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2013 Supreme(Cal) 461
High Court of Calcutta
Ashoke Kumar Dasadhikari, J.
Sri Astopada Rit
Vs.
The State of West Bengal & ors.
W.P. 14396(W) of 2007
Decided On : 29.07.2013
Mr. Ekramul Bari, Mr. Biswaroop Biswas, Mr. Kamal Misra, Mr. Tamal Taru Panda, for the petitioner
Mr. Tapan Kumar Mukherjee, Mr. Bikash Kumar Mukherjee, Mr. Nilotpal Chatterjee, for the State
Ms. Nilima Das, for the school authority
The court reiterated that prior permission is not required for improving qualification to claim higher scale of pay, staff pattern is not a valid ground for refusing higher scale of pay, discrepancy in the date of final result is not a ground for refusing higher scale of pay, if it is rectified, and the West Bengal School (Control of Expenditure) Act, 2005 is not applicable to claims made prior to the coming into force of the Act.
Headnote:
EDUCATION - HIGHER SCALE OF PAY - IMPROVED QUALIFICATION - REJECTION BY DISTRICT INSPECTOR OF SCHOOLS - VALIDITY - PRIOR PERMISSION, STAFF PATTERN, DATE OF FINAL RESULT, APPLICABILITY OF ACT OF 2005 - LEGAL PROVISIONS, INTERPRETATIONS, AND INFLUENCE ON COURT'S DECISION.
Fact of the Case:
The petitioner, a teacher, sought higher scale of pay after improving his qualification to M.Sc. in Mathematics. The District Inspector of Schools (SE), Howrah, rejected the petitioner's claim on four grounds: (1) lack of prior permission for improving qualification; (2) staff pattern not permitting higher scale of pay; (3) discrepancy in the date of final result; and (4) applicability of the West Bengal School (Control of Expenditure) Act, 2005.
Finding of the Court:
The court held that the grounds relied upon by the District Inspector of Schools were not valid and justifiable. The court found that prior permission was not required for improving qualification, as per the judgments in Subhasish Naskar v. State of West Bengal and Pampa Das v. State of West Bengal. The court also held that the staff pattern was not a valid ground for refusing higher scale of pay, as per the judgments in Partha Chatterjee v. State of West Bengal & Ors. and Raghunath Mondal v. State of West Bengal & Ors. The court further held that the discrepancy in the date of final result was rectified and was not a ground for refusing higher scale of pay. Finally, the court held that the Act of 2005 was not applicable in the instant case, as the petitioner's claim was made prior to the coming into force of the Act.
Issues: 1. Whether prior permission is required for improving qualification to claim higher scale of pay? 2. Whether staff pattern is a valid ground for refusing higher scale of pay? 3. Whether discrepancy in the date of final result is a ground for refusing higher scale of pay? 4. Whether the West Bengal School (Control of Expenditure) Act, 2005 is applicable to the petitioner's claim?
Ratio Decidendi: 1. Prior permission is not required for improving qualification to claim higher scale of pay, as per the judgments in Subhasish Naskar v. State of West Bengal and Pampa Das v. State of West Bengal. 2. Staff pattern is not a valid ground for refusing higher scale of pay, as per the judgments in Partha Chatterjee v. State of West Bengal & Ors. and Raghunath Mondal v. State of West Bengal & Ors. 3. Discrepancy in the date of final result is not a ground for refusing higher scale of pay, if it is rectified. 4. The West Bengal School (Control of Expenditure) Act, 2005 is not applicable to claims made prior to the coming into force of the Act.
Final Decision: The court set aside the impugned order of the District Inspector of Schools and directed the release of higher scale of pay in favor of the petitioner with effect from 20th March, 2007, along with arrears within six weeks from the date of communication of the order.
The subject-matter of challenge in this writ petition is the order impugned dated 7th July, 2006 passed by the District Inspector of Schools (SE), Howrah refusing higher scale of pay in favour of the writ petitioner although he has improved his qualification i.e. M.Sc. in Mathematics.
2. Mr. Bari, learned Counsel appearing for the writ petitioner submits that the grounds indicated for such rejection are all illegal and unjustifiable. He submits that the writ petitioner, who has improved his qualification, is entitled to get higher scale of pay specially when, the grounds taken by the concerned District Inspector of Schools are of no substance in law.
3. Mr. Bari submits that first point taken for such refusal is obtaining prior permission from the concerned District Inspector of Schools, which the writ petitioner did not take.
4. Mr. Bari submits in view of the judgment delivered by this Hon’ble Court such prior permission is not at all required to be taken. However, the writ petitioner obtained Master Degree through a communication course. Therefore, no such permission is required. He submits that the second ground for refusal is staff pattern of the school not permitting such higher scale of pay in favour of the writ petitioner. Mr. Bari submits that this is also covered by different judgments delivered by this Court.
5. According to Mr. Bari, staff pattern is not at all a consideration for such refusal. According to him, the Circular referred by the concerned District Inspector of Schools is not applicable in the instant case specially when such Circular is applicable in case of school service commission appointed teachers.
6. Mr. Bari submits that so far the third point is concerned, it is a mere mistake, which was rectified later on. However, that discrepancy in respect of date of final result should not be a ground for refusing higher scale of pay.
7. So far ground No.4 is concerned, Mr. Bari submits that the Act of 2005 came into operation in December, 2005 which is much later than the date of acquiring higher qualification by the petitioner, since the writ petitioner improved his qualification in the year 2003.
8. According to Mr. Bari, the said provisions are not retrospective in operation and that is why the Act has no manner of application in the instant case.
9. Mr. Bari submits the order impugned is erroneous and contrary to provisions of law and the same is liable to be set aside and the concerned District Inspector of Schools should be directed to release higher scale of pay in favour of the writ petitioner.
10. Mr. Bari cited few judgments in support of his contentions. The first judgment cited by him is reported in 2012(4) CHN page 372 (Subhasish Naskar Vs. State of West Bengal). Mr. Bari submits that in this decision this Hon’ble Court was pleased to hold that the ground of non-receiving prior permission from the concerned District Inspector of Schools for improving higher qualification cannot be a ground for rejection of prayer for higher scale of pay. In this judgment the learned Single Judge followed another decision of a co-ordinate Bench rendered in case of Pampa Das Vs. State of West Bengal (W.P. 2167(W) of 2011) decided on 6th September, 2011. In “Pampa Das” case it was held that the Act of 2005 has come into force on 26th December, 2005 and the claim of the writ petitioner was much before the said Act. According to the learned Single Judge, the Act of 2005 cannot have any application in the case of the petitioner in that case.
11. According to Mr. Bari, the same view should be followed by this Court.
12. The other judgment cited by Mr. Bari is reported in 2004(2) C.L.J. (Cal) page 493 (Partha Chatterjee Vs. State of West Bengal & ors.). Mr. Bari submits that the Circular of 13th July, 1999 is applicable to the teachers appointed through West Bengal School Service Commission. However, in the present case the writ petitioner is not appointed through West Bengal School Service Commission.
13. Mr. Bari also s
