w w w . L a w y e r S e r v i c e s . i n



Sukanta Saha v/s State of West Bengal & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- SUKANTA PVT LTD [Strike Off] CIN = U51909WB1978PTC031618

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    WP. No. 5833 (W) of 2018

    Decided On, 09 August 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Petitioner: Anjan Bhattacharya, Kazi Sajjad Alam, Advocates. For the Respondents: Md. Yasin Ali, Tapati Samanta, Advocates.



Judgment Text

Arijit Banerjee, J.

1. The petitioner was appointed as Librarian of the higher secondary section of the respondent school on temporary basis vide letter dated 10 July, 1987.

The appointment of the petitioner was provisionally approved for two years with effect from 11 July, 1987 by the DI of Schools (SE), Jalpaiguri being the respondent no. 4 vide office memorandum dated 23 July, 1987. At the time of joining his service the petitioner had the qualification of MA (Economics), B. Lib. Sc.. However, since at that time there was no scale of pay for MA. B.Lib. Sc. in high school, the petitioner was given the pay scale of BA. B. Lib. Sc.

2. The respondent no. 4 finally approved the appointment of the petitioner on substantive basis with effect from 11 July, 1989 in an additional post sanctioned by the Government, vide office memorandum dated 2 May, 1989.

3. By his letter dated 8 June, 1990 addressed to the respondent no. 4 the petitioner prayed for higher scale of pay for MA. B.Lib. Sc. (Rs. 1420-2180) as recommended by the Third Pay Commission.

4. Vide office memorandum dated 22 October, 1997 the respondent no. 4 granted higher scale of pay to the petitioner as per GO No. 39-SE (HS) dated 12 March, 1996, with effect from 1 October, 1996. The Government Memorandum dated 12 March, 1996 on the basis of which the higher scale of pay was granted to the petitioner reads as follows:-

"The question of granting Higher Scales of pay, to existing Librarians on improvement of general academic qualification, as was available to new entrants of State Govt. Sponsored or Aided- Secondary Schools, as per this Department, Memo No. 372-Edn. (B), dated 31.7.81 was under active consideration of the State Govt. In the School Education Department for some time past.

After careful consideration of the matter and in continuation of the Education Department Memo No. 372-Edn (B) dated 31.7.81, the undersigned is directed by order of the Governor to say that the Governor has been pleased to decide that similar benefit of Higher Scales of Pay may also be extended notionally, on improvement of general academic qualification, to any Librarian, existing prior to issuance of this Department Memo No. 33-Edn (B) dated 7.3.90, in the Non-Govt. Aided/Govt. Sponsored Schools, with effect from the date of improving such academic qualifications by the incumbents, subject to the condition that no Arrear Claim will be admissible for such eligible incumbents."

5. Vide memo dated 5 July, 2000, the Assistant Inspector of Schools (SE), Alipurduar, Jalpaiguri, informed the Headmaster of the respondent school that the pay fixation of the petitioner was not in order as he was not entitled to post-graduate scale of pay. By the said memo, the school authorities were requested to resubmit the fixation as admissible as per Rule and calculation sheet of total overdrawn amount.

6. By a letter dated 12 September, 2000 the Headmaster of the respondent school informed the concerned DI of schools that although the then DI of Schools had approved the higher scale of pay for the petitioner vide memo dated 22 October, 1997, the Assistant Inspector of Schools called upon the school authorities for resubmitting the fixation of pay of the petitioner. The DI of Schools was requested to consider the petitioner's case as per Rule.

7. By a memo dated 10 November, 2000, the concerned DI of Schools informed the school authorities with copy forwarded to the petitioner that the earlier memo dated 22 October, 1997 be treated as cancelled. The school authorities were called upon to submit the fixation of pay of the petitioner as per ROPA 1998 in the existing scale of pay of Rs. 1420-3130 and that the amount already overdrawn by the petitioner should be calculated and refunded through Treasury Challan to the Government.

8. The petitioner filed WP 3680 (W) of 2001 challenging the memos dated 5 July, 2000 and 10 November, 2000. A learned Single Judge of this Court by an order dated 9 March, 2017 set aside the said impugned memos but clarified that the order shall not preclude the DI of Schools from proceeding against the petitioner in accordance with law and upon putting him on notice. If the DI took a decision adverse to the petitioner's interest, the same had to be supported by reasons. If it was found that the petitioner had rightly been placed in the higher scale of pay, the matter should be allowed to rest.

