Tripura High Court

The State Of Tripura vs Shri Narayan Chandra Dey on 28 February, 2022

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                            HIGH COURT OF TRIPURA
                                  AGARTALA

                               WA No. 223 of 2021

1.      The State of Tripura,
        represented by the Secretary to the Government of Tripura,
        Department of School Education, P.O. Agartala Secretariat, Agartala,
        West Tripura-799001.
2.      The Secretary to the Government of Tripura,
        Department of Finance, P.O. Agartala, Secretariat, Agartala, District-
        West Tripura-799001.
3.      The Director of School Education,
        Government of Tripura (Grant-in-Aid Section) Agartala-799001, West
        Tripura.
4.      The Secretary,
        School Managing Committee, Budhai Saha Primary                      School,
        Briddhangar, Dolura, P.O. Khayerpur, District-West Tripura.

                                                      ----- Appellants Petitioner(s)
                                     Versus

        Shri Narayan Chandra Dey,
        Son of Late Raj Mohan Dey, Assistant Teacher, Budhai Saha Primary
        School, Vill & P.O. Khayerpur, P.S. Budhjungnagar, District-West
        Tripura.
                                                               -----Respondent(s)

        For Appellant(s)             :     Mr. Partha Saha, Adv.

        For Respondent(s)            :     Mr. S.M. Chakraborty, Sr. Adv.
                                           Mrs. P. Chakraborty, Adv.
                                           Ms. Ankita Pal, Adv.
        Date of Hearing              :     3rd January, 2022.
        Date of Pronouncement        :     28th February, 2022.
        Whether fit for reporting    :     YES




     WA No.223 of 2021
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                                         B_E_F_O_R_E_

HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

JUDGMENT & ORDER

[Per S.G. Chattopadhyay], J

Heard Mr. Partha Saha, learned counsel appearing for the

State appellants as well as Mr. S.M. Chakraborty, learned senior

advocate assisted by Ms. P. Chakraborty and Ms. Ankita Pal, advocates

for the private respondent.

[2] State appellants have challenged the order dated

06.03.2020 passed by the learned Single Judge in WP(C) 1149 of 2016

by which the private respondent, a graduate teacher of Budhai Saha

Primary School under Grant-In-Aid, was granted pay scale of graduate

teachers w.e.f. 01.01.1993 and the State appellants (respondents

before the learned Single Judge) were directed to pay him back wages

within a period of four months from the date of receipt of the copy of

the judgment.

[3] Brief facts are as under:

By issuing appointment letter No.F 1-B.S.P.S/90 dated

28.06.1990, the Secretary, Budhai Saha Primary School of

Bridhyanagar, Agartala engaged the private respondent (petitioner

before the learned Single Judge) as an Assistant Headmaster in Budhai

Saha Primary School. The said school was a private school at the time

when the private respondent was engaged as an Assistant Headmaster

in the school. By virtue of Memorandum No.F.10(10-39)-DSE/90 dated

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11.03.1992 issued by the Director of School Education, the said school

was recognized by the State Government and by a subsequent

Memorandum No.F.10(10-39)-DSE/90 dated 19.12.1992 said Budhai

Saha Primary School was included in the Grant-In-Aid scheme of the

Government with prospective effect from 01.01.1993 and all the

appointments made by the Managing Committee prior to 19.12.1992

were approved by the State Government. However, it was made clear

that further appointments would be regulated by the Grant-In-Aid Rules

and no post of teaching or non-teaching staff of the school would be

filled up without the approval of the competent authority.

[4] The private respondent (petitioner before the learned

Single Judge) claimed that he joined the school as a graduate teacher.

This was also reflected in Memo No.F.10(10-39)-DSE/95 dated

28.11.1994 (Annexure-6 to the Writ Petition) issued by the Director of

School Education wherein the name of the private respondent appeared

in Sl. No.1 as a graduate teaching staff of the school. On induction of

the said school under the Grant-In-Aid scheme, the private respondent

had represented to the competent authority for providing him

designated scale of graduate teachers from the date of his appointment

in terms of office Memorandum No.F.4(62)-Fin(PC)/92 dated

07.12.1992 issued from the Finance Department. Even though he was

given the benefit of one advance increment w.e.f. 01.01.1993 vide

Memo No.F.10(10-39)-DSE/95 dated 16.01.1999 (Annexure-7 to the

Writ Petition), the benefit of pay scale of graduate teachers admissible

to the graduate teachers of Government Schools was not extended to WA No.223 of 2021 Page - 4 of 13

him. The respondent (petitioner before the learned Single Judge)

claimed that according to Rule 7(ii) of Tripura Grant-In-Aid

(Government Aided School) Rules, 2005 all the entitlements of teaching

and non-teaching employees of the schools under Grant-In-Aid shall be

the same as that of the teaching and non-teaching staff of Government

Schools, subject to condition that the rules and regulations determining

the recruitment of such teaching and non-teaching employees are

strictly adhered to. It was so clarified by the State Government by a

Memorandum dated 10.05.1993 issued from the Directorate of School

Education which reads as under:

"Government of Tripura Directorate of School Education (Grant-in-Aid Section) Dated, Agartala, the 10th May, 1993.

