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Judgment
Hon''ble Mr. Justice Jayanta Kumar Biswas
The petitioner in this WP under art.226 dated June 29,2011 is questioning a decision of the District Inspector of Schools (SE), Purba
Medinipur. A copy of the decision was sent to her with a memo dated February 2,2011 ( WP p.64). By an order dated February 20, 1989 the
District Inspector of Schools (in short DI) approved the petitioner''s appointment in Haldia Government Sponsored X-Class Secondary School as
an Assistant Teacher. Her educational qualifications were BSc (Hons. in Physics), BEd. She was appointed in the honours graduate teacher
category.
By an application dated December 20,2000 the petitioner requested the Managing Committee (in short MC) of the school to grant her
permission to do postgraduate correspondence course at Bidyasagar University for acquiring a postgraduate degree in Physics. By a resolution
dated December 22, 2000 the MC granted the permission and directed that the decision should be sent to the DI for information and approval.
By an application dated August 19, 2005 the petitioner requested the MC to grant her leave so that she might take the MSc Part-I (Physics)
Examination, 2005. By a resolution dated December 22, 2006 the MC granted the leave and directed for moving the West Bengal Board of
Secondary Education for sanction.
By an application dated July 11, 2007 the petitioner requested the MC to grant her leave so that she might take the MSc Part-II (Physics)
Examination, 2006. By a resolution dated October 5,2007 the MC granted the leave and directed for moving the Board for sanction.
The petitioner obtained the postgraduate degree in Physics in 2007. The headmaster of the school wrote a letter dated January 8, 2008
requesting the Board to sanction the leave that the MC had granted the petitioner for taking the Part-I and Part-II Examinations of the course.
Then by an application dated September 14, 2009 the petitioner requested the Director of School Education, West Bengal and the DI to grant
her pay of postgraduate teacher category. By the impugned order the DI rejected the request on three grounds:- (i) she acquired the qualification
without the DI''s prior permission; (ii)the Board did not approve the decision of the MC to grant her leave; and (iii) the G.O. No.670-SE(S) dated
September 4,1998 would not permit the benefit.
Mr. Chatterjee appearing for the petitioner has argued as follows. Sub-section.(3) of s.14 of the West Bengal Schools (Control of Expenditure)
Act, 2005 entitled the petitioner to the benefits. Nothing anywhere required her to obtain the DI''s prior permission for acquiring the postgraduate
degree. The manner prescribed by G.O.No.593-SE(B) dated November 27, 2007 was not applicable to the case. The leave aspect was an
extraneous consideration; and the G.O.No.670-SE(S) dated September 4, 1998 had no application to the case.
Mr. Ganguly appearing for the State has argued as follows. Sub-section.(3) of s.14 of the West Bengal Schools (Control of Expenditure) Act,
2005 could not entitle the petitioner to draw the pay of postgraduate teacher category upon acquiring the postgraduate degree before November
27, 2007 only when the manner for acquiring the postgraduate degree, required by the provisions of the sub-section, was specified.
His contention are these. In any case, in view of the G.O. No.548-SE(S) dated June 24, 1997 the petitioner, if wanted to claim the pay of
postgraduate teacher category, was required to obtain the DI''s prior permission before acquiring the postgraduate degree. The staff pattern
mentioned in the G.O.No.670-SE(S) dated September 4, 1998 did not permit grant of the benefit, for more than the permissible number of
teachers of the school were drawing the pay of postgraduate teacher category.
Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005 is quoted below:-
(1) Every teacher of a school shall, if appointed in the post of Undergraduate teacher category, be entitled to draw pay in the scale of pay in
which he is appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the
qualifications specified for such post.
(2) Every teacher of a school shall, if appointed in the post of Graduate teacher category, be entitled to draw pay in the scale of pay in which he is
appointed and shall not be entitled to claim any additional increment or higher scale of pay for acquiring any qualification other than the
qualifications specified for such post.
(3) Every teacher of a school shall, if appointed in the Honours Graduate or Post-graduate teacher category, be entitled to draw pay of Post-
graduate teacher category, upon acquiring Post-graduate degree, in the manner as may be specified by order.
