Court No. 236 02.05.2025 (Item No. 1) S. H(P.A) WPA 440 of 2023 Sanjib Mukhopadhyay Vs. The State of West Bengal & Ors. Mr. Anjan Bhattacharya Ms. Anita Shaw Ms. Salma Sultana … for the petitioner Mr. Supriyo Chattopadhyay Mr. Suman Dey … for the State 1. The petitioner in this writ petition has challenged the reasoned order dated 22.12.2021 being no. 1293-SE (Law) SL/5S-364/21 passed by the Principal Secretary School Education Department being the respondent No. 2 herein. The petitioner also prays for allowing post-graduate scale of pay starting from October 2018 as the same was withdrawn by the respondent authority. 2. Apropo the facts of the case, the petitioner was appointed as an Assistant Teacher in Computer Science (PG) in terms of an appointment letter issued by the Dihibagnan K.B. Roy (H.S) School by the order of the District Inspector (S.E.), Hooghly 5.5.25. The appointment of the petitioner was approved for the first time on the said date. The petitioner sought for transfer to Gurbari M.B.A.C. High School, Chopa, Gurap and was ultimately 2 transferred to the said school. Thereafter, by an order dated 09.01.2014 issued by the office of the District Inspector, Hooghly the appointment of the petitioner was approved to Gurbari M.B.A.C. High School with effect from 18.12.2013. Lastly, the petitioner was transferred to Kanchnnagar D.N. Das High School (H.S.) at Kanchannagar, Bardhaman and his appointment in the said school was finally approved in terms of the order dated 11.10.2018 with effect from 25.09.2018. 3. Pursuant to a notification dated 16.02.2016, issued by the West Bengal Central School Service Commission (hereinafter referred to as the Commission) a public notice was also issued on 29.09.2016 by the Commission, the petitioner appeared for the first SLST (State Level Selection Test) for Upper Primary, Class IX & X and Class XI & XII. The advertisement was regarding the teachers who are enjoying the same scale of pay and are in service being an Assistant Teacher, working in school. Pursuant to such advertisement, the petitioner appeared in the Selection Test and was selected and thereafter transferred to the present school at Kanchannagar D.N. Das High School. 4. The notification under reference dated 16.02.2016 issued by the said Commission prescribed the age limit upto 55 years as on 01.01.2016, for approved 3 teaching and non teaching staff to participate in the selection process for SLST-2016. The said notification was amended vide order dated 29.09.2016 in terms of an order dated 28.09.2016 passed by this Hon’ble High Court in the case of WP No. 23706 (Prosenjit Mistry & Ors vs. State of West Bengal and Ors) directing inter alia, that in-service Assistant Teachers who were enjoying same scale pay were eligible for applying in the said examination. It is pertinent to mention that the other contents of the previous notification issued on 23.09.2019 followed by 24.09.2016 remained unchanged. 5. The petitioner enjoyed the pay protection of Rs. 24,210/- on 30.06.2016 but subsequently the same was curtailed to Rs.15,960/- after joining the present school on 25.09.2018. The said issue was taken up before the respondent No. 2 by way of a representation dated 08.08.2019. The same representation was not considered by the respondent No. 2 as a result of which the petitioner was compelled to a writ petition before this Hon’ble Court for assailing the non consideration of the representation with regard to grant of pay protection. After hearing the rival contention of the parties this Hon’ble High Court was pleased to pass an order dated 20.9.2021 directing inter alia, the 4 respondent No. 2 to consider the representation and pass a reasoned order. In compliance of such direction the respondent No. 2 passed a reasoned order which is the subject matter of challenge in the instant writ petition before this Hon’ble High Court. 6. Against the backdrop of the present case the issue involves herein are as follows: i. Whether the respondent No. 2 has considered the case of the petitioner in the light of the circulars including circulars dated 01.08.2019 relating to the pay protection to the teacher who joined the new post in different school. ii. Whether the reasoned order passed by the principal secretary of the School Education in the light of the case of Prosenjit Mistry & Ors vs. The State of West Bengal in WP 2370 of 2016 is at all applicable in the instant case. 7. The learned advocate for the petitioner submits that the order of respondent No. 2 had mentioned a notification dated 01.08.2019 by which conditions have been imposed for pay protection of the teachers who have applied within the Principal age limit (40) years subject to relaxation for SC/ST/OBC/PWD candidates as on 1st January of the year of advertisement and are eligible to get last pay drawn protected in terms of the provisions laid down in para 2(a) of Memo No. 269 SE (Pry) dt 16.04.1996 of 5 the concerned Department but the respondent No. 2 did not consider the conditions laid down in para 2(a) of the provisions under reference which is reproduced hereunder: “It was further submitted that by virtue of the Memo No. 269 SE (Pry) dt 16.04.1996 when the new post does not carry duties and responsibilities of greater importance, the pay shall be fixed at the stage of the time scale which is equal to his/her in the old post, or if there is no such stage, at the stage next below the existing pay in the former post plus personal pay, equal to the difference between the old play and the pay now allowed, to be absorbed in subsequent increases in pay in the new post.” 8. It was further submitted that on 30.06.2016 the petitioner enjoyed the pay protection of Rs. 24,210/- which was subsequently curtailed to Rs. 15,960/- after joining the present school on 25.09.2018. It was further submitted that the since the petitioner appeared for the SLST exam as per the order of the Hon’ble High court in the year 2016, therefore any notification or order of 2019 cannot have any effect on the pay protection of the petitioner. 