Calcutta High Court (Appellete Side)
Basudeb Biswas vs The State Of West Bengal on 12 April, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Soumen Sen
&
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Saugata Bhattacharyya
WPA 7452 of 2002
[WPA 1050 of 1999 Reference File]
Basudeb Biswas
versus
The State of West Bengal
For the Petitioner : Mr. Debabrata Ray,
Ms. Sarbani Mukhopadhyay,
Mr. Soumik Mondal.
For the U.G.C. : Mr. Anil Kr. Gupta.
For the State
Respondent : Mr. Tapan Kr. Mukherjee, A.G.P.,
Mr. Somnath Naskar.
Hearing is concluded on : 14th March, 2023.
Judgment On : 12th April, 2023.
2
Tapabrata Chakraborty, J.
1. Having acquired the Bachelor of Science degree from the University
of Calcutta in the year 1983, the writ petitioner, namely, Basudeb Biswas (in
short, Basudeb) participated in a selection process for appointment to the
post of an Assistant Teacher in Science and Mathematics. He emerged to be
successful in the said selection process and was appointed to the said post
in Bagula Purba Para High School (in short, the said school) on 10th
January, 1986. Such appointment was approved by the respondent no.3
vide memo dated 31st March, 1986. Upon obtaining necessary permission
from the Managing Committee of the said school, Basudeb pursued the
Master of Science (Mathematics) correspondence course conducted by the
Himachal Pradesh University under distance mode and obtained the degree
in the year 1999. On the strength of the Master degree in the relevant
subject of teaching, Basudeb applied for higher scale of pay. Such prayer
was, however, rejected by the respondent no.2 vide memo dated 17th
January, 2002. Challenging the said order Basudeb preferred the writ
petition being WP No.7452 (W) of 2002.
2. The learned Single Judge by an order dated 16th July, 2002 referred
the matter to the Hon'ble Chief Justice so that the same may be placed
before a Larger Bench for deciding as to 'whether the degrees obtained from
Himachal Pradesh University through correspondence course is recognized or
not ?' since, according to the learned Single Judge, the judgment delivered
by the Hon'ble Division Bench in the case of Partha Basu -vs- State of West
Bengal, reported in 2001(3) CHN 721 [decided analogously with Utpal Man
vs. Jyotirmoy Sen] is in conflict with the judgment delivered by the Hon'ble
Division Bench in the case of West Bengal Central Service Commission and
others -vs- Gita Guha, reported in 2002 (2) CHN 531.
3. In view of the said order dated 16th July, 2002, the matter has been
placed before this Court for deciding as to 'whether the degrees obtained
from Himachal Pradesh University through correspondence course is
recognized or not ?'.
4. By a notification dated 19th December, 1994, the State Government
refused to recognize a post-graduate degree granted on the basis of a
correspondence course by Himachal Pradesh University. The said order was
challenged in the case of Kalidas Gangopadhyay -vs- State of West Bengal,
reported in 1996 (2) CLJ 42 and by the judgment delivered on 10th May,
1996, the learned Single Judge observed that such degree obtained through
correspondence course is a valid and potent degree like any other degree
awarded to the regular students by any other University and quashed the
order dated 19th December, 1994 placing reliance upon the judgment
delivered in the case of Muchha Mondal -vs- The State of West Bengal and
others, reported in AIR 1996 Cal 132. In the case of Muchha Mondal (Supra)
a notification dated 10th September, 1991 was under consideration.
However, a divergent view was expressed by another learned Single judge in
the case of Tapas Kumar Das -vs- State of West Bengal and others, reported
in 1996 (2) CLJ 467. The same question again came up for consideration in
the case of Kitab Singh Rai -vs- The State of West Bengal and others,
reported in 1998 (1) CLJ 258 and the learned Single Judge came to the
conclusion that the law settled by the decisions in Muchha Mondal (Supra)
and Kali Das Gangopadhyay (Supra) is the law on the point. The same
question was again considered by a Division Bench of this Court in the case
of Swadesh Kumar -vs- State of West Bengal in an unreported judgment
dated 1st February, 2000 rendered in Writ Petition No. 1050(W) of 1999 with
Writ Petition being W.P. 2748 of 1999 and the issue was decided on the
basis of the prevailing notifications. Thereafter the issue again came up for
consideration in the case of Utpal Man -vs- Jyotirmoy Sen, reported in
2001(3) CHN 721 and the said appeal was disposed of by a judgment dated
18th May, 2001 observing that the degree obtained through correspondence
course from Himachal Pradesh University cannot be denied recognition as
the notification dated 19th December, 1994 had already been quashed in the
earlier judgments and as no new notification on the subject had been issued
by the State of West Bengal.
