Ct. 8 The State Of West Bengal & Ors vs Md. Ashraf Ali & Ors
2023 Latest Caselaw 5615 Cal

                                            MAT 1337 of 2016
Item-26.                           CAN 2 of 2016 (old CAN 9028 of 2016)
           28-08-2023

  sg
             Ct. 8                      The State of West Bengal & Ors.
                                                     Versus
                                             Md. Ashraf Ali & Ors.


                             Mr. Tapan Kumar Mukherjee, Adv.
                             Mr. Somnath Naskar, Adv.
                                                        ...for the State/appellants
                             Md. Sarwar Jahan, Adv.
                             Mr. Maidul Islam Kayal, Adv.
                                                        ...for the writ petitioner


                        1.

We have heard the learned Counsel for the parties and

considered the judgment passed by the Hon'ble Division

Bench in the case of Ashim Kumar Adgiri vs. State of

West Bengal & Ors. reported in 2013 (2) CHN (Cal) 568

and an unreported decision of a coordinate Bench in State of

West Bengal & Ors. vs. Gousul Ajam & Anr. dated 5th

June, 2017. The learned Single Judge allowed the writ

petitioner following the decision in Ashim Kumar Adgiri

(supra).

2. Briefly stated, the petitioner joined in Lalnagar High School,

Murshidabad in the year 1979 under Bio-Science Group on

17th April, 1979. The appointment of the petitioner as an

Assistant Teacher under Science group was approved by the

concerned District Inspector of Schools (S.E.) with effect

from 17th April, 1979. Subsequently, the petitioner duly

completed M.A. in History in the year 1986 with due

permission granted by the school authority. The last date of

M.A. Part-II Examination was 5th April, 1986 in the non-

relevant subject i.e. History. He applied before the D.I. for

grant of post-graduate scale for his enhanced qualification in

M.A. in History in the non-relevant subject. But the District

Inspector of Schools (S.E.), Murshidabad refused to comply

with the prayer of the writ petitioner.

3. The learned Single Judge relied upon the Circular No. 400-

Edn.(B)/IM-45/91 dated 10th September, 1991 and the

judgment being Ashim Kumar Adgiri (supra) and held that

the petitioner is entitled to enjoy the post-graduate pay scale

and after expiry of five years from the date of acquiring

M.A. in History.

4. The learned Counsel for the writ petitioner has fairly

submitted that a subsequent Division Bench in Gousul

Ajam (supra) decided on 5th July, 2017 that interpretation of

the said clause has denied higher scale of pay on the ground

that the higher qualification was acquired after 1981. In

Gousul Ajam (supra), the coordinate Bench considered G.O.

400 and G.O. 401. Presently, we are considering the G.O.

400-Edn.(B) dated 10th September, 1991 by which clause B

was circulated on 1st April, 1981 was granted in order to

appreciate the nature of the amendment. It is necessary to

raise to both the relevant clauses. The Memorandum no.

372-Edn.(B) dated 31st July, 1981 in the foot note referred to

three clauses after referring to the revised scale of pay. The

said clause are reproduced below:

"All existing Secondary School teachers will be allowed annual increments in the revised scales of pay provided that untrained teachers will have to get themselves trained within 5 years from April, 1981 failing which their increment will be stopped till they get themselves

trained.

(2)(a) All existing Secondary school teachers who have improved their qualifications relevant to their teaching subjects will get the higher scale on qualification without any restriction;

(b) All existing Secondary School teaches who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale on qualification basis after five years' teaching counting from the date on which higher qualification was obtained.

(c) In future, Secondary school teachers will be allowed

higher pay scale on qualification basis only when they

obtain such higher qualification in the subject relevant to

their teaching/appointment."

5. Clause B was granted by the Circular No. 400-Edn.(B). the

said memorandum is reproduced below:

"MEMORANDUM

The Governor is pleased to make, with effect from the 1 st day of April, 1981, the following amendment in the Annexure 1 (hereinafter) referred to as the said Annexure to this Department Memo No. 372-Edn.(B) dated the 31 st July, 1981 (hereinafter referred to as the said Memorandum);

AMENDMENT

In the said Annexure to the said memorandum, for sub- paragraph (b) of the paragraph (2) under "N.B. viz" (b) All existing Secondary School teaches who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale o qualification basis after five years' teaching counting from the date on which higher qualification was obtained. "the following shall be substituted:

(b) "All existing Secondary School Teachers who were

appointed with higher qualifications in subjects not relevant to their teaching or who improved their qualification subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from the 1st April, 1981 or after five years' teaching counting from the date on which higher qualification was obtained, whichever is later."