9. Subsequently, the respondent no. 4 gave a hearing to the petitioner and the school authorities and passed an order dated 2 April, 2018, the operative portion whereof reads as follows:-

"In the Order No: 9-SE (H.S)/3S-23/93, Dated: 10/02/2005 to the School Education Department, Higher Secondary Branch, Govt. Of West Bengal, which is the clarification of the Order No: 39-Edn (H.S), dated 12/03/1996 as mentioned in the subject of the Order No. 9-SE (H.S)/3S-23/93, Dated 10/02/2005 of the School Education Department, Higher Secondary Branch, Govt. Of West Bengal of School Education Department, Higher Secondary Branch, Govt. Of West Bengal in the following manner-

'In inviting a reference to the abovenoted subject and the clarification made in this Department Memo No:32-SE(HS)/3S- 23/92 Dated: 06/05/2004 as sought for by the School Education Directorate's Office Memo No: 2660 - GA, Dated 21/10/2003 the undersigned is directed to say that the clarification issued in this Department Memo No: 32-SE(HS)/3S-23/92 Dated: 06/05/2004 in the matter of allowing Post Graduate scale of pay to the Librarians, shall not be given effect to until further orders. Necessary instruction in this regard may be kindly be issued to all concerned.' So the post graduate scale of pay in favour of the petitioner cannot be entertained until further orders"

It is this order of the DI of Schools that is under challenge in the present writ petition.

10. Learned Counsel for the petitioner submitted that the Addl. DI of Schools (SE), Jalpaiguri, approved the higher scale of pay for the petitioner. The same could not have been withdrawn by the Asst. Inspector of Schools (SE), Alipurduar who is an Officer of Lower Rank. Learned Counsel further referred to the Government Notification dated 6 May, 2004 which reads as follows:-

"With reference to this Office Memo. No: 2660-GA/4G-11/94 dated 22.10.2003 on the above noted subject, the undersigned is directed to say that on the question as to whether Post Graduate Scale of Pay can be extended to the LIBRARIANS on the basis of the Post Graduate Degree in General Stream the clarification sought for in the Memo, under reference is certainly in the affirmative subject to the strict adherence of certain stipulations, as are contained in this Dept. Order No.: 39-Edn (HS) dtd. 12.3.96.

However, he is further requested to kindly take note of the G.O No. : 141-SE(HS) dtd. 14.7.97 issued in continuation of the G.O. No. : 39-Edn. (HS) dtd. 12.3.96 extending the same facility to the LIBRARIANS on improvement of professional Qualification (LIBRARY SCIENCE) under fulfilment of certain conditions as specified therein.

The Government notification dated 10 February, 2005 on the basis of which the order assailed in this writ petition was passed, has been reproduced in the impugned order.

11. Appearing for the State, Mr. Ali submitted that the Note appended to Annexure I of ROPA 1981 contains provisions for the grant of higher scale of pay for higher qualification. The Note, however, provides for grant of higher scale of pay for higher qualification with regard to teachers of a secondary institution and it does not contain any such provision for Librarians. Even assuming but not admitting that a Librarian of a secondary institution is entitled to claim higher scale of pay for his higher qualification under ROPA 1981, such entitlement is not automatic. Clause 2(a) provides for grant of higher scale only if the higher qualification is obtained by the incumbent in his 'Teaching Subject'. Clause 2(b) provides for grant of higher scale of pay for higher qualification in non-relevant subject after five years of teaching as counted from the date on which the higher qualification was obtained. Clause 2(c) provides that in future, higher scale of pay would be granted only if higher qualification is acquired by the incumbent in a subject relevant to his 'Teaching/Appointment'. Hence, the date of acquisition of Master Degree in Economics by the petitioner becomes very material. The petitioner has not disclosed such date in the writ application. It is not indicated as to whether the higher qualification was obtained by him prior to the ROPA 1981 coming into force or subsequent thereto. The eligibility of the petitioner for higher scale of pay can only be ascertained as per ROPA 1981 if the date of acquisition of the higher qualification in the said non-relevant subject is disclosed and brought on record.

12. It was then submitted that ROPA 1981 with regard to the Librarians of the Directorate of Library Services, West Bengal (District Libraries, Sub- Divisional/Town Libraries and Rural Libraries), contained no provision for the grant of higher scale of pay for higher qualification. Note 2 of Annexure II of ROPA 1981 as applicable to the Librarians of the Directorate of Library Services, West Bengal provides for the scale of pay on the basis of the qualifications prescribed for the recruitment to the post of Librarian and not on the basis of qualifications possessed by the Librarians.

