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Judgment
The only prayer in this writ petition relates to the refusal on the part of the respondent No.3/Director of Public Instruction (for short DPI) to count the past service benefits relating to the Career Advancement Scheme (for short CAS) and pay protection in favour of the petitioner, who is presently an Assistant Professor in Political Science at the Bijoy Krishna Girls College, Howrah (for short the respondent/College in issue).
The DPI, vide his impugned communication dated 16th April, 2015, has expressed his inability to accede to the counting of the past service of the petitioner citing the embargo created by the Government Order (GO) No. 587 EDN(CS) dated 21st May, 1990.
Mr. Kallol Basu, Ld. Counsel appearing for the petitioner points out that the GO dated 21st May, 1990 bearing the No. 587 had imposed the condition of rendering continuous service by teachers of non-Government colleges for a period of at least 5 years in the previous college for the purpose of enjoying the benefit of pay protection on shifting from the service of one non-Government college to another.
Mr. Basu points out that by a subsequent Memorandum bearing the No. GO 823 EDN(CS) dated 10th November, 1994, the GO No. 587 dated 21st May, 1990 stood modified by withdrawing the mandatory condition of completing 5 years of continuous service in the previous college. The GO dated 10th November, 1994 reads as follows:- "To: The Director of Public Instruction West Bengal Sub: Fixation of pay of basic grade Teachers and Principals on their movement from one college to another.
In partial modification of G.O. 57-Edn(CS) dt. 21.5.90 the undersigned is directed by order of the Governor to say that the Governor has been pleased to withdraw with effect from 1.8.92 the condition of rendering continuous service by the teachers including Principals of Non-Govt. Colleges for a period of at least five years in the previous college for purpose of enjoying the benefit of pay protection by them on shifting their services from one Non-Govt. College to another."
Therefore, Mr. Basu argues and, correctly so in the opinion of this Court, that at the time when the petitioner shifted her service as permanent lecturer at Serampore College, Hooghly to the respondent/College in issue w.e.f. 2nd July, 2001, the Memo dated 10th November, 1994 (supra) applied. Therefore, Ld. Counsel for the petitioner points out that the respondent No.3/DPI was manifestly wrong in invoking the Memo dated 21st May, 1990 (supra) to deny the claim of the writ petitioner.
Mr. Basu further points out that in the affidavit-in-opposition of the State-respondents to the writ petition the additional point is taken that since the service of the petitioner is not confirmed through the College Service Commission( for short CSC), she cannot be treated as a regularly recruited lecturer eligible to the benefits of counting of her past service.
Answering the above noted point, Mr. Basu draws the attention of this Court to the specific averments made in the affidavit-in-reply of the writ petitioner to the affidavit-in-opposition filed on behalf of the State-respondents arguing that the first college of the writ petitioner, viz. Serampore College, is a minority institution and, therefore not required to fill up its vacancies through the CSC.
The petitioner was appointed as permanent lecturer against the substantive post in Serampore College on 16th March, 2000 following the procedure adopted by the minority institution in accordance with law. The appointment of the petitioner was subsequently approved by the respondent No.3/DPI on 13th of April, 2000. Thereafter the petitioner worked without a break at Serampore College before joining the present respondent/College in issue on 2nd July, 2001, also without a break, since the intervening date of 1st July, 2001 was a Sunday.
Mr. Basu submits and, such submission is evident from the record, that the petitioner, being eligible to receive the CAS benefit on completion of 16 years of service, has been continuously approaching the State Authority through representations from May, 2013 onwards till she was ultimately served with the rejection order after two years on 16th April, 2015.
On behalf of the State-respondents, Mr. Sadananda Ganguly, Ld. Counsel appears and submits that the petitioner is not entitled to count her past service in view of her ineligibility in terms of the GO dated 21st May, 1990 (supra). Answering Mr. Basu''s argument that the petitioner is entitled to equality of treatment under law as extended to one Mrs. Papiya Sengupta, who had served in the same substantive post of lecturer at Serampore College, Mr. Ganguly points out that the two claims are identical.
Having heard the parties and considering the materials placed, this Court is satisfied that the affidavit-in-opposition affirmed on behalf of the State-respondents by the Deputy Director of Public Instruction (for short DDPI), West Bengal is simply an exercise in denial.
No materials have been either placed before this Court to rebut the stand taken by the petitioner that the Memo of 10th November, 1994 (supra) stood modified by the GO dated 21st May, 1990 (supra). In view of the clear language of the Memo dated 10th November, 1994 (supra), the invocation of the GO dated 21st May, 1990 by the respondent No.3/DPI stands nullified.
This Court is also satisfied that the reference to GO 57/EDN(CS) dated 21st May, 1990 in the GO dated 10th November, 1994 may not be accurate, but the subject matter of the modification or, in other words, the content of the modification approved by the GO dated 10th November, 1994 does relate to Paragraph 2(i) of the GO No. 587, not 57, also dated 21st May, 1990 of the State Government.
It is relevant at this stage to place on record Paragraph 2(i) of the GO No. 587 dated 21st May, 1990 (supra) which reads as follows:- "2(i) the benefit of protection of pay last drawn in the former college may be given provided the appointment in the former college was made as per prescribed norms against approved post and the incumbent rendered continuous service to that society for at least a period of five years."
In the backdrop of the above discussion the impugned communication dated 16th April, 2015 of the respondent No. 3/DPI bearing the Memo No. 916-UGC/4P-25 UGC-09(Pt.1) stands set aside.
The respondent No.3/DPI is directed to revisit the issue in accordance with law and, in the light of the observations as recorded above, by passing a reasoned order. The respondent No.3/DPI shall be also entitled to take consequential steps in terms of his reasoned order.
The above noted exercise shall be completed not later than a period of eight weeks from the date of communication of this order.
WP 10835(W) of 2016 stands accordingly allowed.
There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.