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 s