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Judgment
MD. SHABBAR RASHIDI, J:-
The writ petition is directed against an order issued by the Additional District Inspector of Schools vide Memo No. 1556/U/M dated January 5, 2011.
By the said order, the post graduate scale of pay granted to the petitioner at the time of his appointment was modified. According to the earlier order, such scale of pay was granted in favour of the petitioner from the date of his joining. By the impugned memo, it was modified and was made applicable with effect from a subsequent date. Such order has been challenged by the present writ petitioner, in this writ application.
It is submitted by learned advocate for the petitioner that such order was passed illegally and arbitrarily without any legal sanction behind such order.
Learned advocate for the petitioner also submits that such memo, passed by the authorities, has no legal basis and cannot be sustained. He further submits that the entitlement of scale of pay which had already accrued to the petitioner in terms of the extant rules was illegally taken away by the impugned memo.
On the other hand, learned advocate appearing for the Sate respondent submits that the petitioner had joined the post which was meant for graduates. The petitioner, as a matter of right, cannot claim the post graduate scale. Learned advocate for the State respondents submits that the post, joined by the petitioner, required minimum educational qualification of graduate. The petitioner having a post graduate degree, cannot automatically enjoy the scale of pay available for the post graduate posts.
The petitioner appeared in a selection process initiated by the West Bengal Regional School Service Commission in the year 2001. He was qualified and appointed as an Assistant Teacher in the Theology Group (M.M.). Accordingly, letter of appointment was issued by the Secretary, Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah on July 14, 2001. The petitioner joined in the said Madrasah on July 18, 2001 under M.M.B.A. category. The service of the petitioner was approved by the District Inspector of Schools (SE), Howrah by a memo in this regard. It was further contended by the petitioner that the Additional District Inspector of Schools (SE), Uluberia Sub-Division by a memo being No. 380/1(3)/U/M dated April 23, 2009 addressed to the Secretary, Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah, the petitioner was allowed post graduate scale of pay in terms of Memo No. DME, WB No. 1040-MD dated July 17, 2008 and No. 150-MD dated January 30, 2009 with effect from July 18, 2001 i.e. the date of joining.
Subsequently, the Additional District Inspector of Schools (SE), Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah issued another memo being no. 1556/U/M dated January 5, 2011 addressed to the Secretary, Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah. By such memo, the scale of pay of the petitioner, as an Assistant Teacher of the said Madrasah, modified the date of effect from July 18, 2001 i.e. from the date of his joining to take effect from January 1, 2009.
The petitioner made a representation before the authorities on August 10, 2022 stating inter alia to grant the post graduate scale of pay with effect from the date of his joining i.e., July 18, 2001 instead of from January 1, 2009. It was further contended that the Managing Committed of the Madrasah, in its meeting no. 365 dated August 20, 2022, took a resolution deciding therein that the petitioner is entitled to the post graduate scale of pay from the date of joining in service i.e., July 18, 2001. All the relevant documents in support of the claim of the petitioner were submitted by the Superintendent of Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah.
The petitioner also made out a case that the Minority Affairs of Madrasah Education Department, Government of West Bengal by its Memo No. 1040-MD dated July 17, 2008 had notified that two years M.M. held from 1998 onwards, be treated equivalent to Master Degree of different universities for all purposes.
The Minority Affairs of Madrasah Education Department also issued a Memo No. 150-MD dated January 30, 2009 notifying an Expert Committee constituted by the Government of West Bengal to examine the equivalent of Kamil and M.M. Course of studies. The said Committee, after detail deliberation, furnished recommendations which were accepted by the Committee.
The petitioner also relied upon circular issued by the Government of West Bengal being No. 735-SE(S)/SP-132/2002. The said circular which reads as follows :-
“GOVERNMENT OF WEST BENGAL
School Education Department
Secondary Branch
Bikash Bhawan, Salt Lake, Kolkata - 700 091
No 735. SE (S/SP-132/2002 the 3rd June, 2002 From Shri D Basu. IAS Special Secretary to the Govt of West Bengal To The Director of School Education Government of West Bengal Sub : Granting of Higher Scale of pay to Post-Graduate teacher selected by SSC as Hons. Graduate.
