Chandan Roy & Ors vs State of West Bengal & Ors

Rai Chattopadhyay, J

(1) In this writ petition the petitioner has challenged refusal by the authority to grant him arrear salary in accordance with the post graduate scale of pay, which the petitioner claims to have already been allowed vide letter of the District Inspector of Schools (Secondary Education) Birbhum [in short ―DI‖], dated July 23, 2014.

(2) In short, the relevant facts leading to filing of this writ petition is that the petitioner was appointed as an assistant teacher of the respondent school in the subject Physical Education, on and from March 15,1999, in the category of a graduate teacher. He has later been confirmed in service as a pass graduate Physical Education teacher. Fact remains that even before entering into service the petitioner has concluded Master Degree course in the subject and obtained Master Degree in Physical Education. He initially moved this Court to seek relief that he may be granted post graduate scale of pay pursuant to his qualification. As per order of the Court, the DI has considered his prayer and allowed the petitioner the post graduate scale of pay, from the date of his confirmation in service, vide the letter as mentioned above.

(3) It appears that since thereafter, that is after issuance of the letter dated July 23, 2014, by the DI, the petitioner has no grievance as regards salary paid to him. His dispute is with regard to the arrear salary, which he says has fallen due from March 26, 1999 to the month of July, 2014, in terms of the said letter of DI as mentioned above but not paid. The impugned order dated November 16, 2016, of the same office, that is the District Inspector of Schools (Secondary Education) Birbhum, is therefore the subject matter of challenge in this writ petition, as by dint of the same the DI has turned down the petitioner’s claim for grant of arrear salary to him, in tune with the post graduate scale of pay for the period from March 26, 1999 to the month of July, 2014. Seeking grant thereof the petitioner moved this Court by filing the writ petition No. W.P. 21078(W) of 2015. The Court directed the respondent DI to consider the petitioner’s prayer for arrear. A letter dated August 3, 2016 was also submitted subsequently by the writ petitioner before the said authority.

(4) The resultant order is that dated November 16, 2016, of the respondent DI, in which the said authority has found that the higher scale of pay which was allowed to the petitioner earlier [vide order dated July 23, 2014], was in contravention of the relevant Rules and therefore his claim of arrear salary could not be entertained.

(5) Mr. Acharya, learned advocate for the petitioner has submitted that the impugned order is arbitrary and illegal. According to him the provision applied therein by the respondent/DI in case of the petitioner to reject his claim for arrear salary is a misplaced reliance, in so far as the notification relied on, having no retrospective effect, could not have been made applicable in case of the petitioner. He elaborates that the petitioner having been appointed on March 15, 1999, could not have been made subject to a notification issued subsequent to his appointment, that is on July 13, 1999 [No. 155-SE], since the same had no retrospective operation. Mr. Acharya, learned advocate has submitted further that the order of the DI dated July 23, 2014, granting the petitioner the post graduate scale of pay has virtually been overridden by the later impugned order dated November 16, 2016, which is impermissible in accordance with law. He has submitted that the authority could not have reviewed its own order as per the settled legal principle. Mr. Acharya, learned advocate has relied on a judgment of this Court in Partha Chatterjee vs State of West Bengal reported at 2004 (2) CLJ (Cal) 493. He submits that the position of law has been categorically settled by ratio thereof, on the backdrop of similar factual background, wherein the Court has held that neither the recommendation as regards qualification of the petitioner nor the staff pattern of the school would render a teacher of Physical Education subject ineligible to get post graduate scale of pay, in case he has already obtained post graduate degree before entering into service or else the same would amount to be discrimination and violation of the rights Constitutionally granted.

(6) According to the State/respondent, which has been represented by Mr. Das learned advocate, the petitioner’s contentions and arguments are baseless and unsustainable. He submits that in accordance with the rules it is only the category or qualification of the teacher, as recommended at the time of his induction in service, is the only criteria on the basis of which the scale of pay of the teacher is determined. He says that the present petitioner was recommended by the School Service Commission as a pass graduate teacher in Physical Education subject. That, the petitioner was appointed in the school, in the same category and later on has been confirmed as a graduate teacher. In tune with the DI has in the impugned order, Mr. Das learned advocate has submitted that the petitioner would be squarely covered as per provisions in the notification dated July 13, 1999 [No. 155-SE]; that the petitioner cannot be considered to belong to any other category and pay salary in tune thereto, excepting as has been recommended by the School Service Commission. Nevertheless, Mr. Das learned advocate has very fairly submitted that in case of the petitioner the DI has passed contradictory orders, regarding grant of postgraduate pay scale to him. In such view of the matter, he further submits that the entire issue may be remanded to the higher authority in education department of the State, to take a final call.

(7) The writ petitioner’s grievance and the issue involved in this case really is with regard to payment of arrear salary to him, pursuant to grant of postgraduate scale of pay to him, by dint of order of the DI dated July 23, 2014. This Court, in W.P. No. 21078 (W) of 2015 as directed the concerned respondent to consider and decide about the petitioner’s prayer for arrear salary. Therefore, firstly by deciding that the earlier order of the said office allowing the petitioner to be granted with postgraduate scale of pay was an erroneous one, the respondent/DI has overstepped the scope of reference before it. The respondent had no scope to reconsider or consider de-novo as regards eligibility of the petitioner for grant of higher pay scale. In other words, the decision of the respondent in the impugned order has not been in compliance with the order of this Court passed in W.P. 21078(W) of 2015.

