At, High Court of Judicature at Calcutta
By, THE HONOURABLE MRS. JUSTICE AMRITA SINHA
For the Petitioner: Sundarananda Pal, Sisir Kumar Bhowmick, Amritendu Bhowmick, Advocates. For the Respondents: None.
This matter was taken up for hearing on 6th July, 2018 when none appeared on behalf of the respondents. A direction was given to the learned Advocate for the petitioner to serve notice upon the Government pleader intimating that the matter will appear in the list on 13th July, 2018. When the matter was taken up for consideration by this Court on 13th July, 2018 the learned Advocate for the petitioner handed up the copy of the notice showing service upon the office of the Government pleader. A copy of the writ petition, affidavit in opposition and affidavit in reply was also forwarded with the said notice. None appears on behalf of the respondents in spite of service.
In this writ petition the petitioner has challenged the illegal and intermittent curtailment of his salary by the respondents without any notice. The petitioner a scheduled caste candidate was appointed as an Assistant Teacher in Maju R.N. Basu High School, P.S Maju, District Howrah, a non-Government aided High School on 11th December, 1
Please Login To View The Full Judgment!
985. At the time of appointment his qualification was M.Sc in Anthropology and his scale of pay was Rs.550/--1470/-. He worked in the said school till 10th January, 1987.
Thereafter, on getting better opportunity the petitioner joined Belgachia Mahatma Aswini Dutta Vidyapith, Belgachia Howrah as Assistant Teacher in science group. His appointment was approved from 12th January, 1987 and his salary was admissible under the G.A. Rules vide G.O. No. 772-Edn (S) dated 8th July, 1984. The petitioner acted in the said school as the teacher-in-charge with effect from 1st December, 2007 till his superannuation on 31st. March 2018.
In the said school there are thirteen teaching staff, four non- teaching staff and one clerk. Requisition for salary of all the teaching and non-teaching staff is made by the school and the same is granted and transmitted by the respondent authorities directly in the bank account of the school. All on a sudden on and from April, 2007 the school started receiving amount less than what had been requisitioned. No reason whatsoever had been intimated to the school for the curtailment of the requisitioned amount.
On a personal meeting with the District Inspector of Schools on 27th February, 2008 the petitioner for the first time came to learn that the said deduction had been made as the petitioner had received excess payment on account of salary. The said excess payment has been made taking into account the higher qualification of the petitioner. The petitioner was informed that he was not entitled to draw salary appropriate to his M.Sc qualification as per memo no. 447- Edn (S)/4A-8/93 dated 18th June, 1994. The petitioner was further informed that as per memo no. 74-S.E. (S)/4A-8/93 dated 7th February, 1995 the payment received by him in accordance with his M.Sc qualification had been treated as overdrawal and the same is being deducted from his salary at the present moment.
It is submitted that the petitioner had been appointed on 11th December, 1985 and since then he had drawn his pay in accordance with his M.Sc qualification. He submits that his basic pay had been fixed as per ROPA 1990 and 1998. He submits that on the date of appointment the petitioner possessed M.Sc Anthropology qualification and his qualification is duly mentioned in his letter of appointment as well as in his last pay certificate issued by the Secretary, Maju R.N. Basu High School.
It is also submitted that the circulars relied upon by the respondents in curtailing his scale of pay came into existence long after the petitioner was appointed and the same will not be applicable retrospectively in his case. The petitioner prays for releasing the arrear salary in accordance with his qualification and the scale of pay on the date of his appointment which had been illegally deducted from his pay.
Though affidavit-in-opposition has not been filed in Court in terms of the direction passed on 22nd April, 2008 a copy of the same which had been served upon the learned Advocate for the petitioner has been handed up to the Court. The same is retained with the records. Affidavit-in-reply filed by the petitioner in connection thereto is also kept on record.
From the affidavit-in-opposition it appears that the respondents have deducted a portion of the salary of the petitioner on the ground that as per the memos dated 18th June, 1994 and 7th February, 1995 the petitioner is not entitled to get post-graduate scale of pay as the post-graduate qualification of the petitioner does not have relevance with the subject Life Science with the petitioner was teaching in school.
The petitioner in his reply has annexed a memo being no. 400- Edn (B)/IM-45/91 dated 10th September, 1991 issued by the order of the Governor and signed by the Secretary, Government of West Bengal wherein it had been specifically mentioned that "all existing Secondary School teachers who were appointed with higher qualification in subjects not relevant to their teaching or who improved their qualification subsequent to their appointment in subjects not relevant to their teaching will be allowed the higher scale on qualification basis with effect from the 1st. April 1981 or after five years' teaching counting from the date when higher qualification was obtained whichever is later."
The petitioner has also annexed in his writ petition certificates issued by the head of the department and also from the professor department of Anthropology, University of Calcutta certifying that the course content of anthropology comes under the purview of life science and that the discipline of anthropology is treated as a major stream of biological science and the same belongs to the domain of life science.
The Learned advocate for the petitioner has relied upon the case of H.L. Trehan and Ors. versus Union of India and Ors. delivered by a three judges bench of the Hon'ble Supreme Court of India reported in AIR 1989 SC 568 wherein the Hon'ble Supreme Court had been pleased to hold that there can be no deprivation or curtailment of existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice.
The petitioner has retired on attaining his age of superannuation on 31st. March 2018 during the pendency of the instant writ petition. The retirement benefits of the petitioner have not been released by the respondents. Leave aside pension, gratuity and provident fund has also not been paid to the petitioner till date. Prayer has been made for a direction upon the respondent authorities to fix the scale of pay of the petitioner at par with his educational qualification and to release the retirement benefits in his favour.
From the papers annexed with the writ petition it is seen that the petitioner at the time of his appointment was a master degree holder in Anthropology and his scale of pay was approved as per his educational qualification. The petitioner received his pay in accordance with the said scale for a considerable period of time i.e from January 1985 till March 2007. All on a sudden the respondent authorities realised that the petitioner was not entitled to the said scale of pay that too, relying on government memos dated 1994 and 1995.
It is not the case of the respondents that the petitioner improved his qualification after getting his appointment or the petitioner obtained his job by suppressing his educational qualification. The appointment letter issued in favour of the petitioner mentions his qualification as M.Sc. Anthropology. He was getting his pay according to his said qualification. His service and scale of pay was duly approved by the respondents.
Now, after such a long period of time it is not open to the respondents to deny the scale of pay which the petitioner had enjoyed for so many years. Furthermore the memos relied upon by the respondents to withdraw the pay scale already received by him came into existence at a much later date and the same ought not be made applicable in case of the petitioner with retrospective effect.
Moreover, the memo relied upon by the petitioner dated 10th. September 1991 clearly states that teachers appointed with higher qualification in subjects not relevant to their teaching will be allowed higher scale on qualification basis with effect from 1st. April 1981. Assuming that the qualification of the petitioner is not relevant to the subject which the petitioner is teaching even then the petitioner is entitled to enjoy the pay scale according to his qualification. The above memo dated 10th. September 1991 squarely comes to the aid of the petitioner.
The respondents cannot rely upon subsequent memos dated 1994 and 1995 to deprive the petitioner of the benefits which has already accrued in his favour by dint of the memo dated 10th. September 1991. The petitioner had exercised his option as per ROPA 1990 and 1998 and his scale of pay was fixed accordingly. It is too late to deny the said benefit to the petitioner.
The judgment of the Supreme Court speaks of the same proposition that there can