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2025 DAILYLAW 3198 (CAL)

Prasanta Bera v. State of West Bengal

2025-06-13

Rai Chattopadhyay

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JUDGMENT : RAI CHATTOPADHYAY, J. 1) An order of Director of School Education (Now, Commissioner of School Education), West Bengal dated July 27, 2006 is under challenge in the instant writ petition. By dint of the same, the said authority has rejected the petitioner’s prayer for grant of higher pay scale, pursuant to his M.P.Ed. qualification. 2) The fact in brief in this case is that, the petitioner was appointed in the school on August 1, 2001 after being recommended for appointment by School Service Commission. At the time of appointment, the petitioner was qualified with B.Com, B.P.Ed degrees. At the time of his appointment, the petitioner was a regular student of M.P.Ed. Part-II in Kalyani University and without hampering classes, he completed M.P.Ed. degree. He was allowed study leave with full pay for appearing in M.P.Ed examination by the West Bengal Board of Secondary Education. After being qualified in M.P.Ed. degree, the petitioner has sought for higher pay scale to be granted to him, in terms of Government Notification No. 417-SE(B) dated July 8, 2000 (in short, Notification No. 417) 3) According to the petitioner, he would be eligible for the post-graduate scale of pay with effect from the date following the last date of his examination that is, from July 9, 2003. 4) On the factual backdrop of the case as mentioned above, the Director of School Education (Now, Commissioner of School Education), West Bengal in his order dated July 27, 2006 has held inter alia that the petitioner was appointed, being recommended by the Regional School Service Commission (Southern Region) as a Pass Graduate degree holder in Physical Education subject. Admittedly however, the petitioner obtained M.P.Ed degree from Kalyani University in the year 2003 as a regular candidate and that the Managing Committee of the School as well as Board has granted him study leave for appearing in the final examinations. The said respondent has questioned as to how the petitioner could attend a regular course of study in M.P.Ed degree course. The said respondent has also noted that in terms of Government Notification No. 155-SE(B) dated July 13, 1999 (in short, Notification No. 155), the petitioner would not be entitled for higher scale but only for the pay scale as per his qualification mentioned by the School Service Commission in the letter of recommendation. The said respondent has also noted that in terms of Government Notification No. 155-SE(B) dated July 13, 1999 (in short, Notification No. 155), the petitioner would not be entitled for higher scale but only for the pay scale as per his qualification mentioned by the School Service Commission in the letter of recommendation. According to the said respondent, the said provision under Notification No. 155 would be squarely applicable in case of the petitioner as his appointment has been in a pass graduate category post and that he would only be entitled for the Graduate pay scale, which is the qualification of him mentioned in the recommendation letter, issued by the Commission. 5) In the impugned order as above, the respondent/Director of School Education (Now, Commissioner of School Education), West Bengal has also mentioned a judgment of this Court dated July 4, 2006 in W.P. No. 391(W) of 2006. He says that, in terms of the verdict of the Court as above, that pursuant to provisions under Sections 14, 16 and 20 of the West Bengal Schools (Control of Expenditure) Act, 2005, a teacher is not entitled to claim benefit of additional increment or higher scale of pay on acquiring any qualification other than the qualification specified for the post, the petitioner would not be entitled to the benefit he has claimed for. Also that, according to the said respondent, as mentioned in the impugned order, the provision under Notification No. 417 is not applicable in his case since he has been appointed through the School Service Commission. 6) Mr. Biswas has represented the petitioner in this case. According to Mr. Biswas, the points involved in the instant case are no more res integra. He mentions that this Court in the following cases has conclusively decided the dispute involved in the instant case. He has referred to the following judgments. (i) Baishali Banerjee Vs. State of West Bengal reported in 2008 2 Cal LT 590 (ii) Kalyan Kumar Ghosh Vs. State & Ors. , order dated 30.7.2013 in W.P. No. 20835(W) of 2013 (iii) Pradip Haldar Vs. The State of West Bengal & Ors. order dated 26.06.2024 in WPA 23393/2017. (iv) Utpal Kanti Karan Vs. State of West Bengal, AIR Online 2024 CAL 122. (v) Dhananjay Sardar Vs. The State of West Bengal & Ors. order dated 20.09.2024 