The admitted position is that the requisite order in exercise of power conferred by sub-s.(3) of s.14 of the West Bengal Schools (Control of
Expenditure) Act, 2005 specifying the manner in which a teacher, to entitle him to draw the pay of postgraduate teacher category, is to acquire the
postgraduate degree was issued only on November 27, 2007. A copy of the order is at p.46 of the WP.
The preamble of the order dated November 27, 2007 is quoted below:-
The School Education Department, Government of West Bengal considers it necessary to publish an order specifying the manner in which a
teacher appointed in Honours Graduate/Post Graduate scale of pay will be entitled to claim any additional inmcrement and higher scale of pay
upon acquiring Post Graduate/or any Higher diploma/Degree u/s 14(3) of the West Bengal Schools (Control of Expenditure) Act, 2005.
In paragraphs 1-5 of the order the manner in which a teacher intending to take the benefit of the provisions of sub-s.(3) of s.14 of the West
Bengal Schools (Control of Expenditure) Act, 2005 is to acquire the postgraduate degree was specified. The manner (or procedure) was to be
followed by all from November 27, 2007 when the order was issued.
Paragraph 6 of the order dated November 27, 2007 is quoted below:
6.Prayers from teachers who have already secured higher qualification observing the procedure mentioned above and who submitted his/her claim
to concerned District Inspector of Schools with a complete set of papers like certificate, resolution of Managing Committee etc before the
introduction of West Bengal Schools (Control of Expenditure) Act, 2005 may be considered only by the District Inspector of Schools (SE) with
the approval of Director of School Education, West Bengal only after examining the staffing pattern, vacancy etc. of the school concerned.
It is evident from para. 6 of the order dated November 27, 2007 that claims of teachers who acquired postgraduate degree before
introduction of the West Bengal Schools (Control of Expenditure) Act, 2005 and who had submitted the claim for pay of postgraduate teacher
category before introduction of the Act was to be decided according to the manner specified therein.
In this case the petitioner acquired the postgraduate degree in March 2007; i.e. after the introduction of the West Bengal Schools (Control of
Expenditure) Act, 2005; but before the order dated November 27, 2007 was issued; and claimed the pay of postgraduate teacher category on
September 14, 2009; i.e. after the order dated November 27, 2007 was issued.
It is, therefore, evident that nothing in the order dated November 27, 2007 was applicable to the case of the petitioner. Paragraph 9 of the
order (the last para. thereof) is quoted below:-
9.This order will replace all earlier orders publjshed in this matter before the date of coming into effect of West Bengal Schools (Control of
Expenditure) Act, 2005. 1595 SE (S) dated 26-12-2005 also stands modified.
The order required by the provisions of sub-s.(3) of s.14 of the West Bengal Schools (Control of Expenditure) Act, 2005 was first issued on
December 26, 2005; it was No.1595-SE(S); and it was to apply only to a teacher appointed through the West Bengal School Service
Commission. It was not applicable to the petitioner; for she had not been appointed through the Commission.
All the orders concerning entitlement of a secondary school teacher appointed in the honours graduate category to draw pay of postgraduate
category teacher, upon acquiring postgraduate degree, issued before introduction of the West Bengal Schools (Control of Expenditure) Act, 2005
were replaced by the order dated November 27, 2007. This means that they were in force till November 26, 2007.
Hence the orders on the subject issued before introduction of the West Bengal Schools (Control of Expenditure) Act, 2005 and in force till
November 26, 2007 were applicable to the case of the petitioner who acquired the postgraduate degree in March 2007 doing a correspondence
course on the basis of the MC permission granted considering her application dated December 20, 2000.
The question, therefore, is whether at the date the petitioner decided to take admission for acquiring the postgraduate degree she was required
to obtain prior permission of the DI. Relying on the G.O.No.548-SE(S) dated June 24, 1997, Mr. Ganguly has argued that this G.O. required the
petitioner to seek the DI''s prior permission for acquiring the postgraduate degree.
