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Judgment
Pranab Kumar Chattopadhyay, J.—This appeal has been preferred at the instance of the writ petitioners who have alleged discriminatory treatment in the matter of fixation of pay scale. The appellant herein were initially appointed as Assistant Teachers of the Infant Section of the Lake Town Government Sponsored High School. The said Infant Section was abolished in the year 1984 and the School Education Department took a decision for re-employment of the teachers of the said Infant Section in the Primary Section of the said school as Primary School Teachers. A government order was also issued in this regard on 19th March, 1985 wherein it has been specifically mentioned that the teachers of the Infant Section after absorption in the Primary Section shall get their pay in the scales of pay prescribed for the teachers of aided primary schools. The relevant portion of the said order is quoted hereunder :
"All the 7 teachers of the Infant Section who will be absorbed in the Primary Section shall get their pay in the scales of pay prescribed for the teachers of aided primary schools."
The school authorities, therefore, in terms of the aforesaid Government order issued appointment letters to the appellants/writ petitioners wherein it has been specifically mentioned that the said appointment will be guided by the existing rules of the Government of West Bengal. There are other 6 (six) Graduate Teachers in the same Junior Section who were and are being paid in the scale of pay according to their qualification whereas the appellants were and are being paid in the pay scale of primary teachers although all the appellants are Graduates having training qualification and appointed in the Junior Section of the Integrated Government Sponsored Girls'' High School like those other 6 (six) teachers.
Initially, appellants submitted a representation requesting the Secretary of the said school to take appropriate steps for revision of scale of pay according to the qualification and experience. The Secretary of the said school thereafter, forwarded the claims of the appellants to the Director of School Education, West Bengal for necessary favourable action. The Director of School Education, West Bengal forwarded the said representation of the Secretary of the school to the Secretary, School Education Department, Government of West Bengal alongwith the written communication dated 17th January, 1991 for reconsideration of the matter and issuance of necessary order. In the said written communication, the Director of School Education, West Bengal specifically observed that the appellants herein were entitled to Graduate Scale of pay and also mentioned that two sets of teachers in the same school were getting two separate scales although they were teaching in the same Section. The said written communication of the Director of School Education, West Bengal dated 17th January, 1991 is set out hereunder:
"Government of West Bengal
Directorate of School Education
Grant-in-Aid Section
6, Bhawani Dutta Lane, Calcutta 700 071
No. 170 - GA
4g-119W/82
Dated, Calcutta 17.1.1991
From : The Director of School Education, West Bengal
To : The Secretary to the Government of West Bengal, Education Department (School Education), Writers'' Buildings Calcutta - 1
Sub : Scale of pay of the Asstt. Teachers of the primary
Section of Lake Town Gout. Sponsored Girls'' High School, Calcutta.
Sir,
In addressing Government in the Education Department on the above noted subject I have to send herewith a copy of the representation dated 12.11.1990 from the Secretary, Lake Town Government Sponsored Girls'' High School. I have to state the following facts for perusal and necessary orders of the Education Department.
The teachers of the defunct nursery and infant Section of the School were absorbed in the primary Section of the School on the terms and conditions that they will be entitled to the scale of Primary Teachers in terms of G.O. No. 313-Edn(S) dated 19-03-1985 (copy enclosed). Again, in terms of G.O. No. 3383-Edn (District Inspector of Schools, (SE), (Nadia) dated 17-06-1965 the minimum recruitment qualification for the post of teachers in Jr. Section of all sponsored Class XI Schools has been prescribed as graduates and they are entitled to graduate scale of pay. It is a fact that two sets of teachers are getting two separate scales, though they are teaching in the same Section.
This is brought to the notice of the Education Department for reconsideration and issuance of necessary order, if necessary.
Yours faithfully,
for Director of School Education
West Bengal
Ultimately, the appellants herein filed a writ application before this court for redressal of their grievances. In the said writ petition, the appellants have specifically prayed for modification of the earlier Government order dated 19th March, 1985 issued by the Assistant Secretary, Education Department, Secondary Branch and also prayed for a direction upon the respondents for acting strictly in terms of the Government Order dated 17th June, 1965 so that the said appellants can enjoy pay scale according to qualifications and experience.
