IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE BEFORE: The Hon’ble Justice Harish Tandon, And The Hon’ble Justice Soumen Sen, And The Hon’ble Justice Kausik Chanda WPA 9921 of 2007 CAN 1 of 2009 (Old No. CAN 4639 of 2009) With APO 343 of 2013 With WPA 303 of 2023 Utpal Kanti Karan Vs. State of West Bengal & Ors. With FMA 125 of 2022 The State of West Bengal & Ors. Vs. Manash Kumar Gorai & Anr. With FMA 143 of 2022 CAN 1 of 2021 CAN 2 of 2021 The State of West Bengal & Anr. Vs. Archana Pramanick & Ors. With FMA 2688 of 2007 Nirmalendu Maity Vs. State of West Bengal & Ors. With F.M.A. 387 of 2020 2 State of West Bengal & Ors. Vs. Bisweswar Bera & Anr. With F.M.A. 557 of 2007 Baishali Banerjee Vs. State of West Bengal & Ors. With F.M.A. 583 of 2006 State of West Bengal & Ors. Vs. Md. Shohidullah With F.M.A. 584 of 2006 State of West Bengal & Ors. Vs. Shyamsundar Mohanto With F.M.A. 585 of 2006 State of West Bengal & Ors. Vs. Nirupama Bairagi With M.A.T. 421 of 2022 CAN 1 of 2022 Sagar Kumar Das Vs. State of West Bengal & Ors. With WPA 10273 of 2016 Satya Deo Prasad Vs. Government of West Bengal & Ors. With WPA 12414 of 2008 Smt. Rinku Sarkar Vs. State of West Bengal & Ors. With 3 WPA 12419 of 2008 Srijit Pal Vs. State of West Bengal & Ors. With WPA 12420 of 2008 Subimal Sinha Vs. State of West Bengal & Ors. With WPA 13060 of 2004 Shyamsundar Mohanto Vs. State of West Bengal & Ors. With WPA 14890 of 2001 Baby Gopex Vs. State of West Bengal & Ors. With WPA 15736 of 2013 Atasi Sikdar Vs. State of West Bengal & Ors. With WPA 16707 of 2004 Nirupama Bairagi Vs. State of West Bengal & Ors. With WPA 2364 of 2007 CAN 1 of 2009 (Old No. CAN 7088 of 2009) Md. Abdus Sattar Vs. State of West Bengal & Ors. With WPA 26423 of 2007 Bimal Chandra Jana Vs. State of West Bengal & Ors. 4 With WPA 29710 of 2013 Pampa Das Vs. State of West Bengal & Ors. With WPA 4698 of 2016 Subodh Kumar Biswas Vs. State of West Bengal & Ors. For the Appellant : Mr. Sridhar Chandra Bagari, Adv. In (FMA.2688 of 2007) For the appellant : Mr. Biswarup Biswas, Adv., In (FMA 557 of 2007), Mr. Gora Chand Samanta, Adv. For the Appellant :Mr. N.I Khan, Adv., In (MAT 421 of 2022) Mr. Amlan Kumar Mukherjee, Adv. For the respondents :Mr. Subir Sanyal, Adv., in (FMA 125 of 2022) Mr. Sakti Pada Jana, Adv., in (FMA143 of 2022) Mr. Dwarik Nath Mukherjee, Adv., Mr. Kamal Mishra, Adv., Mr. Subhajyoti Das, Adv. For the appellant : Mr. Anirban Ray, Adv., in (FMA 125 of 2022) Mr. Himadri Sekhar Chakraborty, Adv., Ms. Sucharita Paul, Adv. For the appellant :Mr. Swapan Kumar Dutta, Adv., In (FMA 143 of 2022) Mr. Dipankar Dasgupta, Adv. For the petitioner :Mr. Samaresh Chandra Dhara, Adv. In (WPA 4698 of 2016) For the petitioner :Mr. Mahananda Roy, Adv. In (WPA 15736 of 2013) For the petitioner : Ms. Lina Majumder, Adv. In (WPA 29710 of 2013) For the Petitioner :Mr. Supriyo Chattopadhyay, Adv., In (WPA 4698 of 2016) Mr. Samaresh Chandra Dhara, Adv. 5 For the respondent no. 1 :Mr. Kamalesh Bhattacharyya, Adv., In (FMA 387 of 2020) Mr. Surendra Kumar Sharma, Adv. For the respondent no. 5 :Mr. Tarun Kumar Das, Adv. In (MAT 421 of 2022) For the petitioner : Mr. Piush Chaturvedi, Adv., In (WPA 4698 of 2016) Mr. Supriyo Chattopadhyay, Adv., Mr. Samaresh Chandra Dhara, Adv. For the State : Mr. S.N. Mookerji, Ld. A.G, Adv., Mr. Tapan Kumar Mukherjee, Adv., Mr. Swapan Kumar Dutta, Adv., Mr. Tapas Kumar Mukherjee, Adv., Mr. Supriya Chattopadhyay, Adv., Ms. Iti Dutta, Adv., Mr. Pinaki Dhole, Adv., Mr. Arjun Roy Mukherjee, Adv., Mr. Biswajit De, Adv., Mr. Rajlakshmi Ghatak, Adv., Mr. Debdooti Dutta, Adv., Ms. Saheli Mukherjee, Adv., Ms. Kakali Smajpaty, Adv., Mr. Paritosh Sinha, Adv., Mr. Dipankar Dasgupta, Adv., Ms. Sucharita Paul, Adv., Ms. Lina Majumdar, Adv., Ms. Pampa Das, Adv., Mr. Somnath Naskar, Adv., Hearing Concluded On : 21st December, 2023 Judgment On : 7th February, 2024 1. Soumen Sen, J.:- The present reference is arising out of an order dated 22nd August, 2008 passed by the Division Bench of this Court in WP 12414(w) of 2008 (Smt. Rinku Sarkar v. The State of West Bengal & Ors.,) WP 12419(w) of 2008 (Srijit Pal v. The State of West Bengal & Ors.,) and WP 12420(w) of 2008 (Subimal Sinha v. The State of West Bengal & Ors). 