in WPA 23788 of 2017 7) Mr. The State of West Bengal & Ors. order dated 26.06.2024 in WPA 23393/2017. (iv) Utpal Kanti Karan Vs. State of West Bengal, AIR Online 2024 CAL 122. (v) Dhananjay Sardar Vs. The State of West Bengal & Ors. order dated 20.09.2024 in WPA 23788 of 2017 7) Mr. Biswas has submitted that for the subject Physical Education, there would not be any post for Master’s degree category of teachers. He says that the Courts have time and again held that on this plea, the incentive payable to a person acquiring higher qualification cannot be denied. He says further on the basis of Notification No. 417 that according to the same, the benefit of higher pay scale is admissible to the Physical Education teachers who have obtained the higher degree on completion of two years’ regular course from a recognized university. Mr. Biswas has indicated that the criteria mentioned in Notification No. 417 has been duly fulfilled by the instant petitioner. 8) So far as the impugned order is concerned, Mr. Biswas says that the grounds taken by the respondent/Director of School Education (Now, Commissioner of School Education), West Bengal in the said impugned order would not be tenable in the eye of law, particularly, in view of the ratio decided by the Courts in the judgments as mentioned above. He has also referred to the recent Larger Bench judgment of this court in the case of Utpal Kanti Karan (Supra) in support of his case. 9) Therefore, Mr. Biswas has sought for an order allowing the present writ petition and granting relief as prayed for by the petitioner. 10) Mr. Biswas has also referred to the decision of the Hon’ble Supreme Court in Government of India and Others Vs. B. Anil Kumar and Others reported in 2010 6 SCC 419 in support of his contention that in view of the gross illegality in the impugned order passed by the respondent/Director of School Education (Now, Commissioner of School Education) dated July 27, 2006 the Court by way of a Writ of Mandamus, can itself grant the relief and need not direct the respondents for reconsideration of the prayer of the writ petitioner. 11) The contentions and prayer of the petitioner has been objected to by the respondent/State. It is submitted that the law would not permit the petitioner to be granted with the higher pay scale. 11) The contentions and prayer of the petitioner has been objected to by the respondent/State. It is submitted that the law would not permit the petitioner to be granted with the higher pay scale. It is submitted further that similar has been held by the Hon’ble Larger Bench of this Court in the case of Utpal Kanti Karan (Supra) that enhancement of pay on acquisition of higher qualification during the service career, would be dependent upon the relevant Rules operating at the time of acquisition of higher qualification and cannot be claimed as a matter of right in absence of Rules. According to the respondent, the petitioner would be governed under Notification No. 155 and the other Notification No. 417 would have not manner of application in his case. In all respects, therefore, according to the respondent, the petitioner would not be entitled to any relief as prayed for in this case. 12) The following paragraphs in the judgment of Baishali Banerjee (Supra) may be beneficially quoted as hereinbelow, before further discussing the matter on merit:- “ 8. The case in hand is, however, having a salient feature. The appellant is a Physical Education teacher. There is no honours course taught by any of the Universities in the State. Hence there could be no such category in the School Service Commission in the concerned subject. We also do not find any such distinction being made in Physical Education by the School Service Commission. Hence all candidates who are having appropriate qualification in Physical Education are considered in one category i.e. pass category. If that be the position their subsequent acquisition of post graduate qualification cannot be equated with any other subject. 9. In the instant case the appellant undertook post graduate study. She appeared in the post graduate examination. Before the result could be published she was selected and appointed in the post. In the case of Bhaskar Chakraborty (supra) the identical situation happened. Hence in our view, the appellant was entitled to the benefit of the higher pay scale.” 