The learned Single Judge by the judgment and order under appeal dated 8th January, 2002 dismissed the aforesaid writ petition. While dismissing the said writ petition, learned Single Judge held that the writ petitioners are getting the pay scales which is lawfully due to them. The learned Single Judge also held that the Government order dated 17th June, 1965 does not apply to the case of the appellants herein. In the said judgment, learned Single Judge categorically observed that the pay given to the other 6 (six) teachers may be personal to them and the appellants/writ petitioners cannot claim any advantage on that basis. According to the learned Single Judge, doctrine of "equal pay for equal work" has no manner of application in the present case. Challenging the aforesaid decision of the learned Single Judge, appellants herein have preferred this appeal.
Before the learned Single Judge, State respondents did not file any affidavit but in course of hearing of the present appeal an opportunity was granted to the State-respondents to file a supplementary affidavit in the interests of justice. Pursuant to the said direction, Principal Secretary, School Education Department, filed a supplementary affidavit wherein it has been submitted that there has been no discrimination in allowing the pay scale to the trained Primary teachers namely, the appellants herein and the Government has all along allowed one scale of pay to the primary teachers. It has also been mentioned in the said supplementary affidavit that grant of higher scale of pay to the other Graduate teachers of the said school was the result of a mistake committed by the school authorities and the same cannot be a ground for the appellants to ask for revision of their scale of pay. The Principal Secretary, School Education Department, also specifically mentioned in the said supplementary affidavit as hereunder:
"7.......................... It was incumbent for the school authority to correct the mistake, which unfortunately was not done by them in appropriate time. Since the learned Trial Judge has held that the higher scale given to the Graduate Teachers may be retained as personal to them, the State Government is unable to take any step to reduce their pay. However, if this Hon''ble Court grants liberty to the Government to correct the mistake by downgrading the said five teachers to the scale of pay of Rs. 3350-6325/-, the Government would comply with such order."
It has been submitted on behalf of the appellants that all the teachers including the appellants herein were appointed by the Managing Committee of the concerned school, which is an integrated Government sponsored Higher Secondary school and the said appointments were also approved by the concerned District Inspector of Schools (SE). The learned Counsel of the appellants also submits that the graduate teachers in the Junior Sections are entitled to get qualification pay for qualitative improvement and the Education Department, Government of West Bengal issued a specific; order in this regarding being Order No. 3383-Edn (D) dated 17th June, 1965.
Sardar Amjad Ali, learned Senior Counsel of the appellants submits that the pay scale of Rs. 300-685/- fixed for the appellants at the time of appointment in the year 19S5 was patently wrong because pay scale of a Trained Graduate Assistant Teacher in a Government Sponsored Secondary School upto Class XII standard was revised at Rs. 1420-3130/- by Government Order No. 33-Edn (B), dated 7th March, 1990 effective from 1st January, 1986 and to be actually paid from 1st January 1988. Mr. Ali further submits that State government sponsored primary schools and sponsored secondary schools upto Class XII standard are two different categories of educational institutions and therefore, the pay scale of a Assistant teacher in a Government sponsored primary school and an Assistant Teacher with training and higher qualification appointed in a sponsored Secondary school cannot be same. Mr. Ali specifically urged before this court that the status of the appellants being the teachers of an integrated Government sponsored higher secondary school cannot be similar to those of State Government sponsored primary school. Mr. Ali submits that the appellants being teachers in a Government sponsored secondary school upto Class XII standard are entitled to pay scale of Rs. 1420-3130/- as prescribed in Serial No. 6(i) of Annexure VI of the Government Order No. 33-Edn (B) dated 70 March, 1990 read with Paragraph 3(2) of the said order. Paragraph 3(2) and also Serial No. 6(i) of Annexure VI of the said Government Order dated 7th March, 1990 are set out hereunder:
Scale of Pay of Post :
(1)..............................................................................
(2) The scale of pay of the teaching and non-teaching posts in the Govt. Sponsored/Aided recognised institution upto Class XII standard shall be as specified against such posts in column 4 of Annexure VI."
" ANNEXURE - VI
REVISED SCALES OF PAY OF POSTS [PARA 3(2)]
(1)
(2)
(3)
(4)
Sl.
No.
Name of
service/post with
qualification
Existing pay
scale special
pay/allowance, etc.