6 2. The Division Bench upon noticing conflict between the views expressed in two earlier coordinate bench decisions in Tarak Chandra Roy v. State of West Bengal & Ors., reported in 2008(2) CHN 973 (in short ‘Tarak’) and the State of West Bengal & Ors. v. Sauvik Ghosh & Ors. reported in 2008(1) CLJ(Cal) 810 (in short ‘Sauvik’) formulated the following questions for consideration by the larger Bench: a) Whether in view of the fact that acquisition of higher qualification or qualifications during the service career of an individual is his right and the same acts as an incentive to career advancement as well as acquiring a higher status of academic brilliance, can such a person be forced to stagnate on a lower status perennially and forced to continue to work on a lower scale of pay which is not commensurate to the higher qualification(s) acquired subsequent to his appointment? b) Whether in view of Question No.(a) above, should it not be held that the ratio decided in Tarak Chandra Roy’s case (supra) read with the provisions of Sections 14 and 20 of The West Bengal Schools (Control and Expenditure) Act, 2005 amount to creating an unreasonable embargo upon an individual’s freedom and right to acquire higher educational qualification(s) and therefore, runs counter to the provisions of Article 14 of the Constitution of India? c) If the answer to question no. (a) is in the negative and to question no. (b) in the affirmative then should it not be held that the provisions of Section 14 and 20 of The West Bengal Schools (Control and Expenditure) Act, 2005 are ultra vires the relevant provisions of the Constitution of India referred to above? 7 d) Whether in view of the aforesaid should it not be held that the ratio decided in Tarak Chandra Roy’s case supra, holding that “the petitioner having been appointed in the pass category clearly, therefore, cannot get the benefit of his post graduate qualification” is not the proper proposition and that the correct proposition is the one that has been decidied in Sauvik Ghosh’s supra holding, inter alia, in para 35 therein that if the Government order dated 18th July 1999 were to mean mutual fixation would be on the basis of the educational qualifications mentioned in the recommendation of the School Service Commission and a teacher appointed on the recommendation of the School Service Commission would be bound by the qualification as mentioned in the recommendation for all time to come and even on enhancement qualification the teacher would not be entitled to the higher scale of pay only because the School Service Commission had mentioned a different qualification in its initial recommendation, the Government Order would have to be struck down as totally arbitrary discriminatory and violative of Article 14.........?” 3. Thereafter, another Division Bench in deciding FMA 2688 of 2007 with CAN 2357 of 2010 Nirmalendu Maity v The State of West Bengal upon noticing the constitution of a larger bench to answer the aforesaid questions by an order dated 15th March, 2010 referred the following question to the said larger Bench: “Whether a teacher who has been appointed through West Bengal School Service Commission in ‘pass category’ can get the benefit of his post graduate qualification for the purpose of getting post graduate scale of pay?” 8 4. Subsequently, by an order dated 6th September, 2019 Justice Shampa Sarkar noticing apparent conflict in the views expressed in Anupam Santra v. State of West Bengal & Ors. in WP 25103 of 2012 and State of West Bengal & Ors. v. Chandra Bhusan Dwivedi in MAT 961 of 2017 with regard to interpretation of Clause 12(5) of G.O. No. 25- SE(B)/IM-102/98 dated 12th February, 1999 and G.O. No. 46- SE(B)/5B/1/2009 dated 27th February, 2009 framed the following questions for the larger bench to decide:- 1. Whether with the introduction of G.O. No.46‐SE(B)/5B‐1/2009 dated February 27, 2009 with retrospective effect from 1st January, 2006 and acceptance thereof by the petitioner prevented the petitioner from claiming a higher scale of pay on the basis of a Ph.D. degree awarded prior to January 1, 2006 but convocation whereof was held on February 24, 2006? 2. Whether Clause 12(5) of G.O. No.25‐SE(B)/IM‐102/98 dated February 12, 1999 implementing ROPA, 1998 would be applicable in case of the petitioner in view of the omission of such a provision in G.O. No.46‐SE(B)/5B‐1/2009 dated February 27, 2009, with retrospective effect? 