Calcutta High Court (Appellete Side)

Sumon Mandal vs The State Of West Bengal & Ors on 7 June, 2023

Court No. 22          IN THE HIGH COURT AT CALCUTTA
07.6.2023              Constitutional Writ Jurisdiction
                              Appellate Side
(Item No. ML
34)
                            W.P.A. 6130 of 2018
(AB)
                              Sumon Mandal
                                    VS
                      The State of West Bengal & Ors.


                     Mr. Samim-ul-Bari
                     Mr. K. M. Hossain
                     Mr. Raju Mondal
                                            ... for the petitioner
                     Mr. Bhaskar Prasad Vaisya
                     Mr. Suman Dey
                                            ... for the State


                      The petitioner claimed to be an Assistant

               Teacher joined at Dihipara Khadem Ali Memorial

               School, Murshidabad.       The petitioner had joined in

               the year 2009 after completion of his Honours.

               Graduate degree for the subject Mathematics.           The

               petitioner   also   received   his   employment   as   an

               Honours. Graduate Teacher and not as a Post

               Graduate Teacher.       At the time of receiving such

               appointment the petitioner had already been pursuing

               his Post Graduation degree (M.Sc - Mathematics) with

               the Jadavpur University. The petitioner then qualified

               his Post Graduation in the year 2010. The relevant

               Post Graduation certificate, Annexure P-4 at page 23

               to the writ petition.   After acquiring the said higher

               qualification the petitioner applied before the relevant

               school authority i.e. respondent Nos. 4 and 5 for

receiving the higher pay scale commensurating with

his Post Graduation degree, Annexure P-4 at page 23

to the writ petition.

The relevant school authority then adopted a

resolution in favour of the petitioner for granting him

the higher pay scale as claimed by the petitioner and

forwarded a recommendation dated February 6,

2015, Annexure P-5 at page 27 to the writ petition

before the respondent No. 3.

The respondent No. 3 did not take any decision

on the issue. The petitioner moved the first writ

petition being W.P. 6683 (W) of 2017 when a co-

ordinate bench by its order dated March 14, 2017 at

page 28 to the writ petition directed the respondent

No. 3 to decide the issue.

Pursuant to the said direction of the co-

ordinate bench the second respondent passed the

impugned order dated April 19, 2018, Annexure P-7

at page 35 to the writ petition rejecting the claim of

the petitioner inter alia with the following observation:

"In terms of serial (3) of the G.O. No. 593-SE(B) dated 27.11.2007; the teacher is required to seek prior permission from the District Inspector of Schools (SE) before admission in the said course as well as before appearing at the said M.Sc Examinations. In the instant matter, Sri Mandal has violated the provision. Therefore, in terms of serial (3) of the G.O. No. 593- SE(B) dated 27.11.2007; Sri Mandal is not entitled for Post Graduate scale of pay. So, his prayer is hereby regretted. All concerned be informed accordingly."

Though, the instant writ petition the petitioner

had challenged the said impugned decision dated

April 19, 2018, Annexure P-7 at page 35 to the writ

petition passed by the respondent No. 2.

Mr. Samim-ul Bari, learned counsel appearing

for the petitioner submitted that, the issue is now well

settled by a Division Bench of this Court, in favour of

the petitioner. In the matter of: Sri Sukesh

Majumder Vs. The State of West Bengal & Ors.,

MAT 1220 of 2021 with IA No. CAN 1 of 2021. The

judgment was delivered on April 21, 2023.

Mr. Suman Dey, learned State counsel

appearing for respondent Nos. 1 to 3 submitted that,

the petitioner did not obtain prior permission in terms

of the Government Order being No. 593-SE(B) dated

November 27, 2007. He submitted that, the said

Government order had two limbs. The first limb was

that, at the time of enrolment with a course for

obtaining higher qualification the petitioner was

required to take a permission from the State authority

and the second limb was that while appearing for the

examination to obtain higher qualification the

petitioner was also required to obtain a prior

permission from the State authority. In the facts of

this case, learned State counsel submitted that, such

two stage permissions were not there. The first limb

of restriction though was not applicable because the

petitioner had joined the employment while pursuing

his Post Graduation studies however, before

appearing the final examination for Post Graduation

degree the petitioner ought to have obtained the prior

permission from the State authority which was not

there. On the basis of such plea the impugned order

was passed rejecting the claim of the petitioner and

the impugned order was correctly passed.

After considering the rival contentions of the

parties and on perusal of the materials on record and

upon reading the law laid down by the Hon'ble

Division Bench in the matter of Sri Sukesh

Majumder (Supra), it appeared to this Court that,

the said Government Order had been considered and

discussed by the Hon'ble Division Bench in its

judgment.

The relevant portions from the said Division

Bench judgment in the matter of Sri Sukesh

Majumder (supra) are quoted below:

"Thus, the crux of the instant lis is as to whether the petitioner has violated any provision laid down by the Government in respect of obtaining higher qualification prior to being in service and, after achieving the same, praying for higher scale of pay.

