Sk. Arman vs State of W. Ben.

Debasish Kar Gupta, J.—This writ application is filed by the petitioner assailing an order passed by the respondent No. 2 under his Memo No. 186/1(5)-ME dated February 03, 2012. By the said impugned order the prayer of the petitioner for granting post-graduate scale of pay in his favour in connection with his service as an ''Assistant Teacher'' in ''Language Group'' of Ghanashyambati Sayadatiya Senior Madrasah, District - Paschim Medinipur was rejected. The appointment of the petitioner to the post of Assistant Teacher with B.A. degree was approved by the respondent No. 3 with effect from May 01, 1995, i.e. the date of recognition of the above School by the W. Ben. Board of Madrasah Education. Prior permission for enhancing the academic qualification of the petitioner in ''Bengali'' from Vidyasagar University under the provisions of G.O. 548-SE(S) dated June 24, 1997 was granted by the respondent No. 3 by an order dated November 07, 2005. The petitioner obtained M.A. degree in ''Bengali'', the last date of M.A. Part-II Examination, being dated November 08, 2007.

After a series of litigation, the respondent No. 2 was directed by an order dated November 09, 2011 passed in the matter of Sk. Arman vs. The State of W. Ben. & Ors. (W.P. 1091 (W) of 2011) to consider the case of the petitioner in accordance with law. In compliance of the said order, the respondent No. 2 passed an impugned order rejecting the prayer of the petitioner. For examining the propriety of the order impugned, the operative portions of the said order are quoted below:-

The District Inspector of Schools (SE), Paschim Medinipur vide his letter bearing Memo No. : Law-22, dated 16.01.2012 submitted that ''The permission for acquiring higher qualification in favour of the writ petitioner was accorded by the Addl. District Inspector of Schools (SE), Ghata Sub. Div. On 07.11.2005 whereas the W. Ben. School (Control of Exp.) Act, 2005 was published on 19th August, 2005 by the Department of Law, Govt. of W. Ben. vide G.O. No. 1265-SE(S), dated: 5th October, 2005. So, it is clear that prior permission was granted after the publication of the said Act, 2005.

The petitioner passed M.A. Exam. In the year 2007 when the said Act, 2005 is in force.

G.O. No. : 25-SE(B), dated: 12.02.99 should not be applicable after the enactment of W. Ben. School (Control of Exp.) Act, 2005 as it has replaced all earlier orders published in this matter before the date of coming into effect of the said Act, 2005.

Para 14(2) of the said Act, 2005 is as follows: ''Every teacher of a school shall, if appointed in the post of Graduate Teacher category, be entitled to draw pay in the scale of pay in which he is appointed and shall not be entitled to claim any Addl. Increment of higher scale of pay for acquiring any qualification other than qualification specified for such post.''

The para 7 of the GO. No. : 593-SE(S), dated: 27.11.2007 categorically states that ''No such prayer for higher scale of pay from any teacher with graduate degree and graduate scale of pay at the time of entry into service/joining the school will be entertained. No matter whether he/she has secured this higher qualification before or after introduction of W. Ben. Schools (Control of Exp.) Act, 2005.''

The result of the M.A. Exam. of the petitioner was published on 21.05.2008 which is within than issuance of G.O. No. : 593-SE(S), dated 27.11.2007, thereby restraining the authority concerned to grant the higher scale of pay in favour of the writ petitioner.

Going through the file papers submitted it is found that the claim of the petitioner for Post Graduate scale of pay does not tally with Govt. Order.

Considering all the aspects, for reasons mentioned above the claim of the writ petitions deserves no relief and thus it is rejected.

Thus the matter is disposed of. All concerned be informed accordingly.

According to Mr. Yasin Ali, learned State Advocate, the petitioner pursued M.A. Course and obtained degree on the same after promulgation of the W. Ben. Schools (Control of Expenditure) Act, 2005 (hereinafter referred to as the said Act of 2005). Drawing attention of this Court towards sub-section (2) of section 14 said Act of 2005 Mr. Ali submits that since the appointment of the petitioner was approved in Graduate category he was not entitled for post-graduate scale of pay in terms of the above provision.

I have heard the learned Counsel appearing for the respective parties and I have considered the facts and circumstances of this case. Admittedly, the appointment of the petitioner was approved with effect from May 01, 1995 under graduate category with B.A. qualification. It is also not in dispute that the respondent No. 3 granted prior permission to the petitioner on November 07, 2005 for enhancing his qualification. The provisions of section 2 to 22 of the said Act of 2005 came into force with effect from December 27, 2005.

After considering aforesaid dates I find that prior permission for enhancing the academic qualification of the petitioner was granted before introduction of the said Act of 2005, that is the material date for considering legally enforceable right for getting post-graduate scale of pay. Under the provisions of Clause 3 of paragraph 12 of the W. Ben. Non-Government Aided Educational Institutions (Revision of Pay and Allowances) Rules, 1998, the petitioner was entitled to get the post-graduate scale of pay for enhancing his academic qualification at that material point of time. The proper adjudication the said provision of Clause 3 of paragraph 12 is quoted below:-

(3) All teachers including Physical Education Teachers and Librarians of Secondary Schools who have improved/will improve their qualifications who were appointed with higher qualification in the subjects or groups relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications, with effect from the 1st January, 1996 or the date of improving qualifications whichever is later.

It is pertinent to mention here that the effect of the provisions of the W. Ben. Schools (Control of Expenditure) Act, 2005 prospective. Therefore, the decision making process of the respondent Authority to adjudicate the claim of the petition in the light of the said Act of 2005 cannot be sustained in law and the same is quashed and hereby set aside.

The respondent Authority is directed to extend the benefit of post-graduate scale of pay in favour of the petitioner following the last date of M.A. Part-II Examination including arrears within a period of two months from the date of communication of this order.

The respondent Authority is further directed to fix the scale of pay of the petitioner accordingly.

This writ application is, thus, disposed of.

There will be however, no order as to costs. Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.