With reference to his Memo No 1000-GA dated 22.04.2002 on the above-noted subject, the undersigned is directed to say that the question of granting higher scale of pay to Hons. Graduate teachers having Post-Graduate degree in the subjects relevant to their appointment working in Non Govt aided secondary Schools and Madrasahs after being selected by concerned School Service Commission has been under consideration of the State Govt for some time past.
It is a fact that Hons. Graduate candidates have to compete with the Post-Graduate candidates on the same set of syllabus and same set of question papers in the test held by the W.B. S .S.C. for selection of teachers. Moreover, the W.B.S.S.C. prepares a single panel in a subject from amongst the selected Hons. and Master degree holders.
Upon due consideration of the fact the Govt. in the School Education Department has decided that Hons. Graduate teachers of Non-Govt, aided Secondary Schools including Madrasahs appointed through W.B.S.S.C. who have obtained Post-Graduate degree in the subject relevant to their appointments prior to their date of joining in the School/Madrasahs or who have completed their course of studies at Post-Graduate level in the subject relevant to their appointment or have appeared at the examination but result of that examination was not published till the date of their joining may be allowed higher scale of pay with effect from the date of joining on the date following the last date of examination (both theoretical and practical) whichever is later.
The last sentence of para 3 of the G.O. No. 155-SE (B) dated 13th July. '99 (amending GO. No. 25-SE. (B)/IM-102/98 dated 12.02.98) is further amended to this extent All concerned are being informed Sd/- D. Basu Special Secretary”
From the materials placed on record, it transpires that the petitioner was recommended for appointment to Uluberia Haji Ishaque Darul Ulum Siddiquia Senior Madrasah by memo No. 332/SSC dated December 12, 2001 issued by the District Inspector of Schools (SE), Howrah. By a writing dated July 14, 2001 the Secretary of the concerned School invited the petitioner to join the Madrasah. The joining of the petitioner was approved with effect from July 18, 2001. By Memo No. 380/1(3)/U/M dated April 23, 2009. The Additional District Inspector of Schools (SE), Uluberia Sub-Division, Howrah notified that “in connection with the subject cited above the undersigned has to state that the post graduate scale of pay is allowed as per D.M.E., WB No. 1040-M.D. dated July 17, 2008 and No. 150-M.D. dated January 30, 2009 in favour of the petitioner with effect from July 18, 2001 i.e. from the date of his joining”.
By the impugned Memo, the date of effect of granting post graduate scale of pay to the petitioner was modified. Such memo is set out herein for proper appreciation :-
“Government of West Bengal
Office of the Addl.District Inspector of Schools, (S.E.),
Uluberia Sub-Division,Howrah.
Memo No. ...1556/U/M. Dated: 5.1.11 From: The Addl. Dist. Inspector of Schools, (S.E), Uluberia Sub-Division, Howrah. TO : The Secretary, Uluberia Hazi I.D.U.S.Sr.Madrasah, P.O. Uluberia, Howrah. Ref.: A.D.I/S. (S.E), Uluberia's No.380/U/M. dated 23.4.09 and School letter No. Nil, dated 29.10.10.
In modification of A.D.I/S(S.E), Uluberia Sub-Division's Memo No.380/U/M., dated 23.4.09 and in terms of D.M.E., W.B's Memo No.1040-M.D.,dated 17.7.08 and Memo No.150-M.D., dated 30.1.09 the undersigned has to state that correction in respect of the date of effect of P.G. Scale of the under mentioned teachers so accorded is made as follows:-To be read as Instead of 1.Sk.A.Bakkar, M.M.A.T. P.G. w.e.f. 18.7.2001 Scale approved w.e.f.01.1.09.
2.Sk Kamaluddin, M.Μ.Α.Τ. P.G. w.e.f. 18.7.2001 scale approved w.e.f.01.1.09.
3.Md.A.H.Molla,M.M. A.T. P.G. w.e.f. 03.11.2007 scale approved w.e.f.01.1.09. All teachers be informed accordingly.
Addl.Dist. Inspector of Schools,
(SE), Uluberia Sub-Divn.
Howrah.”
