Constitutional Writ Jurisdiction v. The State of West Bengal & Ors.

Previously the writ petition was also called on when none appeared for the respondents.

2. The report of the registry dated December 5, 2017 suggests that, despite there being a direction for filing affidavit dated August 18, 2017, no affidavit-in-opposition has been filed.

3. Mr. Kamalesh Bhattacharya, learned counsel for the petitioner today places a notice dated May 3, 2024 served upon Mr. Raja Ram Banerjee, the 2 learned advocate appearing for the State respondents, the same is taken on record.

4. At the outset the learned State counsel Mr. Jayanta Samanta prays for an extension to file affidavit-in-opposition which was directed to be filed in

2017. Considering the facts and issues involved in this writ petition such prayer for extension of time to file affidavit-in-opposition stands rejected.

5. Further considering the issue involved in the writ petition and the long pendency thereof, this Court is of the view that, there is no requirement to call upon the respondents to file affidavit-in-opposition and this writ petition can be disposed of on the basis of the existing record and this Court proceeds accordingly.

6. By virtue of a recommendation dated April 19, 2005, Annexure P-1 at page 23 to the writ petition the petitioner received appointment as an Assistant Teacher for the subject Physics at Bat-Tali Banga- Bharati Vidyayatan, a Higher Secondary School, District – 24-Parganas (South) (for short, the school). The appointment of the petitioner was in Hons/ P.G. Category. The petitioner received approval of his service on June 17, 2005, Annexure P-3 at page 26 to the writ petition. The petitioner at the relevant point of time joined with his Graduation in Physics (Hons). Physics is the relevant subject. The petitioner then on August 23, 2005 applied before the Managing Committee of the School for granting permission to undergo distance education for M.Sc (Physics) to enhance his qualification. The Managing Committee by its resolution dated November 16, 2005, Annexure 3 P-5 at page 28 to the writ petition, acceded to the request of the petitioner and approved the same.

7. The Managing Committee adopted the resolution, inter alia, by granting permission to the petitioner to undergo for M.Sc. (Physics). On December 17, 2005 the Managing Committee of the School by its forwarding letter sent the records to the respondent No. 3 to obtain Prior Permission. The respondent No. 3 received the said communication on December 19, 2005. Since then the respondent No. 3 did not pay any heed to the said request made by the Managing Committee of the petitioner.

8. Awaiting such permission the petitioner completed his M.Sc. Part-I in December 2007 and Part-II in June 2009. The certificate issued by the concerned University showing that the petitioner has qualified M.Sc (Physics), Part - II is made part of Annexure P-6 at page 35 to the writ petition and finally the University issued the certificate showing that the petitioner had qualified Master’s degree (Physics) in the year 2008 is available at page 39 to the writ petition dated April 22, 2010.

9. By a communication the West Bengal Board of Secondary Education has sanctioned the necessary study leave in favour of the petitioner for pursuing and completion of his M.Sc (Physics), Annexure P-7 at page 40 to the writ petition. The school authority once again renewed its prayer before the respondent No. 3 on September 12, 2013 to grant the petitioner M.Sc. scale with arrear from the date of the publication of its result, Annexure P-8 at page 41 to the writ petition. 4

10. Since then no step was taken by the respondent No. 3 and by a decision dated February 8, 2017 the respondent No. 3 rejected the prayer of the petitioner to grant Higher Scale of Pay, on the plea that the petitioner and/or the Managing Committee of the school did not obtain prior permission for enhancement of the qualification in favour of the Teacher from the respondent No. 3. The rejection was in terms of a Government Order No. 593 dated November 27, 2007, Annexure P-9 at page 43A to 45A to the writ petition. Submissions:

11. Mr. Kamalesh Bhattacharya, learned counsel appearing for the petitioner submits that, the Managing Committee allowed the petitioner to pursue his M.Sc (Physics) on November 16, 2005. The Managing Committee then applied before the respondent No. 3 by its letter dated December 17, 2005 for granting prior permission in favour of the petitioner to enable him to pursue his Master’s degree. No attention was paid thereto by the respondent No. 3. In the meantime the petitioner completed his Master’s in Physics in 2009 and the certificate was issued by the concerned University dated April 22, 2010. The Managing Committee of the school then by its communication dated September 12, 2013 prayed before the respondent No. 3 to grant Higher Pay Scale to the petitioner commensurating with his Master degree in the relevant subject.

12. Mr. Kamalesh Bhattacharya, learned counsel for the petitioner submits that, the school applied before the respondent No. 3 requesting to grant prior 5 permission to the petitioner prior to the West Bengal Schools (Control of Expenditure) Act, 2005 (for short, the said 2005 Act) came into force. The said 2005 Act came into force on December 27, 2005. Therefore, the provisions of Control of Expenditure Act would not apply retrospectively. There was no requirement of obtaining any prior permission before the Control of Expenditure Act came into force.