The Government of West Bengal, School Education Department, Secondary Branch Order being No. 548-SE (S) dated 24th June 1997 reads as follows:

"No. 548-SE(S) Dated: the 24th June, 1997. To: The Director of School Education, West Bengal Sub: Recognition of correspondence courses conducted by the different Universities of India.

The undersigned is directed by the order of the Governor to say that henceforth all the teachers teaching in different state-aided schools will have to take prior permission from the District Inspector of Schools (SE) through the Managing Committee, Ad hoc Committee/Administrator as the case may be if they like to enroll themselves and to appear for the examination conducted through Correspondence/ Distance Mode of education from the UGC-affiliated universities. The Managing Committee of the concerned school shall send such cases to DI (SE) for approval along with their comments, including, inter alia, the relevance of the subject of higher studies and also whether such higher studies are likely to affect the duties of the teacher in the school"

From the aforementioned Government Order it reveals that all the teachers teaching in different State aided schools will have to take prior permission from the DI (Secondary Education) through the Managing Committee, Ad- hoc Committee/ Administrator as the case may be if they wish to enroll themselves and to appear for the examination conducted through correspondence/distant mode of education from the UGC-affiliated universities.

In this instant case the writ petitioner got admitted to the masters degree course in English in the University of Burdwan in the session 2003-

2005 and appeared in the M.A. Part - I examination 2005 and M.A. Final Examination

2006. As such it is evident that the petitioner joined the course for post 6 graduation in English prior to his joining the service which was on the 7th day of March in the year 2006, when he joined the Bishpara High School as an Assistant Teacher of English. So the question of obtaining prior permission from the concerned authority does not arise. As such there is no violation by the petitioner in respect of the aforementioned Government Order.

Next, the Government Order being No. 593- SE (B) dated 27.11.2007 states as follows:

"The School Education Department, Government of West Bengal considers it necessary to publish an order specifying the manner in which a teacher appointed in Honours Graduate/Post Graduate scale of pay will be entitled to claim any additional increment and higher scale of pay upon acquiring Post Graduate/or any Higher Diploma/Degree under Section 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005.

1. All the teachers teaching in different State Aided Schools will have to take prior permission from the Managing Committee/Adhoc Committee/ Administrator as the case may be to enroll themselves and to appear for any examination for enhancement of educational qualification. The Managing Committee being 'Competent Authority' in such cases will take a decision in its next meeting and convey its decision to the teacher concerned immediately. A copy of the decision of the Managing Committee will be forwarded to the office of the DI of Schools (SE) of the concerned district.

2. The applicant-teacher thereafter, will, if necessary, apply for Leave/Special Leave/ Study Leave as the case may be (along with the resolution of Managing Committee) to the West Bengal Board of Secondary Education (which is the Competent Authority in this case) through the Managing Committee of the School.

3. The teacher is required to seek prior permission of concerned District Inspector of Schools (SE) (only when he/she wants to claim additional increment/higher scale of pay etc. for obtaining such higher qualification) through the Managing Committee of the School.

4. Provided further that no such permission can be granted on any ground to any teacher who has entered the service/joined the school with Graduate Degree and with a graduate scale of pay. [Any Managing Committee of any school recommending such case and/or any District Inspector 7 of Schools granting such prayer will be treated as an 'Offender' under West Bengal Schools (Control of Expenditure) Act, 2005].

5. The courses to be studied should be relevant to the subjects studied in Under Graduate Honours/Post Graduate Course of the Applicant Teacher and none other. The Deemed University/University etc. conducting the examination must be affiliated to UGC."

From the aforesaid Government Order it reveals that a teacher who is in service has to obtain prior permission from the concerned authority and in the instant case the petitioner had joined his course for post graduation in English prior to joining the service as a School Teacher on 07.03.2006. Therefore, no question of

prior permission from the authorities concerned is relevant in case of the appellant/ writ petitioner.

So the appellant/ writ petitioner has not violated either of the aforementioned two orders relying upon which the District Inspector of Schools had rejected the prayer for enhanced scale of pay.

It is also a fact that the appellant/ writ petitioner had completed his Masters Degree in English, the subject which he is teaching in school. Needless to mention that the teacher concerned with his higher degree of qualification in the subject which he is assigned to teach shall only contribute to the benefit of the students and the school.

The aforementioned Government Orders/ circulars hence do not stand in the way to granting benefits of higher scale of pay to a teacher on acquiring higher qualification.

As such the impugned order requires to be interfered with and stands set aside.

          The    impugned      Order     of   the   District
Inspector       of   Schools    (Secondary     Education),
Burdwan also stands quashed.
          The   appellant/     writ    petitioner   will   be

entitled to receive the benefit of higher scale of pay for obtaining higher degree of qualification from the date of his preferring the application before the concerned school authority."

In view of the settled law as discussed above,

the impugned order dated April 19, 2018, Annexure

P-7 at page 35 to the writ petition, in the firm opinion

of this Court, cannot sustain in law and accordingly

stands set aside and quashed.

The writ petitioner shall be entitled to receive

the benefit of the higher scale of pay for acquiring his

higher qualification i.e. Post Graduation in

Mathematics from the date of his preferring the

application before the relevant school authority.

The respondent No. 3 shall take all further and

consequential steps to allow the petitioner to obtain