Revised
scale of pay
and special pay
6
(i) Trained Graduate
440-1170
1420-3130 "
Mr. Ali further submits that the aforesaid pay scale was further revised from Rs. 1420-3130/- to Rs. 4650-10175/- by the 4th Pay Commission, which was effective from 1st January, 1996 and the appellants herein therefore, being Assistant Teachers with higher qualification i.e. trained graduates are entitled to receive the revised pay scale of Rs. 4650-10175/-, which infact, has been granted to the other trained graduate teachers of the said school. The learned Senior Counsel of the appellants, therefore, submits that the other trained graduate teachers of the said school have been rightly granted the benefit of the pay scale of Rs. 4650-10175/- and under no circumstances, it can be said that the said pay scale was granted erroneously or by mistake. The said learned Senior Counsel also submits that the appellants herein having same qualifications like other trained graduate teachers of the same Government sponsored higher secondary schools upto Class XII standard under the same management cannot be discriminated in the manner which has been done so long.
It has been argued on behalf of the appellants that the said appellants are being deprived of the proper pay scale which was rightly appreciated by the Managing Committee of the school and therefore, the joint representation of the appellants dated 1st August, 1990 claiming proper pay scale was forwarded to the Director of School Education, West Bengal by the Managing Committee of the said school along with the forwarding letter dated 12th November, 1990. The Director of School Education also recommended the claims of the appellants regarding entitlement of the graduate scale of pay and brought it to the notice of the Education Department for issuance of necessary order in this regard by sending the written communication dated 17th January, 1990.
The school authorities, however, submit that the appellants herein are not entitled to the benefits of graduate scale of pay in terms of the Government Order bearing No. 3383-Edn(D) dated 17th June, 1965 as according to the school authorities, the said Government Order has been superseded subsequently by another Government Order dated 15th January, 1972. According to the school authorities, appellants herein cannot claim any benefit under the aforesaid Government Order dated 17th June, 1965 as they were appointed on 16th May, 1985 when the said Government Order dated 17th June, 1965 was not in existence.
Mr. Sumit Panja, learned Counsel of the school authorities submits that in the ROPA, there is no pay scale of the Assistant Teachers of the primary Section of an integrated school and the Pay Commission never prescribed any pay scale of such Assistant Teachers.
Mr. Bhudeb Bhattacharyya, learned Senior Counsel of the State--respondents submits that all the teachers of the primary Section of secondary schools are entitled to get salary under the scale of pay of primary teachers notwithstanding having higher qualification under ROPA, 1998. Mr. Bhattacharyya further submits that the higher scale of pay was granted to the other graduate teachers of the said school by mistake and the Government is ready and willing to rectify the said mistake by recovery of the excess amount upon assigning proper pay scale to the other graduate teachers but due to the order passed by the learned Single Judge, same could not be done so long. It has been specifically submitted on behalf of the State-respondents that the appellants herein are not entitled to get the benefits of higher scale of pay meant for the graduate teachers in the high school and they are only entitled to get the scale of pay fixed for approved primary teachers in terms of the letter of appointment which the said appellants duly accepted for joining the services in the said school and so long have been receiving the salary in the scale of pay meant for the primary teachers. According to the learned Counsel of the State-respondents, appellants herein are hit by principle of estopel and water.
Considering the aforesaid submissions of the respective parties and on examination of the available records as well as various Government orders relating to pay scale of teachers we find that the respondent authorities failed to distinguish the difference between the recognised primary school and integrated Government sponsored higher secondary school with Class I to XII under single management.
The appellants herein are undisputedly trained graduate Assistant Teachers and serving in the Junior Section of an integrated Government sponsored higher Secondary school and not in a primary school. The pay scale applicable to an Assistant Teacher of a recognised primary school, therefore, cannot be assigned to the appellants herein who are trained graduate teachers of the integrated Government sponsored Higher Secondary School with Class I to XII. Although it has been submitted on behalf of the State-respondents that the appellants herein are entitled to get the scale of pay fixed for the approved primary teachers of recognised primary school but the same cannot be accepted in view of the fact that the duty discharged by the appellants herein cannot he same and similar to those of the Assistant Teachers employed in the primary schools. The pay scale assigned to the graduate teachers of the higher secondary schools, therefore, should be given to the appellants herein.
Most surprisingly, the respondent authorities took the peculiar stand before the learned Single Judge that the other graduate teachers of the same school discharging similar duties were granted benefit of higher scale of pay by mistake. In our opinion, the proper scale of pay applicable to the trained graduate teachers serving in a Government sponsored higher secondary school were assigned to the other graduate teachers which should have been given also to the appellants herein. The Director of School Education, West Bengal while considering the representation of the appellants duly appreciated their grievances which have been specifically recorded in the written communication of the said Director of School Education, West Bengal dated 17th January, 1991 addressed to the Secretary, Government of West Bengal.
