Calcutta High Court (Appellete Side)
Partha Pratim Sarkar & Anr vs State Of West Bengal & Ors on 25 September, 2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(APPELLATE SIDE)
Present:
The Hon'ble Justice Rai Chattopadhyay
WPA 23879 of 2017
Partha Pratim Sarkar & Anr.
vs.
State of West Bengal & Ors.
For the Petitioners : Mr. Ekramul Bari,
: Sk. Imtiaj Uddin.
For the State : Mr. Arindam Chattopadhyay,
Ms. Lipika Chattopadhyay.
Heard on : 25.09.2024
Judgment on : 25.09.2024
Rai Chattopadhyay,J.
1. The writ petitioners are the Headmasters of different schools in the
District of Malda. They are aggrieved that in spite of their being
Headmasters of the respective schools, the benefit of re-fixation of
pay under ROPA Rules-2009, has not been granted in their favour,
by allowing additional increment @ 3% along with additional grade
pay, reckonable to upgradation of the schools as Higher Secondary
Schools, with effect from the respective dates of upgradation of
schools by the concerned respondent authority. The memorandum
dated 22.03.2017, issued by the Joint Secretary, School Education
Department, Government of West Bengal/respondent no. 3, is
impugned in this writ petition, which was issued with reference to
an earlier memorandum dated 06.05.2016. The writ petitioners
have prayed that the impugned memorandum be not acted upon any
further set aside and by dint of an order of this Court. The other
prayer of the writ petitioners is for direction of the Court to allow
them the benefit of increment @ 3% of the existing Basic Pay, in
addition to the Grade Pay or additional Grade Pay as admissible, as
per ROPA Rules-2009.
2. The fact of the present writ in brief is that the writ petitioners are
Headmasters of different schools in District Malda, which have been
upgraded to Higher Secondary School as per the policy decision of
the respective respondent authority. Thus, as the Head of
Administration and Headmasters of the schools the writ petitioners
claim that they have entrusted with higher responsibility than
earlier. On the occasion of the "ROPA Rules 2009" having come into
force, the petitioners have claimed their benefit under the same i.e.
grade pay along with 3 % increment.
3. They filed this writ petition alleging that though they being eligible to
the said benefit, have been deprived on some frivolous grounds and
have been subjected to discrimination as well as violation of their
vital statutory as well as constitutional rights.
4. On the facts and grounds as above, the petitioners have filed the
present writ petition to pray for the reliefs, as stated above.
5. Mr. Ekramul Bari, learned Advocate on behalf of the petitioners has
submitted by referring to the notification thereunder dated
10.02.2010, that the benefits as applicable
"Headmaster/Headmistress/Assistant to the Headmaster/ Assistant
Headmistress, Higher Secondary School (VXII)", shall be applicable to
the petitioner, in this case, he being the Headmaster of the Higher
Secondary School. The same would include the grade pay as well as
additional increment @ 3 % . He has further stated that subsequent
notification dated 22.03.2017 which is impugned in this case would
not be tenable in view of its contradictory and discriminatory nature.
Let the relevant portion of the notification be extracted, as herein
below:-
"With reference to the above, it appears that the Deputy
Director of School Education, (G.A.). West Bengal has sought
clarification as to whether or not the HM of the Higher
Secondary Schools upgraded after 27/02/2009 shall be
allowed 3 % additional increment in addition to the additional
grade pay of @ Rs.200/-.
Having considered the issue raised by the Deputy
Director of School Education (G.A.), West Bengal in connection
with Memo No-1003-SE(S)/5P-129/12 dated 04.12.2004, this
is to clarify that ROPA 2009 and other related orders issued by
this Department with the concurrence of other departments
have not proposed any additional increment in favour of the
Headmasters of Higher Secondary Schools upgraded after
27.02.2009. Only additional grade pay @ Rs.200/- has been
allowed to the HM of the Higher Secondary Schools upgraded
after 27.02.2009.
Hence, I am directed to inform that no additional
increment can be allowed as per ROPA, 2009 and accordingly,
Memo No-1003-SE(S)/5P-129/12 dated 04.12.2014 stands
withdrawn. The Commissioner, School Education and
concerned D.I. of Schools are requested to act accordingly."
6. Mr. Bari, for the petitioners, has relied on a judgment of the Hon'ble
Division Bench of this Court, dated 15.03.2021, in the case of
Satyajit Ghosh Vs. State of West Bengal, to the following portion therein
:-
"There cannot be any doubt that when the appellants
(in both appeals) filed the writ petition, they were entitled to
receive benefits in terms of the decision of the Joint Secretary
dated 4th December, 2014 which did not make any distinction
between the schools which have been upgraded prior to 27th
February, 2009 and those schools that were upgraded
subsequently 27th February, 2009. In fact, Headmasters
were enjoying 3% incremental benefits notwithstanding date of
upgradation prior to or after 27th February, 2009. Apparently
that there was no intelligible differentia between the schools
that were upgraded prior to February, 2009 and after
February, 2009. While the Headmasters of the schools
upgraded prior to 27th February, 2009 have been extended
with the benefits of 3% increment the basis for not extending
the same benefit to Headmasters of schools upgraded after
February, 2009 prima facie appears to be discriminatory.
