Jagannath Patra vs State of West Bengal

Pratap Kumar Ray, J.—Heard the learned Advocate for the parties. In this writ application the Petitioner has prayed for the following reliefs:

(a) A writ in the nature of Mandamus commanding the Respondents auhorities concerned to act interms of law and to permit the Petitioner to continue for the post-graduate scale/M.A. scale with effect from 1.5.90 as also commending them to disburse to him all the arrears accrued to him in this context with effect from 1.1.1998.

(b) A writ in the nature of certiorari directing the Respondents authorities concerned to certify and transmit the records of the case to this Hon''ble Court so that conscionable justice may be administered by way of passing appropriate order or direction.

(c) Declaration to the effect that the Petitioner is entitled to continue in post graduate scale of pay as Assistant Teacher in his secondary school with effect from 1.5.1990 and also entitled to get his current salaries month by month in the same scale of pay meant for M.A. qualification as also to get the arrears of salary accrued thereto with effect from 1.1.98.

The facts relating to the writ application in short as follows:

Originally the Petitioner was appointed in the post of work education teacher under physical and work education group. His qualification was B.A. P.G.B.T. Subsequently, the Petitioner while working as a teacher of work education group, improved his qualification M.A. in Bengali, whose last date of examination was February 13, 1983. The Petitioner was granted post graduate pay scale by the Managing Committee of the. school with effect from May 1, 1990 to December 31, 1997. Thereafter such post graduate pay scale was stopped in terms of the Resolution dated December 27, 1997 by the Managing Committee whereby it was decided that the Petitioner was not eligible to enjoy such post graduate pay scale so long the Petitioner''s service was changed to a teacher in language group in terms of the circular letter No. 57-S.E.(S) dated January 27, 1995. By the letter dated February 3, 1998 the Petitioner was directed to refund the excess amount as drawn by him in the post graduate pay scale and also was directed to accept the ''graduate'' pay scale as per revision of Pay and Allowances Rules, 1990. However, subsequently with effect from January 1, 1999. the Petitioner''s service was transferred from work education group to language group by the decision of the District Inspector of Schools dated May 18, 1999 and the Petitioner was allowed to enjoy post graduate pay scale being a teacher of language group with effect from that date that is January 1, 1999. It is submitted by the Petitioner that the post graduate pay scale was granted in favour of the Petitioner for the period May 1, 1990 to December 31, 1999 and thereafter with effect from January 1, 1999 in terms of the decision of the District Inspector of Schools concerned converting the Petitioner''s post from work education to language group. Only for one year such post graduate pay scale was not released.

In the writ application, the Petitioner has prayed for a declaration that the Petitioner became eligible to draw the post graduate pay scale with effect from February 31, 1988 when the Petitioner completed five years service from the date of last examination of M.A. in Bengali as conducted by the University of Calcutta. In support of the case, the Petitioner has relied upon several circular letters namely, Memo No. 372-Edn.(B) dated July 31, 1981, Memo No. 253-Edn.(B) dated September 17, 1984, Memo no 400-Edn.(B) dated September 10, 1991 as well as Memo no 401-Edn.(B) dated September 10, 1991 issued by the Budget Branch of the

This writ application has been opposed by the learned Advocate appearing for the State Respondents contending, inter alia, that the Petitioner was not at all eligible to draw post graduate pay scale prior to January 1, 1999 when his service was transferred from work education group to language group. It is further submitted that the Managing Committee illegally allowed the post graduate pay scale since the year 1990 to 1997 and the Petitioner is liable to refund the said amount.

Having regard to the submissions of the parties the points required to be decided are based on interpretation of the Government circular letters providing benefit of higher pay scale.

By memo No. 372-Edn.(B) dated July 31, 1981 issued by the Education Department (Budget Branch), Government of West Bengal, scale of pay of teachers and non-teaching staff of all schools concerned were fixed. Under Clause 2 of annx. I of the said memorandum, provisions were made for providing higher pay scale to the teaching staff in the contingency of acquiring higher qualification. The said Clause 2 provides as follows:

2.(a) All existing Secondary School teachers who have improved their qualification relevant to their teaching subjects will get the higher scale on qualification, basis without any restriction;

(b) All existing Secondary School teachers who have improved their qualifications not relevant to their teaching subjects will be allowed the higher scale on qualification basis after five years teaching counting from the date on which higher qualification was obtained;

(c) In future, school teachers will be allowed higher pay scale on qualification basis only when they obtain such higher qualification in the subject relevan to their teaching appointment.

In view of the clear mandatory provision as laid down in Clause 2(c) as referred to, it was prescribed that in future higher pay scale on qualification basis would be allowed only in respect of such qualification as are relevant to the teaching appointment. Subsequently, by memo No. 400 Edn.(B)/IM-45/91 dated Calcutta, the September 10, 1991, the said memo No. 372-Edn.(B) dated July 31, 1981 was amended with retrospective effect from April 1, 1981 by substituting Clause 2(b) in the following terms:

(b) All existing Secondary Schools teachers who were appointed with higher qualifications in subjects not relevant to their teaching or who improved their qualifications subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from the 1st April, 1981 or after five years'' teaching counting from the date on which higher qualification was obtained whichever is later.

