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2025 DAILYLAW 3202 (CAL)

Al-Khatib Shaikh v. State of West Bengal

2025-05-14

Rai Chattopadhyay

body2025
JUDGMENT : RAI CHATTOPADHYAY, J. 1. This writ petition relates to the petitioner’s prayer for grant of 5 per cent increment of salary and extension of his service till his 60 years of age, in terms of various Government notifications, starting from the dated April 23, 2010. 2. The notification dated April 23, 2010 has provided for enhancement of honorarium for the Para Teachers and Voluntary Resource Persons (VPR), working in different Primary/Upper Primary Schools, Siksha Bandhus and special educators working at different levels under Sarba Siksha Abhijan (SSA). The same has provided for enhancement of consolidated remuneration of the said category of contractual employees. The same has also provided that existing Para Teachers and those re-engaged in due course, shall be employed till their attaining 60 years of age. Also that, upon attaining 60 years of age, the Para Teachers or other contractual employees as mentioned in the said notification would be paid an ex-gratia retirement honorarium to the tune of Rs. 1 lakh on lump sum basis. The said notification came into force with effect from June 1, 2010. 3. The petitioner is a Para Teacher who joined in the School on December 1, 2012 in compliance with the order of this Hon’ble Court in W.P. No. 8542 (W) of 2010, has been continuously working therein, till the time of filing of the present writ petition. In fact, the present is the third round of litigation by the petitioner, before this Court. Here, the petitioner has challenged an order of the State Project Director, Paschim Banga Sarva Shiksha Mission (PBSSM) dated June 8, 2020 by dint of which, the said Authority has declined to grant the petitioner the benefit of 5 per cent increment in ad hoc monthly payment as a Para Teacher and also extension of service up to her 60 years of age. In the impugned order, the said respondent authority has cited the reasons inter alia as follows:- Extension of service of Para Teacher upon 60 years of age was to be granted in terms of G.O. 376-SE (Pry) dated June 9, 2010, only to those who were on the pay roll of the PBSSM as on the said date. In the impugned order, the said respondent authority has cited the reasons inter alia as follows:- Extension of service of Para Teacher upon 60 years of age was to be granted in terms of G.O. 376-SE (Pry) dated June 9, 2010, only to those who were on the pay roll of the PBSSM as on the said date. Since the petitioner has admittedly joined on duty from December 1, 2012 and was not therefore, on the pay roll of PBSSM on June 9, 2010, the provision thereunder could not be made applicable in case of the writ petitioner. 5 per cent enhancement in pay cannot be granted to the petitioner since the notification dated July 30, 2013, which has provided for such benefit, has also stipulated that the benefit would be applicable in case of those personnel who were on the role as on June 1, 2010 and have completed three years of service as on June 1, 2013. It is stated that the petitioner has not satisfied this criteria. Similarly, the notification dated July 19, 2016 has provided for the benefit of service of the Para Teachers to be extendable to 60 years of his age, would be applicable in case of those persons who were on the role on June 1, 2010 and has completed three years’ service as on June 1, 2016 after completion of first three years’ service on June 1, 2013, counting from June 1, 2010). That the petitioner would be squarely governed under the provisions of notifications dated April 23, 2010, June 9, 2010, July 30, 2013 and July 19, 2016 respectively. 4. Therefore, citing the reasons as above that on the date of notification that is, on June 19, 2010, the petitioner was not on the pay roll of Paschim Banga Sarva Shiksha Mission, and thus would not be eligible for benefit as per the same, no such benefit was extended to the writ petitioner. 5. Mr. Biswas for the petitioner is in complete defiance of what the respondent authority has stated in the impugned order. He says that the petitioner has been working since December 1, 2012 as a Para Teacher at Hatishala High School, Nadia. It is submitted that since thereafter, the petitioner has been working uninterruptedly and continuously in the said School in the said capacity. He says that the petitioner has been working since December 1, 2012 as a Para Teacher at Hatishala High School, Nadia. It is submitted that since thereafter, the petitioner has been working uninterruptedly and continuously in the said School in the said capacity. The first round of writ petition by the present petitioner after his appointment was in the year 2017. The Court by dint of the order dated September 8, 2017 and following the decision of the Hon’ble Division Bench in the judgment of The State Project Director, Paschim Banga Sarva Shiksha Mission Vs. Smt. Arpita Das and Others reported in ( 2017) 2 Cal LJ 556 , has held that the petitioner is entitled that her application for enrolment for two years D.El.Ed course (ODL Mode) for Para Teachers (in service session 2015- 17) be considered in terms of the Circular dated December 29, 2015. 