13. In the light of the above, learned counsel for the petitioner prays for quashing of the impugned decision dated February 8, 2017 and issuance of mandamus directing the respondents State authorities to grant Higher Pay Scale to the petitioner commensurating with his Post Graduate degree in the relevant subject.

14. Mr. Jayanta Samanta, learned Sate counsel submits that, in absence of prior permission the petitioner could not have acquired higher qualification and, as such, the Higher Pay Scale commensurating with his Master’s degree was rightly rejected by the respondent No. 3. He further submits that, respondent No. 3 while passing the decision dated February 8, 2017 had considered all the materials before it and then after due application of mind passed the order rejecting the claim of the petitioner. He submits that, this writ petition should be dismissed. Decision :

15. Considering the rival contentions of the parties and considering the materials on record, the facts recorded above appear to this Court to be admitted on the basis of the existing records. The Managing Committee of 6 the school granted permission in favour of the petitioner for acquiring Master’s degree on November 16, 2005 and immediately thereafter the Managing Committee on December 7, 2005 applied before the respondent No. 3 seeking prior permission for the petitioner. The respondent No. 3 did not pay any heed thereto. Meanwhile, the petitioner completed his Master’s degree in 2009. The Board sanctioned study leave in favour of the petitioner on November 24, 2016.

16. The moment the petitioner applied before the school authority on August 23, 2005 for acquiring Higher qualification, the obligation of the petitioner came to an end. In facts of this case, the school authority had also forwarded the case of the petitioner along with its application before the respondent No. 3 on December 7, 2005 along with the necessary resolution of the Managing Committee of the school in favour of the petitioner and the respondent No. 3, an authority of the State, failed and neglected to pay any heed thereto. The petitioner then qualified the Master’s finally in 2009 and the school once again applied on September 12, 2013 before the respondent No. 3 for granting the petitioner for Higher Pay Scale. Till then the claim of the petitioner seeking prior permission from the respondent No. 3 had not seen its fate. The inaction is on the part of the respondent No. 3 for which no blame or laches can be attributed either to the petitioner or upon the school authority. The petitioner and the school authority both acted bona fide in discharging their obligations under the law. The petitioner had no role to play for the inaction on the part of the State authority the petitioner 7 should not suffer. The petitioner had obtained M.Sc. in Physics. There is no rebuttal to the case made out by the petitioner by the State authorities.

17. Admittedly, the Control of Expenditure Act, 2005 came into force with effect from December 27, 2005, whereas the petitioner applied before the school seeking prior permission to acquire higher qualification on August 23, 2005 and the Managing Committee approved and granted permission to the petitioner under its resolution dated November 16, 2005. The Managing Committee sent all papers and sought for permission from the respondent No. 3 under its communication dated December 7, 2005. All these events had happened prior to the Control of Expenditure Act, 2005 came into force. Hence, the Control of Expenditure Act, 2005 had no application in the facts of this case.

18. Thus, the rejection of Higher Pay Scale in favour of the petitioner commensurating with his Master’s degree in the relevant subject was illegal, wrongful and arbitrary.

19. In view of the above discussions and reasons, the impugned decision of the respondent No. 3 dated February 8, 2017, Annexure P-9 at page 43A to 45A to the writ petition stands set aside and quashed.

20. The respondent No. 3 shall immediately take all necessary and consequential steps to grant Higher Pay Scale the petitioner commensurating with his Post Graduate degree in the relevant subject on and from June 26, 2009, being the day next following the last day of M.Sc. 8 Part-II Examination, by revising and refixing the pay scale positively within a period of eight weeks from the date of communication of this order.

21. The arrear shall have to be calculated by the respondent No. 3 on and from June 26, 2009 till April 30, 2024 along with interest @ 6% per annum till the actual date of arrear amount to be tendered to the petitioner and then the respondent authorities shall go on paying the Higher Pay Scale on and from May 1, 2024. The arrear amount along with interest as directed above shall be paid to the petitioner by the respondent No. 3 and the respondent No. 2 after compliance of all necessary formalities in accordance with law by crediting the salary account of the petitioner positively within a period of three weeks from the date of fixation of pay to be caused by the respondent No. 3.

23. With the above observations and directions, this writ petition W.P.A 5066 of 2017 stands allowed.

24. There shall be no order as to costs.

25. Photostat certified copy of this order, if applied for, be furnished expeditiously. (Aniruddha Roy, J.)