Calcutta High Court (Appellete Side)

Utpal Kanti Karan vs State Of West Bengal & Ors on 7 February, 2024

Author:
Harish Tandon

Bench:
Harish Tandon
,
Soumen Sen
,
Kausik Chanda

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
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
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.
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.
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
).
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
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
of The West Bengal
Schools (Control and Expenditure) Act, 2005 are ultra vires the
relevant provisions of the Constitution of India
referred to
above
?
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?"
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.
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
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
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
(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
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?
(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
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,
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
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 case where the court takes the view that order/Scheme
passed by the Government is not an equitable one, ordinarily only a
direction could be given to the State Government or the authority for
consideration of the matter and take a decision. In the present batch
of cases where the Respondents are claiming financial upgradation
in the grade pay of promotional hierarchy, no grounds are made out
to show that the MACP Scheme granting financial upgradation in the
next grade pay is arbitrary and unjust; warranting interference. The
implementation of the MACP Scheme is claimed to have led to certain
anomalies; but as pointed out earlier, MACP Scheme itself is not
under challenge." (emphasis supplied)

56. The ACP Scheme which is now superseded by MACP Scheme is
a matter of government policy. Interference with the
recommendations of the expert body like Pay Commission and its
recommendations for the MACP, would have serious impact on the
public exchequer. The recommendations of the Pay Commission for
MACP Scheme has been accepted by the Government and
implemented. There is nothing to show that the Scheme is arbitrary
or unjust warranting interference. Without considering the
advantages in the MACP Scheme, the High Courts erred in
interfering with the government's policy in accepting the
recommendations of the Sixth Central Pay Commission by simply
placing reliance upon
Raj Pal
's case. The impugned orders cannot be
sustained and are liable to be set aside"

11. The learned Advocate General in advancing his submission has

emphasised that the State is entitled to discontinue its policy of granting

incentive at any time and no one can claim any vested right to such
incentive, as observed in Vice Chairman Delhi Development Authority v.

Narender Kumar and Ors., reported in 2022 SCC Online SC 273. It is

submitted that similar argument of extension of similar benefits irrespective

of discontinuation of MACP scheme or SEP benefit have been turned down

by the Hon'ble Supreme Court in Narendra Kuman (supra).

12. Our attention is drawn to paragraphs 31, 32, 33 and 34 of the

said judgment, which read:

"31.This brings the court to the next point, which is whether the
employees can assert what is termed as a vested right. The
first submission in this regard is that according to Para 9 of the
MACP scheme, those who are in employment on the date when
MACP scheme was brought into force and who are entitled to
the ACP benefits, especially the second financial up-gradation
had a right to insist that their second up-gradation should be
granted in terms of the ACP scheme. In this context, the
argument advanced is that Rule 9 preserves and protects such
a right (for entitlement) to be granted the ACP benefits even
after the introduction of the MACP scheme.

32. Para 9 recognises the fact that if there is any ambiguity in
the interpretation of the MACP scheme it would be resolved by
the Department of Personnel and Training. It also clarifies in the
last sentence that financial up-gradation would be granted till
31.08.2008 (given that the MACP scheme itself became
operative on 01.09.2008), although the office memorandum was
issued on 19.05.2009. In the opinion of this Court the undue
influence placed upon the last sentence cannot be met much of
by the employees given that the ACP scheme itself ended on
31.08.2008. This provision (i.e. Para 9) was made to cater to
the situations where the grant of ACP benefits was under
process, this would mean both types of benefits i.e. the first
and the second up-gradation. Doubtlessly, the first up-
gradation under the ACP scheme was to be granted after 12
years. If Para 9 were to be considered in the context of the first
up-gradation it is a clarification to the effect that the individual
concerned who has crossed 12 years' service (and therefore
became eligible and whose case is under active consideration)
would get the ACP benefits. However, this provision cannot be
understood as an independent transitional provision, enabling
all employees awaiting the up-gradation to insist that the
benefit of the ACP scheme should indefinitely continue despite
its ceasing to exist after 31.08.2008.

33. The second aspect in this regard is the argument that a
vested right accrued in favour of the employees who had
completed the eligibility for a financial up-gradation to insist
that such up-gradation ought to be only under the ACP scheme
and not under the MACP scheme.

34. The concept of "vested right" has arisen for consideration
before this Court in several contexts especially with respect to
alteration of service condition of public employees. That the
Central Government in the exercise of its legislative powers
conferred under provision of
Article 309
of the Constitution can
frame Rules which has the force of law has been settled several
decades ago. This Court has also held that such Rules can be
made to operate from anterior date by giving retrospective effect
to them. The determination of an anterior date for the operation
of a Rule which has the effect of nullifying or refacing
intervening events or invalidating benefits which had been
granted to public employees was held to be unconstitutional in

State of Gujarat v. Raman Lal Keshav Lal Soni
(1983) 2 SCR
287. Several previous judgments of this Court dealing with the
question that what is accrued or vested right were considered
in
Chairman, Railway Board v. C.R. Rangadhamaiah
Supp (3) SCR 63 wherein the impugned Rule in question sought
to disturb the method of calculating the last pay drawn for the
purposes of pension and related allowances. This impacted the
pension disbursement of a large number of employees who had
retired much earlier. The court observed that the amendments
applied to employees who had already retired and were no
longer in service on the date the impugned notifications were
issued, and adversely impacted the pension they were
drawing. In such context the court held as impermissible, those
benefits which accrued or in other words had been actually
enjoyed and were taken away by the devise of giving
retrospective effect to the rule. The court observed as follows:

22.
In
State of Gujarat v. Raman Lal Keshav Lal Soni
(1983)
2 SCC 33] decided by a Constitution Bench of the Court, the
question was whether the status of ex-ministerial employees
who had been allocated to the Panchayat service as
Secretaries, Officers and Servants of Gram and Nagar
Panchayats under the
Gujarat Panchayat Act, 1961
as
government servants could be extinguished by making
retrospective amendment of the said Act in 1978. Striking
down the said amendment on the ground that it offended

Articles 311
and
of the Constitution, this Court said:

52. ... The legislature is undoubtedly competent to legislate
with retrospective effect to take away or impair any vested
right acquired under existing laws but since the laws are
made under a written Constitution, and have to conform to
the do's and don'ts of the Constitution, neither prospective
nor retrospective laws can be made so as to contravene
Fundamental Rights. The law must satisfy the
requirements of the Constitution today taking into account
the accrued or acquired rights of the parties today. The
law cannot say, twenty years ago the parties had no
rights, therefore, the requirements of the Constitution will
be satisfied if the law is dated back by twenty years. We
are concerned with today's rights and not yesterday's. A
legislature cannot legislate today with reference to a
situation that obtained twenty years ago and ignore the
march of events and the constitutional rights accrued in
the course of the twenty years. That would be most
arbitrary, unreasonable and a negation of history.

23. The said decision in Raman Lal Keshav Lal Soni (1983) 2
SCR 287 of the Constitution Bench of this Court has been
followed by various Division Benches of this Court. (
K.C. Arora
v. State of Haryana
(1984) 3 SCR 623;
T.R. Kapur v. State of
Haryana
(1987) 1 SCR 584];
P.D. Aggarwal v. State of U.P.

(1987) 3 SCR 427];
K. Narayanan v. State of Karnataka
Supp (1) SCC 44];
Union of India v. Tushar Ranjan Mohanty

(1994) 5 SCC 450] and K. Ravindranath Pai v. State of
Karnataka 1995 Supp (2) SCC 246).

24. In many of these decisions the expressions "vested rights"

or "accrued rights" have been used while striking down the
impugned provisions which had been given retrospective
operation so as to have an adverse effect in the matter of
promotion, seniority, substantive appointment, etc., of the
employees. The said expressions have been used in the context
of a right flowing under the relevant Rule which was sought to
be altered with effect from an anterior date and thereby taking
away the benefits available under the Rule in force at that time.
It has been held that such an amendment having retrospective
operation which has the effect of taking away a benefit already
available to the employee under the existing Rule is arbitrary,
discriminatory and violative of the rights guaranteed Under

Articles 14
and
of the Constitution. We are unable to hold
that these decisions are not in consonance with the decisions in
Roshan Lal Tandon (1968) 1 SCR 185] B.S. Vadera (1968) 3
SCR 575] and Raman Lal Keshav Lal Soni (1983) 2 SCR 287].
(emphasis supplied)

13. It is submitted that they may have an expectation of their case

being considered for higher scale of pay upon acquiring higher degree but it

cannot crystalise into a right enforceable in law. The ROPA rules have

undergone changes over a period of time based on experience and other

factors and the necessity to enact the 1997 Act and 2005 Act would clearly

justify that unless a higher qualification is acquired with prior permission,

the teachers enjoying benefits of higher scale of pay prior to the introduction

of the said two Acts would not acquire a vested right and cannot insist for

continuation of such higher scale of pay based on higher qualification.

14. Our attention is drawn to the views expressed by a coordinate

bench in
Pradip Kumar Karak and Ors. v. The State of West Bengal &

Ors.
, reported in 2018 (4) CHN 131 paragraph 112 in particular in support

of the contention that the present petitioner cannot claim any vested right

upon acquiring higher qualification after the Act and the relevant rules

operating in the field came into force. Paragraphs 112 and 140-142 relied in

this regard are reproduced below:
" 112. It is clear therefore, that the Writ Petitioners/Appellants
No. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 19, 21 and 22
acquired their higher qualifications after the benefit granted to
rural librarians by the Memorandum Beta dated March 7, 1990
had been taken away, and substituted by way of amendment
by Memorandum Gamma dated July 21, 1990 by another
sentence in paragraph 16(3) of the said Memorandum dated
March 7, 1990 which made it clear that where necessary
separate orders would be issued. Since all these writ
petitioners/Appellants acquired their higher qualifications after
July 21, 1990, when the said amendment had already taken
place, they had no vested right which was being affected. By
the time they had acquired their higher qualification, there was
no statutory rule as would allow them to claim the benefit
automatically. If there is no rule allowing something to be done,
but in fact a deliberate "amending out" of a previously extant
rule which had allowed it to be done, then it is to be necessarily
inferred that the State of West Bengal in its wisdom did not
want that "something" to be done. There was, therefore, no
legal right inhering in the said writ petitioners/Appellants to
claim a higher scale of pay. It is to be noted that they did not
seek that on introduction of the amendment by Memorandum
gamma dated July 21, 1990.

140. Those librarians who acquired higher qualifications after
July 21, 1990 had no legal right to move the writ court for
enforcement of the terms of un-amended paragraph 16(3) of
memorandum dated March 7, 1990. The benefit that was
conferred thereby was plainly not there when they moved the
writ court. Rightly so, it is proposed by my learned brother that
such of the appellants who acquired higher qualifications after
the cut-off date i.e. July 21, 1990, are not entitled to the benefit
of higher pay and I fully agree with His Lordship that the
appeal at their instance ought to be dismissed.

141. At this stage, it is also considered appropriate to record
my agreement with the views expressed by my learned brother
that neither is the decision in Shibnath Koley (supra) a
judgment in rem nor are the librarians who have acquired
higher qualifications after the cut-off date entitled to any benefit
flowing from memorandum dated June 10, 2014, as interpreted
in the order of the learned Judge dated June 9, 2016 while
disposing of a batch of writ petitions with W.P. 7150(W) of 2015
being the lead case. With utmost respect to the learned Judge
who decided W.P. 7150(W) of 2015, the memorandum dated
June 10, 2014 [which allowed benefits of better pay to the
librarian respondents in Shibnath Koley (supra)] was misread
and, therefore, cannot be of any persuasive value.
Insofar as
the decision of the coordinate Bench dated January 4, 2017 in

State of West Bengal v. Rafique Sekh
(of which I was a
member) is concerned, the appeal of the State was dismissed
not because the aforesaid decision dated June 9, 2016 in W.P.
7150(W) of 2015 had been found to be legal but on the premise
that the State not having challenged such decision in an
appropriate proceeding, the same had attained finality and
further orders on the administrative side could not have been
passed contrary to such final and binding decision.

142. However, those librarians who have acquired higher
qualifications before the cut-off date of July 21, 1990 are
entitled to claim that they be treated at par with the librarians
(Shibnath Koley & others) who were before the Hon'ble
Supreme Court as respondents in Civil Appeal Nos. 6967-6970
of 2009. In fact, the State in its counter-affidavit before the
Hon'ble Supreme Court was also candid in its stance that at
least some of the appellants were entitled to better pay based
on higher qualifications without, however, identifying them. In
my opinion, the issue as to whether the librarians who had
acquired higher qualifications before the cut-off date i.e. July
21, 1990 is no longer res integra in view of the decision of the
Hon'ble Supreme Court in Shibnath Koley (supra)." (emphasis
supplied)

15. Mr. Advocate General has relied upon the Division Bench

Judgment of Karnataka High Court namely
K. Narayana v. State of

Karnataka
reported in ILR 1991 KAR 3283 that reiterated the same

principles that incentive cannot be elevated to the status of a vested right.

16. In answering question (b) the learned Advocate General has

argued that:

a. The omission or absence of any rule granting of a higher pay scale
has no nexus and relation to, and does not in any manner create,
an embargo upon an individual's freedom and right to acquire
higher educational qualification(s).

b.
Sections 14
and
of The West Bengal Schools (Control of
Expenditure) Act, 2005 ('2005 Act') do not in any manner seek to
interfere with the right or freedom of an individual freedom to
acquire a higher qualification.

c.
Section 14
and
of the 2005 Act provide as follows:

"14(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 Postgraduate 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."