6. Thereafter, for enhancement of honorarium the writ petitioner filed another case being W.P. No. 23125 (W) of 2019. Vide order dated December 24, 2019, the Court has directed for consideration of the petitioner’s prayer for enhancement of honorarium. 7. The order impugned by the State Project Director, Paschim Banga Sarva Shiksha Mission dated June 8, 2020 is the resultant order as per direction of the Court as above. Mr. Biswas has further stated that after being selected in the year 2007, the petitioner was not appointed but had to wait for the inordinate long period of time, due to the negligence and inaction on the part of the respondent Authority. The delay on the part of the Authority should not adversely affect the petitioner’s rights which otherwise has accrued in terms of the notifications dated April 23, 2010, June 9, 2010. In this regard Mr. Biswas refers to a Judgment of this Court in the case of The State Project Director, Paschim Banga Sarva Siksha Mission Vs. Smt. Arpita Das and Others reported in ( 2017) 2 Cal LJ 556 . The Court in the said case has held that in view of the unconditional benefit granted to an eligible person in terms of the notification, the respondent would not be allowed to impose any extraneous criteria or condition excepting anything as provided in the said notification itself, to restrain the writ petitioner to be benefitted under the provisions thereof. Mr. The Court in the said case has held that in view of the unconditional benefit granted to an eligible person in terms of the notification, the respondent would not be allowed to impose any extraneous criteria or condition excepting anything as provided in the said notification itself, to restrain the writ petitioner to be benefitted under the provisions thereof. Mr. Biswas has further referred to the judgment of the Hon’ble Co- ordinate Bench dated 28 th March, 2023 in WPA 8287 of 2022 [ Sarmistha Rana Vs. The State of W.B. Ors. ] . There, in case of the petitioner, who was appointed post June 9, 2010 that is, the date of the notification mentioned by the respondent in the impugned order as the necessary cut off date, has been extended the benefit under the said notification. For the similar reason, Mr. Biswas has referred to the order of the Hon’ble Division Bench of this Court dated January 13, 2021 in MAT 710 of 2020 [ The State of West Bengal and Ors. Vs. Murshid Alam Ors. ] . For the reasons as above, Mr. Biswas seeks that the petitioner’s prayer in this writ petition may be allowed, by setting aside the impugned order dated June 8, 2020. 8. Mr. Supriya Chattopadhyay, learned AGP has represented the Paschim Banga Sarva Shiksha Mission that is, respondent nos. 3, 4 and 5. He says that before filing the instant writ petition, the petitioner has never prayed for extension of his service up to the age of 60 years in terms of notification dated June 9, 2010. That being so, the prayer of the petitioner is a belated one. Secondly, in the previous rounds of writ petition, the petitioner has not espoused this ground and prayer, in spite of there being opportunity for him to espouse the same before the Court in those writ petitions. By this way, the petitioner has waived his rights to agitate the said point here in this writ petition. Mr. Supriya Chattopadhyay has submitted that since after coming into force of the notification dated June 9, 2010, any fresh recruitment in the category of Para Teacher has been eliminated. By this way, the petitioner has waived his rights to agitate the said point here in this writ petition. Mr. Supriya Chattopadhyay has submitted that since after coming into force of the notification dated June 9, 2010, any fresh recruitment in the category of Para Teacher has been eliminated. That has been done in tune of the provisions of the Right Of Children To Free And Compulsory Education Act , 2009 (in short RTE Act) which has provided for appointment of permanent and regular teachers only for imparting education in a school. Therefore, the petitioner, to be benefitted under the Government notification dated June 9, 2010 should have to be on the pay roll as the Upper Primary Para Teacher, on the said cut off date. In the present case, the petitioner not being so and not even having prayed for continuation of his service till 60 years of age, has not been considered by the respondent authority to be eligible for the benefit under the said notification and that there is no error in such finding of the respondent in the impugned order dated June 8, 2020. 9. In reply to such submission on behalf of the respondent authority, Mr. Biswas has firstly pointed out to the relevant documents in the writ petition that since after joining and starting with a letter dated February 27, 2014, the petitioner has submitted innumerable representations before the respondent authorities to be granted with the benefit under the notification as mentioned above. All his prayers have gone in vain since due to negligence, the respondent has failed to consider any of his representations. Mr. Biswas in reply, has also referred to a Division Bench judgment of this Court in FMA No. 728 of 2023 [State Projects Director, Paschim Banga Sarva Shiksha Mission Vs. Krishnendu Biswas & Ors.] by dint of which, the Court has extended the benefit under the notification as above, even after promulgation of the RTE Act, 2009. 