6. It is clear from the said memorandum that by reason of

clause B, the teachers who were appointed with higher

qualifications in subject not relevant to their teaching

subjects are being treated at par with those teachers who had

improved their qualifications subsequent to their

appointments in subjects not relevant to their teaching on or

before the Notification dated 31st July, 1981, clause C was

not amended.

7. It appears that the judgement of Ashim Kumar Adhigir

(supra) was not placed before the subsequent Division

Bench. In Gousul Ajam (supra) however it appears from the

judgment in Ashim Kumar Adhigir (supra) that clause C was

not considered. It is true that the amendments have not been

property drafted but it is clear from the entry of the

amendments that the said Rule was not intended to give

benefit to the teachers who improved their qualifications not

in the relevant Division Bench judgment. The observation

relevant to the issue of the coordinate Bench in Gousul

Ajam (supra) is reproduced below:

"In our considered view, reading of G.O. 400 and G.O. 401 without reference to the parent orders (G.O. 372 and G.O.

33) would produce undesirable and inappropriate results.

For the present purpose, interest of justice would be sufficiently served if we extract the relevant portion of G.O. 372, reading as follows:

"N.B. (1) All existing Secondary School teachers will be allowed annual increments in the revised scales of pay provided that untrained teachers will have to get themselves trained within 5 years from April, 1981 failing which their increment will be stopped till they get themselves trained. (2)(a) All existing Secondary school teachers who have improved their qualifications relevant to their teaching subjects will get the higher scale on qualification without any restriction;

(b) All existing Secondary School teaches who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale on qualification basis after five years' teaching counting from the date on which higher qualification was obtained.

(c) IN future, Secondary school teachers will be allowed higher pay scale on qualification basis only when they obtain such higher qualification in the subject relevant to their teaching/appointment."

Sub-clause (b) of clause (2) supra was sought to be amended by G.O. 400. The original sub-clause (b) was substituted by the following sub-clause;

"All existing Secondary School Teachers who were appointed with higher qualifications in subjects not relevant to their teaching or who improved their qualification subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from the 1st April, 1981 or after five years' teaching counting from the date on which higher qualification was obtained, whichever is later."

It is clear that the words "who were appointed with higher qualifications in subjects not relevant to their teaching" were incorporated by amendment. The effect of the amendment is now required to be considered.

A careful reading of G.O. 400 reveals that the same did not materially alter the position hitherto before existing qua the writ petitioner and consequently, did not confer on him any benefit, far less and right, since he had not been appointed as a teacher in Science group with higher qualification i.e. the Master's degree. Sub-clause (c) of clause (2) of G.O. 372 made the position clear that in future i.e. post 31 st July, 2981, no secondary school teacher would be allowed higher scale of pay on qualification basis unless he obtains such higher qualification in the subject relevant to his teaching/appointment. The writ petitioner after his appointment in 1979 did not acquire the Master's degree in the non-relevant subject prior to 31st July, 1981. The position of the rules as it stood on 31 st July 1981 and as applicable to the writ petitioner was the same even on 10 th September, 1991 when G.O. 400 was issued introducing amendment and, therefore, there was/is no question of extending to him the benefit of higher scale of pay based only on consideration of G.O. 400.

Since the learned Judge did not advert to G.O. 372 in its material aspects and proceeded to grant relief only on the basis of a reading of the amendment introduced thereto by G.O. 400, we are of the considered view that G.O. 400 could not have come to the aid of the writ petitioner in claiming higher scale of pay on the basis of Master's degree in a subject not relevant to his teaching/appointment. There has been a clear error in the exercise of jurisdiction by the learned Judge whereby a teacher who was not entitled to higher scale of pay on qualification basis was made entitled thereto without plausible justification."

8. In view of the aforesaid, the writ petitioner is not entitled to

higher scale of pay. The appeal fails.

9. However, we must record our appreciation for the assistance

rendered by Mr. Sarwar Jahan, learned Advocate

representing the writ petitioner. We also record our

appreciation for referring to the judgment of the coordinate

Bench in Gousul Ajam (supra) against the interest of the

writ petitioner.

10. The appeal and the connected application are accordingly

dismissed. However, there shall be no order as to costs.

 (Uday Kumar, J.)                           (Soumen Sen, J.)