AI Structured Summary
Not yet generated for this judgment
Judgment
[1] Heard Mr. C.S. Sinha, learned counsel appearing for the petitioners as well as Mr. N. Majumder, learned counsel appearing for the respondents.
[2] The petitioners were/are working as the Assistant Teacher [in short the AT] in different schools under the Directorate of School Education, now the Directorate of Elementary Education and the petitioners were initially appointed under the primary school establishment. It is stated that the petitioners after joining the service had acquired the higher qualification of Bachelor of Arts etc. Having disputed the date of publication of the result in respect of 3(three) petitioners, the respondents have generally stated that the averments made in Para-2 of the writ petition are correct. In terms of the averments made in Para-2 of the writ petition, the following table is formed showing the name of the writ petitioner, date of appointment and the date of acquisition of higher education as per the date of publication of the result.
Table : Appointment and Acquisition of higher qualification.
Sl.
No.
Name of the petitioner
Date of appointment
Date of acquisition of higher education
1
Pramode Ch. Saha
18.06.1979
11.07.1983
2
Swapan Kumar Sen
22.07.1981
11.07.1983
3
Narayan Ch. Ghosh
11.10.1974
11.07.1983
4
Ahid Miah
16.06.1978
11.07.1983
5
Swapan Kumar Acharjee
28.02.1973
11.07.1983
6
Dilip Deb
17.11.1977
11.07.1983
7
Kalipada Datta
11.04.1970
11.07.1983
8
Indrajit Saha
05.02.1965
24.09.1985
9
Dipak Choudhury
02.01.1974
06.02.1985
10
Ahindra Saha
24.07.1981
25.09.1985
11
Sudarshan Chakraborty
30.10.1980
11.07.1983
12
Nandalal Acharjee
10.10.1974
01.07.1983
13
Swapan Chakraborty
12.03.1980
11.07.1983
14
Subash Chakraborty
21.02.1975
11.07.1983
15
Swapan Kumar Bhowmik
04.10.1974
11.07.1983
16
Ranadhir Sukla Baidya
20.06.1978
18.02.1987
17
Sribash Chandra Deb,
16.06.1979
31.03.1982
18
Prabhat Ch. Das
05.03.1986
31.10.1988
19
Jahar Lal Sarkar
22.03.1985
03.02.1982
20
Archana Dey
16.06.1978
19.09.1985
21
Gajendra Kumar Deb
22.09.1982
19.09.1985
22
Sailendra Datta
24.07.1981
31.03.1982
23
Pritimoy Dey
16.11.1982
18.02.1987
24
Binod Bihari Dhar
16.06.1979
19.09.1985
25
Nikesh Dey
20.09.1986
21.01.1985
26
Pankaj Datta
18.11.1982
31.03.1982
27
Durlav Ch. Das
25.03.1985
31.01.1985
28
Gouranga Ch. Paul
23.03.1985
26.07.1986
29
Haripada Majumder
22.03.1985
11.07.1983
30
Nalinesh Goswami
22.03.1985
19.09.1985
31
Niranjan Das
17.09.1980
31.03.1982
32
Nitai Banik
05.03.1986
21.01.1985
33
Shymal Kanti Das
21.03.1985
21.01.1985
34
Dinabandhu Goswami
03.12.1982
11.07.1983
35
Haridas Bhowmik
18.08.1985
11.07.1983
36
Bikash Ch. Deb
24.07.1981
16.02.1987
37
Ujjala Malakar
16.06.1978
11.07.1983
38
Abdul Kader
25.09.1980
16.03.1983
39
Amal Barman
05.03.1986
06.10.1986
40
Dulal Chakraborty
01.08.1973
11.07.1983
41
Subash Ch. Nama
24.07.1981
11.07.1983
42
Janardhan Das
23.03.1985
28.02.1986
43
Senapati Singha
05.03.1986
11.07.1983
44
Indramani Singha
23.03.1985
11.07.1983
45
Pratap Ranjan Paul
15.09.1989
09.01.1990
46
Tarun Mohan Bhowmik
05.03.1965
11.07.1983
* Veracity shall remain subject to the verification of the relevant original records.