"20. The provisions of this Act or any rules or orders made
thereunder shall have effect notwithstanding anything to the
contrary contained in any other law for the time being in force
or in any contract, custom or usages to the contrary." (emphasis
supplied)

Section 14
of the Act only relates to the entitlement of an individual to
a higher pay scale. It is submitted that neither
section 14
nor
section
relate to or affect the freedom of an individual to acquire a higher
qualification.

d. The decision in
Tarak Chandra Roy v. State of West Bengal & Ors.

decided on 17th January, 2008, does not relate to nor does in any
manner seek to create embargo upon an individual's freedom and
right to acquire higher educational qualification. The question
involved
in that case
was as follows:

"After the School Service Commission Act, 1997 came into force,
would the appointees get benefit of higher scale of pay despite
being interviewed and selected in "Pass category".
e. Furthermore, it is not the contention in any of the writ petitions
before this Court that an embargo has been created upon an
individual's freedom or right to acquire higher educational
qualification(s).

f. A freedom or right to acquire a higher qualification does not
automatically result in an entitlement to a higher pay scale in the
absence of any law providing for the same.

g. In any event, there is no fundamental right to acquire higher
education.
Article 45
of the Constitution, before the
Constitution
(Eighty-sixth Amendment) Act, 2002
, provided that the State shall
endeavour to provide free and compulsory education for all
children up to 14 years of age, within 10 years from the
commencement of the Constitution.
In the case of
Unni Krishnan,
J.P. v. State of A.P.
, reported at (1993) 1 SCC 645, it was noticed
that 10 years had long gone by, and no provision was made
imposing an obligation upon the State to ensure the right to free
education of every child upto the age of 14 years.
Article 21-A
of
the Constitution was inserted by the
Constitution (Eighty-sixth
Amendment) Act, 2002
, which recognized the right to free and
compulsory education for all children only of the age 6-14 years.
Higher education has not been recognized as a fundamental right
under Part III of the Constitution.

17. In answering question (c) the learned Advocate General has

argued that:

Firstly, this question cannot arise at all for consideration since

neither the answer to question (a) is in the negative, nor the

answer to question (b) is in the affirmative.
Secondly, there was no challenge to the vires of
sections 14
and
of the 2005 Act in any of the writ petitions before the court in

which the order of reference dated 22nd August, 2008 has been

passed.

Thirdly, there was also no challenge to the vires of
Section 14
and
of the 2005 Act before the court in the case of
Tarak Chandra

Roy v. State of West Bengal & Ors.
decided on 17th January,

2008, or in the case of
The State of West Bengal v. Sauvik

Ghosh & Ors.
, decided on 8th April, 2008.

18. In the writ petitions before this bench, a challenge to the vires of

Section 14
of the 2005 Act has only been made in WP 9921(w) of 2007 on

the ground that it would render the order dated 22nd September, 2004

passed by a learned Single Judge of this Court otiose.

19. Mr. Advocate General has submitted that in any event and

without prejudice to the above,
Sections 14
and
of the 2005 Act cannot

be said to be ultra vires
Article 14
of the Constitution.

20. Mr. Advocate General has submitted that a law can be

challenged only on the following four grounds:

i. It is beyond the competence of the Legislature;

ii. It violates
Article 13
of the Constitution;

iii. It is enacted contrary to a prohibition in the Constitution;

and
iv. It is enacted without following the procedure
laid down in

the Constitution.

In this regard he has relied upon the decision in Supreme

Court Advocates on
Record Association v. Union of India

reported at (2016) 5 SCC 1, Paras 852-857 at pages 642-644

of the Report.

21. These grounds have not been taken in any of the writ petitions

before this court to challenge
sections 14
and
of the 2005 Act.

22. The competence of the Legislature to enact the 2005 Act is not

in dispute.

23. The attention of the court is drawn to the statement of Objects

and Reasons of the 2005 Act which states as follows:

"1. The matters relating to creation of posts, approval of panels,
appointment of teachers, regularisation of services of teaching
and non-teaching staff, sanction of higher scale to teachers on
account of acquiring higher qualifications of teachers, in the
school and the Madrashas in the State of West Bengal, and
recognition and upgradation, and expenditure for management,
of such schools and Madrasahs, are presently governed, inter
alia, by the administrative orders, directions and circulars
issued from time to time by the School Education Department.

2. As such, administrative orders, directions and circulars do
not have any statutory base, it has been experience, with the
passage of time, that they are often challenged in the Courts of
law, causing huge financial burden on the State Exchequer.
3. It has therefore been felt necessary and expedient to frame a
separate statute for streamlining the management of schools
and Madrasahs in the State of West Bengal and for regulating
and controlling the expenditure to be incurred out of the
appropriate Budgetary provisions.

4. The Bill has been framed with the above objects in view.

5. No additional expenditure is envisaged to give effect to the
provisions of the Bill". (emphasis supplied)

24. It is submitted that the Preamble to the 2005 Act clearly

defines its purpose as it states:

"
An Act
to provide for the control of expenditure in the
Schools in West Bengal''

25. The State has consciously decided to grant incentives of higher

pay scale for obtaining higher qualification only after taking into

consideration the financial implication of granting such incentives on the

State exchequer. The State is entitled to discontinue its policy to grant such

incentives at any time and the continued grant of incentives cannot be

claimed as a matter of right.

26. The grant of incentives at an earlier point of time does not

create any vested right in favour of a person to be continued to be granted

such incentives. Therefore, there cannot be said to be any discrimination

between the persons who have received such incentives under a previous

policy of the State and persons covered under a later policy of the State. As

a result, the challenge on the basis of
Articles 14
and
of the Constitution

does not lie.
27. There is no fundamental right recognised under part III of the

Constitution permitting automatic grant of a higher pay scale upon

obtaining a higher educational qualification.

28. There is no prohibition in the Constitution preventing the State

from enacting
sections 14
and
of the 2005 Act nor has any prohibition

been indicted to the court in any of the writ petitioners.

29. Furthermore, there is no allegation that the 2005 Act has been

enacted without following the procedure
laid down in
the Constitution.

30.
Section 14
of the 2005 Act permits regulating and controlling

expenditure to be incurred out of appropriate budgetary provisions. This is

within the domain of the state legislature and/or state policy.

31.
In so far as the grounds taken in WP 9921(w) of 2007, (
Utpal

Kanti Karan v. State of West Bengal & Ors.
), is concerned it is argued

that none of the grounds could form the basis of a challenge of a law made

by the legislature as recognised in the decision of Supreme Court

Advocates on
Record Association
(supra). It is always open to the

legislature to change the law provided it possesses the necessary legislative

competence. In this case there is no dispute as to the legislative competence

to enact the 2005 Act.

32. In answering question (d) the learned Advocate General has

argued that it would be necessary to refer to the evolution of law in this
regard since promulgation of ROPA 1990 on March 7, 1990 till promulgation

of Government order no.593 dated 27th November, 2007.

33. It is submitted that the different ROPA Rules between the

aforesaid period read with the
West Bengal School Service Commission Act,
and
West Bengal School (Control and Expenditure) Act, 2005
would

show that the higher scale of pay is linked to the higher qualifications and

hedged with certain conditions like prior permission of District Inspector of

schools concerned. A teacher joining the service as a pass graduate cannot

claim higher scale of pay on acquiring higher qualification unless the staff

pattern permits and with the prior permission in respect of relevant subject.

Mr. Advocate General has taken us through ROPA Rules since 1970 till

2009 and the relevant provisions of the
West Bengal School Service

Commission Act
1997 as well as the West Bengal School (Control and

Expenditure) Rule, 2005. Mr. Advocate General has submitted that the

Rules for Revision of Pay and Allowances (ROPA 1970) was first published

on and from 1st March, 1971 on the recommendation of the first pay

commission. Thereafter by a Government order no. 60 issued on 15th

January, 1972 with effect from 1st February, 1972 a change was introduced

with regard to prescribing scale of pay on the basis of academic

qualifications as it was noticed that the aforesaid system introduced with

the object of engaging teachers to meet their qualifications with a view to

bring out a qualitative improvement in the standard of teaching in

secondary school did not actually work to the benefit of the institution or the

students for the additional expenditure incurred towards higher scale of pay
to the teachers. On reconsideration while giving incentive to the teachers to

improve their qualification, the criterion of teaching staff pattern in

secondary and higher secondary school was introduced with the norms

being
laid down in
this regard. It stipulates that for junior sections, no

teacher with Honours degree would be approved and even if a teacher

subsequently acquires higher qualification, he/she would be treated as a

"pass graduate" for the purpose of financial benefits and for senior sections,

if any existing teacher subsequently improves his qualification, he would be

treated as a "pass graduate" for the purpose of financial benefits until he is

absorbed in a suitable vacancy within the overall sanctioned strength.

34. Thereafter on 8th July, 1974 State Government issued an order

no. 772 prescribing revised pattern of teaching staff. On 31st July, 1991

following the recommendation of 2nd Pay Commission ROPA 1981 was

published. Certain qualification to ROPA 1981 was issued by Government

Order no.59 dated 16th January, 1992 which, inter alia, provided that

existing teachers who wish to improve their qualifications relevant to their

teaching subjects (subject relevant would mean the subject in which the

teacher was appointed) may do so on receipt of prior permission only

relevant to their teaching subject from directorate/employer. This

qualification has introduced the requirement of "prior permission only

relevant to the teaching subject of the teacher" from directorate/employer.

The position of the teachers vis-a-vis their higher qualification being linked

to higher scale of pay has undergone a sea change with the introduction of

ROPA 1990 as per the recommendation of 3rd Pay Commission. These rules
were given retrospective effect from 1st January, 1986 with actual payment

till 1998.

35. Mr. Advocate General has relied upon rule 16 of ROPA 1990

which refers to "career advancement scheme" and related issues Specific

attention was drawn to Rule 16(3) which refers to improvement of

qualifications by the teachers in subject or group relevant to their teaching.

Rule 16(3) reads as follows:

"16. Career advancement Scheme and related issues:

(3) All teachers and librarians of secondary schools "who have
improved/will improve their qualification or who were
appointed with higher qualification in subject or group
relevant to their teaching/appointment shall get higher scale
of pay appropriate to their qualifications, with effect from the
1st January, 1986 or the date of improving qualification
whichever is later." (emphasis supplied)

36. Mr. Advocate General submits that the aforesaid rule

contemplates teachers who have already improved their qualifications or

would improve their qualifications or who were appointed with higher

qualifications in subject or group relevant to their teaching/appointment to

get higher scale of pay with effect from 1st January 1986 or the date of

improving qualifications which is later. It would thus benefit three

categories of teachers. Similar benefit was extended by the Government

order no. 795 dated 22nd November, 1993 with regard to physical education

teacher having higher qualification of Master Degree who were not being

granted higher scale of pay presumably due to absence of any provision for
post graduate physical education teachers in the staff pattern
laid down in

government order dated 8th July, 1974. The physical education teacher

having master degree henceforth would be entitled to get higher scale of pay

in relaxation to the aforesaid staff pattern. By a government Order 796

dated 22nd November 1993 noticing that teachers having higher qualification

in the relevant subject were not being granted higher scale of pay

presumably due to lack of suitable provisions for teachers in social science

group, language group and science group in terms of government order

dated 8th July, 1974 and 15th January 1972 it was clarified that in view of

the memos dated 31st July, 1981 and 7th March, 1990 all such teachers with

higher qualification of post graduate degree or equivalent in the relevant

subject will be entitled to get higher scale of pay in relaxation to the

aforesaid staff pattern. A government Order no. 417 dated 8th March, 2000

as a clarification to Government Order No. 795 dated 22nd November, 1993

was issued to extend the benefit of higher scale of pay would be admissible

to only those Physical Education teachers who obtained their master degree

on completion of two years regular course from a recognised university. The

government noticing that teachers who have obtained higher qualification in

subjects not relevant to their respective subject in which they were

appointed but relevant to their respective teaching subjects issued a

Government Order no. 57 dated 27th January, 1995, granting higher scale

of pay. However, prior permission of the District inspector of Schools would

be required when taking classes not relevant to their respective subject.
37. Thereafter the West Bengal School Service Commission Act,

1997 came into force on and from 1st July, 1997.

38. The learned Advocate General has referred to
Sections 7
,
,
and
of the said Act.

39. It is submitted that
Section 7
contains a non-obstante clause

and it requires the Regional Commission to select persons for appointment

to the post of teachers in schools. The manner and scope of appointment are

indicated in
Section 8
.
Section 9
contains a non-obstante clause and it

provides that appointments to the post of teachers in a school shall be made

on the recommendation of the Regional Commission having jurisdiction. The

terms and conditions of the service of teachers in employment before the

commencement of the 1997 Act are protected under
Section 10
as it

restricts the authorities not to vary such terms to their disadvantages.

40. The Government Order no.548 dated 24th June, 1997 requires

all the teachers who desire to enrol for examination conducted through

correspondence/distance mode of education from UGC affiliated Universities

to take prior permission from the District Inspector of Schools (SC) through

Managing committee and/or ad hoc committee and/or administrator. The

Managing Committee while sending the case for approval, would have to

include their comments regarding 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.
41. On 1st November, 1997 the West Bengal School Service

Commission Rules 1997 (thereafter referred to as "1997 Rules") was

promulgated vide notification dated 3rd October, 1997 published in the

government Gazette on 1st November, 1997. Our attention is drawn to Rule

7 of the 1997 Rules which provides that the State Government in the School

Education Department would lay down the procedure for recruitment of

teachers. This was followed by a notification dated 8th January, 1998

published in the Calcutta Gazette on 15th January, 1998 that laid down a

procedure for selection of recruitment of teachers as envisaged in Rule 7 of

1997 Rules. The qualification prescribed for Assistant Teachers in physical

education was a Bachelor's degree.