(8) Secondly, as rightly pointed out on behalf of the petitioner that the authority has committed gross error in reviewing its own order passed earlier, it is not permissible under the law. It is a well-settled principle that an executive or administrative authority has no inherent power to review its own order unless such power is expressly conferred by statute. Review is a quasi-judicial function, and unlike Courts, administrative authorities are creatures of statute—they can exercise only those powers that the law specifically grants to them. It is a matter of record that in the impugned order dated November 16, 2016, the respondent/DI has categorically held that the order for grant of higher pay scale to the petitioner was in contravention of and beyond the existing Rules. By saying so, the said authority has virtually overridden the earlier order passed by the same office. The same is not sustainable in the eye of law.

(9) The petitioner's claim pertains solely to the payment of arrear salary for a specific timeframe, with the respondent having already disbursed the due benefits to him for the remaining period; thus, the respondent's withholding of the arrears in this context is irrational and arbitrary.

(10) The respondent, in the impugned order has inter alia mentioned that vide notification No. 25-SE dated February 12 1999, the post of a teacher of Physical Education is only for the graduate incumbent with Physical Education degree or Work Education degree in a particular pay scale, that is, pass graduate scale of pay. Secondly, the respondent has relied on the education Department memo No. 155-SE dated July 13, 1999, to find that grant of higher pay scale is only allowable, provided the same is compatible with the staff pattern of the school; also, that no teacher can be granted benefit relatable to any other category than the category for which he has been recommended for appointment; that is in case of the present petitioner, the pass graduate category.

(11) Application of provisions under memo No. 155-SE dated July 13, 1999, in case of the present petitioner is erroneous on two scores. Firstly, that the same could not have been retrospectively applied, as the petitioner's date of appointment precedes the effective date of the notification and the said notification has no retrospective effect. Secondly, the said notification dated July 13, 1999 has been directly in issue before this Court, discussed and decided by the same, in the case of Partha Chatterjee (supra). The Court has held that a teacher appointed with a postgraduate degree in a relevant teaching subject cannot be denied the postgraduate scale of pay on the sole ground of the School Service Commission not having mentioned the postgraduate degree in its recommendation or on the ground of the appointment of postgraduate teacher not been justified by the staff pattern of the school [para-15 of the judgment]. It has further been held that fixation of different scales of pay for teachers of the same or different aided schools, with the same qualifications, who performed the same duties and functions and are hence equally circumstanced violates principles of equal work for equal pay and offence Article 14 of the Constitution of India, more so in the absence of specific rules prescribing the requisite educational qualifications for teachers of different classes [para – 24 of the judgment]. The Court has come to the finding that the petitioner who possesses the postgraduate degree in Physical Education being his relevant teaching subject at the time of appointment would be entitled to the scale pertaining to his post graduate qualification irrespective of the qualification mentioned by the School Service Commission and irrespective of the minimum requisite nullification for the post [para – 28 of the judgment].

(12) In this way the extent and mode of applicability of the notification No. 155-SE dated July 13, 1999 in case of grant of higher pay scale to a teacher of Physical Education subject, who in spite of possessing higher degree has been recommended for appointment in the category of a graduate teacher is now well settled. In addition thereto, the recent larger Bench’s judgment of this Court in the case of Utpal Kanti Karan vs State of West Bengal reported in 2024 SCC OnLine Cal 1274, should also be mentioned, in which the larger Bench of this court has dealt with the issue and decided for grant of higher pay scale to a Physical Education subject teacher, irrespective of the category for which he has been recommended for appointment, in case he already possessed a higher degree.

(13) Pertinent is to note the ROPA Rules vide memorandum No. 25-SE(B)/IM-102/98 dated February 12, 1999 which is applicable in case of the petitioner considering the date of his appointment. According to Rule 12(3) of ROPA Rules, 1999 of teachers, including Physical Education teachers (and librarians) of Secondary Schools who were appointed with higher qualification in the subjects or group relevant to their teaching/appointment, are entitled to receive higher scale of pay appropriate to their qualifications. The provision as above has unequivocally establishes the right of the petitioner who happens to be a Masters degree qualified Physical Education teacher to be granted with the higher pay scale appropriate to his Masters degree qualification.

(14) On the basis of the discussion as made above, it can be concluded that the impugned order passed by the respondent/DI dated November 16, 2016 is based on erroneous or no rationale. The decision being bereft of any lawful foundation and beyond the scope of order of this Court as mentioned above, is irrational and arbitrary which cannot be sustained in the eye of law. Hence, the same is liable to be set aside. This Court finds no justifiable reason to be there to send this matter for reconsideration by a higher authority in the education department of the State Government, as suggested by Mr. Das learned advocate for the State. Here in this case the facts are undisputed and the law admits of only one conclusion. Accordingly remanding the matter to the authority for its consideration again would be a futile exercise. There remains hardly any difference or dispute as to the facts requiring determination by the authority. Therefore, remanding the matter will only prolong the litigation.

(15) For all the reasons as discussed above, the present writ petition is allowed with the following directions:

a. The impugned order dated November 16, 2016, of the District Inspector of Schools (Secondary Education) Birbhum, is set aside;

b. The respondent No. 3/DI is directed to immediately grant the petitioner the arrear salary, according to the post graduate scale of pay after adjustment of the salary as already paid to him, if any, for the period from March 26,1999 to July 2014;

c. Entire exercise as above should be concluded by the said respondent positively within a period of three (3) weeks from the date of communication of copy of this order.

(16) The writ petition WPA No. 5592 of 2017 is allowed and disposed of.

(17) Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.