Subodh Kumar Biswas vs The State Of West Bengal & Ors
2022 Latest Caselaw 2869 Cal

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                  IN THE HIGH COURT AT CALCUTTA

                   (Constitutional Writ Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao

                            WPA 4698 of 2016
                           Subodh Kumar Biswas
                                 Versus
                    The State of West Bengal & Ors.



           Mr. Supriyo Chattopadhyay
           Mr. Samaresh Chandra Dhara,
                                          .....For the Petitioner
           Mr. Supriyo Chattopadhyay
           Ms. Iti Dutta
                                          ......For the State




Heard on               : 07.04.2022

Judgment on            : 17.05.2022

Krishna Rao, J.: The petitioner has completed his Post Graduation course

in History in the year 1986 and       in Bengali     in the year 1990 under

Rabindra Bharati University. After obtaining degree, the petitioner had

enrolled his name in the Employment Exchange.


     In the year 1994, the District Inspector of Schools (SE) Nadia has

granted permission for recruitment of teachers and non teaching employees

in recognised Non Governmental Secondary Schools. According to the said
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approval the Headmaster, Nasara High School issued an interview letter to

the petitioner for appointement for the post of Assistant Teacher B.A.

(Bengali). The petitioner had appeared in the interview and accordingly vide

letter dt. 04.03.1996, the petitioner was appointed as Assistant Teacher

(Bengali). The District Inspector of Schools vide letter dt. 22.07.1996 had

approved the appointment of the petitioner as Assistant Teacher (Bengali).


        Though the petitioner was appointed as Assistant Teacher (Bengali)

but the petitioner was allowed to teach Bengali in class 9th to class 12th

also.   As the petitioner was having the qualification of   Post Graduate in

Bengali and accordingly, the petitioner had made representations for grant

of Higher Pay Scale.


        The request of the petitioner was not considered by the school

authorities and accordingly, the petitioner had preferred a Writ Application

before this Court being WP No. 7333 (w) of 2013 and the Coordinate Bench

of this Court had disposed of the said writ application with the liberty to the

petitioner to file a represenation along with all documents and the District

Inspector of Schools and was directed to dispose of the representation of the

petitioner with in eight weeeks by giving an opportunity of hearing to the

petitioner.


        In compliance of the order passed by the Coordinate Bench of this

Court the District Inspector of Schools (SE), Nadia had disposed of the

representation of the petitioner on 18.11.2014 by rejecting the claim of the

petitioner for grant of Higher Pay Scale.
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      Mr. Supriyo Chattopadhyay, Ld. Counsel representing the petitioner

submits that the respondents have erroneoulsy decided that the petitioner is

not taking classes of Higher Secondary with the prior peemission of the

District Inspector of School.

Ld. Counsel for the petitioner further submits that assuming that

after the enactment of the School Service Commission Act, 1997, the

teachers are recruited through the selection test in a separate manner and

method for Honours Category and Post Graduate Category but it would be

evident from the facts and circumstances of the case, the petitioner was

admittedly recruited under the SSC Rules and procedure and there must

not have been any bar to grant Higher Pay Scale to the petitioner.

Ld. Counsel for the petitioner relied upon clause 12 (3) of the

Government Order dt. 9th September,1998 which reads as follows :

"(3) 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, with effect from the 1st January, 1996 or the date of improving

qualification, whichever is latter."

Ld. Counsel for the petitioner further relied upon clause 3 of the

Memorandum dt. 13th July, 1999 which reads as follows :

"(3) 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, with effect from the 1st January, 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."

Ld. Counsel for the petitioner relied upon the following Judgments

Passed in :

"i. WPA No. 144658 of 2013 (Animesh Choudhary -versus- The State of West Bengal & Ors.) dt. 25th March, 2021.

ii. W.P. No. 21909 (w) of 2012 (Raghunath Mondal -versus- State of West Bengal & Ors.) reported in (2013) 3 WBLR(Cal) 556.

iii. W.P. No. 10102 (w) of 2003 (Partha Chaterjee -versus- State of West Bengal & Ors.) reported in (2004) 2 CAL 610.

iv. FMA No. 354 of 2014 with CAN No. 1146 of 2014 (Shyam Paul

-versus- State of West Bengal) reported in 2014 (3) CHN (CAL) 160."

Ms. Iti Dutta representing the respondent authorities submits that the

selection process was conducted for recruitment of a teacher of Graduate

Pass Category and at the time of selection, the petitioner was already

obtained Post Graduate Degree and had participated in the selection process

knowing well that post is earmarked for recruitment of teacher having

Graduate Degree.

Ld. Counsel for the respondent further submits that after the

enactment of SSC Act, 1997, the teachers are recruited through selection

test differently either in Honours/PG or possessing Graduation Degree.

Ld. Counsel for the respondent further submits that at the time of

recruitment the petitioner has supressed the fact of having Post Graduation

Degree as the petitioner has only declared about her Graduation Degree and

after his appointment as Assistant Teacher, the petitioner is now claiming

Higher Pay Scale which is not permissible.

Ld. Counsel for the respondent further submits that the order passed

by the Hon'ble Division Bench in the case FMA Nos. 583-585 of 2006 (State

of West Bengal & Ors. -versus- Md. Sohidullah & Ors.) dt. 16 th & 22nd

November, 2007, the respondent Sohidullah had preferred an appeal before

the Hon'ble Supreme Court being Civil Appeal Nos. 3040-3041 of 2017 (Md.