5. Upon promulgation of the West Bengal School Service Commission
Act, 1997, an advertisement was published for appointment to the post of
headmaster. On the strength of a Master degree obtained by her through
correspondence course from the Himachal Pradesh University, one Gita
Guha applied for participation in the said selection process. Her
candidature was, however, rejected by the Commission as her Master degree
was not a recognized degree. Challenging the said decision, Gita Guha
preferred a writ petition which was allowed. Aggrieved by the said order of
the learned Single Judge dated 18th May, 2000, the West Bengal Central
School Service Commission preferred a mandamus appeal which was
allowed by a judgment delivered on 20th December, 2001. The subject
matter of controversy in the said appeal was the advertisement published by
the Commission wherein a Master/Honours (Regular/Special) degree was
specified to be an essential qualification for the post of headmaster. The
Hon'ble Appeal Court disposed of the appeal observing inter alia that 'even if
the Government order dated 19th December, 1994 remains quashed, that will
not affect the decision of the Commission taken in this case as it is guided by
the recruitment rules and the subsequent Government order dated 21st March,
2000'.
6. It needs to be pointed out that initially by a notification dated 10th
September, 1991 only the Master degree obtained through correspondence
course from Annamalai University was recognized. Thereafter a notification
was issued on 19th December, 1994 denying recognition to degrees obtained
through correspondence course from Himachal Pradesh University. After the
said notification dated 19th December, 1994 was quashed in the case of
Kalidas Gangopadhyay (Supra), the Secretary to the Government of West
Bengal, School Education Department issued a notification dated 12th May,
1999 directing inter alia that the notification dated 19th December, 1994
may be treated as non-existent and the benefit of pay and allowance may be
granted. Taking note of such facts, the Hon'ble Division Bench in the case of
Utpal Man (Supra) observed by a judgment dated 18th May, 2001 that the
degrees obtained through correspondence course from Himachal Pradesh
University cannot be denied recognition. Thereafter, the State Government
issued a further notification dated 21st March, 2000 granting recognition to
the certificates awarded by the Indira Gandhi National Open University,
Vidyasagar University, Burdwan University, Other Universities in this State
engaged in providing distant education/correspondence courses and West
Bengal Netaji Subhas Chandra Open University.
7. Subsequent thereto, the University Grants Commission (in short,
UGC) framed detailed regulations providing for a regulatory mechanism for
establishment and operation of private Universities for safeguarding the
interest of the student community with adequate emphasis on the quality of
education and to avoid commercialization of higher education and to
maintain standards of teaching, research and examination. The said
provisions were considered by the Hon'ble Supreme Court in the case of
Prof. Yashpal -vs- State of Chhattisgarh, reported in 2005 (5) SCC 420 and it
was directed that no University is authorised to open study centres/off
campus centres beyond the territorial jurisdiction of the State. By the said
judgment, the validity of the University Grants Commission (Establishment
of and Maintenance of Standards in Private Universities) Regulations, 2003
was upheld. Thus, in view of the said judgment, UGC cannot grant any
recognition to programmes offered through distance mode by any university
through study centres/off campus centres beyond the territorial jurisdiction
of the university. After the said judgment, Government of West Bengal had
not yet issued any fresh notification. The last notification issued is dated on
21st March, 2000.
8. The judgment in the case of Utpal Man (Supra) was delivered taking
into consideration the notifications dated 10th September, 1991 and 19th
December, 1994.
9. The subject matter of controversy in the case of Gita Guha (Supra)
was the advertisement published by the Commission wherein a
'Master/Honours (Regular/Special) Degree with degree in Bachelor of
Teaching/Bachelor in Education/Post-Graduate Basic Training from any
recognised University or any Training recognised by the Government of West
Bengal as equivalent to bachelor of Teaching/Bachelor of Education/ Post-
Graduate Basic Training...' was specified to be an essential qualification for
the post of headmaster. There was no indication in the concerned
advertisement that candidates who had obtained Master degree through
correspondence course from universities would be eligible for participating
in the selection process and in view thereof, it was observed that even if the
notification dated 19th December, 1994 remains quashed, the same would
not affect the decision of the Commission taken on the basis of the
recruitment rules framed under the provisions of the West Bengal School
Service Commission Act, 1997. Recognition of a degree for the purpose of
appointment to a post is different from recognition of a degree for the
purpose of grant of financial benefits.
10. The observations made by the Hon'ble Court in the case of Utpal
Man (Supra) juxtaposed with the observations made by the Hon'ble Court in
the case of Gita Guha (Supra) would reveal that there is a stark contrast.
The former is restricted to the notifications dated 10th September, 1991 and
19th December, 1994 whereas the latter deals with the legality of a decision
of the Commission taken on the basis of the recruitment rules. In view
thereof, there is no conflict in the judgments delivered in the respective
matters regarding recognition of degrees obtained through correspondence
course from Himachal Pradesh University for grant of higher scale benefits.