13. It was then submitted that ROPA 1990 did away with the distinction between the Librarians of a Secondary Institution coming under the Department of School Education and the Librarians of Sponsored/Aided Libraries under the Directorate of Library Services, West Bengal. Para 16(3) of the G.O. No. 33-Edn (B) dated 7 March, 1990 (ROPA 1990) provided for grant of higher scale of pay for higher qualification with which the incumbent was appointed and also for higher qualification obtained by way of improvement as well as for higher qualification that would be obtained by way of improvement in future by a teacher or a librarian. The benefit of higher scale of pay for higher qualification which was provided for in ROPA 1990 was, however, not without any restriction. The restriction was that the higher qualification which the incumbent possessed or obtained by way of improvement would be in a subject relevant to his 'Teaching/Appointment'. The petitioner is not entitled to any benefit under ROPA 1990 in so far as the qualification of Master Degree in Economics is concerned since it was not in a subject relevant to his appointment. The subject relevant to his post/appointment is a qualification in Library Science i.e., either Bachelor Degree or Master Degree in Library and Information Science.

14. Under ROPA 1998, paragraph 12(3) of the concerned Government Order, the provision for grant of higher scale of pay on the basis of higher qualification as contained in paragraph 16(3) of ROPA 1990 was substantially reiterated. It also provided for grant of higher scale of pay only for higher qualification in a subject relevant to his 'teaching/appointment'.

15. Learned Counsel then submitted that the petitioner has claimed higher scale of pay on the basis of his general academic qualification of M.A (Economics) relying on the memo bearing No. 39-SE(HS) dated 12 March, 1996. However, ROPA 1990 contained no provision for the grant of higher scale of pay for possessing or acquiring higher qualification in a subject not relevant to his teaching/appointment. The provision for grant of higher scale of pay for general academic qualification as provided in the memo of 1996 was in continuation of ROPA 1981 and it provided for notional grant of higher scale of pay on improvement of general academic qualification to any Librarian prior to the coming into force of ROPA 1990.

Mr. Ali submitted that ROPA 1981 clearly prohibited the grant of higher scale of pay for improvement of academic qualification 'in future' i.e., for any period subsequent to the coming into force of the provisions thereof. ROPA 1990, on the other hand, altogether abolished the grant of higher scale of pay for improvement of general academic qualification in a non-relevant subject. He further submitted that the petitioner is claiming higher scale of pay for the qualification possessed by him at the time of his appointment. If so, the benefit of the provisions for 'improvement' as contained in the memo dated 12 March, 1996 will not be available to the petitioner. Further, the provision for grant of higher scale of pay on improvement of general academic qualification as contained in the memo dated 12 March, 1996 stands superseded by the express provisions contained in paragraph 12(3) of ROPA 1998 which extends the benefit of higher scale of pay for higher qualification in subjects relevant to the incumbent's teaching/appointment.

16. In so far as the memo of 2004 is concerned, it is clarificatory of the memo dated 12 March, 1996. It covers the cases of 'improvement' of qualification, but the case of the petitioner is not one of improvement. Furthermore, the provisions of the 2004 memo as regards improvement of post-graduate degree in general stream is inconsistent with the provisions of para 16(3) of ROPA 1990 as well as para 12(3) of ROPA 1998. By virtue of the memo bearing No. 9-SE (HS) dated 10 February, 2005, the qualification as contained in the 2004 memo cannot be given effect to until further orders.

17. Mr. Ali submitted that the memo of 2005 makes the provisions for the grant of post-graduate scale of pay in general stream/general academic qualification ineffective until further orders. The District Inspector of Schools (Secondary Education), Jalpaiguri, took the matter for disposal in compliance with the judgment and order dated 9 March, 2017 passed by the Hon'ble Justice Dipankar Dutta in WP 3680(W) of 2001 with a direction on the District Inspector of Schools to decide the matter 'in accordance with law'. The memo dated 10 Febrauary, 2005 contained a mandate issued by the School Education Department of the State Government for not giving any effect to the clarificatory memo of 2004 until further orders. The said mandate was administratively binding on the District Inspector of Schools while deciding the entitlement of the petitioner to higher scale of pay.