42. The manner of distribution of staff in different groups in schools

was
laid down in
Government Order no. 670 dated 4th September, 1998.

43. Mr. Advocate General submits that the Rules for Revision of Pay

and Allowances (ROPA 1998) was issued on 12th February, 1999 as per the

recommendation of the Pay Commission with effect from 1st January, 1996

with actual payment from 1st April, 1997. The said Rules are to be

considered along with the Government orders issued between 12th

February, 1999 and 13th May, 2005 with a view to appreciate the claim for

higher scale of pay by a teacher.

44. Our attention is drawn to Rule 12(3) of the ROPA 1998. It

provides as follows:

"12. Career Advancement Scheme and related issues:
(3) All teachers including physical Education teachers and
librarians of Secondary Schools who have improved/will improve
their qualifications who were appointed with higher qualification in
the subjects or groups relevant to their teaching/appointment
shall get higher scale of pay appropriate to their qualifications,
with effect from the 1st January, 1996 or the date of improving
qualifications whichever is later." (emphasis supplied)

45. Subsequently by a memorandum dated 12th February, 1999

ROPA 1998 was amended by adding a proviso to rule 12(3):

Rule 12(3) as amended provided as follows:

"3. All teachers including physical Education teachers and
librarians of Secondary Schools who have improved/will improve
their qualifications or who were appointed with higher qualification
in the subjects or groups relevant to their teaching/appointment
shall get higher scale of pay appropriate to their qualifications,
with effect from the 1st January, 1996 or the date of improving
qualifications whichever is later, provided that such higher
qualified teachers in the relevant subjects or group is justified as
per approved staff pattern of that school. If such teacher is
appointed through West Bengal School Service Commission,
his/her pay will be fixed in the scale of pay as per his/her
qualification mentioned by the West Bengal School Service
Commission" (emphasis supplied)

46. The Government Order no. 795 dated 22nd November 1993 was

clarified by the Government Order no. 417 issued on 8th March 2000, in

which, it was stated that the benefit of higher scale of pay would be

admissible to only those physical education teachers who obtained their

Masters degree on completion of 2 years regular course from a Recognised
University. This order was to take effect from the date of its issuance i.e. 8th

March, 2000.

47. On 3rd June, 2002, Rule 12(3) was further amended by

government Order no. 735 dated 3rd June, 2002. After amendment, all

Honours Graduate teachers appointed through the WBSSC who have

obtained Post Graduate degree in the subject relevant to their appointments

prior to their date of joining in the school or who have completed their

studies at the post graduate level in the subject relevant to their

appointment or have appeared at the examination but the result was not

published till the date of joining may be allowed higher scale of pay with

effect from the date of joining or the date following the last date of

examination, whichever is later.

48. This was in view of the fact that Honours Graduate candidates

have to compete with post graduate candidate in the test held by WBSSC

and a single panel is prepared by WBSSC for the two sets of degree holders.

49. The position of the teacher appointed after enactment of West

Bengal School (Control of Expenditure) Act 2005 would be governed by the

provision of the Act and the Government orders and memoranda issued

between 19th August, 2005 and 27th February, 2009. The 2005 Act came

into effect from 19th August, 2005.

50. On 20th January, 2005 the West Bengal Board of Secondary

Education (Conduct and Discipline of Teachers and Non-Teaching staff)

Regulations 2004 (in short, "2004 Rules") was promulgated. Under Rule 25
every teacher is required to submit an application for appearing in any

examination through the appointing authority and with the approval of the

committee.

51. The said Rule was further amended on 30th May, 2005 to

provide that every teacher shall submit an application for appearing in any

examination to the appointing authority and seek prior approval of the

District Inspector of School if there is any financial involvement. The

amendment would clearly show that the teacher concerned would be

required to seek prior approval of the District Inspector of School in the

event it entails any financial implication. The position of the teachers

appointed after enactment of West Bengal School (Control and Expenditure)

Act 2005 was explained by referring to the 2005 Act and various government

circulars issued thereunder till 22nd November, 2007.

52. Mr. Advocate General has referred to
Sections 4
,
,
and
of the said Act and submits that by reason of
Section 4
school authorities

cannot create any teaching or non-teaching post involving any financial

liability on the state exchequer, without previous sanction of the State

Government and grant any special pay or allowance or any other benefit

having financial implication to any person holding teaching or non teaching

post.

53. In terms of
Section 14
of the Act no additional increment of

higher scale of pay could be granted for acquiring any qualification other

than the qualification specified for the post and that a teacher if appointed
in Honours Graduate or Post Graduate category shall be entitled to draw

pay of Post Graduate category upon acquiring Post Graduate degree as may

be specified.

54. Under
Section 16
of the Act the terms and conditions of the

service of teachers in employment before the commencement of the 2005 Act

shall not be varied to their disadvantage.

55.
Section 20
of the Act provides that the 2005 Act along with

rules and orders would have overriding effect over any other law in conflict

with the provisions of this Act.

56. On 26th December, 2005 government Order no. 1595 was

issued under
Section 14(3)
of the 2005 Act, specifying the manner in which

a teacher of a school if appointed in Honours graduate or post graduate

category would be entitled to draw "pay of post graduate category" upon

"acquiring post graduate degree".

57. The aforesaid government order stipulates that for improvement

of qualification after joining the post prior permission of the competent

authority would be required.

58. Subsequently, Memorandum no. 151 was issued on 12th May,

2006 to sanction "Protection of Pay" to those teachers whose pay had been

fixed at a lower stage than their contemporary/junior teaching staff who

were in receipt of higher pay before the benefit of CAS was granted to the

latter.
59. Our attention is drawn to Government Order no. 593 issued on

27th November, 2007 under
Section 14(3)
of the 2005 Act replacing all

earlier circulars and modifying Government Order No. 1595 dated 26th

December, 2005. It provided, inter alia:

(i) All Teachers required to seek prior permission of the Managing

Committee/Head of Committee/Administrator, to enrol for any

examination for enhancement of qualification.(Clause 1)

(ii) Teachers required to seek prior permission of the District

Inspector of Schools (SE), if he/she wishes to claim higher scale

of pay for obtaining higher qualification through Management

Committee of the School. (Clause 3)

(iii) No permission to be granted to any teacher who entered the

service with graduate degree and graduate scale of pay.(Clause

4)

(iv) The courses to be studied should be "relevant to the subjects

already studied". (Clause 5)

60. It is submitted that prayers from teachers who had already

secured higher qualification prior to the 2005 Act for higher scale of pay

may be considered only by the District Inspector of Schools (SE), with

approval of Director of School Education after examining staff pattern. In

terms of Clause 6 and 7 of the above government order dated 27th

November, 2007 no such prayer would be entertained from any teacher with
graduate degree and graduate scale of pay at the time of entry into service

irrespective of whether the higher qualification was secured before or after

the 2005 Act.

61. For the purpose of completeness it is submitted that on 27th

February, 2009 a memorandum containing the Rules for Revision of Pay and

Allowances ('ROPA 2009') was issued as per the recommendation of the Pay

Commission. The Rules were to take effect from 1st January, 2006 with

actual payment from 1st April, 2008. The 2005 Act was further amended on

2nd February, 2017.

62. Mr. Advocate General has submitted that as the relevant rules

prior to 2005 Act or the vires of the 2005 Act was not under challenge and

having regard to the fact that the relevant government orders both prior to

1997 Act and subsequent thereto emphasise that the appointment to the

post is the deciding factor with regard to scale of pay the decision in
Tarak

Chandra Roy
(supra) requires approval.

63. Mr. Advocate General in answer to the questions referred to this

Special Bench by order dated 6th September, 2019 has referred to Rule 12(5)

of the ROPA 1998 which came into force on and from 1st January, 1996.

The said Rule provides as follows:

"12(5) Secondary teachers Headmasters/Headmistresses with
Doctorate degree in the subject taught or in an allied subject shall
get two additional increments from the date of the convocation of
which such degree is awarded.
Provided that those who obtained this degree prior to the date of
coming over to the revised scale shall get two additional
increments from the date with effect from which they elect to draw
pay in the revised scales, provided that they have not already got
such additional increments in the earlier pay revision and
provided further that in the latter case, pay should be fixed at
least at the third stage of the relevant scale of pay." (emphasis
supplied)

64. Mr. Advocate General submitted that the said rule

unmistakably shows that the entitlement under ROPA 1998 to claim

additional increments is from "the date of the convocation" which such

degrees are awarded. ROPA 1998 was replaced by ROPA 2009 which was

effective from 1st January, 2006. There is no provision for payment of

increments in ROPA 2009 as was previously contained in Rule 12(5) of

ROPA 1998. After coming into effect of ROPA 2009, ROPA 1998 ceased to

have effect. The writ petitioners who have claimed benefit of increments

have already exercised their option under ROPA 2009 and hence they are

not entitled to the benefits of increments under ROPA 1998 in view of the

judgment of the Division Bench on 4th December, 2019 in FMA 442 of 2019

in CAN 4752 of 207 (
The State of West Bengal & Ors. v. Smt. Mala

Sanyal
).

65. Mr. Advocate General has submitted that the Coordinate Bench

of which one of us (Soumen Sen, J.) was a member has held that a person

claiming/accepting benefits, by exercising their option under a subsequent

ROPA could not claim benefits granted by earlier memorandum and in this

regard has placed reliance on the following paragraphs:
"We have to decide the lis between the parties on the basis of
the law operating in the field as of date. The decision in
Pradip
Kumar Karak & Ors.
(supra) is the law
laid down by
the
coordinate Bench. Apart from the well recognised principle of
binding precedent we also feel that the memorandum dated
21st July, 1990 clearly excludes the writ petition. There cannot
any doubt that the memorandum of 21st July, 1990 is an
important document which clearly excludes the
respondent/writ petitioner and many others who have acquired
qualification post dated 21st July, 1990 and before 26th July,
1994. We are referring to these particular memoranda because
26th July, 1994 puts an end to any claim that may be made by
respondent/writ petitioner or persons similarly placed who
have acquired qualification post 21st July, 1994. In the
meantime, ROPA 1999 had come into play by which it seems
that the respondent authorities have tried to bring a pay parity
amongst different classes of its employees with effect from 1st
January, 1996. The respondent/writ petitioner exercised option
under ROPA 1999 for receiving benefits with effect from 1st
January, 1996 of higher scale of pay. This appears to be a
conscious decision by the writ petitioners and it is an important
factor to be taken into consideration at this stage because on
that date it was possible for him to challenge the basis of the
memorandum dated 21st July, 1990. It is clear case of waiver of
right. Apart from waiver of right, we are in agreement with the
view expressed by the co-ordinate Bench that the circular dated
21st July, 1990 is a clear bar to avail any benefit on the basis of
higher qualification acquired on or after 21st of July, 1990 in
absence of any separate Government Orders.

There is another aspect to this matter;

At the relevant point of time it was incumbent upon the writ petitioner,
before acceptance of a higher scale of pay under ROPA 1990, to claim
higher scale of pay on the basis of the Memorandum dated 7th March,
1990, and to challenge the Memorandum dated 21st July, 1990 and
the Memorandum dated 26th July, 1994 which put an end to any
claim that could have been made on account of higher scale of pay
upon acquiring higher qualification. The writ petitioner continued to
avail the benefit of ROPA 1990, ROPA 1998 and ROPA 2009 until the
writ petitioner filed the writ application in the year 2015, being W.P.
No. 20521 (W) of 2015, on the basis of the judgment in Sibnath Koley
(supra). Benefits of ROPA 1998 and ROPA 2009 was conferred upon
the writ petitioner upon exercising option."

66. Mr. Advocate General has submitted that the convocation of the

petitioner was admittedly held after the coming into force of ROPA 2009

and, therefore, the petitioner has no vested rights to claim an incentive

under the previous ROPA i.e. ROPA 1998.

67. Mr. Advocate General has submitted that the Division Bench in

MAT 961 of 2017 (
State of West Bengal v. Chandra Bhusan Dwivedi
)

reported at 2019 SCC Online Cal 6530 in paragraphs 7 to 14 have

addressed this issue. The said paragraphs are reproduced below:

"7. The order impugned in the appeal was passed by a learned
Single Judge of this Court on December 20, 2016 in W. P.
13043 (W) of 2009. The petitioner challenged an order passed
by the Director of School Education, West Bengal by which his
claim for the benefit of two additional increments by virtue of
having acquired doctorate degree, was rejected.

8. The sole reason for rejecting the petitioner's claim for two
additional increments was with reference to
West Bengal
Schools (Control & Expenditure) Act, 2005
and the provisions
contained therein. The learned Single Judge observed that since
the basis of the petitioner's case was for ROPA 1998 his claim
could not be hit by the said Act. Since the Court did not find any
application of the said Act to bar the claim of the petitioner the
Court set aside the impugned order and directed the
respondents to grant two additional increments from the date of
convocation in which the petitioner received his Ph.D degree.

9. If the order impugned in the writ petition was not sustainable
for rejecting the prayer of the petitioner on the basis of an Act
the order impugned in the appeal is also not sustainable for a
very different reason. The learned Single Judge before directing
the respondents to pay two additional increments to the
petitioner ought to have been satisfied about the basis of his
claim and whether that could be allowed in the facts of the
present case.