From the two memos, it appear that the modification of the effect of scale of pay granted to the petitioner was based on self-same memos being 1040 dated July 17, 2008 and Memo No. 150 dated January 30, 2009. There appears to be no specific reason in the impugned memo under consideration, as to why the date of effect of grant of post graduate scale of pay in favour of the petitioner was modified from the date of his joining i.e. July 18, 2001 to January 1, 2009. The said respondent has come up with an affidavit relying upon a memo being No. 560-MD/O/6M-40/07 dated March 31, 2010 that since the post joined by the petitioner may have graduates only, the post graduate of scale of pay could not have been enjoyed by the petitioner automatically. The said memo reads as follows:
“Government of West Bengal Minority Affairs & Madrasah Education Department Writers’ Buildings, Kolkata – 700 001.
No.560-MD/O/6M-40/07 Date:31.03.2010
NOTIFICATION
WHEREAS MM Qualifications obtained from 1998 onwards have been declared as equivalent to Post Graduate Degree Vide Notification No.1040-MD dt.17.07.2008; AND WHEREAS Scale of Pay of (Post Graduate) MM Teachers have been allowed Rs.6000-12000/- w.e.f. 01.01.2009 vide Notification No.150-MD dt.30.01.2009;
AND WHEREAS a question has been arisen as to whether the existing Teachers of Madrasahs holding M.M. (post 1998) qualifications will automatically enjoy the above scale of Rs.6000-12,000/-;
Now therefore it is clarified that the said existing teachers will not automatically enjoy said scale as they were not recruited against vacancy meant for post graduate (MM) degree holders but they may appear before West Bengal Madrasah Service Commission against vacancies Notified for post graduate (MM) teachers as in-service candidate and get the benefit of the said scale on being selected by the said Service Commission keeping the other existing benefit obtained by the said teachers intact.
By Order of the Governor, Jt. Secy. To the Govt. of West Bengal”
As it transpires from the materials on record that the petitioner joined the post of Assistant Teacher in the year 2001. His scale of pay was fixed in terms of Memo No.1040-MD dated July 17, 2008 and Memo No.150-MD dated January 30, 2009 with effect from the date of his joining i.e., July 18, 2001. Subsequently, the date of effect of such scale of pay in respect of the petitioner was revised to January 1, 2009.
At the time of hearing of the instant writ petition, the State respondents has come up before this Court with a Memo which says that the post held by the petitioner was made for graduate. The petitioner having post graduate degree could not have enjoyed the post graduate scale of pay automatically.
As it appears, the petitioner had already joined in the post and carved the scale of pay which had already accrued to him based on the decision of the State in the form of a Memo. Such right cannot be taken away by a subsequent notification as relied upon by the State respondents, being No.560-MD dated March 31, 2010. The Government circular, being No.735-SE(S)/SP-132/2002 dated June 3, 2002 clearly laid down that honours graduate teachers of Non-Government Aided secondary schools including Madrasahs appointed through WBSSC who have obtained post graduate degree in the subject relevant to their appointments prior to their date of joining in the school/ Madrasahs or who had completed their course of studies as post graduate level in the subject relevant to their appointment or had appeared at the examination but result of that examination was not published till the date of their joining may be allowed higher scale of pay with effect from the date of joining.
It is on the basis of such circular issued by the Government of West Bengal, the post graduate scale of pay was granted to the petitioner with effect from the date of his joining, i.e., July 18, 2001.
In the impugned memo, I find no reason has been assigned by the authorities to modify the date of effect of the grant of post graduate scale of pay from a subsequent date.
In such view of the fact, the impugned memo issued by the Additional District Inspector of Schools (SE), Uluberia Sub-Division, Howrah, bearing No.1556/U/M, dated January 5, 2011, is hereby set aside.
The respondents are directed to grant the petitioner the post graduate scale of pay with effect from the date of his joining as Assistant Teacher, i.e., July 18, 2001.
The authorities will carry out the directions passed by this Court in the present writ application within a period of four weeks from date in respect of grant of pay scale with effect from the date of his joining together with arrears.
With the aforesaid directions, the instant writ petition stands disposed of.
Urgent Photostat Certified copy of this judgment, if applied for, be supplied expeditiously after complying with all necessary legal formalities.