Ashim Kumar Sen vs State of West Bengal & Ors

Arindam Sinha, J.

Two writ petitions were heard together. WP 23850(W) of 2010 impugned reasoned order by memo dated 24th September, 2010 in which claim of

petitioner therein for higher scale salary was found not justified as he belonged to primary school for (deaf) attached to ‘SATHI’ (an institution

of education and training for deaf and blind). WP 23852 (W) of 2010 impugned reasoned order by memo also dated 24th September, 2010 in which

similar claim of petitioner therein was found not justified on same reason. The only difference in two impugned memos in these two writ petitions is

that they deal with different claimants.

Mr. Sanyal, learned advocate appeared on behalf of petitioners in both writ petitions while Mr. Sikdar learned, advocate appeared on behalf of State in

WP 23850 (W) of 2010 and Mr. Samrat Sen, learned senior advocate, Assistant Additional Advocate General, appeared for State in WP 23852 (W)

of 2010.

Mr. Sanyal submitted, institutions or schools for handicapped come under category of secondary school. He relied on clause (l) of section 2 in West

Bengal Board of Secondary Education Act, 1963. The provision is reproduced below.

“2(l) “Secondary Education†means general education above the primary education stage provided for students with a view to qualifying them

for admission to a certificate, diploma or degree course instituted by a University or by Government [or by a Statutory Body] and includes, subject to

any general or special order of the State Government,-

(i) technical education,

(ii) agricultural education,

(iii) commercial education,

(iv) education for the physically handicapped,

(v) education for the mentally retarded and defectives,

(vi) education in reformatory schools and jails, or

(vii) any other type of education which the State Government may, in consultation with the Board, specify.â€​

He submitted, primary education is given meaning in clause (xvii) of section 2 in West Bengal Primary Education Act, 1973, to be elementary

education as is imparted through a primary school. Primary school has been given meaning in clause (xviii) of section 2 in said Act, to be a school or

department of school for imparting such primary education as State Government may prescribe. Rehabilitation Council of India Act, 1992 defines

expression ‘handicapped’ and ‘hearing handicapped’ respectively under clauses (c) and (d), sub-section (1) of section 2. He relied on

judgment of Supreme Court in P. Kasilingam vs. P.S.G. College of Technology reported in 1995 Supp (2) SCC 348, to paragraph 19 for purpose of

interpretation of clause (1) in section 2 of 1963 Act. A passage from paragraph 19 is extracted below:

“19......It has been urged that in Rule 2(b) the expression “means and includes†has been used which indicates that the definition is inclusive in

nature and also cover categories which are not expressly mentioned therein. We are unable to agree. A particular expression is often defined by the

Legislature by using the word ‘means’ or the word ‘includes’. Sometimes the words ‘means and includes’ are used. The use of

the word ‘means’ indicates that “definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put

down in definitionâ€.(See: Gough v. Gough; Punjab Land Development and Reclamation Corpn. Ltd. v Presiding Officer, Labour Court.) The word

‘includes’ when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to

their natural import but also those things which the clause declares that they shall include. The words “means and includesâ€, on the other hand,

indicate “an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressionsâ€

(See: Dilworth v. Commissioner of Stamps (Lord Watson); Mahalakshmi Oil Mills v. State of A.P.â€​

Applying the judgment, he submitted, results in inclusion of said institution as one imparting secondary education and consequently petitioner entitled to

enhanced pay by reason of higher qualification. His next contention was of discrimination. The institution ‘SATHI’ was accorded sponsorship

of Government of West Bengal, Mass Education Extension Department by its letter dated 8th February, 2006. Another institution, Pratibandi

Punarbasan Kendra was accorded sponsorship by letter dated 10th February, 2006. Mr. Sanyal submitted, terms and conditions for both sponsorships

are the same, in particular, inter alia, following same condition.

“3. Sponsorship in respect of the Institution is accorded up to class IV standard. The Institution Authority will have to get affiliation to the WBBPE

within one year from the date of sponsorship.â€​

He submitted, sponsorship is not connected with fixation of pay. Higher scale of pay is being paid to person similarly placed in latter institution. He

submitted further, State requiring affiliation with West Bengal Board of Primary Education (WBBPE) was a fallacy since institution “SATHI†is

not one covered by West Bengal Primary Education Act, 1973. Said Board constituted under said Act had no power to affiliate the institution. Lastly,

Mr. Sanyal submitted, validity of impugned order must be judged by reasons it mentions. It cannot be supplemented by fresh reasons. He relied on

judgment of Supreme Court in Mohinder Singh Gill vs. Chief Election Commissioner reported in (1978) 1 SCC 405, to paragraph 8 which is

reproduced below:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by

the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the

beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw

attention to the observations of Bose, J. in Gordhandas Bhanji:

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer

making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have

public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with

reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.â€​

According to him impugned orders are to be set aside and directions made by this Court for payment of higher scale salary. This is because at first

instance the authority has passed impugned orders which, if set aside on judicial review, would require Court to step in and exercise power. For this

submission he relied on Guruvayoor Devaswom Managing Committee vs. C.K. Rajan reported in (2003) 7 SCC 546, to paragraphs 67 and 68 as are

reproduced below.