5. It appears that a special leave petition was filed by one Shohidullah against the State of West Bengal bearing Civil Appeal no. 3040- 3041 of 2017 claiming higher scale of pay upon acquiring higher qualifications in which one Samsundar Mahato, Baishali Banerjee and Sauvik Ghosh have filed applications raising similar issues. 9 6. On 25th July, 2019 the Hon’ble Supreme Court after taking note of the order dated 22nd August, 2008 requested the High Court to expedite the hearing of the matter before the full Bench. Submission on behalf of the State of West Bengal 7. The learned Advocate General appearing on behalf of the State of West Bengal in answer to question (a) has submitted that: a. Mere acquisition of a higher educational qualification does not result in an automatic entitlement to a higher pay scale in the absence of any law providing for the same. b. When the State decides to extend the benefit of a higher pay scale to a person for acquiring a higher qualification under a scheme for career advancement such a benefit is in the nature of an incentive framed under the executive policy of the State. These incentives are granted only after taking into consideration the financial implications of the same on the State exchequer. The continued existence of such incentives cannot be claimed as an enforceable right. c. The State is entitled to discontinue its policy to grant incentives at any time and no vested right can be claimed to such incentives given earlier on the basis of a previous superseded policy of the State. d. Incentives granted by the State can only be claimed in terms of the provisions of the law made or policy formulated on that behalf. e. It has been well settled by several decisions, including that of the Supreme Court of India, that courts should in the absence of 10 any facially compelling reason disclosing arbitrariness, desist from stepping into the arena of decision making. Merely because the court has taken a view that a scheme for career advancement would not be an equitable one is not a ground to set aside the decision of the State, nor would the court direct reformulation of such scheme. Only a direction can be given to the State to consider the matter and take a decision. f. In any event, the decision of the State not to grant the incentive of a higher pay scale for acquiring a higher qualification would not necessarily mean that a person would be forced to stagnate on lower status perennially. It would be open for a person to make use of the opportunity to compete for another post with a higher pay scale and also to utilise avenues for promotion to a higher post. 8. The learned Advocate General has referred to Wazir Singh, JBT Teacher and Ors. v. State of Haryana through its Secretary, Education Department and Ors., reported in 1995 Supp.(3) SCC 697 to argue that in a similar situation the Hon’ble Supreme Court has held that the appellants who have not acquired the B.T/B.Ed. before 9th March, 1990 cannot claim the benefit of higher grade of pay scale automatically. This judgment was followed in State of Haryana & Ors. v. Ravi Bala & Ors., reported in 1997 (1) SCC 267 where it is stated: “3. The appellants are teachers in Government schools in the State of Haryana. The appellants were appointed as (J.B.T.) teachers in the schools as they did not possess B.T./B.Ed. qualification at the time of their appointments. However, they acquired B.T. B.ed. degree on various dates as mentioned in page 9 of the S.L.P. Paper Book and also at page 53 (so far as 11 newly impleaded appellant No. 8 is concerned). They moved the High Count of Punjab & Haryana under Article 226/227 of the Constitution of India for the issue of writ of Mandamus directing the respondents to give them the higher grade admissible to the Masters with effect from respective dates of their acquiring B.T./B.Ed. qualifications and they also prayed for issue of writ of Mandamus to the respondents to implement the decision/ direction of this Court in the case of Chaman Lal v. State of Haryana reported in [1987]2SCR923 . 