JUDGMENT

Soumen Sen, J.

1. The present reference is arising out of an order dated 22nd August, 2008 passed by the Division Bench of this Court in WP 12414(w) of 2008 (Smt. Rinku Sarkar v. The State of West Bengal & Ors.,) WP 12419(w) of 2008 (Srijit Pal v. The State of West Bengal & Ors.,) and WP 12420(w) of 2008 (Subimal Sinha v. The State of West Bengal & Ors).

2. The Division Bench upon noticing conflict between the views expressed in two earlier coordinate bench decisions in Tarak Chandra Roy v. State of West Bengal & Ors., reported in 2008(2) CHN 973 (in short ‘Tarak’) and the State of West Bengal & Ors. v. Sauvik Ghosh & Ors. reported in 2008(1) CLJ(Cal) 810 (in short ‘Sauvik’) formulated the following questions for consideration by the larger Bench:

a) Whether in view of the fact that acquisition of higher qualification or qualifications during the service career of an individual is his right and the same acts as an incentive to career advancement as well as acquiring a higher status of academic brilliance, can such a person be forced to stagnate on a lower status perennially and forced to continue to work on a lower scale of pay which is not commensurate to the higher qualification(s) acquired subsequent to his appointment?

b) Whether in view of Question No.(a) above, should it not be held that the ratio decided in Tarak Chandra Roy’s case (supra) read with the provisions of Sections 14 and 20 of The West Bengal Schools (Control and Expenditure) Act, 2005 amount to creating an unreasonable embargo upon an individual’s freedom and right to acquire higher educational qualification(s) and therefore, runs counter to the provisions of Article 14 of the Constitution of India?

c) If the answer to question no. (a) is in the negative and to question no. (b) in the affirmative then should it not be held that the provisions of Section 14 and 20 of The West Bengal Schools (Control and Expenditure) Act, 2005 are ultra vires the relevant provisions of the Constitution of India referred to above?

d) Whether in view of the aforesaid should it not be held that the ratio decided in Tarak Chandra Roy’s case supra, holding that “the petitioner having been appointed in the pass category clearly, therefore, cannot get the benefit of his post graduate qualification” is not the proper proposition and that the correct proposition is the one that has been decidied in Sauvik Ghosh’s supra holding, inter alia, in para 35 therein that if the Government order dated 18th July 1999 were to mean mutual fixation would be on the basis of the educational qualifications mentioned in the recommendation of the School Service Commission and a teacher appointed on the recommendation of the School Service Commission would be bound by the qualification as mentioned in the recommendation for all time to come and even on enhancement qualification the teacher would not be entitled to the higher scale of pay only because the School Service Commission had mentioned a different qualification in its initial recommendation, the Government Order would have to be struck down as totally arbitrary discriminatory and violative of Article 14.........?”

3. Thereafter, another Division Bench in deciding FMA 2688 of 2007 with CAN 2357 of 2010 Nirmalendu Maity v The State of West Bengal upon noticing the constitution of a larger bench to answer the aforesaid questions by an order dated 15th March, 2010 referred the following question to the said larger Bench:

“Whether a teacher who has been appointed through West Bengal School Service Commission in ‘pass category’ can get the benefit of his post graduate qualification for the purpose of getting post graduate scale of pay?”

4. Subsequently, by an order dated 6th September, 2019 Justice Shampa Sarkar noticing apparent conflict in the views expressed in Anupam Santra v. State of West Bengal & Ors. in WP 25103 of 2012 and State of West Bengal & Ors. v. Chandra Bhusan Dwived