Relevant parts of the G.O.No.548-SE(S) dated June 24, 1997 are quoted below:-
Sub: Recognition of correspondence courses conducted by the different Universities of India.
The undersigned is directed by the order of the Governor to say that henceforth all the teachers teaching in different state-aided schools will have
to take prior permission from the District Inspector of Schools(SE) through the Managing Committee, Ad-hoc Committee/Administrator as the
case may be if they like to enrol themselves and to appear for the examination conducted through Correspondence/Distance Mode of education
from the UGC-affiliated universities. The managing committee of the concerned school shall send such cases to DI(SE) for approval along with
their comments, including, inter alia, the relevance of the Subject of higher studies and also whether such higher studies are likely to affect the duties
of the teacher in the school.
It is evident from the G.O. dated June 24, 2007 that it had nothing to do with the acquisition of postgraduate degree by a teacher of a
Government aided or Government sponsored school with a view to entitling him to draw pay of postgraduate teacher category. I am unable to
accept that the G.O. created the petitioner''s obligation to seek the DI''s prior permission. Even if it is accepted that the G.O. dated June 24, 1997
was applicable to the case, it can be concluded from the facts of this case that the petitioner complied therewith.
By a G.O.No.796-Edn(S) dated November 22, 1993 it was clarified that all teachers of secondary schools with higher qualification of
postgraduate degree or the equivalent in relevant subjects would get higher scales of pay in relaxation of the staff pattern laid down in G.O.
No.772-Edn(S) dated January 15, 1972 for high schools and junior high schools respectively; because higher scale of pay to teachers of
secondary schools having higher qualification had already been granted in Memo No.372-Edn(3) dated July 31, 1981 read with Memo No.33-
Edn(3) dated March 7, 1990. In the order nothing was said about prior permission of the DI.
In this case the petitioner applied to the MC for permission to take admission. The MC permitted and directed for sending the decision to the
DI for information and approval. There is nothing to show that the decision was not sent to the DI. The DI has totally ignored this aspect.
It was for him to say that the decision of the MC dated December 22, 2000 permitting the petitioner to take admission was not sent for his
information and approval. The petitioner was not supposed to take any step in the matter; for she was to seek permission, if at all, only through the
MC. It is, therefore, evident that the claim could not be rejected on the grounds that she acquired the postgraduate degree without seeking the
DI''s prior permission.
The leave aspect was totally extraneous to the question the DI was deciding. There was nothing before the DI to conclude that the Board had
rejected the request of the school to sanction leaves the MC granted to the petitioner for taking the Part-I and Part-II Examinations of the course.
The school authority wrote letter to the Board seeking sanction. Even if the request was turned down that could not disqualify the petitioner to
draw pay of postgraduate teacher category upon acquiring postgraduate degree; for refusal to sanction the leaves could not nullify the degree or its
effect.
A copy of the G.O. No. 670-SE(S) dated September 4, 1998 is at p.10 of the AO. It is evident from the G.O. that it had nothing to do with a
teacher''s entitlement to draw pay of postgraduate teacher category upon acquiring postgraduate degree.
It was regarding distribution of teaching staff and the provisions relied on provided that a school having additional teaching staff in any group
should limit distribution of teaching posts for honours/master degree holders to 50% of that group. It cannot be said that because of this a person
appointed in the honours graduate category would not be entitled to pay of postgraduate teacher category upon acquiring postgraduate degree in
the specified manner.
In any case, nothing in the G.O. can defeat the petitioner''s right to draw pay of postgraduate teacher category created by sub-s.(3) of s.14 of
the West Bengal Schools (Control of Expenditure) Act, 2005. In my opinion, on facts and in law the petitioner was entitled to draw pay of
postgraduate teacher category upon acquiring postgraduate degree and the respondents ought to have given her the benefit. For these reasons, I
allow the WP, set aside the impugned decision and direct the State to pay the petitioner pay of postgraduate teacher category from the date the
postgraduate degree she acquired entitled her to the benefit. Compliance within eight weeks from the date this order is served. No costs. Certified
xerox