stream, yet the
petitioner, despite repeated requests and representations made by him, did
not receive the higher scale commensurating with his Masters degree.
This is the third round of writ petition on the issue, as this Court
has been told. Previously pursuant to the directions made by a co-ordinate
Bench representations were considered but on one or the other plea the
prayer of petitioner was rejected for granting the higher scale. Lastly, the
prayer of the petitioner for higher scale was rejected by the decision/order
dated July 8, 2016 passed by the third respondent, which is impugned
herein.
Mr. Syed Shamsul Arefin, learned Counsel with Miss Maniz Kulsum,
learned Advocate appearing for the writ petitioner submits that, the service
condition of the petitioner, who was appointed in 1997 as Assistant Teacher
was governed under the provisions of the West Bengal Services (Revision
of Pay and Allowance) Rules, 1990 (ROPA 1990). Career Advancement
Scheme and related issues are provided under Rule 16 of the ROPA 1990.
In terms of such provision, the petitioner claims that he deserves the higher
pay scale, since he had acquired a higher qualification though not in the
subject for which he was appointed as an Assistant Teacher.
Referring to Annexure P-11 to the writ petition which is a circular
containing administrative instruction issued by the Department of School
Education dated January 27, 1995 (for short, the said 1995 Circular), he
submitted that, by the same the career advancement scheme was further
promoted following the said ROPA 1990 guidelines. He submits that, the
said circular provides that even if an Assistant Teacher who was appointed
for a particular subject if possessed a higher and proper qualification on
any other different subject, subject to the compliance with the formalities,
as mentioned in the said 1995 Circular, the teacher would be allowed and
eligible to take classes in the higher section, on such subject in which he
had acquired the higher qualification other than the subject for which he
was appointed. He submitted that, this was not an unknown territory of the
respondent State Authorities rather was a permitted territory.
Referring to Annexure P-12 to the writ petition, he submits that,
similarly circumstanced candidates had received the higher pay scale, as
such, the claim of the petitioner was also justified and lawful. By refusing to
grant such higher pay scale to the petitioner, who was a candidate similarly
placed to those mentioned in Annexure P-12, the principle of equal pay for
equal work was violated and as such, there was a violation of Article 14 of
the Constitution of India.
Referring to Annexure P-7 to the writ petition, learned counsel for
the writ petitioner submits that, this class routine permitting the petitioner
to take Commerce classes in the higher section was within the knowledge of
the concerned District Inspector of Schools as it contained the seal of the
same. In support, learned Counsel relied upon a judgment of a co-ordinate
Bench of this Court in the matter of: Partha Chatterjee Vs. State of
West Bengal & Ors reported at 2004(2) CLJ 493.
Mr. Sirsanya Bandapadhyay, learned junior standing Counsel
appearing for the State, referring to sub-paragraph 3 to paragraph 16 of
ROPA 1990 submits that, this provision specifically provides for higher
qualification of an Assistant Teacher in the subject or group relevant to
his/her teaching/appointment, were entitled to get a higher scale of pay
apropos to their qualifications. Since the petitioner was appointed as an
Assistant Teacher for the subject of Work Education being the group
relevant to his teaching/appointment and possessed higher qualification in
the commerce branch and ultimately taught the students of commerce in
the higher section, was not eligible to get such higher pay scale, as the
petitioner claimed.
The learned junior standing Counsel referring to the said 1995
Circular, Annexure P-11 to the writ petition, submits that, this circular
specifically provided for a prior permission which was necessary to be
obtained from the concerned District Inspector of Schools and strictly in
accordance with the actual need of the individual school. For the petitioner,
no such prior permission was obtained by the relevant school. In absence of
such prior permission, the said 1995 Circular was of no support to the claim
of the petitioner.
The learned junior standing Counsel further refers to paragraph 14
from his client's affidavit-in-opposition and demonstrates that his client has
duly denied that the said 1995 Circular would apply to the petitioner and
further contends that no such prior permission was granted by the
concerned District Inspector of Schools.
After hearing the learned Counsel for the parties and on perusal of
materials on record, it appears to this Court that, it is an admitted case by
both the parties that provisions under ROPA 1990 are the applicable
provisions for regulating the service of the petitioner, who was appointed as
an Assistant Teacher in 1997.
The relevant provision of ROPA 1990 is quoted below:-
"16. Career Advancement Scheme & related issues :
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . .
. . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .
(3) All teachers and librarians of Secondary Schools who have
improved/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.
This principle shall apply mutatis mutandis to the
teachers/librarians of other institutions/organisations as
mentioned in Annexure-I."
From a close scrutiny of the provisions quoted above, it is clear that
all the teachers which includes an Assistant Teacher being the petitioner in
the instant case, of secondary schools who had improved/would improve
their qualifications or who were appointed with higher qualification in the
subject or group relevant to their teaching/appointment should get
higher scale of pay apropos to their qualifications. Admittedly the
petitioner's empanelment and appointment was for the post of Assistant
Teacher in the subject of Physical Education, in which he had the
qualification of B.P.Ed., which was a bachelor degree. It is equally admitted
that the petitioner qualified in Masters of Commerce (M.Com) which was a
higher qualification but in a different subject other than Physical Education
for which he was appointed. Thus it is clear and evident, the petitioner
though had taken classes in the higher section in the commerce branch,
since his original appointment was for the subject Physical Education he
could not and cannot claim any higher pay scale as claimed in his writ
petition.
Then comes the 1995 Circular.
The relevant portion of the 1995 Circular is quoted below:-
"i) . . . . Approved Assistant Teachers of non-Government
Secondary Schools and Madrasahs who will take classes in
subjects relevant to their respective higher qualification, though
appointed/approved respectively in different group/subject other
than the aforesaid teaching subject shall, henceforth be allowed
to draw pay according to their respective higher qualification, as
prescribed by the State Government provided such Assistant
Teacher take individually at least six such periods for week as
officially allotted by the authorisation of the respective schools to
such Assistant Teacher within the normal work load upon the
written consent of the concerned teacher and with the prior
permission of the concerned District Inspector of Schools and
strictly according to the actual academic need of the individual
school. If there is more than one Asstt. Teacher in a school with
relevant higher qualification agreeable to this arrangement,
preference shall be in order to seniority. If any school has already
effected such an arrangement in its academic interest, the same
has to be got approved by the concerned D. I. of Schools subject to
eligibility for the purpose of drawal of qualification pay by the
concerned teacher."
From a close scrutiny of the above provision of the 1995 Circular, it is
clear that for allotment of classes of a higher section to an Assistant Teacher
for a subject where he possesses a higher qualification than the subject for
which his appointment was made as Assistant Teacher, a prior permission
of the concerned District Inspector was mandatory and a pre-requirement.
From the records it does not appear that the relevant school had asked for
any such prior permission for allotment of classes to the petitioner in the
higher section in commerce subject. As submitted on behalf of the writ
petitioner that the class routine of the higher section, Annexure P-7 to the
writ petition, got the approval of the District Inspector of Schools, since the
same bears the seal and signature of the relevant authority, is not
acceptable to this Court. The expression 'prior permission' as used in the
said 1995 Circular must be read in the light of the entire circular as a whole
coupled with the relevant provisions under ROPA 1990. The provisions
made in the said 1995 Circular was an exception to the provisions laid down
in ROPA 1990 as discussed above. This was the reason, that the prior
permission was required from the relevant District Inspector of Schools
which also was dependent upon various other factors as mentioned in the
said circular.
After considering all such factors mentioned in the said 1995 Circular
and on a meaningful reading thereof, this Court is of the firm opinion that
the relevant District Inspector of Schools who was empowered to issue the
said prior permission, must do so upon application of mind. This is not
merely a ministerial job. As such, the submissions made on behalf of the
writ petitioner on the basis of Annexure P-7 to the writ petition, as
discussed above that prior permission was obtained by the said school and
classes were allotted to the petitioner in the Higher Section, is not
acceptable to this Court.
It is not a case of violation of Article 14 of the Constitution of India at
all. It is a case of non compliance of the relevant mandatory statutory
provisions, which were the guiding factors for the case of the writ petitioner.
Thus, the question of violation of Article 14 would not arise in the facts and
circumstances of this case.
The writ petition is devoid of any merit. The impugned order dated
July 08, 2016 suffers from no infirmity either procedural or legal. The
impugned order is a well versed and reasoned. The said decision/order
dated July 08, 2016 stands affirmed.
In view of the foregoing discussions and reasons, the writ petition
being WPO 998 of 2016 stands dismissed.
There shall, however, be no order as to costs.
(ANIRUDDHA ROY, J.)
sb/pa.
