SURINDER SINGH NIJJAR C.J,

(1) WE have heard the learned counsel for the parties.

(2) THE matter has been referred to a Division Bench by the learned single Judge by order dated 1st December, 2005. The question specifically posed by the learned single Judge is as follows:-

"after the School Service Commission Act, 1997 came into force would the appointees get the benefit of the higher scale of pay despite being interviewed and selected in pass category".

(3) THE petitioner is a post graduate degree holder in Physical education. In 1998 the West Bengal School Service Commission conducted a selection test for Physical Education teachers. It appears from the advertisement that -there was no vacancy in the post of honours Graduate/post Graduate teacher. There had been a selection test only in pass category. The petitioner appeared in the said examination and got employment in pass category. The petitioner accepted such appointment. Thereafter, in 2003 the petitioner again appeared in another Regional Level Selection Test in pass category as he was not happy with his posting. The petitioner was again selected and was given appointment. The petitioner now claims the postgraduate scale.

(4) THE learned single Judge after considering the entire matter has come to the conclusion that after the Act of 1997 came into force there had been different categories for appointment and extension of benefit of higher scale of pay because of improvement of qualification is no more permissible. Therefore, it has been held that the petitioner would not be entitled to higher scale of pay despite the post graduate qualification. However, it would appear that the counsel for the petitioner relied upon an unreported decision of this Court in W. P. 2461 (W) of 2003. In that judgment it has been held that the petitioners therein having the postgraduate qualification were entitled to postgraduate scale in terms of the Government Circular Memo No. 795 -Edn. (S) dated 22nd November, 1993 as modified by a further Memo No. 417 -SE (S)/ 5p -33/98 dated march 8, 2000.

(5) UNABLE to agree with the aforesaid view, the learned single Judge has made the reference under consideration.

(6) WE have heard the learned counsel for the parties.

(7) THE petitioner was appointed on 23rd March, 1999 as an Assistant teacher in Physical Education. The appointment was duly approved by the District Inspector of School. On 27th September, 2001 the petitioner made a representation to the District Inspector of Schools for grant of masters Degree scale of pay. The representation was not decided which led the petitioner to file the writ petition being W. P. 449 (W) of 2003. This writ petition was disposed of by this Court on 15th January, 2003 by directing the Secretary, Managing Committee of the school for passing a reasoned order after hearing. A resolution was passed by the Managing committee of the school on 22nd February, 2003 recommending the claim of the petitioner for higher pay scale to the District Inspector of schools. However, the claim of the petitioner was again rejected. Although there was no indication to that effect the petitioner, however, filed the writ petition on the hypothesis that the claim had been rejected. Be that as it may, the fact remains that the recommendation of the managing Committee has not been accepted. The petitioner claims the higher pay scale on the ground that he holds Masters Degree in Physical education having passed the same before qualifying in the School service Commission in 1999. The petitioner claims the higher pay scale in terms of Government Order No. 417 -SE (S)/5p-33/98 dated 8th march, 2000. This order provides that the higher scale of pay would be admissible to those Physical Education teachers who have obtained such higher post-graduate degree on completion of two years regular course from a recognized university. The petitioner having completed the postgraduate qualification from a recognized university claims to be entitl