Rinku Basu vs State Of West Bengal & Ors

Protik Prakash Banerjee, J

This is a writ petition under Article 226 of the Constitution of India which challenges the order of the Director of School Education who has been arrayed in 2011 as respondent No. 2 in the writ petition. At present the said designation has changed to Commissioner of School Education. The impugned order is dated September 19, 2011. This order was passed after the order dated December 20, 2010 was passed by a co-ordinate Bench in W.P. 24273(W) of 2010 which was the earlier round of litigation between the same parties. The said order dated December 20, 2010 granted liberty to the present petitioner to approach the said Director with a detailed representation and the said Director was directed to consider and dispose of the grievance of the writ petitioner in accordance with law within four months from the date of receipt of last representation after giving the writ petitioner and other interested parties adequate opportunity of being heard.

It appears that the grievance of the writ petitioner was that though she had been duly appointed first to a Government school and then to a Government aided school after due process of selection and recommendation as applicable at the material point of time and though in the eye of law as a woman she was entitled to seek employment near her place of residence and though under the law applicable there is no bar to continuity of her service for the purpose of service benefits including as qualifying service in her earlier places of employment, she was neither given the benefit of the accrued provident fund which had vested in her as also the qualifying service as past service.

The respondent No. 2 has disposed of the said representation by an order dated 19, 2011 as above which has been impeached in this writ petition and which has left me slightly confused as to what the respondent No. 2 meant by the same.

So that the order is appreciated in its full glory I have taken the liberty of setting out the exact words of the respondent No. 2 in this order :-

"1. Insofar as the issue of transfer of her provident fund balance in Saptagram High School being maintained at Diamond Harbour Treasury to Begampur Jnanda Prosad Institution is concerned I find that in terms of para 14(b) of the West Bengal Recognized Non- Government Educational Institution Employees (Management of General Provident Fund Accounts) Scheme, 1995 (hereinafter referred to as the said Scheme) the said balance is to be transferred to the account of the subscriber (i.e. the petitioner) to be opened at his/her new place of appointment, if the new employee agrees to such transfer, inter-alia.

Accordingly, I direct that the authority of Saptagram High School shall take all necessary steps after the petitioner applies in writing the authority of the said school, if not already applied, for transfer of the petitioner's provident fund balance to the Alipore Treasury so that the said balance becomes the opening balance of the petitioner's provident fund in Begampur Jnanda Prosad Institution subject to the condition staetd below in connection with recovery of the overdrawn amount, overdrawl having resulted from erroneous higher initial fixation of her pay at Saptagram High School taking into account her last pay in Government Girls' High School, as has been learnt from her own submission although the same has not been verified with the relevant documents. I also direct the Additional District Inspector of Schools (SE), Diamond Harbour, South 24 Parganas to ensure after recovery of the overdrawn amount from the petitioner such transfer of provident fund balance.

Insofar as the question of continuity of service is concerned it appears that whereas on one hand the petitioner has been enjoying protection of pay in both the schools, viz. Saptagram High School and Begumpur Jnanda Prosad Institution arising out of her last drawn pay in Government Girls' High School, Purulia there is also another aspect of counting of the qualifying length of service rendered in the first and second schools she has served for the purpose of her retirement benefit under the DCRB Scheme, 1981.

On the issue of protection of pay on the basis of her last pay in Government Girls' High School in Saptagram High School, I state that such protection of pay is not allowed in terms of G.O. No. 269-SE (Pry) dated 16-4-1996 or any other order issued by the Government. Thus she is not entitled to protection of pay on the basis of her last pay drawn from the first school she has served.

But she will be entitled to such protection of pay I Begumpur Jnanda Prosad Institution on the basis of her due last pay in Saptagram High School. Such due pay in Saptagram High School will have to be calculated on the basis ofher initial pay at the time of joining Saptagram High School at the initial of the applicable time scale of pay as per the category of the post to which she was appointed therein and at the initial of the said time scale of pay. On the other issue of counting of her qualifying service in Government Girls' High School, Purulia towards her retirement dues I state that such benefit is available to her in term of para 7(d) Chapter III, Annexure I to G.O. No. 136-Edn(B) dated 15-05-1985.

It may be relevant to mention here that protection of pay and counting of past service as qualifying service for retirement benefits are not necessarily interlinked and/or interdependent so much so that if any past service is counted as qualifying service for retirement benefit the same may or may not lead to protection of pay also. But, if any past service leads to protection of pay the same will be counted as qualifying service.

Before parting with the matter I would like to mention two things below:-

The appointment of the petitioner in Saptagram High School was approved in a particular scale of pay which necessarily means that the initial pay of the petitioner after her appointment in that school would be the initial of the appropriate time-scale of pay. The school authority is not competent to fix the initial pay of any teacher or non-teaching employee at any stage higher than the initial of the appropriate scale of pay without the prior approval of the District Inspector of Schools concerned.