“67. Mr. Subba Rao referred to N.M. Thomas for the proposition that court is also a “State†within the meaning of article 12 but that would

not mean that in a given case the court shall assume the role of the executive government of the State. Statutory functions are assigned to the State by

the legislature and not by the court. The court while exercising its jurisdiction ordinarily must remind itself about the doctrine of separation of powers

which, however, although does not mean that the court shall not step in any circumstance whatsoever but the court while exercising its power must

also remind itself about the rule of self-restraint. The court, as indicated hereinbefore, ordinarily is reluctant to assume the functions of the statutory

functionaries. It allows them to perform their duties at the first instance.

The court steps in by mandamus when the State fails to perform its duty. It shall also step in when the discretion is exercised but the same has not

been done legally and validly. It steps in by way of a judicial review over the orders passed. Existence of an alternative remedy albeit is no bar to

exercise jurisdiction under article 226 of the Constitution of India but ordinarily, it will not do so unless it is found that an order has been passed wholly

without jurisdiction or contradictory to the constitutional or statutory provisions or where an order has been passed without complying with the

principles of natural justice. (See Whirlpool Corpn. V. Registrar of Trade Marks.).â€​

Mr. Sikdar sought to demonstrate, rules provide for different salaries being paid to Assistant Teachers in schools for deaf on one hand and schools for

mentally retarded or multiple handicapped students on the other. He relied on notification dated 20th April, 1995 by which rules for method of

recruitment in applying essential and desirable qualifications for recruitment of Assistant Teachers in above two categories of schools were notified.

For appointment to schools for deaf and dumb students, required essential qualification for candidates seeking appointment as Assistant Teachers, is

for them to have passed in Higher Secondary examination or equivalent but graduate degree is desirable. Candidates in schools for mentally

retarded/multiple handicapped students have to have essential qualification of post graduate degree. Hence, on basis of respective required and

desirable qualifications, State had formulated its policy regarding salary scales by making classification of Assistant Teachers in different schools. This

is possible as declared by Supreme Court in Mewa Ram Kanojia vs. All India Institute of Medical Sciences reported in AIR 1989 SC 1256,

paragraphs 6 and 7. Law declared is that different treatment to persons belonging to same class is permissible classification on basis of educational

qualifications. He submitted in the alternative, this Court might set aside impugned order and restore matter back to the authority for decision afresh.

Mr. Sen submitted, per clause (l) in section 2 of 1963 Act, secondary education means general education above primary education stage and 7

categories included therein must be also imparting education above primary education stage. Meaning of secondary education is that it must be such

education provided to students with a view to qualifying them for education to a certificate, diploma or degree course study in Institutions and

Universities. Sponsorship granted by State is up to Class IV being primary level. So far as Government is concerned, institution is providing primary

education and memo dated 8th February, 2006 according sponsorship is a special order of State which made inclusion of category-(iv) in said definition

subject to said order. He relied on judgment of Supreme Court in New India Sugar Mills vs. Comm. of Sales Tax, Bihar reported in AIR 1963 SC

1207, to a passage in paragraph 8 extracted below.

“8......It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they

best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or

technical meaning, as well as a popular meaning the Court would be justified in assuming that the Legislature used the expression in the sense which

would carry out its object and reject that which renders the exercise of its powers invalid.â€​

Mr. Sen too had alternate submission of matter being restored to the authority. That would be proper course to follow as petitioners would not be

precluded from raising all points in support of their claim for higher pay scale. He relied on two judgments of Supreme Court, firstly, in Harpal Singh

Chauhan vs. State of UP reported in AIR 1993 SC 2436, paragraph 20 which is reproduced below:

“20. In the result, the appeals are allowed. We direct the District Magistrate, Moradabad, to perform his statutory duty, afresh, in accordance with

the requirement of section 24 of the Code read with the relevant paragraphs of Chapter VII of the Manual, which are not inconsistent with section 24

of the Code. So far the appellants are concerned, if the vacancies are still there the necessary steps shall be taken preferably within four months from

the date of this judgment. The State Government shall thereafter perform its part in accordance with section 24 and different paragraphs of the

Manual which are applicable in the facts and circumstances of the case. We make it clear that we are not expressing any opinion on the merit of the

claim of the appellants to get extension or appointment against the post s of Assistant District Government Counsel (Criminal). There will be no order

as to costs.

