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Judgment
Shivakant Prasad, J.
Writ petitioner an Assistant Teacher in Mitra Balika Vidyalay, 60B, Surya Sen Street, Kolkata: 700 009 was appointed as Assistant Teacher of Work Education in the said School on 01.9.1995 with educational qualification, B.A. B.P. Ed.
The petitioner secured M.A. degree in Islamic History from the University of Calcutta in second class in the academic year of 1996-97.
The School authority by resolution dated 08.7.2000 upon considering the prayer of the petitioner as to her academic enhancement in M.A. in History allotted to her six classes in a week for the last eight years within normal work load, in the interest of the School and her prayer was recommended to the D.I. of School (S.E.) Calcutta for revised and reconsideration of higher scale of pay owing to her higher qualification of M.A. in History following the Government Circular No. 57-SE(S) Calcutta, dated the 27th Jan., 1995. It emerges therefrom that the Secretary of the Government of West Bengal Education Department had adopted and formulated a policy whereby all teachers including physical education teacher and Library of Secondary School, who have obtained higher qualification in subject not relevant to their respective subject or group in which they were appointed in School shall get higher scale of pay appropriate to their qualification.
Mr. Mondal Learned counsel for the petitioner submits that the Headmistress of Mitra Balika Vidyalay forwarded an application of the petitioner with all annexure to the D.I. of School, Calcutta with a request to grant pay according to qualification of the petitioner in M.A. in History through her letter being No. M.B.V./99-2000 dated 03.12.1999 along with the petitioner''s application dated 03.9.1999, which is evident from the Annexure marked with letter P-6.
The Headmistress and the writ petitioner made several representations and reminders to the D.I. of School (S.E.) Cal, but of no effect which fact is evident from the representations and reminders dated 24.3.2000, 05.9.2000, 06.8.2001, 28.8.2001, 28.6.2005, Annexure marked with letter P-7 collectively.
Further contention of the petitioner is that the respondents are utilizing the petitioner''s knowledge and experience as an M.A. in the subject History and the school authority allotted six periods per week within the normal work load. The West Bengal Board of Secondary Education also utilized her services by appointing an examiner of History subject for the Madhyamick Pariksha (S.E.) 2005 (Regular and External) on 31.01.2005, which fact is evident from annexure marked with letter P-8.
Hence, it is imperative on the part of the respondents to grant higher scale of pay to the petitioner according to her higher qualification in terms of the Memo. being No. 57-SE(S) Calcutta, the 27th Jan., 1995 and Memo. No. 25-SE(B)/1B-12/98 dated 12.02.1999 issued by the Secretary Department of Education, Government of West Bengal.
Mr. H.B. Pal adverting to the averments made in Paragraph-5 of Affidavit-in-Opposition on behalf of the respondent No. 5 Smt. Krishna Chowdhury, Headmistress of Mitra Balika Vidyalaya, 60B, Surya Sen Street, Kolkata-700 009 submits that for the proper function of the Institution, the writ petitioner has been taking eight numbers of History classes in a week for the last eight years. It emerges from resolution of the Managing Committee dated 08.7.2000 that prayer of the petitioner for higher scale of pay for taking six period in History per week within the normal work load was considered and such resolution for revised and reconsideration of higher scale against higher qualification in M.A. had been forwarded to D.I. of School for approval. The respondent No. 5 has admitted that the petitioner is entitled to higher scale of pay in view of D.I. Circular being Memo. No. 57-SE(S) Calcutta, dated the 27th Jan., 1995.
Per contra, It is contended by Mr. Pankaj Haldar led by Mr. A.K. Ganguly learned counsel for the State respondents that the petitioner was appointed as an Assistant Teacher in Work Education and Physical Education Group with educational Qualification, B.A. B.P. Ed. w.e.f. 01.9.1995 in the scale of Pass Graduate (Secondary Section), and in November, 1996, she enhanced her qualification in M.A. (Islamic History) not relevant subject or Groups as she was appointed in Secondary Section and not Higher Secondary Section and that inspite of existing three History Teachers of the said School as it appears from the Resolution of the Managing Committee of the said School dated 08.7.2000, page 24A to the said Writ Petition, the School authority allowed the petitioner to take more than six History classes in a week on the basis of enhancement of her subsequent qualification., M.A. in Islamic History i.e. Social Science Group (Higher Secondary Section).