It appears that the petitioner has been appointed to an additional post in Begampur J. P. Institution in 2007 but no copy of any memo showing retention of the said additional post and her substantive approval of appointment has been submitted to me.

I have been taken my decision having assessed that her appointment is already substantively approved following retention of the post. If the retention of the post and substantive approval of her appointment are not already granted the school authority is directed to take necessary steps in accordance with law in connection with retention of the post and substantive approval of her appointment.

The matter is thus disposed of."

So far as the first part of the order is concerned, there is no dispute that the petitioner has been held entitled to the accrued provident fund amount whether under the school in Purulia or in the school at Saptagram or Begampur. However, Mr. Kar, learned senior advocate has submitted that despite this entitlement having been accepted, in reality the provident fund amounts have not been disbursed to the petitioner or made available to her. Nor any account has been opened in the name of the school in question and she has no access to this provident fund amount, which in law she ought to have.

So far as the next portion of the order, it has given me pause. While the respondent No. 2 of his own has held that a particular Government order which is applicable only to primary schools does not grant the petitioner any protection of pay, on the other hand, the respondent No. 2 has accepted that the petitioner is entitled to protection of pay in respect of service she has rendered in the schools in Purulia, Saptagram and Bengampur and the last pay she had drawn at Saptagram would be the basis of pay fixed for the Begampur school. He has also held that for the purpose of counting the qualifying service of the petitioner in the government school in Purulia towards her retirement dues, when she does retire, this is also available under a Government order dated May 15, 1985 referred to in the order annexed as Annexure P/13 to the writ petition. Despite all these the respondent No. 2 has held that qualifying service for retirement benefits are necessarily interlinked and/or interdependent so much so that if any past service is counted as qualifying service for retirement benefit, the same may or may not lead to protection of pay also; but if any past service leads to protection of service, the same will be counted as qualifying service. Here the respondent No. 2 has clearly held in his reasoned order that the petitioner is entitled to protection of pay and that qualifying service is available in terms of a Government circular applicable to secondary schools. Therefore, this rider added by the respondent No. 2 ought not to prejudice the writ petitioner.

More importantly in the extract quoted above, two things mentioned by the respondent No. 2 separately including that the school authority is not a competent authority to fix the initial pay of any teacher at any stage higher than the initial of the appropriate scale of pay without prior approval of the concerned District Inspector of Schools appears to be an observation which was not warranted by the findings expressly recorded by the respondent No. 2. Once the appointment of the petitioner was approved and she was held to be entitled to the benefit of the protection of pay as also qualifying service in all the institutions where she had served after being duly selected and appointed in accordance with law, it was no longer open to the respondent No. 2 to travel to her initial appointment and make such observation.

Therefore, while not interfering with the said order as in Annexure P/13 I make it clear that the said order shall be construed as an acceptance of the claim of the petitioner that she is entitled to both protection of pay as was applicable to her from the school in Purulia to the school in Saptagram and then to the school in Begumpur and that she is entitled to have qualifying service in each such institutions recorded for all purposes including for retirement and other service benefits with pay protection. I have asked the learned advocate for the respondents whether he has any objection to such an order being passed in view of the contradictory statements made by the respondent No.

Learned advocate for the respondents fairly submits that the records speak for itself and he has nothing to add. So far as the provident fund is concerned, even after accepting entitlement of the petitioner to the accrued provident fund amount all through the service career of the petitioner in the three different schools, it is strange that till today no account has been opened in the Begampur school which shows the accumulation of the provident fund amounts so far as accrued in the account of the petitioner under provident fund account number and I am told that she has no access to the provident fund amount to which any employee has access under the Employees Provident Fund Act. I am told by Mr. Kar, learned advocate appearing for the petitioner this can be effective if I grant a mandamus partially in terms of prayer (a). Since mandamus has been prayed for in respect of quashing of the impugned order as in Annexure P/13 and as mandatory orders have been prayed for I choose to pass the mandatory order instead of issuing a writ in the nature of mandamus. Therefore, there shall be mandatory order directing Saptagram High School to immediately transfer the provident fund money standing in the name and account of the petitioner from Diamond Harbour Treasury to Alipore Treasury in the name of Begumpur Jnanda Prosad Institution within a period of seven days from the date of communication of this order.

Since I have already held that she is entitled to all protections, question of any deduction from her provident fund or other service dues as indicated by the respondent No. 2 in the order as in Annexure P/13 is clearly not correct and suffers from jurisdictional error and, therefore, to that extent the impugned order as in Annexure P/13 is modified by virtue of this order. Therefore, by this order while I upheld the findings of the respondent No. 2 as to the continuity of service and pay protection of the petitioner for all purposes including service benefits, I reject the contentions that any deduction of pay shall be made from her receivable amount.

The writ petition is thus disposed of.

Since I have disposed of the main writ petition, the application for interim order is made absolute and shall follow the result of this case.

The application being CAN 11110 of 2017 is also disposed of.