MEMORANDUM The undersigned is directed to say that the teachers of Grant-in-Aid Schools in Tripura are enjoying Pay Scales at par with those of Govt. Schools, under the Provision contained in the State Civil Services (Revised Pay) Rules, 1988. The benefit of higher Pay Scales in the appropriate grade & also grant of higher Pay Scales on acquiring of higher qualification in respective trade/Subject, to Assistant Teacher and some other categories of employees under Education Department, Government of Tripura, as introduced vide Finance Department, Government of Tripura, Office Memorandum No.F.4(62)- Fin.(PC)/92 dated 7th December, 1992, (Copy enclosed) shall be uniformly applicable for the teachers & Other Categories of employees of Grant-in Aided Schools, under the terms and conditions laid down therein.

This issues with the concurrence of the Finance Department vide their U. O. No.32-Fin./(PC)/93 dated 9.3.1993.

Sd/- Illegible Joint Secretary to the Government of Tripura."

[5] The private respondent (petitioner before the learned

Single Judge) asserted that he became entitled to the benefit of pay

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scale of graduate teachers admissible to the graduate teachers of

Government Schools in terms of the Memorandum dated 07.12.1992

and subsequent clarificatory Memorandum dated 10.02.1993 issued

from the Finance Department as well as in terms of Rule 7(ii) of Tripura

Grant-In-Aid (Government Aided Schools) Rules, 2005.

[6] Relying on the judgment and order dated 30.04.2014

delivered by this Court in WP(C) 167 of 2012 in the case of Mihir

Debnath vs. The State of Tripura and others, the private

respondent contended that the ratio decided in the case of Mihir

Debnath (Supra) would equally apply to him. In the case of Mihir

Debnath (Supra) this Court had the occasion to observe as under:

"14. After reading of this condition as appearing in the later part of the said appointment letter dated 28.06.1990 there cannot be any amount of doubt that the letter of appointment had meant a substantive appointment. Non-payment of proper remuneration for the strength of the fund cannot behove other interpretation. There was a clear assurance that due remuneration would be paid whenever the school would be brought under the grant-in-aid scheme. In Para-8 of the counter affidavit, the respondents No.1 & 2 did not challenge the said date of appointment i.e. 28.06.1990. What Mr. J. Majumder, learned State counsel has submitted is that the petitioner must fall within the categories of persons having engagements of varied nature. According to this Court, the petitioner does not belong to those categories as stated. In view of this, the substantive appointment of the petitioner has to be construed from 28.06.1990."

[7] The private respondent (petitioner before the learned

Single Judge), therefore, contended that being similarly situated with

Mihir Debnath, he should be treated at par with said Mihir Debnath and

his appointment has to be treated as a substantive appointment from

28.06.1990 at par with Mihir Debnath and equally situated others. WA No.223 of 2021 Page - 6 of 13

[8] It is the admitted position that the private respondent

had submitted representation dated 21.02.2015 (Annexure-10 to the

Writ Petition) to the Director of School Education for granting him the

benefit of graduate pay scale w.e.f. 28.06.1990 in terms of the Office

Memorandum dated 07.12.1992. His representation was turned down

by Memo No. F.15(2-36)-SE/GIA/PEU/2015/987-989 dated 27.06.2016

issued from the Directorate of Secondary Education (Grant-In-Aid

Section) (Annexure-11 to the Writ Petition) which reads as under:

"Government of Tripura Directorate of Secondary Education (Grant-in-Aid Section) No. F.15(2-36)-SE/GIA/PEU/2015/987-989 Dated, the 27/6/2016.

MEMO Ref:- No.F.49(1)-BSPS/Higher scale/15 dated 30.05.2015.

Sub:- Application of Sri Narayan Ch. Dey, Asstt. Teacher, Budhai Saha Primary School for granting of Graduate Teachers' scale of pay w.e.f. 01.01.1993.

In Ref. to his letter no. and subject as mentioned above, the Secretary, Managing Committee, Budhai Saha Primary School is hereby informed that the proposal of Sri Narayan Ch. Dey, Asstt. Teacher was referred to the Finance Department for approval. But the Finance Department did not approve the proposal of Sri Narayan Ch. Dey, AT.