On a careful reading of the amended provision in terms of memo dated September 10, 1991, it appears that there was no basic difference relating to grant of higher pay scale to the teaching staff who acquired such qualification not relevant to their subject of teaching/appointment save and except incorporation of a new situation whereby appointees with higher qualifications in subjects not relevant to their teaching were allowed to enjoy higher pay scale. Learned Advocate of the Petitioner has placed strong reliance to such amendment dated September 10, 1991 to submit that the Petitioner since improved his qualification subsequent to appointment in a post under Work Education Group, the Petitioner became eligible to draw post graduate pay scale in view of his qualification M.A. (Bengali) after five years from the date of last examination, which as per the Petitioner was completed on February 13, 1983 being conducted by the University of Calcutta. Accordingly, it is submitted by the learned Advocate of the Petitioner that with effect from February 13, 1983, the Petitioner became eligible to draw such post graduate pay scale irrespective of the fact that the Petitioner was holding a post under Work Education Group, wherein the subject Bengali was not a relevant subject of teaching/appointment. In terms of memo No. 33-Edn.(B) dated March 7, 1990 issued by the Education Department (Budget Branch), Government of West Bengal on the subject revised scale of pay of teachers and non-teaching staff as notionally effective from January 1, 1986, a total embargo was made so far as grant of higher pay scale for acquiring higher qualification in the subjects not relevant to the teaching/appointment. Under Clause 16(3) of the said memorandum it is accordingly provided that higher pay scale for acquiring higher qualification subsequent to appointment would be granted only to those teachers who improved their qualification which is relevant to their subjects or group as well as teaching and appointment to that effect. Clause 16(3) reads as follows:

All teachers and librarians of Secondary Schools who have improved/will improve their qualification or who were appointed with higher qualification in the subjects or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications, with effect from the 1st January, 1986 or the date of improving qualification whichever is later.

By memo No. 401-Edn.(B)/IM-49/91 dated September 10, 1991 as was given effect to from January 1, 1986, memo No. 33-Edn.(B) dated March 7, 1990 was amended by providing benefit of higher pay scale to all teachers and librarians of the secondary schools who would improve their qualifications in subject relevant to their teaching/appointment. The relevant amendment under Clause (3) reads as follows:

(3) All teachers and librarians of secondary schools who will improve their qualifications in subject relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications with effect from the date of Improving qualification.

Having regard to the aforesaid Government memorandum regarding fixation of pay scale, it is abundantly clear that the teaching staff who acquired higher qualification in a subject not relevant to their teaching/appointment prior to July 31, 1981 only were granted such benefit of enjoyment of higher pay scale after expiry of five years from the date of enhancement of such qualification. In view of a mandatory provision as appearing in memo No. 372-Edn.(B) dated July 31, 1981 under Clause 2(c) of annEx. I, payment of such higher pay scale in view of improving the qualification was restricted in respect of the teaching staff who improved qualification which is relevant to the teaching subject/appointment. In view of the total embargo as imposed, the Petitioner who has admittedly qualified himself with higher qualification M.A. (Bengali) on February 13, 1983, being the last date of examination, surely was not eligible to claim such post graduate pay scale as he was holding the post of a Work Education Teacher in the school in question in terms of his appointment and Bengali was not at all a relevant teaching subject of a Work Education Teacher. The benefit of such grant of higher pay scale to the teaching staff by the Government was made with a positive object so that students are benefitted due to acquiring of such higher qualification by the teaching staff, and accordingly a decision was made that only those teachers who would qualify themselves with higher qualification in the subject relevant to their teaching/appointment, would be granted such benefit. Such object of the Government cannot be frustrated by the interpretation as advanced by the learned Advocate of the Petitioner. I am afraid to accept the contention as made by the learned Advocate of the Petitioner. In that view of the matter, I am of the view that Petitioner was not at all qualified to draw post graduate pay scale even with effect from the year 1990. Accordingly, the resolution of the Managing Committee directing the Petitioner to refund the excess amount in terms of the resolution dated December 27, 1997 read with the letter of the Secondary of the Managing Committee dated February 3, 1998 being annexs. ''B'' and ''C respectively of the writ application cannot be said as illegal. By Government order dated January 27, 1995, it was decided that those teachers who qualified themselves with higher qualification in a subject not relevant to their teching/appointment, would be allowed to have a transfer of their Group so that higher pay scale could be granted by adjusting his service in a post where such higher qualification could be best utilised. Having regard to such provision since the school was in need of a Bengali Teacher, in terms of the resolution of the Managing Committee, the District Inspector of Schools concerned accorded post graduate pay scale in favour of the Petitioner with effect from January 1, 1999 by transferring his service from Work Education Group to Language Group. Such decision of the District Inspector of Schools concerned dated May 18, 1999 is annexed at page 25 of the writ application. Such decision is legal and justified and the Petitioner has rightly been placed in the post graduate pay scale on transfer as Language Teacher with effect from January 1, 1999.

Having regard to all the legal position and the Government Orders, accordingly I am not inclined to interfere with in this writ application. The writ application accordingly stands dismissed, but there will be no order as to costs.