18. Learned Counsel finally submitted that in the writ application the petitioner has not challenged the legality and/or vires of the memo dated 10 February, 2005 and in so far as the District Inspector of Schools is concerned, he was bound to act in accordance with the said memo. The said memo contained temporal provision as regards the grant of higher scale of pay for Master Degree in general Stream and the said temporal provision was binding on the District Inspector of Schools. The reasoned order passed by the District Inspector of Schools does not call for any interference by this Court.

19. I have considered the rival contentions of the parties. The only issue that false for determination is whether or not the petitioner is entitled to post-graduate scale of pay in view of his higher qualification.

20. It is not in dispute that when the petitioner joined as librarian of the Higher Secondary Section of the respondent school, he had the qualification of M.A. (Economics), B.LIB.SC. Since at the relevant time there was no post-graduate scale of pay in high school, the petitioner was given graduate scale of pay.

21. In view of his higher qualification the petitioner, after his appointment for finally approved by the competent authority, requested for post-graduate scale of pay. Such request found favour with the respondent authorities and the competent authority granted higher scale of pay to the petitioner vide office memorandum dated 22 October, 1997 with effect from 1 October, 1996. The contents of Government Memorandum dated 12 March, 1996 on the basis of which the petitioner was sanctioned higher scale of pay have been extracted above. The said Government memorandum clearly contemplated that improvement of general academic qualification would entitle a teacher to higher scale of pay. The improvement was not required to be in the subject relevant to the person's teaching or appointment.

22. The memo dated 5 July, 2000 issued by the Assistant Inspector of School (SE), Alipurduar and the memo dated 10 November, 2000 issued by the concerned DI of Schools, whereby the benefit of higher scale of pay granted to the petitioner was sought to be withdrawn, were set aside by this Court's order dated 9 March, 2017 passed in W.P. No. 3680(W) of 2001. Subsequently, the concerned DI of schools passed the impugned order dated 2 April, 2018 withdrawing the post- graduate scale of pay that had been granted to the petitioner.

23. The DI of schools relied entirely on a circular dated 10 February, 2005 issued by the Assistant Secretary, School Education Department, Higher Secondary branch which was to the effect that the clarification made in the same department's memo dated 6 May, 2004 allowing post-graduate scale of pay to the librarians shall not be given effect to until further orders. The memo dated 6 May, 2004 was also issued by the Assistant Secretary, School Education Department clarifying that post- graduate scale of pay can be extended to librarians on the basis of Post-Graduate Degree in General Stream. This clarification was sought to be put in abeyance by the memo dated 10 February, 2005. However, the 2005 memo, in my opinion, did not and could not have the effect of nullifying or staying the operation of the memo dated 12 March, 1996 whereby the benefit of post-graduate scale of pay was extended to librarians for higher General Academic Qualification. The 1996 memo was issued by the Joint Secretary, School Education Department. The subsequent memo of 2005 issued by the Assistant Secretary which is a post lower in hierarchy could not have the effect of putting the 1996 memo in abeyance. On this ground alone the memo impugned in the present writ application is liable to be set aside.

24. The 1996 memo is a piece of beneficial delegated legislation extending the benefit of higher scale of pay to librarians who improved their educational qualification in general stream. I am of the view that such a memo has to be liberally construed in favour of the librarians. The benefit extended by the said memo could not be arbitrarily withdrawn. Such incentives are welcome measures which have the effect of improving the quality and standard of recruits in educational institutions.

25. Further, it may be noted that when the petitioner's earlier writ petition was admitted by a learned Judge of this Court, by an order dated 26 April, 2001 the respondents were restrained from giving any effect or further effect to the memo dated 10 November, 2000 whereby the benefit of post-graduate scale of pay earlier extended to the petitioner was sought to be withdrawn. The respondent authorities allowed such interim order to continue for more than 16 years without taking any steps to have the order vacated or the writ petition disposed of expeditiously. It appears that the respondents were happy to pay salary to the petitioner according to the post-graduate scale albeit under interim order of this Court. Had the respondents been genuinely aggrieved by the interim order which had the effect of continuing the higher scale of pay as regards the petitioner, they would have surely carried such order to a higher forum or at least would have attempted to have the writ petition disposed of at an early date. Having extended the benefit of the post-graduate scale to the petitioner since 1996 till the disposal of the earlier writ petition, it would now be grossly unfair, at the fag end of the petitioner's carrier, to withdraw such benefit. A person makes his financial planning and commitments on the basis of his income. The respondents having paid the petitioner salary as per the post-graduate scale of pay for more than 21 years, it would be legitimate for the petitioner to make his financial commitments on the basis of such higher salary. It would not be unduly harsh and oppressive on the petitioner to permit the respondents to withdraw the benefit of the higher scale a few months before the retirement of the petitioner which, I am told due to happen towards the end of this year.