To fortify his argument the learned counsel for the respondent Nos. 1, 2 and 3 invites my attention to Para (i) of Memo. No. 57-SE(S) Calcutta, the 27th Jan., 1995, which reads thus,
"(i) Approved Assistant Teachers of non-Government Secondary Schools and Madrasahs, who will take classes in subjects relevant to their respective higher qualification, though appointed/approved respectively in different group/subject other than the aforesaid teaching subject shall, henceforth, be allowed to draw pay according to their respective higher qualification as prescribed by the State Government, provided such Assistant Teachers take individually at least six such periods per week as officially allotted by the authorities of the respective schools to such Assistant Teacher within the normal work load upon the written consent of the concerned teacher and with the prior permission of the concerned District Inspector of Schools and strictly according to the actual need of the individual school. If there be more than one Assistant Teacher in a school with relevant higher qualification agreeable to this arrangements, preference shall be in order of seniority. If any school has already effected such an arrangement in its academic interest, the same has to be get approved by the concerned D.I. of Schools, subject to eligibility, for the purpose of drawal of qualification pay by the concerned teachers."
It is argued by the State respondents that before allowing the petitioner to take History Classes neither the petitioner did submit any written consent to take classes as per her higher qualification from the concerned teacher nor the School authority took prior permission from the concerned District Inspector of Schools (S.E.), Kolkata, thus, the petitioner is not entitled to get higher scale of pay.
I am unable to accept such argument as the above contention of Mr. Haldar appears to be misconstrued because the Resolution of the school Managing Committee in crystal clear term reveals the reason why the School Authority assigned the petitioner to take more than six classes per week which is obviously with the consent of the concerned teacher. The concerned teacher necessarily mean the petitioner herein as without her consent more than six periods could not have been assigned by the resolution of the school Managing Committee which resolution was taken undoubtedly according to the actual academic need of the School/Respondent No. 5 herein whose authority effected such an arrangement in the academic interest of the school and its students. Admittedly, the petitioner advanced her higher qualification by obtaining an M.A. degree in Islamic History from University of Calcutta. That apart, her worth can be judged from the fact that she was appointed an Examiner in History for the Madhyamick Pariksha (S.E.) 2005 (Regular and External) on 31.01.2005, annexure marked with letter P-8. It is well depicted that pursuant to the provision enshrined in clause (i) of the said Government Circular, the School Authority wrote to the District Inspector of Schools (S.E.), Kolkata forwarding the prayer of the writ petitioner, even several reminders were sent to the D.I. of Schools (SE), Kolkata for revival and reconsideration of higher scale, nevertheless, the D.I. Schools (SE) Kolkata appears to have turned a cold shoulder without addressing to the representations of the petitioner duly forwarded by the concerned School authority.
Further, Mr. Halder, learned Counsel for the State/Respondents submitted that it is not the case of the petitioner that the prior permission from the District Inspector of School for enhancement of her qualification is required in view of the several judgment delivered by this Hon''ble High Court time to time. But the case of the petitioner is that without prior permission from the concerned District Inspector of School, whether the petitioner is entitled to shift from one group teacher to another group teacher (Work Education and Physical Education Group to Social Science Group) and/or higher scale of pay on the basis of enhancement of subsequent qualification, which is not relevant subject or Group, in which she was appointed (Secondary Section not Higher Secondary Section) and refers to a case of State of West Bengal and others Vs. Tulsi Kumar Mukherjee reported in 2001 (2) Cal. LT 380 (HC) wherein it has been held thus:
"A bare reading of the 1995 Circular would make it crystal clear that the services of the Assistant Teachers having higher qualification for teaching a different subject is an absolute necessity. Merely, because the school has asked the teacher to take certain classes, would not do. Prior permission of the District Inspector of School (SE), in case such services are contemplated in future, and approval, in case such services have already been taken, is also a mandatory requirement.
The beneficiary of the Government grant in aid being the students of the school, the Government wanted to see whether those beneficiaries are really benefited by the higher qualification of the concerned teacher and accordingly directed that such services by the concerned teacher must have nexus with the actual academic need of the school.
What was meant is that even assuming classes in Civics and Economics, as additional subjects in Classes IX and X, are required to be taken to benefit the students of those classes and assuming the petitioner is taking those classes, he is not entitled to any higher pay as he has not acquired any higher qualification either in Civics or in Economics but in Political Sciences. This assertion is based on the findings reflected in the order of the Director of School Education passed in 1991 in relation to the petitioner, when it was held that Political Science is not one of the subjects taught in the Secondary Level.
The petitioner having acquired higher qualification in Political Science and Political Science being not one of the subjects taught in a Secondary School, the petitioner was not, nor is at all entitled to any higher scale of pay whether he had taken or is taking six classes in Civics and Economics."
In respectful consideration of the above cited decision of Division Bench of this Hon''ble High Court, I am of the view that the facts and circumstances are not apposite to the instant case and is clearly distinguishable in as much as the petitioner in the cited case had not acquired any higher qualification either in Civics or in Economics but acquired higher qualification in Political Science and Political Science being not one of the subjects taught in a Secondary School. So, in that set of facts, he was considered not entitled to any higher scale of pay irrespective of the fact that he had taken six classes in Civics and Economics whereas in the present case, the petitioner has been allotted more than six History classes in a week for the last eight years within normal work load, in the interest of the School and its students which subject is taught in the school/respondent No. 5.
