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IN THE HIGH COURT OF CALCUTTA
Subrata Talukdar, J.
Saswati Majhi – Petitioner
Versus
State of West Bengal & Others – Respondents
W.P. No. 19734 (W) of 2005
Decided On : 27-01-2016
EDUCATION - HIGHER SCALE OF PAY - M.P.ED QUALIFICATION - G.O. NO. 795-EDN. (S) DATED 22ND NOVEMBER, 1993 - G.O. NO. 417-SE (S) DATED 8TH MARCH, 2000 - WHETHER THE PETITIONER IS ENTITLED TO HIGHER SCALE OF PAY UPON IMPROVING HER QUALIFICATION TO MASTERS IN PHYSICAL EDUCATION (M.P.ED) - INTERPRETATION OF G.O. NO. 795-EDN. (S) DATED 22ND NOVEMBER, 1993
Fact of the Case:
The petitioner, a physical education teacher, sought a higher scale of pay after improving her qualification to Masters in Physical Education (M.P.Ed). The District Inspector of Schools (SE), Howrah-1, rejected her claim on three grounds: (i) she did not take prior permission from the Managing Committee of the school; (ii) the staff pattern of the school did not reflect the need for her to improve her qualification; and (iii) she did not obtain her M.P.Ed degree from a recognized University.
Finding of the Court:
The court held that the petitioner was entitled to the higher scale of pay. It found that the first two grounds relied upon by the District Inspector of Schools were no longer res integra, having been decided in favor of the teachers in previous cases. On the third ground, the court interpreted G.O. No. 795-Edn. (S) dated 22nd November, 1993, which clarified that all physical education teachers, including those of Madrasahs, having a Master's degree in Physical Education from recognized Universities, would be entitled to get higher scale of pay. The court held that the use of the word 'including' in the G.O. was indicative of a canon of construction which brought within its ambit all teachers who had enhanced their qualification to M.P. Ed. from non-recognised Universities, including teachers who had obtained their degrees from recognized Universities.
Issues: 1. Whether the petitioner was entitled to a higher scale of pay upon improving her qualification to M.P.Ed? 2. Whether the District Inspector of Schools (SE), Howrah-1, was justified in rejecting the petitioner's claim on the grounds that (i) she did not take prior permission from the Managing Committee of the school; (ii) the staff pattern of the school did not reflect the need for her to improve her qualification; and (iii) she did not obtain her M.P.Ed degree from a recognized University?
Ratio Decidendi: 1. The court relied on the decisions of the Hon'ble High Court In Re Trilochon Jana v. State, (2008) 2 WBLR (Cal) 913 and In Re Raghunath Mondal v. State, (2013) 3 WBLR (Cal) 556, which held that the issues of taking prior permission and the staff pattern being a bar to grant of higher pay scale to a teacher in a school are no more res integra. 2. The court interpreted G.O. No. 795-Edn. (S) dated 22nd November, 1993, and held that the use of the word 'including' in the G.O. was indicative of a canon of construction which brought within its ambit all teachers who had enhanced their qualification to M.P. Ed. from non-recognised Universities, including teachers who had obtained their degrees from recognized Universities.
Final Decision: The court allowed the writ petition and directed the District Inspector of Schools (SE), Howrah-1, to accord the benefit of higher scale of pay to the petitioner in accordance with law from the last date of completing her post-Graduate Examination within and not later than a period of eight weeks from the date of communication of the order. The court also directed that the arrears be paid in favor of the petitioner within a period of eight months from the date of communication of the order.
Subrata Talukdar, J.
1. Sri Ekramul Bari, Learned Counsel appears for the petitioner and submits that by Office Memorandum (for short O.M.) dated 7th of September, 2004 issued by the District Inspector of Schools (SE), Howrah-1 which is impugned in this writ petition, the claim of the writ petitioner to a higher scale of pay upon improving her qualification to Masters in Physical Education (for short M.P.Ed) has been erroneously refused.
2. Taking this Court to the O.M. dated 7th of September, 2004 appearing at pages 29 to 32 of the writ petition, Sri Bari argues that the claim of the writ petitioner was refused on three counts. First, that the writ petitioner did not take any prior permission from the Managing Committee (for short M.C) of the said school before improving her qualification. Second, the staff pattern of the school does not reflect the need of the petitioner to be granted the opportunity to improve her qualification. Third, the petitioner did not obtain her M.P.Ed decree from a recognised University and therefore, G.O. No. 417-SE (S) dated 8th of March, 2000 is a bar.
3. Sri Bari argues that the issue of taking prior permission and the further issue of the staff pattern being a bar to improving the qualification of a teacher in a school are no more res integra considering several judgments of this Hon'ble Court. In support of his submissions Sri Bari relies upon the decisions of this Hon'ble High Court In Re Trilochon Jana v. State, (2008) 2 WBLR (Cal) 913 and In Re Raghunath Mondal v. State, (2013) 3 WBLR (Cal) 556.
4. With regard to the third point taken by the District Inspector of Schools (SE), Howrah-1, Sri Bari argues that the G.O. dated 8th of March, 2000 (supra) cannot have any retrospective effect. The petitioner improved her qualification in the year 1996 and at that point of time the G.O. dated 8th of March, 2000 (supra) had no existence.
5. Therefore, Sri Bari argues that the District Inspector of Schools (SE), Howrah-1 committed a gross error in law by refusing the claim of the petitioner to higher pay scale upon improvement of her qualification to M.P.Ed.
6. Per contra, Sri Amal Kumar Sen, Learned Senior Government Advocate appears and submits that although the point of prior permission and staff pattern being a bar to grant of higher pay scale is not urged on behalf of the State-respondents at the hearing today, however, the third point connected to the petitioner failing to obtain a degree from a recognised University is germane to the present lis.
7. Sri Sen takes this Court to the circular applicable at the time the writ petitioner improved her qualification which is the Circular No. 795-Edn. (S) dated 22nd of November, 1993. The said G.O. No. 795-Edn. (S) (supra) reads as follows:-
"No. 795-Edn. (S) Dated: Calcutta, the 22nd Nov.., 1993.
Sub: Higher Scale of Pay to the teachers of Physical Education.
The Undersigned is directed to say that it has come to the notice of this Department that higher scale of pay is not being granted to Physical Education teachers having higher qualification of Master Degree in Physical Education. This is presumably due to nonexistence of any provision for post-Graduate teacher in Physical Education in terms of the staff pattern laid down in G.O. No. 772-Edn. (S) dated the 8th July, 1974.
In this Department Memo No. 372-Edn. (B) dated the 31st July, 1981 read with Memo No. 33-Edn. (B) dated the 7th March, 1990 the higher scale of pay to the teachers of Secondary Schools having higher qualification has already been granted.
It is now clarified that all such Physical Education teachers including those of Madrasahs of various types having Master Degree in Physical Education from recognised Universities will be entitled to get higher scale of pay in relaxation of the above noted staff pattern.
This order will take effect from the date of issue of this clarification.
All concerned have been informed
Sd/-
Illegible, (Assistant Secretary)."
8. Therefore, Sri Sen argues that even
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