In terms of the Government notification bearing No. 33-Edn (B) dated 17th March, 1990 trained graduate teachers are entitled to enjoy the benefit of revised scale of pay at Rs. 1420-3130/-, which was subsequently revised to Rs. 4650- 10175/- pursuant to the Government Memorandum bearing No. 25-SE(B)/IM-102/98 dated 12th February, 1999. Annexure 6(i) of the said Memorandum dated 12th February, 1999 is quoted hereunder:
ANNEXURE-VI
REVISED SCALES OF PAY OP POSTS [PARA 3(2)]
(1)
(2)
(3)
(4)
Sl. No.
Name of service/post
with qualification
Existing pay scale special
pay/ allowance, etc.
Revised
scale of
Pay
6
(i) Trained Graduated
1420-3130
4650-10175
Undisputedly, the other graduate teachers are receiving emoluments in the aforesaid scale of pay and therefore, it cannot be said that the said graduate teachers of the same school were granted higher scale of pay by the State. Appellants herein being trained graduates were appointed in the integrated Government sponsored higher secondary school with Class 1 to XII under single management pursuant to the specific order issued by the competent authority of the Government of West Bengal and, therefore, there cannot be any valid reason to deny the proper scale of pay to the said appellants as trained graduate teachers of the school upto Class XII standard. It is not in dispute that the Managing Committee of the school decided to wind up the infant Section and therefore, the appellants herein being the Assistant Teachers of the said infant Section were absorbed in the primary Section of the said school, may be under sympathetic consideration, but after absorption as Assistant Teachers in the integrated Government sponsored higher secondary school upto Class XII standard under single management, respondent authorities cannot refuse to assign the proper pay scale which is applicable to the trained graduate teachers of the schools upto Class XII standard pursuant to the notification or Memorandum issued by the School Education Department, Government of West Bengal from time to time.
In terms of the Government Memorandum dated 12th February, 1999, the respondent authorities have rightly assigned the scale of pay to the other trained graduate teachers of the said school at Rs. 4650- 10175/- which should have also been assigned to the appellants herein. In our opinion, the other graduate teachers have all along been assigned proper scale of pay although the State-respondents erroneously took the stand that the fixation of such scale of pay to the other graduate teachers of the said school was erroneous and by mistake.
We do not approve the aforesaid stand of the State Government.
For the reasons discussed hereinabove, we are of the opinion that the appellants herein are entitled to enjoy the benefits of scale of pay as are applicable to trained graduate teachers of schools upto Class XII standard pursuant to the Circulars/Government Orders/Memorandum issued by the School Education Department, Government of West Bengal from time to time.
In the aforesaid circumstances, we are constrained to hold that the decisions of the learned Single Judge regarding entitlement and sanction of scale of pray to the trained graduate teachers of the concerned school including the appellants herein are totally erroneous and therefore, the same cannot be approved. Accordingly, the said judgment and order under appeal passed by the learned Single Judge is set aside.
The appellants herein being Assistant Teachers of a recognised sponsored high school upto Class XII standard cannot be treated at par with the teachers of the aided primary schools for the simple reason that the said appellants do not discharge similar functions and identical duties as are discharged by the said Primary School Teachers.
For the aforementioned reasons, the Memo dated 19th March, 1985 issued by the Assistant Secretary, Education Department, Government of West Bengal is required to be modified to the extent that the appellants herein are entitled to get their pay in the scale of pay prescribed for trained graduate teachers of the school upto Class XII standard.
Accordingly, the said Memo dated 19th March, 1985 Issued by the Assistant Secretary, Education Department, Government of West Bengal is modified by directing the respondents herein to sanction the scale of pay prescribed for the trained graduate teachers of the High School upto Class XII standard to the appellants herein like other graduate teachers of the said school from the date of their respective appointments in the concerned High School without any further delay but positively within a period of three weeks from the date of communication of this order. The respondent Nos. 5 and 6 are also directed to calculate the arrear dues payable to the appellants herein within two weeks after sanctioning the aforesaid scale of pay in terms of this order and disburse the same to the said appellants within three weeks thereafter.
In the result, this appeal stands allowed. There will, however, be no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
Arunabha Basu, J.
I agree.