13) The salient features discussed in the said case are also noticeable in the factual background of the present case. The petitioner being a Physical Education teacher, has been inducted in service as a pass graduate qualified person, since no Honours course is taught by any of the universities in the State. The petitioner being a Physical Education teacher, has been inducted in service as a pass graduate qualified person, since no Honours course is taught by any of the universities in the State. Hence, there has not been any category in the School Service Commission, in the concerned subject. So far as the subject Physical Education is concerned, no distinction is made as regards the candidates on the basis of their respective qualifications but all the candidate of the subject Physical Education are considered to be in one category only, that is, pass category. The Court has held that subsequent acquisition of post graduate qualification of a Physical Education teacher could not be equated with any other subject. In such view of the fact, the decision of the Hon’ble Division Bench as above, in Baishali Banerjee’s case would be binding in the present case that the petitioner is entitled to the benefit of higher pay scale, pursuant to his higher qualification. 14) On the discussion as above, the finding of the respondent that being a pass degree holder in Physical Education, and being recommended for appointment in that category, the petitioner would not be eligible for grant of higher pay scale, does not hold good ground. 15) In the said impugned order dated July 27, 2006, the Director of School Education, West Bengal (Now, Commissioner of School Education) has relied on a judgment of this Court dated April 4, 2006 in W.P. No. 391(W) of 2006. In the same, the court has found the provisions of West Bengal Schools (Control of Expenditure) Act, 2005 to be applicable there. The provisions thereof have been relied on by the Court in the said judgment and also by the respondent/Director of School Education in his impugned order dated July 27, 2006. The Court however, finds that to be a misplaced reliance by the said respondent in so far as considering the date of the petitioner obtaining higher qualification that is in the year 2003, it is found that provisions of the Act of 2005 would not be applicable in case of the writ petitioner in any manner whatsoever. Admittedly, the said law has no retrospective application and should be applied only prospectively. Admittedly, the said law has no retrospective application and should be applied only prospectively. The petitioner, having been inducted in service and concluded his higher qualification much prior to the date of promulgation of the said Act of 2005, would not be covered under the provisions of the Act. In the case of Kalyan Kumar Ghosh (Supra) , the court has held: “** ** ** So far as the point of law is concerned, it is not in dispute that the West Bengal Schools (Control of Expenditure) Act, 2005 came into force from December 26, 2005. Therefore, this is an admitted position that the above Act having no retrospective effect, it had no manner of application so far as the claim of the petitioner was concerned. The petitioner obtained the above degree prior to the promulgation of the above Act. In view of the above, the decision making process of the respondent No. 3 cannot be sustained in law and the same is quashed and set aside.” 16) Similarly, in the case of Pradip Haldar (Supra), the finding of the Court has been recorded regarding no retrospective operation of the Act of 2005. Hence, considering the settled law as mentioned above and the finding of the respondent in the impugned order dated July 27, 2006, it is directed that reference of 2005 Act or any judgment related therewith by the said respondent in the impugned order or reliance thereof, is not maintainable in the eye of law. That, in case of the present petitioner, the Act of 2005, cannot be made applicable. 17) The settled law, particularly that after the Full Bench decision of this Court in the case of Utpal Kanti Karan (Supra) is that the relevant Rule, existent on the date of the petitioner’s obtaining higher qualification is to be considered. That way, the relevant date is July 8, 2003, which is the last date of M.P.Ed. Part-II examination of the petitioner. For this reason, the Court finds no difficulty in applying the amended provision under Notification No. 417 in case of the petitioner that the benefit of higher scale of pay is admissible to those Physical Education teachers who have obtained such degree on completion of two years regular course from a recognized university. Part-II examination of the petitioner. For this reason, the Court finds no difficulty in applying the amended provision under Notification No. 417 in case of the petitioner that the benefit of higher scale of pay is admissible to those Physical Education teachers who have obtained such degree on completion of two years regular course from a recognized university. The Notification No. 417 is in modification of the earlier Notification No. 795-Edn.(S) dated November 22, 1993 which speaks as follows: “ Sub: Higher Scale of Pay to the teachers of Physical Education. ** ** ** ** In this Department Memo No. 372-Edn.(B) dated the 31 st July, 1981 read with Memo No. 33-Edn.