10. The petitioner was pressing his claim on the basis of Rule
12(5) of ROPA 1998. All that the petitioner is required to satisfy
is that that clause had made him entitled to ask for two
additional increments when the doctorate degree was awarded
to him. In the present case, the convocation was held on
December 15, 2006, by that time ROPA 1998 has ceased to be
in operation. ROPA 2009 which later on came to be effective
with effect from January 1, 2006 does not contain any such
provision of law.

11. Rule 12(5) of ROPA 1998 entitles the holder of a doctorate
degree to ask for the benefit of two additional increments from
the date of convocation when the convocation was held ROPA
1998 had ceased to exist. Without a corresponding provision in
the new ROPA a Division Bench of this Court by a judgment
and order dated April 5, 2019 in the case of
State of West
Bengal & Others vs. Goutam Ghosh and Others
(FMA 2368 of
2015) observed that since the Rule had ceased to exist on the
day the degree was awarded the petitioner must be held to be
ineligible to the benefit claimed by him under ROPA 1998.

12. This aspect has not been discussed by the learned Single
Judge at all. The order impugned in the writ petition was
ultimately right, as the petitioner was not entitled to the benefit
of two additional increments, though the reasons recorded
therein were not correct.

13. At this stage Mr. Barua submitted that the appellant had
exercised option under ROPA 1998. If that be so his scale of
pay should be fixed under ROPA 1998 and under ROPA 2009.

14. We find sufficient substance in the appeal filed by the
appellants. The judgment and order of the learned Trial Judge
is set aside."

68. Mr. Advocate General has submitted that the aforesaid view is

the correct enunciation of the law and needs to be accepted. It is submitted

that no vested right is created in favour of a person to be continued to be

granted incentives under any previous policy of a State.

Submission of Mr. Biswarup Biswas, learned Sr. Counsel on
behalf of the appellant in FMA 557 of 2007

69. Mr. Biswarup Biswas the learned Senior Counsel in FMA 557 of

2007 has submitted that the appellant obtained her graduation in Physical

Education from the University of Calcutta in the year 1998. Thereafter, she

obtained Post Graduate Degree in Physical Education in the year 2001 from

Kalyani University. She was selected for the post of Physical education

teacher through the regular recruitment process conducted by the West

Bengal School Service Commission in the year 1999. At the time of her
appoint on 28th March, 2001 to Sinthi Ramkrishna Sangha Vidyamandir

(Girls) as a Physical Education teacher as a pass graduate candidate she

joined the post as assistant teacher in physical education subject in the

school on 24th April, 2001. After obtaining Masters in Physical Education

(part-II examination) on 21st September, 2001 she applied for higher pay

scale on 24th January, 2004. It was however, denied by the State. She filed a

writ petition being W.P. No 7291(W) of 2006 which was dismissed by an

order dated 10th April, 2006 upon observing that in view of the provisions of

Sections 14
,
and
of the West Bengal Schools (Control and

Expenditure) Act, 2005 she was not entitled to higher scale of pay on

acquiring higher degree.

70. However, in an appeal being FMA No. 557 of 2007 (
Baishali

Banerjee Vs. State of West Bengal & Ors.
) the Hon'ble Division Bench

allowed the appeal inter alia, on the following reasons:

"8. The case in hand is, however, having a salient feature. The
appellant is a Physical Education teacher. There is no honours
course taught by any of the Universities in the State. Hence
there could be no such category in the School Service
Commission in the concerned subject. We also do not find any
such distinction being made in Physical Education by the
School Service Commission. Hence all candidates who are
having appropriate qualification in Physical Education are
considered in one category i.e. pass category. If that be the
position their subsequent acquisition of post graduate
qualification cannot be equated with any other subject.
9. In the instant case the appellant undertook post graduate
study. She appeared in the post graduate examination. Before
the result could be published she was selected and appointed
in the post. In the case of Bhaskar Chakraborty (supra) the
identical situation happened. Hence in our view, the appellant
was entitled to the benefit of the higher pay scale.

10. Let us now examine the said Act of 2005 to find out
whether there is any hindrance in the way of extending higher
pay scale to the appellant. Appellant was appointed in 2001.
She acquired post graduate qualification in 2001. Hence she
was to be considered contemporarily. Her case was
unnecessary kept pending. Her prayer could not be considered
to her disadvantage under the provisions of the said Act of
2005 in this regard. Learned Counsel appearing for the
appellant has successfully drawn our attention to
Section 16

wherein it is provided that notwithstanding anything contained
in the said Act, the terms and conditions of service of a teacher
shall not be varied to his or her disadvantage in the view of the
commencement of the said Act.

11. In Circular dated June 03, 2002 the State considered the
cases of the candidates who were undergoing post graduate
studies or had appeared at the post graduate examination but
result was yet to be published. Those candidates, if selected, in
honours category were extended post graduate scale after
acquiring post graduate qualification. Since in Physical
Education there is no such distinction between pass category
and honours category the benefit of the circular dated June 03,
2002 should be extended to the Physical Education teachers
being similarly circumstanced with Bhaskar Chakraborty
(supra) and the present appellant." (emphasis supplied)
71. The learned Counsel has also referred to a circular of the School

Education Department Secondary Branch dated 22nd November, 1993

intimating that the date of effect for granting of the benefit of higher scale of

pay i.e. pass graduate scale of pay for assistant teachers of physical

education under ROPA 1990 would be with effect from 1st January, 1986 or

date of improvement of qualification whichever is later in terms of para 16(3)

of G.O. No.33- Edn(B) dated 7th March, 1990 as amended by G.O. No.401-

Edn(B) dated 10th September, 1991 and 216-Edn(B) dated 13th May, 1992

and not from 22nd November, 1993 as stated in the department's Memo

No.795-Edn(S) dated 22nd November, 1993.

72. The learned Counsel has submitted that earlier on 8th March,

2000 a circular was issued by the School Education Department in

clarification of paragraph 3 of the Government Order No.795-Edn(s) dated

22nd November, 1993 by which the benefit of higher scale of pay was

extended to those physical education teachers who have obtained such

degree on completion of two years regular course from a recognized

university. Subsequently, the State considered the cases of the candidates

who were undergoing post graduate studies or had appeared at the post

graduate examination but result was yet to be published in its circular

dated 3rd June, 2002. The government issued the circular of that date

clarifying that those candidates if selected in honours category would be

extended post graduate scale after acquiring post graduate qualification.

73. The learned Counsel submits that since in physical education

there was no such distinction between pass category and honours category
the benefit of circular dated 3rd June, 2002 is required to be extended to the

physical education teachers being similarly circumstanced with
Bhaskar

Chakraborty v. State of West Bengal (WP.
2326 (w) of 2002) and the

present appellant.

74. The learned Counsel has submitted that
Tarak Chandra Roy

(supra) is in relation to a post graduate degree holder in physical education.

Tarak obtained his masters in physical education in the year 1998 and

appointed in the year 2003 prior to the coming into force of The Control and

Expenditure Act, 2005.

75. However, the Hon'ble Division Bench dismissed the appeal upon

the consideration of
Section 14
of the 2005 Act, which is impermissible

because of the fact that the 2005 Act has no retrospective operation and it

has come into effect only on 26th December, 2005. Tarak has been

appointed as assistant teacher in 2003 with post graduate degree. Therefore,

the circular dated 22nd November, 1993 and 8th March, 2000 had no

manner of application in view of the circular dated 3rd June, 2002 and the

decision in
Bhaskar Chakraborty
(supra).

76. Mr. Biswas further submits that since
section 16
of the West

Bengal Schools Control of Expenditure Act 2005 preserves the previous

rights in the limited manner as specified therein and hence
Section 20
of the

said Act cannot be interpreted to have any overriding effect in respect of

entitlement of Post Graduate scale of pay in terms of ROPA RULES 1981,

1990 and 1998 respectively. Therefore
Section 20
of the Act of 2005 has no
manner of application in the matter of curtailing any right that the writ

petitioner/appellant had under the relevant clause of the earlier regulations.

In support of the same Mr. Biswas has relied on a single Bench decision of

this Hon'ble High Court in the case of Trilachan Jana VS State Of West

Bengal reported in 2008 (2) WBLR 913 (paragraph 9 to 11).

77. Mr Biswas argues that the staff pattern of the school does not

have any nexus with the entitlement of the post graduate scale of pay. The

grant of scale relatable to qualification to one teacher and denial thereof on

the anvil of different qualification to another teacher who is teaching the

same subject in the same class in the same school or in different aided

recognised Non-Government schools or Government sponsored Schools

under the same Education Directorate would violate the principle of equal

pay for equal work and offend
Article 14
of the Constitution of India.
In

support of his submission he relies on a single bench decision in the case of

Sampa Sahu (Mondal) v. State Of West Bengal
, reported in 2009 (1) C.LJ

(CAL) (paragraph 21 to 27):

"(21) The staff pattern of Schools including Madrashas were, at
all material times governed by Government Circulars and/or
Orders issued in this regard from time to time. The relevant
Government Orders indicate that qualifications for the same
teaching post were to be fixed percentage wise. Out of two
posts of Language Group teachers in a Junior High School, the
minimum requisite qualification for one post was Pass Graduate
and the minimum requisite qualification for the other Honours
Graduate/Masters degree. When additional posts were
sanctioned, the same percentage ratio was maintained. Thus, if
a School was sanctioned two posts of Bengali Teachers who
were required to teach Bengali in the same classes, the
minimum requisite qualification for one post could be Pass
Graduate and the minimum qualification for the other post
could be Honours/Masters degree in Bengali.

(22) There were teaching posts in Junior High
Schools/Madrasahs for which the requisite qualification was
Pass Graduate and there were teaching posts, also, in Junior
High Schools/Madrasahs for which the minimum qualification
was Honours Graduate and/or Post Graduate degree. The
fixation of a higher qualification for some posts and lower
qualification for others, apparently had nothing to do with the
teaching duties pertaining to the post, at least at the material
time.

(23) It also appears that although there has recently been some
change in the rules of appointment through the School Service
Commission, at the material time, Honours Graduates and Pass
Graduates had to compete in a common selection test.

(24) In the aforesaid circumstances, the payment of scale
pertaining to qualification to one teacher and denial of scale
pertaining to qualification to another teacher, teaching the same
subject in the same class in the same school or in different
aided recognized Non-Government schools would violate the
principle of equal pay for equal work and offend
Article 14
of
the Constitution of India.

(25) If the minimum requisite qualification for some posts of
Assistant Teachers of Language Group was B. A. (Honours)
and/or M. A degree, the minimum qualification for the teaching
post for the aforesaid category could have to be deemed as B.A.
(Honours)/M.A. degree.
[26) Mr. Bhattacharya, learned Advocate appearing on behalf of
the State cited a Division Bench judgment of this Court in
Tarak
Chandra Roy v. State of West Bengal and Ors.
, reported in
2008(2) Calcutta Law Times 240 (HC).

(27) In the aforesaid case, the Division Bench was of the view
that after the enforcement of the
West Bengal School Service
Commission Act, 1997
, the circulars dated 22nd November,
1993 and 8th March, 2000 pertaining to teachers of Physical
Education had no manner of application." (emphasis supplied)

78. Mr Biswas submits that the School Education Department has

issued a notification. No. 593-SE (B) dated 27th November, 2007 to modify

the
Section 14 (3)
Of the West Bengal (Control of Expenditure) Act, 2005, as

well as G.O. No. 1595 dated 26th December, 2005. However, the said assent

of the Hon'ble Governor and never published in the Official Gazette and

therefore it can be treated only as an administrative order or instruction and

does not have any statutory force. The said notification cannot modify the

statutory rule and the Government Order dated 26th December, 2005. The

notification dated 27th November, 2007 appears to have been issued in

derogation of the 2005 Act and the Government Order dated 26th December,

2005 and hence cannot be enforced.

79. The learned Counsel has relied upon the document filed as

"Information related to Memo No.12-SE/RTI/BS-631/2018 dated 4th

January, 2019" issued by Assistant Secretary School Education

Department, Government of West Bengal in response to a RTI that the

available record of the Department does not reveal that notification/circular
No. 593-SE (B) dated 27th November, 2007 has been published in 'Kolkata

Gazette Extraordinary'.

80. The said notification issued in exercise of power conferred under

the
West Bengal Schools (Control of Expenditure) Act, 2005
. However, it has

not been notified in the Official Gazette and the notification/ circular dated

27th November, 2007, does not have the assent of the Hon'ble Governor and

therefore the said notification/ circular is only an Administrative order or

instruction and does not have any statutory force. The said notification

cannot modify statutory rule of the Government Order dated 26th December,

2005. The notification dated 27th November, 2007 has been issued in

derogation of the statute and cannot be enforced. The learned Counsel relied

on a document filed as "Information related to Memo No.12-SE/RTI/BS-

631/2018 dated 4th January, 2019" issued by Assistant Secretary School

Education Department, Government of West Bengal in response to a RTI

that the available record of the Department does not reveal that

notification/circular No. 593-SE (B) dated 27th November, 2007 has been

published in 'Kolkata Gazette Extraordinary'.

81. The learned Counsel has relied on Division Bench decision

rendered in the case of
Akhtar Hossain Chowdhury v. STATE OF WEST

BENGAL
, reported in 2013 2 CHN 632 (paragraph 14 to 16) to buttress his

submission that that a circular cannot override the statutory provisions.