Secondly on Hajuri P.C. Khuntia vs. Brundaban R. Das reported in (2000) 6 SCC 533, paragraphs 10 and 12 which are reproduced below:

“10. We are of the view that the High Court should not have gone into the merits on fact/law if it was remitting the matter both on law and fact for

a “fresh†decision by the authorities. The claim of the intermediary for settlement was to be considered under section 6 not only from the point of

the property being used as a dwelling house but also from the point as to whether it comes within “such buildings or structures together with the

lands on which they standâ€​-other than the specified excluded categories. This aspect was also not gone into by the High Court.

This being an old matter, we are of the view that the remand need not be to the primary authority [i.e. the OEA Collector (Tahsildar]. Instead, we

direct that the matter be remitted to the Member, Board of Revenue to decide the issues arising under sections 6 and 7 of 4 the Act “afreshâ€

without being influenced by any observations made or findings given by the High Court, as stated above. The Member, Board of Revenue will decide

the matter within four months from today by giving a reasoned order, after hearing the appellants and the respondents. Issues concerning section 8 will

be kept out of this inquiry.â€​

In reply Mr. Sanyal addressed on point of classification on basis of educational qualifications. He submitted, point is misconceived. Case of petitioners

is governed by Memorandum no.531-Edn (MEE) dated 30th March, 1999. The Memorandum does not make any distinction between Assistant

Teachers on basis of those working in schools having normal students and others in schools having handicapped students. He relied on following

extracts from said memo.

“GOVERNMENT OF WEST BENGAL

MASS EDUCATION EXTENSION DEPARTMENT

No.531-Edn(MEE) Dated. Calcutta, the 30th March, 1999

MEMORANDUM

........

The Governor has now been pleased to order that pay and allowances of the employees of the Organisations mentioned below be revised following

the guidelines laid down in the Notification no.7306-F, dt.16.10.98, Memo no.7308-F, dt. 16.10.98 and Memo no.7309-F, dt.16.10.98.

(i).......

(ii) Handicapped Institutions sponsored by MEE Department. (iii).......

Definitions:

.........

.........

(e) “Employee†means a member of Sponsored Libraries and Teaching & Non-Teaching Staff of non-Government/Sponsored/Aided Educational

Institutions sponsored by MEE Department.

............

...........

...........

REVISION OF PAY AND ALLOWANCES FOR HANDICAPPED INSTITUTION

SPONSORED/AIDED BY EDUCATION EXTENSION DEPARTMENT

SL NO. NAME OF POST EXISTING PAY SCALES ETC. REVISED SCALEOF PAY

1.....

2..

Teacher/Resource i. Rs.1780-3780/- (for trained i. Rs.6000/- -12000/-

Master’s Degree Holders)

4.....

........

.........â€​

Case of petitioners is similar, if not same. By impugned orders their claim for higher scale of pay was rejected as they were said to belong to a

primary school (for deaf), attached to the institution. Consideration of the claims was pursuant to orders dated 18th December, 2008 passed by a Co-

ordinate Bench, respectively in WP 31003 (W) of 2008 (Ashim Kr. Sen vs. State of West Bengal) and WP 31006 (W) of 2008 (Debidas Sasmal vs.

State of West Bengal). Relevant extract from representations made to, inter alia, the authority who passed impugned order, are reproduced below.

“6. In this connection I state that the Mass Education Extension Directorate approved the appointment of teaching and non-teaching staffs of

Mayna Ramkrishna Association, Purba Medinipur in the scale of pay under ROPA, 1998 wherein the pay scale of a teaching staff having M. A.

Trained has been fixed as Rs.6,000-12,000/-.

That by Memo no.180-Edn (MEE)/5P-II/98 dated Calcutta the 30th January, 2000 the Deputy Secretary intimated the Director of Mass Education

Extension, West Bengal in respect of admissibility of higher scale of pay of according to higher qualification in respect of teachers of the institution for

the handicapped and enclosed therein a copy of the Government order no.57-SE(S) dated 27.01.1995 issued by the School Education Department

which is the latest order of is kind for granting higher pay according to higher qualification to the Assistant Teachers of non-Government Secondary

Schools. It is further stipulated in the said Government order that as the institutions for handicapped education belongs to the category of secondary

schools as per norms set by the West Bengal Board of Secondary Education, the authorities is directed to treat G.O. no.57-SE(S), dated 27.01.1995 as

a guideline for granting qualification pay to the Assistant Teachers of institutions for the handicapped.