(B) dated the 7 th 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 recognized 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.” 18) According to the respondent, as also mentioned in the impugned order as above, since the petitioner has been appointed on recommendation by the School Service Commission, the provisions of Notification No. 417 would not be applicable in his case. Such finding of the respondent is however, based on erroneous consideration of the provisions thereunder, in so far as the language employed in the notifications mentioned above is only inclusive and does not exclude the teachers appointed on recommendation of the School Service Commission. There is no express bar or categorization to that effect vide the Notification No. 795 or 417 respectively. 19) The Court finds that the Notification No. 795 and 417 are applicable in case of the writ petitioner and he is eligible for the benefit granted thereunder to be extended to him. There is no express bar or categorization to that effect vide the Notification No. 795 or 417 respectively. 19) The Court finds that the Notification No. 795 and 417 are applicable in case of the writ petitioner and he is eligible for the benefit granted thereunder to be extended to him. 20) Also on consideration of the said relevant date that is, date of qualification of the writ petitioner, it appears that the petitioner would be covered under ROPA 1999 vide Memo dated February 12, 1999 (Memo No.- 25-SE(B)/IM-102/98) Clause 12(3) thereof may be beneficially quoted as hereinbelow: “(3) All teachers inc luding Physical Education Teachers and Librarians of Secondary Schools who have improved/will improve their qualifications who were appointed with higher qualification in the subjects or groups relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications, with effect from the 1 st January, 1996 or the date of improving qualifications, whichever is latter.” 21) One can see that the relevant ROPA Rules, 1999 is applicable in case of the writ petitioner in accordance with the date of his higher qualification also is inclusive in nature, to include the Physical Education teachers to be eligible for being paid higher scale of pay, appropriate to their qualification. In such circumstances and in view of the ratio decided by the Hon’ble Larger Bench in the judgment of Utpal Kanti Karan (Supra) , the Court has not hesitation to hold that as on the relevant date, the prevalent Rule that is, ROPA 1999 would permit the petitioner as a Physical Education teacher and having enhanced his qualification, to be eligible to be granted with the appropriate higher scale of pay. 22) Therefore, on all the scores as discussed above, the impugned order of the Director of School Education dated July 27, 2006 appears to have suffered with erroneous consideration of the facts and the legal perspective on the basis of those facts in the instant case. Therefore, the findings and the decision recorded by the said respondent are not maintainable in the eye of law. Thus, the impugned order suffers from gross impropriety and illegality as well. The same is liable to be set aside. Therefore, the findings and the decision recorded by the said respondent are not maintainable in the eye of law. Thus, the impugned order suffers from gross impropriety and illegality as well. The same is liable to be set aside. 23) At this juncture, the Court is also guided by the ratio of the judgment of the Supreme Court in the case of B. Anil Kumar (Supra) that in case of palpable illegality in the impugned order, the Court may issue Writ of Mandamus, directing the respondent to comply with the provisions of law in strict terms, without relegating the matter to the respondent again for a fresh decision. 24) Hence, this writ petition No. WPA 25229 of 2013 is allowed with the following directions:- i) The impugned order of the Director of School Education dated July 27, 2006 is set aside. ii) The petitioner is eligible for higher pay scale, pursuant to his M.P.Ed qualification and with effect from the following date of the last date of his M.P.Ed Part-II examination that is, with effect from July 9, 2003. iii) The respondent No. 3 is directed for immediate refixation of the pay scale of the writ petitioner according to the post- graduate scale of pay, maximum within a period of three (03) weeks from the date of communication of copy of this judgment. iv) The arrear salary shall be paid to the petitioner within two months from the date of communication of copy of this judgment. 25) WPA No. WPA 25229 of 2013 is disposed of. 26) Since no affidavit-in-opposition has been called for in the case, the allegations in the writ petition are deemed to have denied by the respondents. 27) Urgent certified website copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.