Prima facie, it appears that the matter needs to be considered
in a properly filed writ petition."
7. Mr. Bari submits further that the writ petitioners, being the
Headmaster of a Higher Secondary School, would be entitled to the
benefits, as claimed and depriving him from the same would
tantamount to curtailment of his statutory as well as constitutional
rights. That the same would amount to gross illegality being meted
out to the writ petitioners. Hence, he seeks appropriate relief for his
clients.
8. Mr. Chattopadhyay, representing the State and has strong
objections as regards the contentions and prayer of the petitioner.
He has strongly relied on the notification dated 10th February,
2010, to submit that the Headmaster of the Schools, which have
been upgraded during the period from 1.1.2006 to 27.02.2009, are
only entitled to the benefit of additional increment of 3% as per the
ROPA Rules-2009.
9. It is further submitted that on the basis of the said notification, the
essential criteria would be the concerned person "taking higher
responsibility of the upgraded school", to be eligible for the additional
increment as per the ROPA Rules-2009.
10. Mr. Chattopadhyay further indicates that the petitioners has not
undertaken any higher responsibility in an upgraded school, in
terms of the said notification dated 10th February, 2010.
11. According to Mr. Chattopadhyay, as per the policy undertaken by
the respondent authority, the Headmaster of a school, who have
been upgraded during the said period of time, would only be eligible
for the additional increment of 3%. He says further that the
petitioners cannot be considered as qualified in terms of the said
criteria fixed by the respondent authority and hence, the petitioners
shall have no right as to the additional increment, as claimed.
12. Mr. Chattopadhyay has sought for dismissal of the writ petition.
13. Let some relevant rules be mentioned, for benefit of the discussions.
i)
6. How additional Grade Pay for The term "existing
taking higher responsibilities of teachers" means those who
Head Teacher (Primary are in service on or before
School),Headmaster/Headmistre 01.01.2006. Additional
ss, Assistant Grade Pay is a new concept
Headmaster/Assistant in the revised pay
Headmistress of the Schools of structure for taking higher
different nomenclature will be responsibility. The benefit
regulated in the revised scale in of additional "Grade Pay"
the case of existing teachers? will be admissible to the
existing Head Teacher,
Primary Schools, Assistant
Headmaster/Assistant
Headmistress, High School
(V-X),
Headmaster/Headmistress,
Assistant
headmaster/Assistant
Headmaster/Assistant
Headmistress, Higher
Secondary School (V-XII)
Headmaster/Assistant
Headmaster, Junior High
School (V-VIII), irrespective
of their dates of
appointments to such
posts notionally with effect
from 01.01.2006 and
actually with effect from
01.04.2008. Such existing
teachers as per their option
on any date on and from
01.01.2006 to 27.02.2009
may be allowed to fix their
pay in the revised pay
structure along with
additional Grade Pay which
is admissible to them for
taking higher responsibility
as mentioned above.
ii)
4. Additional Responsibilities - Additional Grade Pay
Keeping in view, the additional responsibilities of the
Headmaster/Headmistress/Asstt. Headmaster/Asstt.
Headmistress/Head Teacher in Junior High/High/Higher Secondary
and Primary School, the Revised Grade Pay of the posts as published
in Govt. Order No.46-SE(B) dated 27.2.2009 is hereby amended as
follows:-
(a) Primary (Head Teacher): An additional Grade Pay of Rs.200/-
over and above the Grade Pay admissible to
him/her(according to ROPA, 2009) at present, with effect from
the date of his/her Appointment to the post but not before
01.01.2006.
(b)
High School (V to X), An additional Grade Pay of
Asstt. Headmaster/Asst. Rs. 200/- over and above
Headmistress Higher the Grade Pay admissible to
Secondary School (V to him/her (according to
XII) (Headmaster/Head- ROPA, 2009 (at present to
Mistress, Asstt. Headmaster/Headmistress
Headmaster/ Asstt. Asstt. Headmaster/Asstt;
Headmistress), Junior Headmistress with effect
Master/Headmistress from his/her date of
only) appointment to the post, but
not before 01.01.2006.
The Grade Pay as noted above will be allowed on or after
01.01.2006 nationally and actually with effect from 01.4.2008.
But the 'additional' grade pay will automatically cease if the
teacher is relieved from the post of Headmaster/Asstt. Headmaster
etc. and/or be appointed as Asstt. Teacher afresh. Even the
benefit of Grade Pay or Additional Grade Pay of
Headmaster/Asstt. Headmistress etc. should not be taken in to
account and his pay is to be fixed in the scale of Asstt. Teacher
concerned with the Grade Pay admissible to him as Asstt. Teacher.