Learned counsel for the State respondent Nos. 1, 2 and 3 has also relied on a decision of Nabin Kumar Mondal Vs. State of West Bengal reported in 2011 (4) CHN (Cal) 291 adverting to Paragraph-6 of the said decision wherein the Single Bench of this Hon''ble Court observed in the following lines:
"6. On and from the date the West Bengal School Service Commission Act, 1997 has been enforced i.e. 1st November, 1997 appointment of any teacher cannot be made except on the recommendation of the Regional School Service Commission having jurisdiction. If at all the post of Assistant Teacher in Commerce Group in the Higher Secondary Section in the school is vacant and the petitioner has been asked to render service for the greater interest of the students that is entirely a private arrangement between the school and the petitioner. The petitioner cannot claim that by reason of rendering service in the Higher Secondary Section in the school, he should be allowed to be shifted to the Commerce Group. There is no statutory provision which empowers the department to shift/transfer a teacher from one group to the other and thereby fill up a vacant post of teacher; therefore, the proposal that was sent by the Assistant Secretary is of no consequence at all. The Assistant Secretary, I presume, issued the concerned memo merely on the direction of his superior without consulting the statutory provisions, for his action is not supported by any such provision. He must realize that issuance of memo like the one dated 10th July, 2010 is likely to generate hope in the minds of teachers like the petitioner and thereby encourage them to approach the Writ Court for redress which, ultimately, does not ensure to their benefit. The Assistant Secretary would be well advised to make himself aware of the statutory provisions and desist from issuing such memo as the one under consideration in future."
It is argued by Mr. Mondal that it was a case relating to clause (ii) of the said Government circular, whereas the present case relates to clause (i) of the Govt. circular and that it is not applicable to the facts and circumstances of instant case because in the cited decision, the Director of School had reached to a conclusion with the reason that on the basis of Bachelor''s degree in Commerce, the petitioner cannot claim that he should be allowed post graduate scale of pay, if he is shifted/transferred in the Commerce group as the post of Assistant Teacher in the Commerce Group should be filled up from candidates considered by the Regional School Service Commission having jurisdiction.
Although, the above cited decisions relied upon by the respondent Nos. 1, 2 and 3 are distinguishable from the facts and circumstances of the present case as the present writ petitioner after having enhanced her higher qualification in M.A. in Islamic History from Calcutta University, was allotted more than six classes per week in the interest of the students and the School by the School Authority opting Resolution of the Managing Committee revealing exigency for such arrangement by the School authority, nevertheless, this fact cannot be lost sight of that in November, 1996, the petitioner enhanced her qualification in M.A. (Islamic History) not relevant subject of Groups as she was appointed (Secondary Section not Higher Secondary Section) and inspite of existing three History Teachers of the said School as it appears from the Resolution of the Managing Committee of the said School dated 08.7.2000, page 24A to the said Writ Petition itself, the School authority allowed the petitioner to take more than six History Classes in a week on the basis of enhancement of her subsequent qualification in M.A. in Islamic History which pertains to Social Science Group (Higher Secondary Section). In this context, Mr. Haldar adverts to the Provision of Clause 2 of the Departmental Circular No. 670-SE(S)/IM/14/98 dated 04.09.1998 (hereinafter called as ROPA 1998), the Staff Pattern of a Secondary School which is quoted below:-
Clause--2:-For High School/High Madrasah/Higher Secondary (Normal Section):-
a) LANGUAGE GROUP:-For Posts (Two pass degree and two Hons./Master degree.
b) SCIENCE and MATHEMATICS-Three posts (One Pass and two Hons/Master degree.
c) SOCIAL SCIENCE--Two Posts (One Pass degree and One Hons./Master degree.
d) WORK EDUCATION, PHYSICAL AND SOCIAL SERVICE: Two Posts.
e) HEAD MASTER: One post.
Learned counsel for the petitioner points out that this Government Circular of School Education Department, Secondary Branch relates to distribution of teaching staff in the recognized Non-Government Jr. High School, Jr. High Madrasah, High School, High Madrasah and Higher Secondary School (Normal Section) and is relating to permanent vacancy whereas, the petitioner herein has not prayed for her appointment in the Social Science Group as a History Teacher rather she has claimed benefit of Higher Pay Scale on the basis of Government Circular vide No. 57-SE(S) Calcutta, the 27th Jan., 1995, which provided that Assistant Teacher who have obtained Higher qualification in subjects not relevant to their respective subjects or group in which they were appointed in Schools but relevant to their respective teaching subject had been under consideration of the State Government and since in the academic interest of the students authorities of the Schools have allotted Classes on particular subjects to some approved teachers of the School who were appointed for a different subject or group as per available vacancy. That apart, as the Education Department is not in a position to sanction the required number of the adequate posts to the Schools due to financial stringency, the said circular has been issued. Despite the fact that the petitioner took more than six classes in the interest of School and its students as depicted from the Resolution of the Managing Committee of the School but it is undisputed fact that no prior permission were taken before such arrangement made by the School authority.