26. I am unable to accept the contention of the respondents that since ROPA 1981 or ROPA 1990 or ROPA 1998 did not have provision for extending the benefit of higher scale of pay to a candidate who improved his qualification in a subject not relevant to his appointment, the petitioner cannot be granted higher scale of pay since hi

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s subject is Library Science whereas he acquired Masters Degree in Economics. With full knowledge of operation of ROPA 1981 and ROPA 1990, the 1996 memo was issued by the Joint Secretary of the School Education Department, Higher Secondary branch, Government of West Bengal extending the benefit of post- graduate scale of pay to librarians who had higher qualification even in non- relevant subjects. ROPA 1998 substantially reiterated the provisions of ROPA 1990 in this regard. It is not possible for me to accept the submission made on behalf of the respondents that ROPA 1998 superseded the 1996 memo and, therefore, the post- graduate scale of pay cannot be extended to a candidate having higher qualification in a non-relevant subject. This was also not the ground taken in the impugned memo for purporting to withdraw the benefit of post-graduate scale of pay from the petitioner. 27. The other submission made on behalf of the State was the petitioner's case is not one of the improvements of qualification after being appointed. The petitioner had already acquired Masters Degree in Economics prior to his appointment. Hence the petitioner is not entitled to the post-graduate scale of pay. I see no merit in this contention. This will make a distinction without a difference and will lead to a situation of discrimination. Surely a candidate cannot be penalised or be placed at a disadvantage for having acquired higher qualification before joining service. Making a difference between a candidate obtaining higher degree before being appointed and a candidate who obtains higher degree after his appointment will be completely arbitrary and violative of Article 14 of the Constitution of India. Such a situation cannot be countenanced. 28. For the reasons as aforesaid, this writ petition succeeds. The impugned order of the DI dated April 2, 2018 and the resolution of the respondent school dated April 12, 2018 are quashed. It is clarified that the writ petitioner is entitled to post-graduate scale of pay as per the Government order dated 12 March, 1996. 29. W.P. No. 5833(W) of 2018 is, accordingly, disposed of. There will be no order as to costs. 30. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
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06-06-2018 Tapan Kumar Saha Versus Susmita Bhowmik & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
25-05-2018 Joydeb Saha Versus Mihir Lal Mukherjee National Consumer Disputes Redressal Commission NCDRC
16-05-2018 Manager, Bank of Baroda Jodhpur Park Branch Versus Susanta Saha National Consumer Disputes Redressal Commission NCDRC
27-04-2018 Gopal Saha Versus Anil Roy Chowdhury & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
26-04-2018 Dr. Anirban Jana, Medical Officer, Kasturi District Hospital Versus Kamal Saha & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
25-04-2018 Sunipa Saha Versus State of Tripura High Court of Tripura
19-03-2018 Sima Saha Versus Prabir Kumar Saha High Court of Tripura
15-03-2018 Rama Saha Versus M/s. Dream Dwellings & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
19-02-2018 Sukanta Roy Chowdhury Versus Agriculture Insurance Co. of India Ltd. & Others High Court of Delhi
16-02-2018 Reliance General Insurance Co. Ltd. Versus Sumit Kumar Saha & Another National Consumer Disputes Redressal Commission NCDRC
15-02-2018 Shree Shew Prokash Saha Versus M/s. D.L.F. Ltd. West Bengal State Consumer Disputes Redressal Commission Kolkata
15-02-2018 Union of India Versus Ranjit Kumar Saha High Court of Gauhati
02-02-2018 Dr. Kunal Saha & Another Versus Principal Secretary, Department of Health And Family Welfare, Government of West Bengal & Others High Court of Judicature at Calcutta
25-01-2018 Sukanta Sarkar Versus West Bengal College Service Commission & Others High Court of Judicature at Calcutta
10-01-2018 Chittaranjan Saha & Others Versus Arun Kumar Das High Court of Judicature at Calcutta
08-01-2018 Tapati Saha & Others Versus Sukumar Dutta & Another High Court of Judicature at Calcutta
04-01-2018 Joydeb Saha Versus Mihirlal Mukherjee High Court of Judicature at Calcutta
02-01-2018 Shanti Dey @ Santi Dey Versus Sri Suvodeep Saha High Court of Judicature at Calcutta