11. The Appellate Side Rules of this Court provides that the Court
referring the case is under an obligation to state the point or points upon
which, the decision of one Hon'ble Division Bench differs with the decision of
the other Hon'ble Division Bench. The issue referred by the order dated 16th
July, 2002 was as to 'whether the degrees obtained from Himachal Pradesh
University through correspondence course is recognized or not ?'. On the date
the said order was passed, i.e., on 16th July, 2002 there was no conflict in
view of the notification dated 21st March, 2000 by which the State
Government had granted recognition to degrees obtained through
correspondence course from 'other Universities in this State engaged in
providing distant education/correspondence courses'. Even after the delivery
of the judgment in the case of Prof. Yashpal (Supra), the State of West
Bengal has not issued any further notification.
12. Mr. Ray, learned advocate appearing for the writ petitioner argued
that the petitioner is entitled to the post graduate scale of pay in view of the
notifications dated 12th May, 1999 and 21st March, 2000. The respondents
have granted post graduate scale of pay on the basis of the said notifications
to teachers similarly situated with the petitioner. It is not a case that the
teachers similarly situated with the petitioner had been granted post
graduate scale of pay by mistake. Such grant was permissible and was
based upon the policy decision adopted by the State. The petitioner's claim
had been withheld simply due to pendency of the matter and he is not in
any manner responsible for the delay which had occurred. During pendency
of the matter, the petitioner reached the age of superannuation and he was
constrained to give a declaration not to proceed with the present case
otherwise even his pensionary benefits would have been withheld
indefinitely.
13. Mr. Mukherjee, the learned Additional Government Pleader
appearing for the State respondents submitted that the University Grants
Commission Act, 1956 having been enacted by the Parliament in terms of
Entry 66 of List-I of the Seventh Schedule to the Constitution of India
prevails over the Himachal Pradesh University Act, 1970. The legislative
authority of the State of Himachal Pradesh had no power to extend its Act
beyond the territorial jurisdiction of the State of Himachal Pradesh and as
such the degree obtained from Himachal Pradesh University, Shimla
through correspondence course is not a valid degree in West Bengal. In
support of such contention he has placed reliance upon the judgment
delivered in the case of Annamalai University Rep. by Registrar -vs- Secy. to
Govt. Infn. & Tourism Dept. & Ors., reported in 2009 (4) SCC 590.
14. Mr. Mukherjee argued that in view of Article 245(1) of the
Constitution of India, Parliament alone is competent to make laws for the
whole or any part of the territory of India and the legislature of a State may
make laws for whole or any part of the State. Any provision in the State Act
enabling a University to have an off-campus centre outside the State is
clearly beyond the legislative competence of the concerned State. In view
thereof, the petitioner having obtained his Master degree, while working in a
school in the State of West Bengal, through correspondence course from a
University beyond the jurisdiction of the State of West Bengal cannot claim
to have obtained appropriate qualification for grant of post graduate scale of
pay. In support of such contention, reliance has been placed upon the
judgment delivered in the case of Prof. Yashpal and Another -vs- State of
Chhattisgarh and Others, reported in 2005 (5) SCC 420.
15. According to Mr. Mukherjee Article 14 of the Constitution is not
meant to perpetuate illegality and it does not envisage negative equality and
as such even if some other similarly situated persons have been granted
some benefit inadvertently or by mistake, such order does not confer any
legal right on the petitioner to get the same relief. In support of such
contention reliance has been placed upon the judgment delivered in the case
of State of Odissa and Another -vs- Mamata Mohanti [Civil Appeal No.1272 of
2011].
16. Mr. Gupta, learned advocate appearing for UGC adopts the
submissions advanced on behalf of the State and submits that UGC had not
granted any permission to any private University to establish off-
campus/study centre. Since Himachal Pradesh University has chosen to
defy such mandate and has permitted the petitioner to continue his study
for acquiring the Master degree through correspondence course, he as a
student of such University by continuing his study without the permission
of UGC has done so at his peril and accordingly he cannot claim post
graduate scale of pay on the basis of such Master degree obtained through
correspondence course. In support of such contention reliance has been
placed upon judgments delivered in the cases of Ashoke Kumar Nandy -vs-
Union of India & Ors., reported in 2017 (4) CHN 208 and Saikat Giri -vs- The
State of West Bengal & Ors., reported in 2020 (3) CalLT 540.
17. It is well known that a decision is an authority for what it decides
and not what can logically be deduced therefrom. Even a slight distinction
in fact or an additional fact may make a lot of difference in decision making
process. The judgment is a precedent for the issue of law that is raised and
decided and not observations made in the facts of any particular case.