It would be apparent from the records that all the writ petitioners had acquired their higher qualification after 22.04.1982. The fact which has not been disputed by the respondents that none of the writ petitioners was given the benefit of the office memorandum under No.F.4(62)-FIN(PC)/92 dated 07.12.1992, Annexure-1 to the writ petition. In Sabyasachi Bhattacharji vs. the State of Tripura, reported in 1997 (1) GLT 354, the Gauhati High Court has observed as under while granting the benefits of higher scale for acquisition of the higher qualification to the primary teachers:
"13. We have also independently examined the decision given by the learned Single Judge in the Second Appeal and also the decision given by the Division Bench in the Civil Rules on 22.2.92. In our opinion, the view taken by the learned Single Judge was a plausible view. In view of the fact that the Advocate General for the State of Tripura has himself conceded that item No.44 itself does not indicate that the benefit is restricted to any particular category of Graduate teachers. The learned Single Judge in the Second Appeal has taken that view in the good year 1979 which interpretation was prevailing for more than fourteen years and even in the year 1994, even though a challenge was made before the Supreme Court, the same was not pressed on merits and SLPs were got dismissed on the ground that the benefit is being extended to the petitioners. Clearly, at the time of making of the statement, the stand of the State of Tripura was that the interpretation which had been given to item 44 by the learned Single Judge in the Second Appeal and by the Division Benches in a large number of Civil Rules later on was being extended and not contested by the State of Tripura.
We are thus of the opinion that on the principle of State Decisis, the interpretation of item 44 which has been the law prevailing in the State of Tripura will not be unsettled by this Court. Even otherwise on merits, we are of the opinion that the view taken by the learned Single Judge in the Second Appeal and which has been followed later on by the Division Bench cannot be said to be incorrect. The Civil Rule is accordingly allowed. There shall be no order as to costs."
[3] In the premises as narrated above, the Gauhati High Court has interpreted that the higher pay scale for acquisition higher qualification is not related to any establishment or a category of teachers but it is equally applicable for all categories of teachers. At the same time, it cannot be disputed by the petitioners that grant of the higher pay scale based on acquisition of higher qualification was discontinued by a policy decision taken by the Government vide Memorandum No.F.2(11- 24)-DSE/80(iv) dated 23.04.1982, from 23.04.1992. From the memorandum dated 29.06.1982, Annexure-R/4 to the reply filed by the respondents, it appears that the decision of the Government as available in the said memorandum was made inoperative by the said memorandum dated 23.04.1982. The decision which is appearing in the said memorandum dated 29.06.1992 is as under:
"It is clarified that Asst. Teachers borne on the Primary establishment who obtained the bachelor's degree prior to 23.04.82 but who could not be given the scale of Rs.325-665/- earlier for some reason or other may also be allowed to draw pay in the scale of Rs.325-665/- w.e.f. the date of their acquiring degree, or the date of appointment, whichever is later, subject to the fulfillment of conditions embodied in this Deptt's Memo. No.F.2(10-23)-DSE/79 dt. 7.3.81."
In the said memorandum, it has been clearly laid down that as per the government's decision communicated by the department's memorandum under No.F.2(11-24)- DSE/80(IV) dated 23.04.1982, the Assistant Teachers are entitled to the pay scale of the post to which he is appointed and not the pay scale of the post to which he is eligible to be appointed on the basis of his educational qualification. In other words, the Assistant Teachers are not eligible for the higher scale of pay on the basis of qualification alone w.e.f. 23.04.1982. However, it is not in dispute that the respondents later on reconsidered the entire matter and by the memorandum dated 07.12.1992 has provided as under, amongst other provisions:
"(F) For the school teachers and similar other employees such as Physical Instructor, Librarian, Coach, Classical Teacher, Hindi Teacher, Vernacular Teacher, Drawing Teacher, Craft Instructor/Teacher Etc. who acquired higher academic qualification in their respective trade/subject to which they are attached, on or after 24.04.1982.
(i) They shall be granted higher pay scales according to their qualification w.e.f. 01.01.1988 or the date of publication of result, whichever is later;
(ii) The benefit shall be admissible only for those incumbent who acquired higher qualification upto the period of 31.12.91 (date of publication of result);
(iii) Pay shall be notionally fixed under the provision of FR.22(a) (1) upto 31.12.91 with actual Financial benefit from 01.01.1992.
However, after fixation of pay under F.R.22(a) (i), date of next increment of the concerned employees shall be due on the date of their earning of periodical increment as usual;
(iv) Such benefit admissible on the event of acquiring higher qualification shall be restricted only for the graduation/Graduation with Honours/Post Graduation Degree (Not Diploma/Certificate) in the particular trade/subject to which the particular incumbents belongs to;
(v) Pay scales for the posts of 'Librarian' and 'Physical Instructor' on acquiring higher qualification, shall be determined in accordance to Sl. Nos. 1 and 2 as shown under (D) above.