Sohidullah & Ors. -versus- The State of West Bengal & Ors.) and the

Hon'ble Supreme Court had disposed of the appeal on 25th July, 2019 by

passing the following order :-

"Mr. Rakesh Dwivedi, learned senior counsel appearing for the State of West Bengal submits that the subject matter of these appeals is pending consideration in other cases before the Full Bench of the Calcutta High Court. An order of reference dated 22.08.2008 in which the following questions were formulated is placed before us:

"(a) Whether, in view of the fact that acquisition of higher qualification or qualifications during the service career of an individual is his right and the same acts as an incentive to career advancement as well as acquiring a higher status of academic brilliance, can such a person be forced to stagnate on lower status perennially and forced to continue to work on a lower scale of pay which is not commensurate to the high qualification(s) acquired subsequent to his appoint?

(b) Whether, in view of Question No. (a) above, should it not be held that the ratio decided in Tarak Chandra Roy's case supra, read with the provisions of Section 14 and 20 of "The West Bengal (control of Expenditure) Act, 2005", amount to creating an unreasonable embargo upon an individual's freedom and right to acquire higher educational qualification(s) and therefore, runs counter to the provisions of Article 14 of the Constitution of India?

(c) If the answer to Questions No. (a) is in the negative and to 'Question No. (b) in the affirmative, then should it not be held that the provisions of section 14 and 20 of "The West Bengal (control of Expenditure) Act, 2005", are ultra vires the relevant provision of the constitution of India referred to above?

(d) Whether, in view of the aforesaid, should it not be held that the ratio decided in Tarak Chandra Roy's case supra, holding that "the Petitioner having been appointed in the pass category clearly therefor, cannot get the benefit of his post graduate qualification" is not the proper proposition and that the correct proposition is the one that has been decided in Sauvik Ghosh's case supra, holding, inter alia in Para 35 therein that "If,.... the Government Order dated 13th July, 1999 were to mean initial fixation would be on the basis of the educational qualifications mentioned in the recommendation of the school "Service Commission, and a teacher appointed on the recommendation of School Service Commission would be bound by the qualification as mentioned in the recommendation for all time to come and even an enhancement of qualification the teacher would not be entitled to the higher scale of pay.... only because the School Service Commission had mentioned a different qualification in its initial recommendation, the Government Order would have to be struck down as totally arbitrary, discriminatory and violative of Article 14....?"

Ld. Counsel for the respondent further submits that after the order

passed by the Hon'ble Supreme Court, a Full Bench has been constituted by

the Hon'ble Chief Justice of this Court on 11th December, 2019 and the

Hon'ble Full Bench has taken the connected matters on 15th January, 2020

and now the matter is pending before the Hon'ble Full Bench for taking

decision in the matter.

Ld. Counsel for the respondent has relied upon the judgment reported

in 2008 (2) CHN (Cal) 973 (Tarak Chandra Roy -versus- State of West Bengal

& Ors.) and submits that in the said case the Hon'ble Division Bench held

that :-

"10. We have considered the submission made by the learned Counsel. In our opinion, the petitioner being an appointee subsequent to the promulgation of the West Bengal School Service Commission Act, 1997 cannot be given the benefit of circular dated 22 November, 1993 and 8 March, 2000. Petitioner having been appointed as Assistant Teacher pass category can only get the pay-scale specified by the Commission for that post. Even otherwise the benefit of circular dated 22 November, 1993 and 8 March, 2000 would not confer any vested right upon the Assistant Teachers. No such right has been protected under the West Bengal Schools (Control of Expenditure) Act, 2005. In view of section 14 of the 2005 Act no graduate category teacher is entitled to claim any additional increment for acquiring any qualification than the qualifications specified for such post. The provision in section 16 would not be applicable to aid the claim of the petitioner as by virtue of section 20 of the 2005 Act the circulars and orders existing previously stand abrogated. That being the position of law, the petitioner would not be entitled to claim higher scale of pay. We, therefore, dismiss the writ petition."

Ld. Counsel for the respondent further submits that the case of Tarak

Chandra Roy was also referred by the Hon'ble Supreme Court in its order dt.

25.07.2019 and further submits that this matter may also be referred to the

Hon'ble Full bench of this Court for taking appropriate decision.

Considered the rival submissions of the parties, documents available

on record and the judgment relied by the parties.

Several orders have been passed by the Hon'ble Division Benches and

Hon'ble Single Judges holding that the Assiatant Teachers aftter aquiring

Post Graduate Degree are entitled to get Higher Pay Scale.

In the case of Shohidullah, he was also having Post Graduate Degree

in Zoology but had applied for Assistant Teacher and accordingly, he was

selected. After his selection, he has prayed for grant of Higher Pay Scale but

the authorities have rejected the request and accordingly, Shri Shohidullah

had preferred Writ application before this Court. The writ petition was

allowed and being aggrieved with the order, the State had preferred an intra-

court appeal. The Hon'ble Division Bench has taken up the appeal along

with the connected appeal and the Hon'ble Division Bench held that

Shohidulla is not entitled to claim Post Graduate Scale as he was selected in

Pass Category on the basis of his application. Being aggrieved with the order

of the Hon'ble Division bench, Shri Shohidullah had preferred Civil Appeal

before the Hon'ble Supreme Court and in terms of the order passed by the

Hon'ble Supreme Court, the Hon'ble Chief Justice then of this Court had

constituted Full Bench to decide the issue and the matter is pending before

the Hon'ble Full Bench of this Court.

In view of the above, the Registry is dirceted to place the instant writ

petition being WPA No. 4698 of 2016 (Subodh Kumar Biswas -versus- The

State of West Bengal & Ors.) before the Hon'ble Chief Justice to assigned

this matter before the Hon'ble Full Bench for taking appropriate decision.

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.)