The Under Secretary, Finance Department vide its U.O.No.232/Fin(PC)/16 dated 17.6.2016 clarified that the past service rendered by Shri Narayan Ch. Dey, Asstt. Teacher under the private management w.e.f.28.06.1990 to 31.12.1992 shall not be counted and as such, he is not entitled to get higher scale for acquiring qualification (B.A).

This is for information.

(Dr. P.K. Goyal, IAS) Joint Secretary & Director, Secondary Education, Tripura, Agartala."

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[9] Aggrieved petitioner then approached this Court by filing

WP(C) 1149 of 2016.

[10] In their counter affidavit, the State respondents asserted

before the learned Single Judge that claim of the petitioner seeking the

pay scale of graduate teachers of Government Schools with

retrospective effect was not justified because at the time when the

petitioner was appointed in Budhai Saha Primary School, the primary

teachers were given the pay scale of under graduate teachers. The

Government grant for Budhai Saha Primary School started only from

01.01.1993. Specific averment made by the State respondents with

regard to the claim of the private respondent (petitioner before the

learned Single Judge) may be quoted from paragraph 22,23,24,25 and

26 of their counter affidavit which reads as under:

"22. That in regard to the statement made in Paragraph 17 of the writ petition it is stated that, the petitioner submitted his demand to provide him graduate teacher scale w.e.f. his first joining on 28.06.1990. This proposal was referred to the Finance Department for approval. But Finance Department did not accept the proposal and not agreed to give approval for counting of past service of the petitioner w.e.f. 28.06.1991 date of 1st joining.

23. That in regard to the statement made in Paragraph 18 of the writ petition it is stated that, Sri Mihir Debnath was Under Graduate teacher. So, he was given the benefit of scale of pay of Under Graduate Teacher because the school is a Primary School. Under Graduate Teacher is appointed in a Primary School. So, demand for granting graduate teacher scale of pay is not justified.

24. That in regard to the statement made in Paragraph 19 of the writ petition it is stated that, the State Respondents abide by the direction of Finance Department. Without approval of Finance Department State Respondent unable to sanction graduate teachers scale benefit to the petitioner.

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25. That in regard to the statement made in Paragraph 20 of the writ petition it is stated that, the petitioner was not appointed as Graduate Teacher, so question does not rise to give him Graduate Teacher scale. There is no evidence in his appointment letter that he was appointed as Graduate Teacher.

26. That in regard to the statement made in Paragraph 21 of the writ petition it is stated that, as per instruction of the Finance Department one special increment already granted to the petitioner for higher Qualification w.e.f. 01- 01-1993. Because from this date private school was brought under Grant-In-Aid scheme.

This matter was referred by the State Respondent to Finance Department seeking approval. But the Finance Department vide U.O. No.232/(FIN (Pay-Cell) 2016 dated 17-06-2016 had clarified that the past service rendered by the petitioner under the private management during the period w.e.f. 28-06-1990 to 31-12-1992 shall not be counted as such, he is not entitled to get higher scale for acquiring higher qualification (i.e. B.A.) this has been already informed to the petitioner vide Memo No.15(2-

36)-SE/GIA/PEU/15/987-989 dated 27-06-2016."

[11] Counsel for the petitioner (private respondent herein)

argued before the learned Single Judge that similar issue was resolved

by this Court by judgment and order dated 18.07.2017 in WP(C) 1069

of 2016 in the case of Smt. Swapna Majumder (Rakshit) vs. The

State of Tripura and others and the case of the petitioner is covered

by the said decision of this Court. Counsel of the petitioner (private

respondent herein) further argued before the learned Single Judge that

even though one increment was granted to the petitioner for acquisition

of higher qualification but his pay scale was not enhanced to the level of

graduate pay admissible to the teachers in Government schools.

[12] The learned Single Judge on appreciation of record and

the submissions made at the Bar allowed the petition of the private

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respondent (petitioner before the learned Single Judge) directing the

State respondents (appellants herein) for providing the pay scales of

graduate teachers to him w.e.f. 01.01.1993 along with back wages. The

relevant extract of the impugned judgment is as under:

"9. Admittedly, the petitioner Sri Narayan Chandra Dey is similarly situated to that of Smt. Swapna Majumder(Rakshit), who was granted the pay scale of Graduate teacher as per the direction of the High Court from the date of her appointment. But, in similar situation, the petitioner was not extended the benefit of pay scale prescribed for Graduate Teacher. In my opinion, non-granting of pay scale prescribed for a Graduate teacher is illegal, arbitrary and discriminatory being violative of Article 14 of the Constitution of India. The petitioner is entitled to enjoy the pay scale of the Graduate teacher as it was granted to Smt. Swapna Majumder, at least from the date on which the school was recognised and brought under the Grant-in-Aid Scheme by the respondents.