Submission of Mr. Subir Sanyal, Sr. Advocate on behalf of
Archana Pramanik and Manas Kumar Ghorai.
82. Mr. Subir Sanyal the learned Senior Counsel appearing on

behalf of the respondent/writ petitioners Archana Pramanick and Manas

Kumar Ghorai in FMA No.143 of 2022 and FMA 125 of 2022 respectively

has submitted that the condition of prior permission of the authority

competent to grant permission in respect of a teacher who has been

appointed to WBSSC in Honours/Post Graduate Teacher Category for

improvement of his qualification of post graduate degree after joining the

post to make himself or herself entitled to draw pay scale of a post graduate

teacher as per Clause (c) of the Order No.1595 SE(S) dated 26th December,

2005 under
Section 14(3)
of the Act of 2005 is illegal, arbitrary,

unreasonable and violative of
Article 14
of the Constitution of India.

83. Mr. Sanyal submits that in order to appreciate the aforesaid

argument it is necessary to refer to the ROPA Rules from 1981 to 2009 and

the provisions of the
West Bengal School Service Commissions Act, 1997

and the Rules framed thereunder as also the
West Bengal Schools (Control

of Expenditure) Act, 2005
.

84. Mr. Sanyal submits that ROPA 1981 was formulated after

careful consideration of the recommendation by the Governor with regard to

the entitlement of the teaching and non-teaching staff of the

sponsored/aided institution to draw pay in the revised scale of pay as

shown in column 4. It provides for issuance of separate order regarding

fixation of pay in the revised scale of pay on the analogy of the State

Government Rules. Clause 4 stipulates that all orders issued by the

Education Department regulating the conditions of service of the employees
and the pay scales of the posts shown in the annexure of the said order

shall be effective subject to the provisions of this order. Clause 6 provides

for exercise of an option either to retain existing scale of pay with existing

terms and conditions of service or to come under the revised scale of pay

together with the revised terms and conditions of the service as may be

determined by the State of West Bengal.

85. The ROPA 1981 also provided for higher pay scale for teachers

of secondary school in future only upon obtaining higher qualification in the

subject relevant to their teaching/appointment.

86. Mr. Sanyal has referred to Order No. 492 (6)-Edn(B) dated 26th

October, 1981 issued by the Order of the Governor in pursuance of

paragraph 3 of Memorandum No. 372-Edn(B) dated 31 July, 1981 by

which the pay of the teaching and the non-teaching staff of the non-

government/sponsored/aided educational institutions and other

organisations was fixed in the revised scale of pay as sanctioned in the

government order dated 31st July, 1981.

87. It is submitted that Clause 4 provides for exercise of option and

in Clause 4(3) it is made clear that once option is exercised it shall be final

and cannot be modified at subsequent date.

88. It is submitted that Clause 5 provides for benefit of next higher

scale of pay in certain contingency, namely, teacher who has not got single

promotion or appointment in any higher grade in the same post even after

completion of 8 years continuous and satisfactory service. They shall be
placed in the next higher scale of pay as shown in Annexure-II of G.O. No.

372-Edn(B) dated 31 July, 1981.

89. Clause 6 provides for stagnation of pay and Clause 7 provides

for pay fixation on promotion or appointment.

90. The Memorandum No. 372-Edn (B) dated 31st July, 1981

namely, ROPA 1981 refers to annexure- I which, inter alia, stipulate for

higher scale of pay on qualification without any restriction to all existing

secondary school teachers upon improvements of qualifications relevant to

their teaching subject.

91. The aforesaid provision was amended by Memorandum No.52-

Ed(B) dated 14th February, 1992 to the effect that the words "all existing

secondary school teachers" were substituted by the words "who entered

service with higher qualifications or.............". Mr. Sanyal has referred to

Note Clause 2(b) of the annexure to the ROPA 1981 to show that all existing

Secondary School Teachers who have improved their qualifications not

relevant to their teaching subjects will be allowed the higher scale on

qualification basis after five years' teaching counting from the date on

which higher qualification was obtained.

92. By Government Notification no. 400-Edn(B) dated 10th

September, 1991 the above Clause-(b) was substituted by the provision "all

existing secondary school teachers who were appointed with higher

qualifications in subjects not relevant to their teaching or who improve their

qualifications subsequent to their appointment in subject not relevant to
their teaching will be allowed the higher scale on qualification basis with

effect from 1 April, 1991 or after 5 years teaching counting from the date on

which higher qualification was obtained whichever is later".

93. It is submitted that a close scrutiny of the provisions of

Memorandum no. 372-Edn(B) dated 31 July, 1981 read with later circulars

issued by the Governor in exercise of power under proviso to
Article 309
of

the Constitution of India in the Rules creates a right of entitlement in favour

of an existing school teacher either upon obtaining higher qualification or at

the time of entry in service with higher qualifications relevant to the

teaching subject for higher scale on qualification basis without any

restrictions and also for obtainment of higher qualification not relevant to

the teaching subject after 5 years. Entitlement of higher scale is thus linked

with the qualification and this is not an incentive. This is one of the terms

and conditions of the service as per the aforesaid order of the Governor

issued in exercise of power under the proviso to
Article 309
of the

Constitution of India.

94. Similarly, the benefit of next higher scale of pay in certain cases,

stagnation of pay, pay fixation on promotion or appointment as provided for

in Government Order No. 492(6)-Edn(B) dated 26.10.1981 formed part of

the terms and conditions of service having been issued by the Governor in

pursuance of Memorandum no. 372-Edn(B) dated 31 July, 1981.

Therefore, they were and are enforceable rights.
95. It is submitted that even if it is held that the benefits of next

higher scale of pay in certain case, stagnation pay, pay fixation on

promotion or appointment as aforesaid are incentive, even then those

benefits are enforceable as they form part of the terms and conditions of

service as per G.O.No. 372-Edn(B) dated 31 July, 1981.

96. Mr. Sanyal refers to ROPA 1990 and submits that proviso to

Clause 5 of ROPA 1990 provides for exercise of option at the discretion of

the employees for retaining existing scale of pay with existing condition of

service or for coming over to the revised scale of pay to the revised terms

and conditions of service as may be determined by the Government.

97. Mr. Sanyal submits that Clause 16 (1) provides for placement

in the next higher scale of pay while his designation remaining unchanged

and who has not got a single promotion/advancement to a higher scale in

the same posts even after completion of 18 years of continuous and

satisfactory service.

98. Clause 16(2) thereof makes a member of the teaching and non

teaching staff entitled to an additional increment in the revised scale of pay

for every 10 years of continuous and satisfactory service counted form the

date of appointment subject to a maximum two such increment in addition

to benefit under sub-para (1).

99. Clause 16 (3) provides for higher scale of pay appropriate to

their qualification for all teacher and librarians of secondary schools who

have improved/will improve their qualification or were appointed with higher
qualification in the subject or group relevant to their teaching /appointment

with effect from 1 January, 1986 or the date of improving qualification

whichever is later.

100. Clause 16(3) as above was substituted by way of amendment

vide Memorandum No. 401-Edn(B) dated 10 September, 1991 issued by

the Governor to the following effect:

"All teacher and librarians of secondary schools who improve
their qualification in subjects relevant to their
teaching/appointment shall get higher scale of pay appropriate
to their qualification with effect from the date of improving
qualification".

101. A bare reading of ROPA, 1990 issued by the Governor in

exercise of power under proviso to
Article 309
of the Constitution of India

contains Rules providing for the revised scales of pay, age of

superannuation, retirement benefits and other terms and conditions of

service as enumerated therein. Therefore, entitlement of higher scale of pay

appropriate to the qualifications of teachers and librarians of secondary

schools who have improved or will improve their qualification or were

appointed with higher qualification in subject or group relevant to their

teaching criterion is one of the terms and conditions of service as per the

Rules, (ROPA, 1990). Entitlement to the higher scale of pay is thus linked

with qualification and an enforceable right, not an incentive. This is earned

by acquisition of higher qualification which ultimately ensures to the benefit

of the educational institution and the students.
102. Benefit of placement in the next higher scale of pay upon

completion of 18 years continuous satisfactory service for not having a

single promotion or advancement to a higher scale in the same post also

forms part of the terms and conditions of service as per the Rules i.e. ROPA

1990 and the same is enforceable right in law. If it is at all held to be an

incentive, even then the same is enforceable right in law for making it a part

of the terms and conditions of service. Moreover, it is a beneficial provision

allowing advancement or promotion in the higher scale upon 18 years

continuous and satisfactory service and cannot be taken away, by executive

whims.

103. Mr. Sanyal submits that ROPA 1998 contained Clause 12(3)

similar to Clause 16(3) of ROPA 1990 entitling teachers to higher scale of

pay who have improved or will improve their qualification or who were

appointed with higher qualification in the subjects or groups relevant to

their teaching or appointment with effect from 1st January, 1996 or the date

of improving qualification whichever is later.

104. Like the ROPA, 1990 the subsequent ROPA 1998 also provides

for a condition of service entitling a teacher to a higher scale of pay linked

with his qualification and is enforceable in law.

105. It is submitted that Clause 12(1) and (2) of ROPA 1998 are

similar to Clause 16 (1) and (2) of ROPA 1990.

106. Mr. Sanyal has referred to Section 9 and 10 of WBSSC Act,

1997 to emphasise that the terms and conditions of a service of teaching
and non-teaching staff shall not be varied to their disadvantage, insofar as

such terms and conditions related to the appointments of such teachers to

the post held by them immediately before commencement of the Act.

Moreover, their service has been guaranteed under ROPA 1990 entitling

higher scale of pay on acquisition of higher qualification which has been

retained and reiterated.

107. Mr. Sanyal has referred to the Memorandum No.155-SE(B)

dated 13th July, 1999 by which amendment was made to Clause 12(3) of

ROPA 1998 by way of substitution to the effect that "..............such higher

qualified teachers in the relevant subjects or group is justified as per

approved staff pattern of the school, if such teachers is appointed through

WBSSC, his/her pay will be fixed in the scale of pay as per his/her

qualification mentioned by the West Bengal School Service Commission".

108. It is submitted that Circular No.735-SE(S) dated 3rd June,

2002 issued by the School Education Department, Government of West

Bengal purportedly amending Memorandum No.155-SE(B) dated 13th July,

1999 amending Memorandum No.25-SE(B) dated 12th February, 1998, has

included and thereby widened the scope of Memorandum No. 155-SE(B)

dated 13th July, 1999 to the effect that Honours graduate teachers

appointed through WBSSC 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 would be allowed scale of pay with
effect from the date of joining or the date following the last date of

examination whichever is later.

109. Subsequently, Government Order No.1334-SE(S) dated 3rd

November, 2004 was issued by the School Education Department,

Government of West Bengal for determination of the date from which post

graduate scale will be allowed to eligible teachers on acquiring of post

graduate degree in partial modification of G.O.No. 735-SE(S) dated 3rd

June, 2002 to the following effect:-

i. Honours graduate teachers of Hons./Post Graduate category

appointed through WBSSC who obtained post graduate degree in

subject relevant to their appointment prior to their joining shall be

eligible for post graduate scale of pay from the date of joining.

ii. The Honours graduate teachers of Hons./Post Graduate category

who have completed their examination before joining but results

were published after joining be eligible to post graduate scale of pay

from the date of publication of result.

iii. Honours graduate teachers of Hons./Post Graduate category

appointed through SSC who had improved or will improve

qualification after joining the post with due permission from the

authority competent to issue such permission, be eligible for post

graduate scale on successful results of last examination leading to

post graduate degree from the day following the last day of

examination.
110. It is submitted that point No.(iii) is discriminatory, illegal and

violates
Article 14
of Constitution of India having no intelligible differentia

and no nexus with the object to be achieved.

111. Mr. Sanyal has referred to Section 5(1) and 5(3) and 14 of the

Control of Expenditure Act, 2005, and Order No.1595-SE(S) dated 26th

December, 2005 and highlighted the circumstances entitling a teacher to a

higher grade scale and additional increment under
Section 14(3)
of the Act,

2005.

112. Mr. Sanyal submits that Order No. 1595-SE(S) dated 26th

December, 2005 specified the following circumstances where an Honours or

Post Graduate Scale of Pay can be claimed by a teacher:

a. prior to his joining has acquired post graduate degree in the
subject relevant to the appointment be entitled to pay of post
graduate teacher category from the date of joining the post or

b. completed examination for post graduate degree, prior to joining
the post, in the subject relevant to the appointment, but the
results of such examination published after joining the post shall
be entitled to draw pay of post graduate teacher category from the
date of publication of result of such examination.

c. improved his or her qualification after joining the post with prior
permission of the authority competent to grant such permission,
on being successful in the results of the examination for the post
graduate degree in the subject relevant to the appointment, be
entitled to draw post graduate teacher category from the day next
following the last date of such examination.
113. In referring to Order No.593-SE(B) dated 27th November, 2007

Mr. Sanyal submits that the said order specified the manner in which a

teacher would be entitled to claim an additional increment or higher scale of

pay under
Section 14(3)
of the 2005 Act. The salient features are:

i. Teacher to take prior permission from the Managing Committee
to enrol themselves or to appear for any examination for
enhancement of educational qualification.

ii. Teacher to apply for leave/special leave/study leave with
resolution of Managing Committee to the WBBSE through MC of
School.

iii. to seek prior permission of D.I. of Schools if he or she wants to
claim additional increment or higher scale of pay for obtaining
such higher qualification through MC of School.

iv. No such permission to be granted on any ground to a teacher
who entered service or joined the school with graduate degree with
scale of pay.

v. Courses to be studied should be relevant to the subjects studied
in under graduate honours/post graduate course of the applicant
teacher and none other.

vi. Prayer from teachers who had already secured higher
qualification observing above procedure and submitted claim to
concern D.I. of Schools with complete set of papers may be
considered only by D.I. of Schools with approval of DSE, W.B. only
after examination of the staff pattern, vacancy position of the
school.

vii. No prayer for higher scale of pay from graduate degree teacher
with graduate scale of pay at the time of entry into service /joining
the school will be entertained. No matter whether he or she has
secured such higher qualification before or after in introduction of
Act of 2005.

viii This order will replace all earlier orders published before
coming into force of the Act of 2005 and also modifies the order
No. 1595 dated 26th December, 2005.