Pay scales for the posts of 'Coach' and 'Senior Coach' on acquiring higher qualification, shall be determined in accordance to Sl. Nos. 3 and 4 as shown under (D) above.
(vi) Benefit or movement from lower grade to higher or highest grade under Part-B or Part-C or Notes at Page-59 (for School Teacher) under Schedule-III of the ROP Rules, 1988 shall be allowed after calculating the period of service from the date of enjoying such higher pay scales, pay scales in such cases shall be determined in the light of scales mentioned at (B) and (D) above.
(vii) The aforesaid benefits shall also be admissible in respect of such categories of employees who acquired higher qualification in the respective trade/subject prior to 24.04.82, but were not granted the appropriate scale according to their qualification."
This benefit is subject to the conditions as laid down under Para-F in the said office memorandum dated 07.12.1992. It may be true that some of the dates as provided by the petitioners in Para-2 of the writ petition are not correctly given but for this error their claim cannot be curbed.
[4] Having regard to the provisions of Para-7 of the office memorandum dated 07.12.1992 read with the decision of Gauhati High Court in Sabyasachi Bhattacharji (supra), this court is of the view that the petitioners were entitled to the higher pay scale, meaning the pay scale of `325-625/- not from the date when they acquired the higher qualification but from 01.01.1988 and such benefit shall be notionally carried forward till 31.12.1991 and the actual financial benefit will be entitled to them from 01.01.1992.
[5] Mr. N. Majumder, learned counsel appearing for the respondents has submitted that this writ petition is hit by the principle of laches inasmuch as the petitioners' right whatever has accrued from the memorandum dated 07.12.1992 from the day when the said memorandum was issued, but they had not approached the respondents for granting them the said benefit.
[6] Mr. C.S. Sinha, learned counsel appearing for the petitioners having referred to the decision of State of M.P. & Ors. vs. Yogendra Shrivastava, reported in (2010) 12 SCC 538 has contended that the principle of laches cannot be applicable in the present case. On the contrary, the doctrine of continuing wrong would apply inasmuch as every month when the petitioners are drawing pay or other financial benefit accrued therefrom, they are getting less, otherwise their pay or financial accrual would have been comparatively higher. In Yogendra Shrivastava (supra) the apex court has culled out the law as under:
"18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India : (1995) 5 SCC 628, and Union of India vs. Tarsem Singh : (2008) 8 SCC 648."
[7] Having regard to this, this court is of the view that this writ petition cannot be held to be hit by the doctrine of laches. However, the principle as laid down in Yogendra Shrivastava (supra), the financial benefit of the petitioners shall be available from a day exactly 3(three) years prior to filing of the writ petition. For purpose of record it is observed that the writ petition was filed on 25.07.2011. The respondents are, therefore, directed to fix the pay of the petitioners in the said scale of `325-625/- from 01.01.1988 or any date when they have acquired their higher qualification, if the qualification is acquired within 31.12.1991 as per the Para-F of the office memorandum dated 07.12.1992. Thereafter, the pay shall be fixed till 25.07.2008 notionally and the petitioners shall be entitled to financial benefits from 26.07.2008. Needless to mention that after fixing the pay of the petitioners on 01.01.1988 or the date when they have acquired their qualification within 31.12.1991, their pay shall be fixed in terms of the revision of scales as subsequently carried out and accordingly, their financial benefit shall be released w.e.f. 26.07.2008.
Mr. Sinha, learned counsel appearing for the petitioners has pointed out that some of the petitioners have retired by now. It is also clarified that the last pay of the petitioners who have retired from the service shall be re-fixed for purpose of revision of the pension and other retiral benefits, if any, in terms of this order.
A copy of this judgment and order shall be furnished by the petitioners to the respondent No.2, the Director of School Education, now the Director of Elementary Education and after receipt of the copy of the said judgment and order, the respondents shall take all steps for releasing the financial benefits to the petitioners within a period of 8(eight) months therefrom. The petitioners shall furnish, if they have not furnished, the proof in respect of the date of publication of the result to the respondent No.2 for verifying those records before release of their financial benefits. Only the eligible teachers would get the benefit of this judgment and order.
With this observations and direction, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.