10. Accordingly, the instant writ petition is allowed granting the petitioner graduate pay scale w.e.f. 01.01.1993. The respondents are directed to accord sanction of all arrears of pay treating the petitioner as graduate, granting the pay scale of graduate teacher w.e.f. 01.01.1993, however, not from the date of his initial appointment when the said Budhai Saha Primary School was a privately run school. The financial benefits shall be provided to the petitioner within a period of four months from the date the petitioner shall furnish a copy of this order to the appropriate authority concerned.

11. The instant writ petition is allowed in the above terms and thus disposed of."

[13] Appearing for the appellant State, the State counsel has

argued before us that since the learned Single Judge having relied on

the judgment of Smt. Swapna Majumder (Rakshit) (Supra) has

come to the conclusion that private respondent of the present case is

similarly situated with Smt. Swapna Majumder (Rakshit) (Supra),

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the learned Single Judge should not have given different benefit to the

private respondent than that was given to Smt. Swapna Majumder by

virtue of judgment dated 18.07.2017 passed in the case of Smt.

Swapna Majumder (Rakshit) (Supra). But in the instant case,

private respondent Narayan Chandra Dey (petitioner before the learned

Single Judge) was given back wages of graduate pay scale w.e.f.

01.01.1993 whereas Smt. Swapna Majumder (Rakshit) was given

actual financial benefit only from the date 3(three) years preceding the

day of institution of her writ petition because the Court was of the view

that she approached the Court at a belated stage. Counsel has argued

that same ratio would apply to the present case and therefore, the

impugned judgment of the learned Single Judge calls for intervention in

appeal.

[14] Counsel appearing for the private respondent on the

other hand has argued that the private respondent having been entitled

to graduate pay w.e.f. 01.01.1993, there is no wrong in the judgment

of the learned Single Judge in providing back wages w.e.f. 01.01.1993.

Counsel, therefore, urges for dismissing the appeal.

[15] We have examined the pleadings of the parties and the

materials on record. We have also considered the submissions of

learned counsel representing the parties.

[16] There is no doubt that the instant case is squarely

covered by the judgments delivered by this Court in Mihir Debnath

(Supra) and Smt. Swapna Majumder (Rakshit) (Supra) as the

facts and law involved in these cases are identical. WA No.223 of 2021 Page - 11 of 13

[17] Obviously, the private respondent of the present appeal

was appointed as a graduate teacher in a private school along with said

Smt. Swapna Majumder and Mihir Debnath which was later recognized

by the State Government and brought under the scheme of Grant-In-

Aid. They were appointed on the same day and in both the cases of

Shri Mihir Debnath (Supra) and Smt. Swapna Majumder

(Rakshit) (Supra) it was held by this Court that they would be entitled

to graduate scale w.e.f. the substantive date of their appointment i.e.

28.06.1990. But, in both the cases the petitioners were given actual

financial benefits for a limited period.

[18] In the case of Smt. Swapna Majumder (Rakshit)

(Supra) which has been relied on by the learned Single Judge in the

present case, it was clearly held by this Court that since Smt. Majumder

approached this Court at a belated stage i.e. on 09.09.2016, she was

not entitled to pecuniary benefit for the entire period. Smt. Majumder

was given actual financial benefit from the date 3 years preceding the

date of instituting her writ petition. It was also made clear in the case of

Smt. Swapna Majumder (Rakshit) (Supra) that from the arrears,

the amount paid as increment shall be deducted. Relevant extract of the

judgment is as under:

"13. Hence, the petitioner would be entitled to the graduate scale w.e.f. 28.06.1990 but since the petitioner has approached this court in a belated stage i.e. on 09.09.2016, the petitioner cannot get any pecuniary benefit for the entire period. As per the said memorandum dated 07.12.1992, there shall be no actual financial benefit till 31.12.1991. The petitioner shall be entitled to get the actual financial benefit from the date 3 years preceding the day of institution i.e. 10.09.2013. It is WA No.223 of 2021 Page - 12 of 13

made clear that from the arrears that would accrue the amount paid as the increment shall be deducted. In terms of the Office Memorandum dated 07.12.1992, the grant of higher pay scale is based on acquisition of higher degree. For the special nature of such grant, the petitioner will not be entitled to any other consequential benefit whatsoever, including the seniority. The petitioner would continue in the said post till she is promoted to her superior post and her seniority in the said grade shall remain unaltered, unless otherwise provided by the competent authority. The respondents No.1 to 5 are directed to pay the petitioner the arrears of pay and allowances after due deduction as stated within a period of six months from the date when the petitioner shall submit a copy of this order to the respondents.