114. Curiously, Order No. 1595-SE dated 26th December, 2005 was

issued by the Governor in exercise of power under Sub-
Section 3
of
Section
of the Act of the West Bengal School (Control and Expenditure) Act, 2005

and such order of the Governor is being modified by an executive Order

No.593-SE(B) dated 27th November, 2007 by order of the Joint Secretary,

School Education Department, Government of West Bengal and not by the

Governor in exercise of His power. This action is impermissible and therefore

the Order No. 593-SE(B) dated 27th November, 2007 is illegal, unlawful

and nonest in the eye of law.

115. Condition to obtain prior permission of the authority competent

to grant such permission in respect of a teacher who has been appointed

through WBSSC in Honours/Post graduate teacher category for

improvement of his qualification of post graduate degree after joining the

post to make himself or herself entitled to draw pay post graduate teacher

category as per Clause (C) of the Order No. 1595 SE(S) dated 26th

December, 2005 issued by the Governor under
Section 14(3)
of the Act of

2005 is illegal, arbitrary, unreasonable and violative of the provisions of

Article 14
of the Constitution of India and the provisions of
Section 14(3)
of

the Act of 2005 for the following reasons:
i. The object of the order is to put the same classes of person on
the same pedestal for being selected by competing with the post
graduate degree candidates on the same syllabus and same set
of question papers in the examination conducted by the WBSSC
and preparation of single panel in a subject from amongst both
Honours degree candidates and Post Graduate degree
candidates.

ii. As per Clause (a), a teacher who prior to joining acquired post
graduate degree would be automatically entitled to draw post
graduate teacher category from the date of joining the post
without consideration to staff pattern, vacancy position etc.

iii. As per Clause (b); a Teacher who, prior to joining the post,
completed the examination for the post graduate degree in the
subject relevant to the appointment but result of such
examination published after joining would be entitled to draw
pay at post graduate teacher category from the date of
publication of result without any consideration to staff pattern,
vacancy position of the school etc.

iv. There is no intelligible differentia and basis for putting (a)
and (b) classes of teachers in one category and that of (c) classes
of teachers in a different category though they stand on the
same footing. It constitutes violation of
Article 14
of the
Constitution of India.

v. Staff Pattern as per GO dated 4 September, 1998 stipulates
for science category three teachers, subject to strength of
students and sanctioned posts, one from pass category and two
from Honours/Master degree category. Similarly, also in case of
social science group and language group. Therefore, there is no
distinction between Honours Graduate teacher and Master
Degree/Post Graduate teacher. They are in the same category of
post. This in consideration of above factors automatically
entitles a teacher who obtained or improved higher qualification
to higher scale of pay.
116. In view of the aforesaid Mr. Sanyal submits that the questions

are to be answered in favour of the teachers.

Submission of Mr. Samaresh Chandra Dhara, Learned
Counsel on behalf of the petitioner in WPA 4698 of 2016

117. Mr. Samaresh Chandra Dhara learned Counsel on appearing in

WPA No.4698 of 2016 Subodh Kumar Biswas v. State of West Bengal &

Ors., adapts the submission of Mr. Subir Sanyal, Senior Advocate. It is

submitted that the petitioner was duly appointed as an assistant Teacher in

Bengali in Nasra High School, Ranaghat, post B.A. (Bengali). The

appointment was approved with effect from 7th March, 1996 in view of the

fact that the writ petitioner at the time of joining was having an M.A. Degree

in Bengali. The school authority did not restrict the writ petitioner to take

classes on the basis of an initial qualification, the petitioner was forced to

take classes in the higher secondary section, the school has admitted that

the petitioner has taken class in the high secondary section, however the

petitioner was denied higher scale of pay on the basis of higher qualification

although his service was utilised by the school authorities. The prayer for

higher scale of pay was rejected by the District Inspector Schools, (SE) Nadia

though the writ petitioner was permitted to take the classes in the higher

secondary section only in view of his higher qualification and his services

has been duly utilized by the school. In view of the above the writ petitioner

is entitled to higher scale of pay for his higher qualification.

Submission of Mr. Kamalesh Bhattacharyya, Sr. Advocate on
behalf of the Writ Petitioners in FMA No.387 of 2020
118. Mr. Kamalesh Bhattacharyya learned Senior Counsel

representing Bisweswar Bera & Anr., in FMA No.387 of 2020 has adopted

the submission made by Mr. Subir Sanyal learned Senior Advocate of all the

four issues. It is submitted that the respondent no.1 joined as Assistant

Teacher with B.A. (Pass) in English on 2nd November, 1998 on the basis of

the recommendation of Regional School Service Commission, Western

Region. He passed M.A. Part-I and Part-II on the basis of the result

published on 15th May, 1998 and 15th May, 2000 respectively and last date

of examination for M.A. Part-II in English was 30th November, 1999. His

prayer for post graduate scale was refused by District Inspector of Schools

on 13th February, 2009 relying on Government order dated 27th November,

2007 and hence, the writ petition was filed.

119. The writ petition being W.P.No. 8411(W) of 2009 was allowed

by the Hon'ble Justice Debangshu Basak by which it was directed that

benefit of post graduate scale should be disbursed to the petitioner by the

concerned authority. Against the same F.M.A. 387 of 2020 has been

preferred.

120. In addition to submission made by Mr. Sanyal it is submitted by

Mr. Bhattacharyya that the Control of Expenditure Act was introduced in

2005. The teacher concerned has acquired the post graduate qualification in

2000 and at that point of time ROPA 1999 was in vogue and notification

dated 12th February, 1999 was holding the field regarding awarding of post

graduate scale on improvement of qualification irrespective of having
Honours Degree or Pass Degree in graduation level. Clause 12(3) of

Memorandum dated 12th December, 1999 reads as follows:

"All teachers including Physical Education Teachers and
Librarians of Secondary Schools who have improved/will improve
their qualifications who were appointed with higher qualification
in the subjects or groups relevant to their teaching/appointment
shall get higher scale of pay appropriate to their qualifications,
with effect from the 1st January, 1996 or the date of improving
qualifications whichever is later."

121. The aforesaid benefit was withdrawn from the respondent

teachers by virtue of notification No. 155 dated 13th July, 1999 whereby it

was clarified that benefit under circular dated 12th February, 1999 will be

available provided such qualification is mentioned in the recommendation

made by the School Service Commission. As a result the petitioner being a

pass graduate and in spite of having M.A. qualification since 2000 she or he

was not awarded post graduate scale of pay. In the staff pattern also the

post graduate qualification was registered as teacher having post graduate

qualification in the matter of filling up the vacancies in post graduate level

excepting the pay disparity. The notification dated 13th July, 1999 is only an

administrative order and it has no retrospective effect and as such the

benefit as accrued in favour of a teacher by virtue of notification dated 12th

February, 1999 cannot be divested by the subsequent notification dated 13th

July, 1999 as it has no retrospective effect.

122. The question needs to be considered whether the teachers

appointed before 2005 who improved their qualification after introduction of

Control of Expenditure Act, 2005 can be denied the scale of pay pertaining
to their higher qualification on the ground of non-mentioning of such

qualification by the School Service Commission in their recommendation.

Mentioning of qualification in the recommendation of School Service

Commission cannot be the sole criteria for determination of the pay scale of

a teacher and any denial of higher pay or incentive against the higher

qualification so acquired if it would result in utter discrimination amongst

the same class of teachers who were enjoying such higher pay scale merely

because they were appointed and improved their qualification prior to their

recommendation by School Service Commission. The teachers having similar

qualification have been treated unequally and discriminatorily by virtue of

government instructions by way of administrative orders. The Control of

Expenditure Act has no effect in respect of the appointment made and

improvement of qualification made prior to 2005.

123. The order passed on 27th November, 2007 under Memo No. 593

by the School Education Department also has no retrospective effect. It

cannot regulate such class of teachers as that of the present answering

respondents. In fact a total bar has been imposed on 27th November, 2007

with regard to grant of prayer for higher scale of pay from any teacher with

graduate degree and graduate scale of pay at the time of entry into service,

no matter such qualification was acquired before or after introduction of the

Control of Expenditure Act 2005.

124. Mr. Bhattacharyya submitted that there cannot be a

discrimination between a teacher with Honours degree and subsequently

acquired post graduate degree and a teacher with an initial qualification of a
pass graduate and thereafter acquiring post graduate qualification, that is,

B.A (Hon's) and M.A with B.A (pass) and M.A having regard to their nature

of work. They cannot be treated separately as they would be discharging the

same kind of work in the academic field.

Submission of Mr. Chaturvedi, Advocate on behalf of the writ
petitioners in WPA 4698 of 2016

125. Mr. Chaturvedi appearing on behalf of the aforesaid writ

petitioners while adopting the submission advanced by Mr. Sanyal has

submitted that on the principle of equal pay for equal work the teachers who

have acquired higher qualification in course of the employment should be

treated at par with teachers who have entered the service with higher

qualification as both of them have acquired such qualification through the

same process of examination having same syllabus and would be

discharging same kind of duties.

126. Mr. Chaturvedi submits that it is not unknown that schools due

to paucity of qualified teachers sometime required the service of teachers

who have acquired higher qualification after their appointments to take

classes and as their capability to take classes by reason of their acquired

knowledge cannot be doubted they can expect equal pay for equal work.

127. Mr. Chaturvedi has submitted that in fact the government in its

Circular dated 27th January, 1995 have even permitted teachers who have

obtained higher qualification in subjects not relevant to their respective

subject or group in which they were appointed in schools but relevant to
their respective teaching subjects to draw according to their respective

higher qualification subject to certain conditions being fulfilled.

128. Mr. Chaturvedi submits that once it is established that duties

and responsibilities of these teachers who have acquired higher qualification

during employment are similar and are discharging similar kind of job the

benefit of higher scale of pay cannot be denied.

129. Mr. Chaturvedi submits that even temporary appointees are

entitled to equal pay for equal work as held in
Bhagwan Dass & Ors. v.

State of Haryana & Ors.
, reported in 1987(4) SCC 634.

130. For all the above reasons, according to the respondents the

reference of questions is fit for an answer to the effect that improvement of

qualification by graduate teachers should not debar them from getting the

post graduate scale particularly when such qualification was acquired prior

to 2005
Expenditure, Act
and the circular dated 13th July, 1999 is

unconstitutional, arbitrary and is liable to be quashed.

Submission of Lina Mazumdar on behalf of the Writ
Petitioner in WPA 29710 of 2013

131. Ms. Lina Majumdar, learned Advocate appearing on behalf of

the writ petitioner has submitted that the writ petitioner is entitled to two

additional increments on successful completion of Ph.D. Degree which was

claimed in terms of Clause 16(5) of G.O. No.33-Edn.(B) dated 7th March,

1990 and Clause 12(5) of G.O. No. 25-SE(B)/1M-102/98 dated 12th

February, 1999. The aforesaid provision was entitled to two additional
increments who had acquired a Ph. D. Degree prior to coming into force of

G.O. No. 46-SE(B)/5B-1/2009 dated 27th February, 2009 would be entitled

to two additional increments from the date when the provisional certificate

was issued to Pampa Das on 8th May, 2005 as she acquired the Doctorate

degree on that date. It is submitted that ROPA 2009 cannot stand in the

way in granting incremental benefits to Pampa for her Ph. D degree as ROPA

2009 cannot have retrospectively effect from 1st January, 2006 i.e. after the

date when the writ petitioner acquired Ph.D. Degree. The claim of the

petitioner shall be governed by the provision of ROPA 1998.

Analysis and Conclusions

132. We now propose to decide the issues raised by the parties. The

contentious issues are formulated in the order of reference, however, it

hinges primarily on the entitlement of a teacher to a higher scale of pay

upon acquiring higher qualification and if such issue is decided in the

affirmative what would be the relevant date. Incidentally it also concerns the

issue of incentives extended to teachers on acquiring higher qualification or

under relevant government orders as CAS.

133. The learned Counsel for the parties has extensively referred to

ROPA Rules since 1981 till 2009 in support of their respective claims. The

main impediment, hurdle and obstruction appear to be the government

order dated 13th July, 1999, the Control and Expenditure Act, 2005 and

subsequent notification issued thereunder regulating pay scale and other

financial benefits.
134.
Section 14(3)
of the 2005 Act has been interpreted differently by

the learned Counsel in relation to ROPA Rules prior and subsequent thereof.

On an over view of the rules starting from ROPA 1981 it appears that the

government from time to time has altered and amended the eligibility

criteria of teachers to claim higher scale of pay. The requirement to have the

higher qualification in a relevant subject has a rational basis. The teacher

appointed in a subject if he has acquired a higher qualification in course of

his employment in the relevant subject is likely to benefit the institution and

the students.

135. The authorities concerned shall not ordinarily deny such benefit

to a teacher who has improved his qualification in the relevant subject

during his service.