That the Hon’ble High Court in a case being Matter no.4747 of 1993 (Miss Manju Bhattacharjee - versus - State of West Bengal and Others)

directed the concerned authority to grant higher pay scale although the petitioner in the said case improved her qualification after joining the institution

and the Hon’ble Justice Basudev Panigrahi (as His Lordship then was) was pleased to hold that as per section 2 of the Board of Secondary

Education Act, 1963 the school the physical handicapped students comes within the definition of Secondary School.â€​

Impugned orders reveal, this contention was dealt with by relying upon sponsorship letter dated 8th February, 2006. Position taken by the authority is,

the school is a primary school. Clear submission made on behalf of petitioners, being sponsorship is not connected to fixation of pay and State requiring

affiliation with WBBPE was a fallacy since institution ‘SATHI’ is not one covered by West Bengal Primary Education Act, 1973, could not be

controverted.

On contention of discrimination, Mr. Sikdar sought to urge classification made based on essential and desirable qualifications for recruitment of

Assistant Teachers in schools for deaf and mentally retarded. This submission of classification was met by reliance on Memorandum no.531-Edn

(MEE) dated 30th March, 1999, relevant extracts from which have been reproduced above. Thus, on point of discrimination petitioners have a clear

case entitling them to relief.

That leaves controversy between parties regarding whether meaning of secondary education given by Act of 1963 includes, inter alia, education for

physically handicapped. In aforesaid representation made there was reference to memo dated 31st January, 2000 of Deputy Secretary, Mass

Education Extension Department, Government of West Bengal to Director of Mass Education Extension, West Bengal. Relevant extract from said

letter is reproduced below:

“As the Institutions for Handicapped Education belongs to the category of Secondary Schools (as per norms set by the West Bengal Board of

Secondary Education) he is requested to treat G.O. no.57-SE(S) dated 27-1-95 as a guideline for granting qualification pay to the Assistant Teachers

of Institutions for the handicapped.â€​

Court has before it an interpretation, as given by the department itself, institutions for handicapped education belongs to category of secondary

schools. This does not appear to be an incorrect interpretation. Meaning of ‘secondary education’ given in clause (l) of section 2 (Act of 1963),

after meaning given as general education above primary education stage provided for students with a view to qualifying them for admission to a higher

course, includes, inter alia, education for physically handicapped. Submission made on behalf of State that inclusion of several types of education must

be as above primary education stage, if to be taken as correct interpretation, then Legislature could have simply legislated secondary education to

mean education above primary education stage.

In P. Kasilingam (supra) Supreme Court declared rule of interpretation when words and phrases, “meansâ€, “means and includes†and

“includes†are used in statutes. Supreme Court said, the word ‘includes’ when used enlarges the meaning of expression defined so as to

comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall

include. Applying this rule of interpretation, meaning of secondary education would include, inter alia, education for physically handicapped as has been

correctly interpreted by the department and so urged on behalf of petitioners.

In dealing with this contention of State regarding interpretation Mr. Sanyal had relied upon Mohinder Singh Gill (supra) to submit, such contention did

not find foundation of reasons given in impugned orders. This submission of petitioners is upheld. As aforesaid, in spite of petitioners having raised

several contentions, the authority in making impugned orders only relied upon letter of sponsorship to say the school was a primary school. So it is to

be seen whether C. K. Rajan (supra) is applicable for this Court to step in. Contentions raised by petitioners having been dealt with in the manner

done are circumstances which require Court to step in since there is implied rejection of those contentions as already made before the authority.

Harpal Singh Chauhan (supra), relied on by State, does not declare law in relation to remand. Supreme Court, in that case, restored matter to the

authority without expressing any opinion on merits of the claim. It did not say it was doing so as circumstances did not require it to step in. In

Brundaban R. Das (supra) Supreme Court was of view that High Court when it was remitting matter both on law and fact for fresh decision by the

authority, should not have gone into the merits. These two decisions, relied upon by State, are clearly not applicable since in this case it has been

found, the authority had occasion to deal with contentions of petitioners raised before it. So much so department’s own interpretation of secondary

education was a contention before the authority but it rejected such contention on basis of said letter of sponsorship.

For reasons aforesaid the writ petitions succeed. Petitioners are entitled to and will be given revised pay scale as per ROPA 1998, at scale Rs.6000/- -

Rs.12000/-. Arrears of salary at scale directed are to be disbursed to petitioners within a period of six weeks from date of communication of this

judgment and thereafter current revised salary to be paid. Writ petitions are disposed of as above.