Plentitude of pronouncements leaves cleavage in the opinions formed in the
respective cases. In the cases of Prof. Yashpal (Supra) and Annamalai
University (Supra) were delivered on 11th February, 2005 and 25th February,
2009 respectively dealing with the issue as to whether the Universities
offering distance education programme are mandatorily required to follow
the regulations framed under the UGC Act and as to whether the provisions
of State Acts can extend beyond the territorial jurisdiction of the respective
States. The said judgments have not been given retrospective effect and
have no manner of application in the present case since the State of West
Bengal had itself issued notifications earlier recognising degrees obtained
from the correspondence course from the Himachal Pradesh University. The
judgment delivered in the case of State of Odissa (Supra) is also not
applicable since in the present case since the petitioner is seeking parity
with the teachers who have been granted the benefit neither inadvertently
nor by mistake.
18. Equivalence of a degree obtained through correspondence course
with a degree obtained through regular course and the recognition of a
degree obtained through correspondence course by the State for grant of
financial benefits are two different issues. Even if an assistant teacher does
not enjoy the master degree scale but still then his master degree
qualification cannot be ignored in a selection process. [See the judgment
delivered in the case of Dev Pasad Sarker -vs- State of West Bengal, reported
in 2012 (2) CHN 644]. Today, i.e., about 20 years after issuance of the order
dated 16th July, 2002, any endeavour on our part to consider the issue as to
whether the Master degree obtained by the writ petitioner through
correspondence course from Himachal Pradesh University is a valid and
potent degree like any other degree awarded to the regular students by any
other University, would be merely academic since in the midst of the said
period, i.e., from 16th July, 2002 till date, the law pertaining to recognition
of a degree obtained by a candidate through correspondence course from a
private university has undergone a sea change in view of the judgment
delivered by the Hon'ble Supreme Court in the case of Prof. Yashpal (Supra).
After the delivery of the said judgment the issue as to whether a degree
obtained through correspondence course from Himachal Pradesh University
is equivalent to a degree obtained through a regular degree is redundant
and requires no adjudication.
19. Pursuant to our earlier order a report has been filed by the
District Inspector of Schools (SE), Nadia wherefrom it appears that the
petitioner retired from his service on 28th February, 2022 but his pensionary
benefits were withheld for more than nine months and the same was
disbursed only after the petitioner undertook not to proceed with the
present case. It appears that only after this Court called for a report from
the District Inspector of Schools by an order dated 10th November, 2022, he
proceeded in hot haste. He obtained the representation from the petitioner
on 21st November, 2022 and prepared the report on 23rd November, 2022.
From such sequence it is explicit that the petitioner had no option but to
submit the representation stating that he would not continue with the writ
petition since even after retirement he was not getting his pension for a long
period. Such representation cannot stand in the way towards grant of the
benefits, as prayed for. There is no dispute that the petitioner had
admittedly rendered services in the said school uninterruptedly and as such
he cannot be deprived of the benefits of the higher scale of pay. Let the said
report dated 23rd November, 2020 and the petitioner's representation dated
21st November, 2022, as produced, be kept on record.
20. Fairness and reasonableness are paramount issues for
administrative action. As a model employer the State Government must
conduct itself with high probity and candour and cannot act arbitrarily by
withholding the benefits as extended to similarly situated incumbents.
Service jurisprudence evolved by this Court from time to time postulates
that all persons similarly situated should be treated similarly.
21. In view of the above discussion and in consideration of the fact
that the writ petitioner obtained his higher qualification even prior to
issuance of the last notification pertaining to recognition dated 21st March,
2000, he cannot be denied the benefits of the higher scale of pay on the
basis of the Master degree obtained by him in a relevant subject through
correspondence course from the Himachal Pradesh University, moreso when
persons similarly situated with the writ petitioner had been granted such
benefits by the State respondents, as would be explicit from the memoranda
dated 4th November, 1997 and 28th October, 1997, annexed at pages 35 and
36 of the writ petition and as such it would be an idle formality to remand
the writ petition to the learned Single Judge for any further hearing.
22. Accordingly, we set aside the order dated 17th January, 2002
issued by the respondent no.2 and direct the respondents to grant the post-
graduate scale of pay to the writ petitioner along with all arrears, with effect
from the day following the last date of the examination held in November,
1999 together with the revised pensionary benefits, upon refixation of the
petitioner's scale of pay in the post graduate scale, within a period of four
weeks from the date of communication of this order.
23. With the above observations and directions, the writ petition is
disposed of.
24. There shall, however, be no order as to costs.
25. Urgent Photostat certified copy of this judgment, if applied for, be
given to the parties, as expeditiously as possible, upon compliance with the
necessary formalities in this regard.
(Soumen Sen, J.)
(Tapabrata Chakraborty, J.)
(Saugata Bhattacharyya, J.)