136. Under the ROPA 1981 the pay scale of the posts of the teachers

would be as per the schedule mentioned in annexure I. The said Rule

contains the following note as modified during 1981 and 1992:

"N.B.:

1) All existing Secondary School teachers will be allowed annual
increments in the revised scales of pay provided that untrained
teachers will have to get themselves trained within 5 years from
April 1981 failing which their increment will be stopped till they
get themselves trained.

2. (a) All existing Secondary School teachers who have improved
their qualification relevant to their teaching subjects will get the
higher scale on qualification basis without any restriction;
(b) All existing Secondary School teachers who have improved
their qualifications not relevant to their teaching subjects will be
allowed the higher scale on qualification basis after five years'
teaching counting from the date on which higher qualification
was obtained;

(c) In future, school teachers will be allowed higher pay scale on
qualification basis only when they obtain such higher
qualification in the subject relevant to their
teaching/appointment. (emphasis supplied)

[See the Memo. Nos. 142-Edn. (B) dated 17th May, 1985, 52-
Edn. (B) dated 14th February, 1992. Memo. Nos. 253-Edn.(B)
dated 17th September, 1984 and 400-End.(B) dated 10th
September, 1991].

137. The Education Department, Government of West Bengal in

pursuance of paragraph 3 of the Government Order No.372-Edn.(B) dated

31st July, 1981 laid down the principles for fixation of pay of the teachers

and non-teaching employees, in short, fixation of pay and option form.

138. The said Rule provides for exercise of option and benefit of next

higher scale of pay in certain contingencies. It makes clear that the option

once exercised shall be final and cannot be modified at any subsequent

date. The consequences of non-exercising option is mentioned in Rule 4(3) of

ROPA 1981. The benefit of higher scale was made applicable only to those

whose pay shall be fixed in the revised scales of pay shown in serial nos. 1

to 13 in annexure-II and only once in one's service career. It also takes care

of stagnation pay in Rule 6 in relation to non-government employees whose

pay has been fixed in the revised scales of pay shown in serial no. 1 to 13 of
annexure-II of Government Order No.372-Edn(b) dated 31st July, 1981 and

who reached the maximum of the respective scales of pay would continue to

draw increment beyond the maximum of the scale for 3 years at the rate of

what was last drawn by him/her as increment before reaching the

maximum. It thus, shows that such benefit of increment was for a limited

duration notwithstanding the length of service.

139. At the time of exercising option the occupant of the post would

be required to file an option form as prescribed in annexure I.

140. This was followed by ROPA 1990, actually effective from 1st

January, 1988 but notionally effective from 1st January, 1996. The scale of

pay of teachers and non-teaching staff was revised on the basis of the

recommendation of the Pay Commission. It was published on 7th March,

1990. Similar provision with regard to option is mentioned in Clause 5 to be

exercised within 90 days from the date of issue of the said order. However, a

teacher or a non-teaching employee of a Government Aided/Sponsored

educational institution who was in service on 31st December, 1995 may, at

his discretion, retain existing scale of pay and existing terms and conditions

of service. The option shall not be admissible to any employee to a post

on/or after 1st January, 1996 for the first time in service.

141. The stagnation increment is provided in Rule 8. It states that an

employee whose pay has been fixed in any of the revised scales of pay with

the maximum of rupees four thousand or below and who reaches the

maximum of the scale of pay shall continue to draw increment for
stagnation beyond the maximum of the scale for a period of three years at

the rate last drawn by him as increment before reaching the maximum.

142. The significant provision in ROPA 1990 is introduction of Career

Advancement Scheme (CAS) and related issues. Rule 16(3) provides for

higher scale of pay to all teachers and librarians of secondary schools who

have improved/will improve their qualifications or who were appointed with

higher qualification in the subjects or group relevant to their

teaching/appointment appropriate to their qualifications with effect from 1st

January, 1986 or the date of improving qualification whichever is later.

143. Clause 3 of the aforesaid Rule was substituted by the

Government Order dated 10th September, 1991 in the manner following:

(3) All teachers and librarians of secondary schools who will
improve their qualification in subjects relevant to their
teaching/appointment shall get higher scale of pay appropriate
to their qualification with effect from the date of improving
qualification." (emphasis supplied)

144. The substituted Clause would show that the qualification

should be in relation to subjects relevant to their teaching and appointment

and with effect from the date of improving qualification. He shall be placed

in the next higher scale of pay, however his designation would remain

unchanged. The CAS has further undergone a change in ROPA 1999 which

became notionally effective from 1st January, 1996 and actually effective

from 1st April, 1997. It was published on 12th February, 1999.
145. The additional two increments under the Rule 16(2) was

modified by G.O. No.38-SE(B) dated 8th March, 1999 with the introduction

of the following proviso which reads:

"Provided that the employees who have already got two
additional increments in the earlier pay revision will not get
increment further in the present revised scale and the
employees who have drawn only one increment in the earlier
revision for 10 (ten) years of service, will get one increment in
the present revised scale after completion of 20 (twenty) years
of service.". (emphasis supplied)

146. However, on 13th July, 1999 sub-rule (3) of paragraph 12 was

substituted and in the said substituted sub-paragraph the following proviso

was added to the sub-paragraph:

".....provided that such higher qualified teachers in the relevant
subjects or group is justified as per approved staff pattern of that
school if such teacher is appointed through West Bengal School
Service Commission, his/her pay will be fixed in the scale of pay as
per his/her qualification mentioned by the West Bengal School
Service Commission". (emphasis supplied)

147. Moreover at the end of paragraph 8 which refers to the date of

increment in the Revised Scale the following line was inserted:

"increment in the revised scale of pay shall be drawn with
effect from 1st day of the month in which it becomes otherwise
due".

148. By reason of the aforesaid amendment the entitlement to higher

scale of pay now has to be justified as per approved staff pattern of that
school and if the appointment is through West Bengal School Service

Commission then the pay will be fixed in the scale of pay as per his/her

qualification mentioned by the West Bengal School Service Commission. In

view of such substitution the staff pattern in respect of the relevant subject

and qualification of the teacher mentioned by the West Bengal School

Service Commission has now become relevant considerations.

149. However, there are few memoranda issued in between the time

specified above which inter alia, includes Government Order No.795 dated

22nd November, 1993 with regard to scale of pay to the teachers of physical

education and Government Order No.796 dated 22nd November, 1993

regarding higher scale of pay to the teachers and Government Order No.57

dated 27th January, 1995 concerning granting of pay according to

qualification to the assistant teachers of non-government Secondary

Schools.

150. In the first government order mentioned above i.e. 22nd

November, 1993 it has been clarified that all physical education teachers

having Master Degree in physical education from recognised Universities will

be entitled to higher scale of pay in relaxation of the earlier Government

Orders.

151. The Government Order No.796 of the same date clarified that

all teachers in social science group and language and science group with

higher qualifications of post graduate degree or equivalent in relevant

subjects will get higher scale of pay in relaxation of the staff pattern
mentioned in the earlier government orders and would be made effective on

and from the said date. The aforesaid two government orders thus

emphasised and extended financial benefit to teachers for acquiring higher

qualification in the relevant subject.

152. The government order dated 27th January, 1995 was in relation

to granting of pay according to the qualification to the Assistant Teachers of

Non-Government Secondary Schools allowing them higher scale of pay even

if their initial appointments were in different group/subject and not to their

respective subject/group in which they were appointed but relevant to their

respective teaching subject in order to tide over the inconvenience caused to

the educational institutions due to non-sanctioning of the required number

of additional posts to the schools owing to financial stringencies.

Considering such prevailing situation and in the academic interest of the

schools it was provided that in the event such assistant teachers take

individually at least six such periods per week as officially allotted by the

authorities of the respective schools to such assistant teachers within the

normal workload upon the written consent of the concerned teacher and

with the prior permission of the concerned District Inspector of schools and

strictly according to the actual academic need of the individual school, the

teacher shall be allowed to draw salary according to their respective higher

qualifications as prescribed by the State Government. Thus it allows a

teacher who has obtained higher qualification in subjects not relevant to

their respective subject or group in which they were appointed in schools

but relevant to their respective teaching subjects to draw pay according to
their respective higher qualification. The pay structure should be

determined on the basis of higher qualification. This was purely an interim

arrangement.

153. The Government felt the necessity to constitute a specialised

body to regulate recruitment of teachers a field, which had remained

unregulated, undefined and open to misuse and manipulates of the

Managing Committee and to bring transparency and uniformity in the

recruitment process enacted the
West Bengal School Service Commission

Act, 1997
, in short, "the 1997 Act".

154. The 1997 Act was enacted to provide for the constitution of

Regional School Service Commissions and a Central School Service

Commission in the state. It defines in
Section 2(p)
a "teacher" to mean an

assistant teacher or any other person holding a teacher post of a school and

recognized as such by the Board or the Council or the Board of Madrasah as

the case may be and includes the headmaster or the headmistress.
The Act

requires the Managing Committee to appoint teachers on the

recommendation of the Regional Commission having jurisdiction. It is the

duty of the Regional Commission to select persons for appointment to the

posts of teacher in schools within its territorial jurisdiction.

155.
Section 17
of the 1997 Act lays down the rule making power of

the State Government.

156. The manner and procedure for selection of persons for

appointment to the posts of Teachers shall be such as may be prescribed.
The Act
makes it very clear that any appointment of a teacher made on or

after the commencement of the 1997 Act dehors the provisions of the Act

shall be invalid.

157. On 3rd October, 1997 the School Service Commission Rules has

come into force.

158. The aforesaid rules were framed in pursuance of
Section 17(2)
of

the 1997 Act.
Section 17(2)(d)
deals with the manner and scope of selection

of a person for appointment to the posts of teachers under Sub-
Section 1
of

Section 8
. Rule 7 requires the School Education Department to lay down the

procedure for recruitment of teacher, headmaster and head mistress

including inter alia, the essential and/or desirable educational and other

qualifications, age, experience and other requirements. Sub Rule 2 requires

every school to report the vacancies as on the date of report as may arise up

to the second day of next January to the Regional Commission with a copy

to the District Inspector of Schools (Secondary Education).

159. The manner of distribution of staffs in different groups in

schools is
laid down in
the Government Order No.670 dated 4th September,

1998. The said government order has clearly defined the distribution of

teaching staff in the Recognized non-Government Junior High School,

Junior High Madrasah, High School, High Madrasah and High Secondary

Schools (normal section).
160. The said circular cancels the earlier Government Order No.642-

SE(S)/vide no.1S-14/98 dated 20th August, 1998. It clarifies that Classes V

to X in higher secondary school would be treated as normal section.

161. On 8th March, 2000 the School Education Department issued a

circular in clarification of paragraph 3 of the Government Order No.795-

Edn(s) dated 22nd November, 1993 granting benefit of higher scale of pay to

those physical education teachers who have obtained M.P.Ed. Degree on

completion of 2 years regular course from a recognised University.

162. In view of the fact that Honours Graduate candidates have to

compete with Post Graduate candidates in the test held by WBSSC and a

single panel is prepared by WBSSC for the two sets of degree holders, on 3rd

June, 2002, the government issued the Order No.735-SE(S)/SP-132/2002

clarifying that Honours 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/Madrashas 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 or the

date following the last date of examination (both theoretical and practical)

whichever is later". (emphasis supplied)
163. The School Education Department subsequently revised the

aforesaid circular by Circular No. 134-SE(S) dated 3rd November, 2004 as

presumably it faced difficulties in determining the date from which Post

Graduate scale would be allowed to the eligible teachers on acquiring Post

Graduate degree. The Government Order dated 3rd June, 2002 was replaced

by the following paragraph:

"Upon due consideration of the above facts the Government in
School Education Department has decided that Hons. Graduate
teachers of Hons./Post Graduate category of Non-Govt.
Secondary Schools including Madrasahs appointed through
West Bengal S.S.C. who obtained post graduate degree in
subject relevant to their appointment prior to their joining in
school/Madrasahs shall be eligible for Post Graduate scale of
pay from the date of joining. The Hons. graduate teachers of
Hons/Post Graduate category who have completed their
examination before joining but results were published after
joining shall be deemed to have been eligible to get the Post
Graduate scale of pay-from the date of publication of results of
such Post Graduate degree relevant to their appointment. The
Hons, graduate teachers of Honours/Post Graduate category of
Non-Govt Secondary aided schools including Madrasahs
appointed through S.S.C. and who have improved or will
improve qualification after joining the posts with due permission
from the authority competent to issue such permission, be
eligible for Post Graduate scale on successful results of the last
examination leading to the Post Graduate degree relevant to
their appointment from the day following the last date of the
examination (both theoretical and practical). The other
paragraphs and sentences of the G.O. remain unchanged. This
will come into force with immediate effect." (emphasis supplied)
164. In view of the aforesaid Clause Honours graduate/Post graduate

teachers (i) who obtained post graduate degree in the relevant subject prior

to their joining would be entitled to post graduate scale of pay from the date

of joining, (ii) who have completed their examination before joining but

results were published after joining shall be deemed to have been eligible to

get the post graduate scale of pay from the date of publication of results of

such post graduate degree, (iii) who have improved or will improve

qualification after joining the posts with due permission from the authority

competent to issue such permission would be eligible for post graduate scale

on successful results of the last examination leading to the post graduate

degree from the day following the last date of the examination (both

theoretical and practical).

165. In order to regulate and exercise control over the Expenditure in

the schools in
West Bengal, the West Bengal School (Control and

Expenditure) Act, 2005
has been enacted. The said Act was notified on 19th

August, 2005.