(c)After coming under revised pay structure, an Asstt. Teacher of
Govt. Sponsored or Govt. Aided School on his/her appointment to
the post of Headmaster/Headmistress or Asstt. Headmaster/Asstt.
Headmistress will get his/her pay fixed in the pay structure of
Headmaster/Headmistress/ Asstt. Headmaster/ Asstt.
Headmistress as the case may be after getting one increment @ 3%
of his/her existing basic pay (pay in the Pay Band + Grade Pay) in
additional to the Grade Pay or additional Grade Pay as admissible
for the post of Headmaster/Headmistress etc. Asstt. Teachers from
other schools are not, however, entitled to this benefit.
Additional increments for appointment to the post of
Headmaster/Headmistress or Asstt. Headmaster/Asstt.
Headmistress as was being allowed in the unrevised scale of pay
is discontinued from the date of coming into force of the revised pay
structure. Provided that those who already got additional
increment(s) before 01.01.2006 in the unrevised pay scale for
his/her appointment to the post of Headmaster/Headmistress or
Asstt. Headmaster/Asstt. Headmistress will get their pay fixed in
the revised pay structure with effect from the date of option by
taking into account the additional increment(s) already allowed to
them.
(iii)
9. How pay will be fixed in the (a)The Headmaster of a
revised pay structure in the High School was not
following cases:- (a) A School entitled to any
was a High School (V to X) additional increment
before 01.01.2006, but it was other then scale of pay
upgraded to Higher Secondary of the post in the
School (V to XII) between unrevised scale. If the
01.01.2006 to 27.02.2009. How School was upgraded to
pay of the Headmaster will be H.S. within the period
fixed in such a case? 01.01.2006 to
27.02.2009, the
Headmaster would be
entitled to two
additional increments
from the date of such
upgradation as per
provisions of the
unrevised scale of pay.
When the said
Headmaster would opt
to come under the
revised pay structure,
his pay could have been
fixed as per his option
either from 01.01.2006
or from the date of
upgradation of the
school when he got two
additional increments in
the unrevised scale.
In the first case, after
fixation of his pay in the
revised scale, he would
be again entitled to get 3
% increment and
additional Grade Pay
from the date of taking
higher responsibility of
the upgraded school. In
the second case, he
would be entitled to get
his pay fixed in the
revised pay structure
taking two additional
increments in the
unrevised scale and he
would then get
additional Grade Pay of
the post of the
Headmaster of H.S.
School under the
revised Pay structure.
14. Objection of the State respondent, as to the claim of the writ
petitioners is that the concerned school was upgraded as a Higher
Secondary School, prior to the period as specified in the notification.
Thus, they cannot be considered to have undertaken any additional
responsibility, in terms of the notification, to be eligible for the
additional benefit, in emoluments.
15. The same, however, do not satisfy the requirement of subserving
intelligible differentia. Any Higher Secondary School would always
carry the same status and discharge same duties and
responsibilities, irrespective of the period or date at which it has
been vested with the status of a Higher Secondary School. Likewise,
a Headmaster, being the administrative head of the school, would
always carry and discharge some additional responsibility,
irrespective of his being posted in a Higher Secondary School or
otherwise.
16. The law does not eschew inequal treatment of the equals, but
approves the same, provided the same should be based on
intelligible differentia. The reasons thereof must appeal, to the
understanding of a prudent man.
17. The submissions made on behalf of the State authorities is not
found acceptable on the ground that the petitioners have taken up
additional responsibility upon upgradatin of the Schools, and, thus,
they cannot be treated as disqualified for the benefit as mentioned
above.
18. The petitioners having already been a Headmaster and taking
responsibility of a Higher Secondary School has been bestowed with
the higher responsibility, which would fall within the four corners of
the said notification, dated 10.2.2010, as mentioned above.
19. Under such circumstances, the petitioners are found to be entitled
to the benefit of additional 3% increment as prayed for by him in
this writ petition.
20. In view of the above observations, this Court directs for setting aside
of the impugned notification dated 22.03.2017 issued by the Joint
Secretary, School Education Department, Government of West
Bengal , being respondent No. 3.
21. The writ petition No. WPA 23879 of 2017 is allowed.
22. Let the benefits accruing to the petitioners in terms of the
notification dated 10.02.2010 be granted to them within a period of
six weeks from the date of communication of this order.
23. WPA 23879 of 2017 is, accordingly disposed of.
24. Affidavit-in-opposition submitted by the respondent in Court today,
be kept with the record.
25. Urgent Photostat certified copy of this judgment, if applied for, be
given to its parties on usual undertaking.
(Rai Chattopadhyay, J.)
D.Hira