9. Since the transfer of the petitioner was made by the said Commission in pursuance of an order of this 6 Hon’ble High Court therefore, the petitioners cannot be at fault and held liable for the financial loss accrued to him month wise. The petitioner was allowed by the Commission to participate in the selection process and ultimately when selected, he was allowed to join the new post. Therefore the petitioner cannot be said to be deprived of the financial benefit which he is entitled to, pursuant to the order passed on 16.04.1996. In pursuance of such selection process for the post of Head Master was conducted by the school Service Commission the petitioner was first selected for such post on lien basis w.e.f 25.07.2019 subsequent thereto became permanent w.e.f 11.07.2020. 10. Per contra, the counsel for the respondent strenuously argued and submitted that there is no such illegality in the reasoned order dated 22.12.2021 and the same was passed by the Respondent No. 2 in consonance with the G.O being no. 914-SE/S/5P-03/19 dated 1/8/2019. It is further submitted that initially the petitioner was not allowed to apply due to over age subsequently as per the protection given in the case of Porsenjit Mistry (supra) the commission issued further notification by allowing such applicants to apply for the same category of the post. Although the writ petitioner of the instant case was not a party to the 7 proceeding but enjoyed the benefit of the interim order passed in the case of Prosenjit Mistry (supra). The respondent further drew the attention of the court on the operative portion of the said case wherein it was categorically held that “It is made clear that filing of the application, participation in the selection process and every step taken in the selection process by both the parties will strictly without prejudice to the rights and contention of the parties to the writ petition. None of the petitioners or any person similarly situated and circumstanced as that of the petitioner participating in the selection process will be entitled to any claim and right or equity in their favour by virtue of this order.” 11. On such conspectus of the case I am of the considered view that the respondent No. 2 has passed an order without considering the relevant circulars including circular dated 01.08.2019 being 914-SE /S/5P-03/19 and also the circular dated 16.04.1996 being memo no. 269 SE (Pry) SE (Law) SL/5S-364/21 relating to the grant of pay protection to teachers who shall join in new course in different schools. The respondent No. 2 arrived at a finding that as per the interim order dated 28.09.2016 of the Hon’ble High Court in the matter of Prosenjit Mistry and Ors. (supra), the subsequent appointment of the petitioner beyond the age of 40 8 years in compliance of the said interim order does not create any right to get protection as the issue of the validity of their candidature in their respective post still pending adjudication before the Hon’ble High Court, and accordingly rejected the prayer of the petitioner for allowing the pay protection. The order of the respondent No. 2 is palpably on a wrong matrix since the facts of the case of Prosenjit Mistry & Ors. (supra) relied upon is different from the present facts of the case. The issue encompassing in Prosenjit Mistry (supra) case pertains to participation in the selection process and has categorically observed by the coordinate bench that every step taken in the selection process by both the parties will be strictly without prejudice to the rights and contentions of the parties to the writ petition and none of the petitioner or any person similarly situated and circumstanced as that of the petitioner participating in the selection process will be entitled to claim any right or equity in their favour by virtue of the said order. On the contrary, the main relief sought for by the petitioner in the instant case is with regard to the pay protection which the petitioner enjoyed since 30.06.2016. Without considering and adhering to the conditions laid down in para 2(a) of the memo dated 16.04.1996. the respondent No. 2 has rejected the prayer of pay 9 protection under a wrong premise and is therefore set aside directing inter alia, the Respondent No.2 to revisit the issue of the pay protection in the light of the para 2 (a) of the petitioner since the petitioner appeared for the SLST exam pursuant to the order of this Hon’ble High Court in the year 2016 and take a fresh decision by passing a reasoned order upon affording an opportunity of hearing to the parties within a period of 3 weeks from date of the communication of the order and shall also communicate the same to the parties accordingly. Although, the Hon’ble Supreme Court Judgment being in Civil Appeal arising out of SLP (C) No. 9586 of 2024 & Ors. (STATE OF WEST BENGAL –VERSUS BAISHAKHI BHATTACHARYYA (CHATTERJEE) AND OTHERS) has been cited by the Respondent much after the conclusion of the hearing yet, for interest of justice I have considered the said judgment where issue of pay protection was not at all considered and discussed, rather considered the issue on Selection Process, which is not germane in the instant case. Hence I direct the Respondent No. 2 to consider the applicability of the issue of the petitioners in the light of the fact and circumstances mentioned hereinabove. 12. Upon considering the relevant circulars under reference if the petitioner is entitled to get the benefit 10 of the pay protection then such effect shall be given to the petitioner forthwith in accordance with law. 13. With the above observations and directions, the writ petition being WPA 440 of 2022 stands disposed of. No order as to costs. 14. Urgent certified website copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Smita Das De, J.)