4. In response to the notice of motion issued by the High Court, written statement on behalf of respondents was filed and therein it was brought to the notice of the Court that the erstwhile Punjab Government's Instructions dated July 23, 1957 on the basis of which the petitioners/ appellants rested their claims, stood superseded and no more applicable to the employees of the Haryana Government. It was also stated in the written statement that a policy decision was taken by the Government of Haryana in Finance Department Letter No. 7/2 (i)/90-FRI dated March 9, 1990 stating that the pay-scales admissible to the Masters, that is, B.A., B.Ed. would be given to such teachers who have been appointed against the posts for which the qualification is B.A. B.Ed. In the light of the written statement and also applying the earlier decision of the High Court in C.W.P. No. 14736 of 1991 dated December 1,1992, the learned Judges held that the appellants were not entitled to the reliefs prayed for as they were never appointed against the post of Masters. Aggrieved by the dismissal of the writ petition, the present special leave to appeal is preferred by the appellants. 5. Learned counsel for the appellants strenuously urged before us that the ratio laid down by this Court in [1987] 2 SCR 923 12 (supra) will apply in full force to the facts of this case and, therefore, the appellants would be entitled to succeed in the present appeal. 6. Learned counsel appearing for the respondents submitted that in Chaman Lal's case this Court was considering the scope of the letter dated July 23, 1957 issued by the composite Punjab Government in the light of subsequent order of Haryana Government dated 5.9.79. However, in the present case the letter dated 23.7.57 stood superseded by the latest policy instructions issued by the Haryana Govt. on 9.3.1990 and therefore, the judgment in [1987]2SCR923 will be no avail. He also invited our attention to the policy instructions contained in the letter dated 9.3.1990 which is Annexure III to the Special Leave Petition found at page 44.” (Emphasis supplied) 9. Mr. Advocate General submits that parity in the pay on the basis of qualifications could be claimed provided the rules permitting for it and it may not have any retrospective operation. In State of Haryana & Ors. v. Kamal Singh Saharwat & Anr. reported in 1999 (8) SCC 44 the Hon’ble Supreme Court has clearly stated that teachers cannot claim higher pay on the scales of pay applicable to lecturers merely on their acquiring post graduate qualification without being appointed as lecturers. 10. Moreover, pay fixation is a complex matter and it is always advisable to rely on the recommendation of the expert body more conversant with the matter. The learned Advocate General has drawn attention to Union of India & Ors. v. M.V. Mohanan Nair reported in 2020 (5) SCC 421 (paragraphs 29 and 37) and submitted that higher scale of pay offered for Career Advancement is in the nature of incentive so that the teachers 13 would work efficiently despite not getting promotion and it cannot be treated as a fundamental right. The government has right to frame policy to ensure efficient and proper administration and to provide suitable avenues for promotion to officers working in different departments. However, a new policy introduced based on the recommendation of the experts or experiment by expert bodies are not to be lightly interfered. Equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the government. The Court should approach the matters with regard to the fixation of pay and determination of parities in respect of duties and responsibilities with due caution and interfere only when it is irrational, unjust and prejudicial. The incentives in terms of financial benefits which is now being made as the foundation for higher scale of pay being linked with higher qualification is analogous to modified assured career progress scheme which is also reflected in Rule 12 of ROPA 1990 and amended from time to time and those rules not being challenged and not being found arbitrary and irrational are required to be applied in answering the reference. The argument is based on the observation of the Hon’ble Supreme Court in M.V. Mohanan (supra) in paragraphs 3 to 5, 29, 36 to 38 and 56 which read: “3. The main questions falling for consideration in these appeals are: (i) Whether MACP scheme entitles financial upgradation of pay to the next grade pay or to the grade pay of the next promotional post as envisaged under the ACP scheme? Whether MACP Scheme envisages grant of financial upgradation in Grade Pay Hierarchy and not in promotional hierarchy? 