Golak Sarkar vs State Of West Bengal & Ors

Rajasekhar Mantha, J

The question that has arisen in the instant case is twofold. As to whether the Circular dated 13th July, 1999 which amended an earlier Memorandum dated 12th February, 1999 relating to higher pay, inter alia, for Physical Education Teachers, either appointed with Higher Qualification in a post that requires only Graduate Qualification or those, who acquired Higher Qualification, subsequent to the date of appointment.

The petitioner has been litigating in this High Court since the year 2000. Initially, pursuant to the order of this Court, the District Inspector of Schools (SE), South 24 Parganas has held that the petitioner's initial appointment in the year 1999 was based on an option exercised by the petitioner to be treated as a Graduate notwithstanding his Post Graduate Qualification in Education. His claim for Post Graduate scale of pay was rejected on the basis of such option exercised.

Consideration was effected afresh pursuant to the order of a Co-ordinate Bench of this Court dated 16th September, 2010 passed in W.P. No. 21586 (W) of 2000. It was recorded in the said order that the petitioner would be entitled to higher qualification based on an amendment dated 13th July, 1999 made before the earlier Memorandum dated 12th February, 1999.

A twofold answer has been given by the Director of School Education, West Bengal in the impugned order. Firstly, that the post of Assistant Teacher in Physical Education requires only a Graduate Qualification and the scale of pay. Such post was determined on the basis of such requirement only and not based on any Higher Qualification that an Assistant Teacher may possess at the time of initial entry.

Although not stated in so many words, a person with Higher Qualification could be deemed as over qualified for the said post, however, there is no bar for an over qualified person to obtain entry in the post of Assistant Teacher in Physical Education. The scale of pay, however, remains the same.

The first ground, for rejection of the petitioner's prayer was, therefore, that he was entitled only to a scale as prescribed for the said post of Assistant Teacher in Physical Education.

The second ground for rejection is rather confusing and circuitous. It is stated in the impugned order that the Circular dated 13th July, 1999 was not merely an amendment to the Memorandum dated 12th February, 1999. It is contended that the subsequent Circular has substituted Sub-paragraph 3 of paragraph 12 in the earlier Circular. The Director of School Education, West Bengal has held that by reason of such substitution, the petitioner would not be entitled to the benefit of the amendment.

A further ground not discussed in detail or applied does assume some importance. The ground being an interpolation in the original recommendation of the Staff Selection Commission issued in favour of the petitioner. Such recommendation at page 34 of the writ application, has been found to be slightly illegible and the original was not produced. The discrepancies found leading to a substantial suggestion of interpolation is that the handwriting of the person incorporating the Post Graduate Qualification i.e. M.A. in Physical Education being quite different from that available in other parts of the said document.

The signature of the Assistant Secretary, West Bengal, Regional School Service Commission under the interpolation is also stated to be different from that of the person, who has signed on the original document dated 21st December, 1998.

This Court is of the view that no interference is called for in the impugned order.

However, Ms. Chaitali Bhattacharya, learned Advocate appearing for the State, would submit that the issue that has arisen in the writ petition as regards the entitlement of the benefit of the Circular dated 13th July, 1999 is directly or indirectly the subject matter of a reference before the Hon'ble Special Bench of this Court.

The subject matter of the writ petition pending before the Hon'ble Special Bench admittedly are not relating to Physical Education. It is, however, submitted that a writ petition concerning a person, who is an Assistant Teacher in Physical Education and was seeking similar benefits of the Circular dated 13th July, 1999 has also come to be referred to the Hon'ble Special Bench of this Court.

In those circumstances, this Court is of the view that this matter i.e. as to whether the petitioner, who has admittedly entered service as Assistant Teacher in the State in Physical Education, for which post the prescribed qualification is only of Graduate Qualification is entitled to the benefit of the Circular dated 13th July, 1999 amending the original memorandum dated 12th February, 1999, also ought to be dealt with and considered by the said Hon'ble Special Bench.

A consequential question has also arisen as to whether in the instant case similar to many other matters before this Court, whether a person having more qualifications than that prescribed for a post, would otherwise be disentitled to original entry into the post itself. The aforesaid assumes some importance as it is found in a large number of cases that persons have accepted appointed to the post with lesser qualifications prescribed despite holding higher qualifications either by suppression or taking advantage of absence of any bar for such recruitment.

Let this matter, therefore, be placed before the Hon'ble Special Bench for appropriate decision.