10. Admittedly, the writ petitioner is an appointee as the Para Teacher of the School who has joined in service on and from December 1, 2012. Admittedly, the writ petitioner has been in continuous service in the school since from thereafter. Admittedly also, that the petitioner was empanelled in the year 2007 though not as the first empanelled candidate. 10. Admittedly, the writ petitioner is an appointee as the Para Teacher of the School who has joined in service on and from December 1, 2012. Admittedly, the writ petitioner has been in continuous service in the school since from thereafter. Admittedly also, that the petitioner was empanelled in the year 2007 though not as the first empanelled candidate. In 2007 itself, during the validity period of the panel, the first incumbent resigned from service. Therefore, according to the Rules and the notification, the petitioner being the next empanelled candidate, was to be immediately picked up from the panel and appointed as against the vacancy, since the panel was still alive. That has not been done by the respondent authority. In the course, the validity period of the panel has expired after completion of the specified period. Later on the petitioner filed a writ petition being W.P. No. 8542 (W) of 2010 and in the same, the Court has directed vide order dated September 13, 2012, that the writ petitioner should be engaged as a Para Teacher, by the District Project Officer, Sarba Siksha Abhijan, Nadia. Pursuant to the said order, the petitioner was appointed with effect from December 1, 2012. 11. Therefore, the fact as above, having not been disputed in this case, it can well be construed that the delay in appointment of the writ petitioner cannot be made attributable to the petitioner himself but it should be considered to be of the respondent authorities, who in spite of there being a vacancy due to resignation of the first empanelled candidate, within the validity period of the panel, has never cared to fill up the post from the said panel itself, within such period till it remains valid. As a matter of fact, the petitioner has been appointed on December 1, 2012, pursuant to the Court’s order and thus his eligibility to the benefits allowable to the appointees in due course cannot be overlooked. The Court also finds that in the cases as referred to on behalf of the writ petitioner, the Court has dealt with the issue with similar perspective. The persons who have been appointed as Para Teachers beyond the date of the notification dated June 9, 2010 have been granted the benefit thereunder, considering the fact that delay in appointment may not be attributable to any latches on part of the writ petitioner. The persons who have been appointed as Para Teachers beyond the date of the notification dated June 9, 2010 have been granted the benefit thereunder, considering the fact that delay in appointment may not be attributable to any latches on part of the writ petitioner. The writ petitioner having been appointed by virtue of the Court’s order, his appointment should relate back to the date of arising of vacancy, for the purpose of applicability of the provisions under the Government notification dated June 9, 2010. This aspect and the orders of the Court as above, have not been taken into consideration by the respondent/State Project Director in his order dated June 8, 2020. The finding therein as mentioned above, has been therefore mechanical and without application of mind. Such finding appears to be irrational and not backed with the settled principles of law. 12. On the discussion as above, the Court finds that the petitioner would therefore be eligible to be covered under the notification dated June 9, 2010 and be granted with the benefit of 5 per cent increment as well as extension of service up to his 60 years of age. Treating the petitioner in any other manner, may result into violation of the petitioner’s valuable Constitutional right of equality, as persons similarly circumstanced have already been granted with similar benefit. 13. On the finding as above, the Court is inclined to allow the instant writ petition with the following directions:- i) The impugned order of the State Project Director, Paschim Banga Sarva Shiksha Mission dated June 8, 2020 be set aside. ii) The writ petitioner be immediately granted the benefit of 5 per cent increment of salary with effect from the date of his appointment. iii) The arrear should be paid to the writ petitioner within three months from the date of communication of copy of this order. iv) The writ petitioner be extended with the benefit of continuation of service up to his age of 60 years and other benefits in terms of G.O. dated June 9, 2010. 14. Urgent certified website copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.