The learned counsel for the State Respondents has argued that prior permission of D.I. of School is precondition for application of the above Govt. Circular for the grant of Higher Pay to the petitioner on account of enhancement of qualification.
In this context, the learned counsel for the petitioner has referred to a decision of Maleka Khatun Vs. State of West Bengal and Ors. 2009 (4) CHN 440, wherein it has been held that irrespective of prior permission, the petitioner who obtains or acquires higher qualification, cannot be denied the benefit of Higher Pay of Scale. Thus, it is submitted that the petitioner simply prays that her claim be considered by the Respondent authorities.
In the cited decision, it has been held that the authorities cannot deny the benefit of Higher Pay of Scale on the ground of without obtaining prior permission and reference has also been made to case of Santunu Saha Vs. State of West Bengal reported in 2009 (1) CLJ (Cal) 639 and to another decision in the case of Trilochan Jana Vs. State of West Bengal and Ors. reported in 2008 (2) WBLR (Cal) 913.
Learned counsel for the State Respondents has referred to the observation of the Division Bench of this Hon''ble High Court reported in (2001) 2 C.L.T. 380 (HC) at para 7 reproduced hereunder:-
"Merely because the School has asked the teacher to take certain classes, would not do. Prior Permission of the District Inspector of School, also a mandatory requirement."
It would not be out of the context to take note of the observation made by the Division Bench in Paragraph 6 of the above cited decision to this effect that:--
"In 1995 it appeared to the Government that in many schools where adequate teachers have not been appointed for some reasons or the other but in order to take care of the needs of the students of the school, services of the teachers had to be obtained for teaching subjects different than the subjects for which they were appointed. Such persons as appears from the 1995 Circular, decided the Government, should not be deprived of higher scale of pay if they have acquired higher qualification and accordingly laid down the entire scheme of granting of such higher pay scale."
Thus, I am of the considered view that the prior permission of the District Inspector of School is mandatory as held by a Division Bench decision of this Hon''ble High Court in Tulsi Kumar Mukherjee Case (Supra) so, the Single Bench decision in case of Maleka Khatun (Supra) that irrespective of prior permission, the petitioner who obtains or acquires higher qualification, cannot be denied the benefit of higher pay of scale is per in curium.
Learned counsel for the State Respondent pointed out that as per Circular dated 12.2.1999, the petitioner''s claim that she is entitled to get higher scale of Pay is not tenable as per Clause 12(3) of the said Circular and as such, she is not entitled to get higher scale of pay on the basis of improvement of her qualification subsequent, which is not RELEVANT SUBJECT OR GROUP, in which she was appointed in that School (Secondary Section not Higher Secondary Section).
Again a question is raised as to whether the petitioner is entitled to shift from one group teacher to another group teacher (Work Education and Physical Education Group to Social Science Group) and/or higher scale of pay on the basis of enhancement of subsequent qualification, which is not relevant subject or Group, in which she was appointed (Secondary Section not Higher Secondary Section).
In this context, it is submitted by the learned Counsel for the State/Respondents that there is no statutory provision which empowers the School/Department to shift/transfer a teacher from one group to the other group, therefore, the prayers of the School authority as well as petitioner for grant of higher scale of pay from one group to another Group is not permissible in view of the decision reported in 2011 (4) CHN (Cal.) 291 Paragraph 6 (Supra).
Giving an anxious consideration to the facts and circumstances of the case in hand, the above cited circulars and decisions, I am of the view and accordingly hold that the petitioner is not entitled to get higher scale of pay as there are already three teachers in History i.e. Social Science Group of the said School. Ergo, the School authority had no power to allow the petitioner to take more than 6 Classes in History in a week, on the basis of improvement of subsequent qualification without the prior permission of the District Inspector of School as it was entirely a private arrangement between the School Authority and the petitioner.
In the result, the writ petition is dismissed, however, without any order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.
Mr. Mondal, the learned Counsel for the petitioner submits that CAN No. 3037/13 is required to be disposed of in view of the disposal of the main writ petition. This Court does not find any such application on record, however, in consideration of a copy of the said application as pressed in service, the same stands disposed of treating the same as on day''s list.
This order is passed in presence of learned Counsel for both the parties. Let it be so recorded.