14 (ii) As contended by the Respondents, whether MACP scheme is disadvantageous to the employees in comparison to ACP scheme as long as the financial upgradation is granted in hierarchy of grade pay under MACP scheme? (iii) Whether Respondents are entitled to stepping up of their grade pay to be at par with grade pay of their juniors who were getting the higher grade pay on account of implementation of MACP Scheme? 4. Appeals relating to Issue No. III were ordered to be de-tagged and listed separately. 5. At the outset, it is to be pointed out that almost all the Tribunals/High Courts have only relied upon Raj Pal's case for grant of financial upgradation on promotional hierarchy and rejected the stand of the Appellant-UOI that under MACP scheme, the employees are entitled to financial upgradation of the next grade pay only. Since the matter was considered on merits and since the issue involves impact on the public exchequer and also interest of the staff of various establishments, we requested learned Senior Counsel, Mr. Jaideep Gupta to assist the Court as amicus curiae which the learned Senior Counsel has readily consented. Mr. Kunal Chatterji, learned Counsel has agreed to assist the learned Senior Counsel- amicus.” 29. As pointed out earlier, both ACP and MACP Schemes are in the nature of incentive schemes devised with the object of ensuring that the employees who are unable to avail of adequate promotional opportunities, get some relief from stagnation in the form of financial benefits. Under the MACP Scheme, financial upgradations are granted at three regular intervals on completion of 10-20-30 years of service without promotion. Hence, it is also intended to ensure that the employees are adequately incentivised to work efficiently despite 15 not getting promotion for want of promotional avenue. The change in policy brought about by supersession of the ACP Scheme with the MACP Scheme is after well-deliberated and well-documented recommendations of the Sixth Central Pay Commission. Considering the various issues in the implementation of the ACP Scheme, the Pay Commission expressed its views "the only other way is to bring systematic changes in the existing Scheme of ACP so that all the employees irrespective of the existing hierarchy structure in their organisations/cadres, get some benefit under it". The Commission therefore, recommended that the existing Scheme of ACP be continued with the modifications indicated thereon in the Report that the financial upgradation has to be in the next immediate Grade Pay. One of the reasons for the expert body recommending the MACP Scheme was that there were interdepartmental disparities where several departments had varying promotional hierarchies. As a result, the working of ACP Scheme under which an employee who stagnated for 12 years, was entitled to pay in the Pay Scale of the next promotional post, led to inter-departmental anomalies. The Pay Commission therefore, recommended MACP Scheme with a view to putting an end to the problem ensuing from inter-departmental disparities. 36. In State of Tamil Nadu v. S. Arumugham (1998) 2 SCC 198, the Supreme Court has observed that the government has the right to frame a policy to ensure efficiency and proper administration and to provide to suitable avenues for promotion to officers working in different department. The Supreme Court has further observed that the Tribunal cannot substitute its own views for the views of the government or direct new policy based on the views of Tribunal. 37. Observing that fixation of pay and determination of responsibilities is a complex matter which is for the executive to take a decision, the courts should approach such matters with restraint, 16 in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the Supreme Court held as under: 10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay......... That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a Section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. 38. The prescription of Pay Scales and incentives are matters where decision is taken by the Government based upon the recommendation of the expert bodies like Pay Commission and several relevant factors including financial implication and court 17 cannot substitute its views. As held in Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the court should approach such matters with restraint and interfere only when the court is satisfied that the decision of the Government is arbitrary. Even in a