166. The statement of object and reasons of the 2005 Act clearly

defined and sets out in detail the reason for enactment of the said Act. The

Government felt that the creation of post, approval of panels, appointment of

teachers, regularization of service of teaching and non-teaching staff,

sanctioning of higher scale to teachers on account of acquiring higher

qualification in the Schools and the Madrassahs in the State of West Bengal

and recognition and up-gradation, and expenditure for management

requires to be streamlined by a separate statute. The reason being that
administrative orders, directions and circulars that were in existence were

often challenged in Courts causing huge financial burden on the State

Exchequer. It was enacted primarily and essentially for regulating and

controlling the expenditure to be incurred out of the appropriate budgetary

provision.

167. Henceforth, all the expenditure as sanctioned by the 2005 Act

would be only legally enforceable if there is any breach.

168.
Section 14
of the said Act deals with the scale of pay and

incidental matters in relation to a teacher.

169. The said Section has three categories:

i) Sub-
Section 1
deals with post of under graduate teacher,

ii) Sub-
Section 2
deals with post of graduate teacher; and

iii) Sub-
Section 3
deals with honours graduate teacher.

170. Sub-
section 1
and
clearly specifies that it is the post which is

the determining factor to decide the scale of pay. If a teacher is appointed in

the post as under graduate or pass graduate he would be entitled to draw 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 qualification specified in such post. However, Sub-

section 3
makes a little departure as taking into consideration that the

honours 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 WBSSC for selection of teachers and moreover a single
panel is prepared in a subject from amongst the selected Honours and

Master Degree holders. It provides that if a teacher is appointed for the

honours or post graduate teacher category he would be entitled to draw pay

of post graduate teacher category upon acquiring post graduate degree in

the manner as may be specified by order.

171. This appears to be an amalgam of paragraph 12(3) of ROPA

1998 as amended on 13th July, 1999 and Government order dated 3rd June,

2002 as revised on 3rd November, 2004. Initially in terms of Memorandum

dated 3rd June, 2002 the higher scale of pay would take effect from the date

of joining or the date following the last date of examination (both theoretical

and practical) whichever is later but by reason of the subsequent circular

dated 3rd November, 2004 different dates have been mentioned.
The Act
of

2005 was followed by the order issued by the School Education Department

on 26th December, 2005 specifying the date from which the Honours or Post

graduate teacher can claim higher scale of pay. They are:

"a) such teacher has, prior to joining the post, acquired Post-

graduate degree in the subject relevant to the appointment shall
be entitled to draw pay of Post-graduate teacher category from
the date of joining the post: or

(b) such teacher has, prior to joining the post, completed the
examination for the Post- graduate degree in the subject
relevant to the appointment, but the results of such
examination has been published after joining the post, shall be
entitled to draw pay of Post- graduate teacher category from the
date of publication of the results of such examination; or

(c) such teacher has, after joining the post improved his
qualification with prior permission of the authority competent to
grant such permission, shall, on being successful in the results
of the examinations (theoretical and practical) for the Post-
graduate degree in the subject relevant to the appointment, be
entitled to draw pay of Post-graduate teacher category from the
day next following the last day of such examinations."
(emphasis supplied)

172. This government order was issued under Sub-
section 3
of

Section 14
and in supersession of all order on the subject. If the aforesaid

order is read in conjunction with the order dated 3rd June, 2002 it would

appear that 3rd June, 2002 has been restored.

173. This continued till 27th November, 2007 when a government

Order was published specifying the manner in

which a teacher appointed in an honours graduate/post graduate scale of

pay would be entitled to claim additional increment and higher scale of pay

upon acquiring post graduate/or any higher diploma/degree under
Section

14(3)
of the West Bengal Schools (Control and Expenditure Act, 2005) and

other related issues.

174. For the sake of convenience Clause 1 to 9 of the said circular is

reproduced below:

"1. All the teachers teaching in different State Aided Schools will
have to take prior permission from the Managing Committee/Ad
hoc Committee/Administrator as the case may be to enrol
themselves and to appear for any examination for enhancement of
educational qualification. The Managing Committee being
'Competent Authority in such cases will take a decision in its next
meeting and convey its decision to the teacher concerned
immediately. A copy of the decision of the Managing Committee
will be forwarded to the office of the Dl of Schools (SE) of the
concerned district.

2. The applicant-teacher thereafter, will, if necessary, apply for
Leave/Special Leave/ Study Leave as the case may be (along with
the resolution of Managing Committee), to the West Bengal Board
of Secondary Education (which is the Competent Authority in this
case) through the Managing Committee of the School.

3. The teacher is required to seek prior permission of concerned
District Inspector of Schools (SE) (only when he/she wants to
claim additional increment/higher scale of pay etc. for obtaining
such higher qualification) through the Managing Committee of the
School.

4. Provided further that no such permission can be granted on any
ground to any teacher who has entered the service/joined the
school with Graduate Degree and with a graduate scale of pay.

(Any Managing Committee of any school recommending such case
in future and/or any District Inspector of Schools granting such
prayer will be treated as un 'Offender' under
West Bengal Schools
(Control of Expenditure) Act, 2005
).

5. The courses to be studied should be relevant to the subjects
studied in Under Graduate Honours/Post Graduate Course of the
Applicant Teacher and none other. The Deemed
University/University etc. conducting the examination must be
affiliated to UGC.

6. Prayers from teachers who have already secured higher
qualification observing the procedure mentioned above and who
have 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 Inspectors of Schools (SE) with the approval of
Director of School Education, West Bengal only after examining
the staffing pattern, vacancy positions etc. of the school
concerned.

7. No such prayer for higher scale of pay from any teacher with
Graduate Degree and Graduate scale of pay at the time of entry
into service/joining the schools will be entertained no matter
whether he/she has secured this higher qualification before or
after introduction of
West Bengal Schools (Control of Expenditure)
Act, 2005
.

8. Henceforth no permission will be accorded for securing higher
qualification for obtaining higher scale of pay to any Assistant
Teacher and/or to any Assistant Teacher over 50 years of age
serving in any Junior High School or any school respectively,

9. This order will replace all earlier orders published in this matter
before the date of coming into effect of
West Bengal Schools
(Controls of Expenditure) Act, 2005
. 1595- SE(S) dated 26.12.2005
also stands modified." (emphasis supplied)

175. Our attention is drawn to amendment made to
Section 14
in

2016 and 17th April, 2017 which are not much relevant in deciding the

present issue.

176. Significantly the recital in the government order dated 26th

December, 2005 and 27th November, 2007 are different. The reference of His

Excellency the Governor is significantly absent in the recital of 27th

November, 2007.

177. There are two distinct category of cases forming the subject

matter of the reference. The first category of cases related to teachers who
were appointed as pass graduate and thereafter acquired higher

qualification before the 2005 Act came into force.
The Act
of 2005 does not

have any retrospective effect. The executive order of dated 27th November,

2007 cannot override the statutory rules framed under
Article 309
of the

Constitution of India having received the assent of the Governor. The

Government Order of 27th November, 2007 is subservient to the 2005 Act. It

is elementary that the Rule cannot make itself look larger than life and

nullify the Act. It owes its existence to the principal act which permits

framing of rules for the purposes mentioned in the Act.

178. Under the garb of rule making power the provisions of the Act

cannot be amended. The executive order dated 27th November, 2007 in Rule

9 cannot override all the earlier circulars by reason of which the permission

may not be required or already granted prior to the said executive order and

have been acted upon. It cannot extend the embargo under the Act

retrospectively. All the circulars permitting financial benefits by increment

or acquiring higher degree are required to be decided on the basis of the Act

in the context of the relevant circulars operating in the field prior to the

Expenditure Act, 2005 coming into force. Amending rules cannot have any

retrospective operation, even if the rule contemplates consideration of an

application for a period prior to the said rules coming into force. A statute

must be read reasonably and not in a manner which results in absurdity

and hardship. The eligibility of a candidate should be on the basis of the

rules existing at that time. The statutory authorities and the applicants are

expected to follow the law as it stood thence. The authority cannot be
expected to take any action on the pre-supposition that the rule would be

amended.

179. In case of any conflict between the government order dated 26th

December, 2005 and order dated 27th November, 2007 it is needless to

mention that the order dated 26th December, 2005 shall prevail. In fact, the

government order of 26th December, 2005 was issued in exercise of power

under
Section 14(3)
of the 2005 Act. Although, it has been argued that for

the purpose of making rules the assent of the Governor is not required and

inadvertently it has been mentioned that "The Governor is pleased hereby to

specify" in the earlier Government order all the applications pending prior to

27th November, 2007 are required to be decided on the basis of the Rules

existing during the interregnum period and any benefit accrued cannot be

taken away. Moreover, the Secretary School Education Department has

admitted that the said G.O. No.593-SE(B) dated 27th November, 2007 has

not been published in the "Kolkata Gazette Extraordinary" and hence cannot

have any statutory force.

180. The right to claim higher scale of pay by any teacher with

Honours Graduate Degree at the time of entry prior to 27th November, 2007

would be decided on the basis of the guidelines and circulars existing on the

date of his appointment. The service conditions and benefits of such

teachers are protected by the earlier Government Orders/Rules which have

been issued under the relevant statute and/or rules framed under
Article
of the Constitution of India.
181. A teacher appointed after the promulgation of the
West Bengal

School Service Commission Act, 1997
would be entitled to higher scale of

pay provided he has acquired such qualification in the relevant subject and

the staff pattern permits appointment of a teacher with higher qualification.

182. The requirement of a prior permission before the introduction of

the Control of Expenditure Act, 2005 would not be rigidly interpreted

particularly when the Managing Committee has granted permission to the

teacher concerned for acquiring higher qualifications in the relevant subject

without affecting his duties as a teacher of the institution. The District

Inspector of Schools shall not deny the benefit of higher scale of pay merely

on the ground of failure to obtain prior permission if the DI School is

satisfied that it is within the staff pattern and the school shall be benefited

by the reason of the teacher acquiring higher qualification. They are also

required to be guided by the Order No.735-SE(S)/SP-32/2002 as revised by

the Circular No.134-SE(S) dated 3rd November, 2004.

183. A teacher who has entered service in the pass graduate category

shall not be entitled to higher scale of pay merely because he has acquired

higher qualification subsequent thereto or prior to his appointment.

Similarly, a teacher with the post graduate degree, if applied, as a pass

graduate candidate and appointed in the pass graduate category shall not

be entitled to claim higher scale of pay after his appointment. The reason

being that a teacher with the post graduate/honours degree ought to have

competed with candidates having post graduate/honours degree and

allowing any increment or higher scale of pay to such a teacher who has
entered the service in the pass graduate category in spite of being an

Honours graduate or Post graduate would allow back door entry thereby

depriving deserving candidates with higher qualifications.

184. A teacher with Honours Graduate degree shall be entitled to

post graduate scale of pay upon acquiring a post graduate degree without

there being a requirement of any prior permission as the Honours graduate

and post graduate degree under
Sections 14(3)
of the Act of 2005 read with

the Government Order no. 1595-SE(S) dated 26th December, 2005 are

treated alike. The justification is stated in the Government Order no. 735-

SE(S)/SP-132/2022 dated 3rd June, 2002. The Government Order no.

1595-SE-(s) dated 26th December, 2005 will have prospective effect. Clause

9 of the Government Order no. 593-SE(B) dated 27th November, 2007 shall

not be a bar. All teachers who are otherwise covered by the earlier

regulations and/or notification and/or orders issued under
West Bengal

School Service Commission Act, 1997
and scale of pay has been fixed

and/or revised shall continue to receive such benefits and shall not be

deprived of any financial benefit solely based on the Government Order

dated 27th November, 2007 since the said order in any event can only be

applied prospectively. Any teacher pursuing higher education prior to the

introduction of Control of Expenditure Act, 2005 shall be entitled to ex post

facto approval for a higher scale of pay provided the Managing Committee

has granted permission and the staff pattern permits a teacher with higher

qualification in the relevant subject, on the basis of the Government Order

dated 3rd June, 2002 as revised by the Circular dated 3rd March, 2004.
185. In exceptional circumstances the claim of a teacher for a higher

scale of pay even where the Managing Committee has not forwarded the

application with its resolution may be considered. It is clarified that if the

teacher could demonstrate that he has taken all reasonable steps expected

of him for obtaining prior permission from the District Inspector and the

Managing Committee is responsible for the delay in forwarding the request

for permission to the District Inspector shall consider the application on the

basis of the circular or Government Order existing on the date of application

In absence of any guideline which the District Inspector of School is

required to follow in the event it is found that a teacher before joining the

institution was already pursuing higher studies or has completed post

graduate degree but for some unavoidable reasons permission as

contemplated under the Government Order dated 27th November, 2007

could not be obtained, the Government Order dated 27th November, 2007

shall not stand in the way. The District Inspector shall consider such

representation on merits. The reason for denying higher scale of pay could

be that already there are sufficient number of teachers having Honours/

Post Graduate degree on the said subject in the institution and in such

circumstances payment of higher scale of pay would be a burden on the

exchequer. The State should have due regard to the fact that a person with

higher qualification would be expected to have better knowledge in the

subject and the students are likely to be benefited by reason of his acquiring

such higher qualification. The date relevant for the purpose of conferring

higher financial benefits would be the date of publication of result and not
convocation, that is, the ceremonial conferment of the degree. A teacher is

entitled to higher scale of pay once the result is published and the

convocation shall relate back to the date of the result. Any other

interpretation would be harsh, absurd and arbitrary.

186. If a teacher has been recommended by the School Service

Commission for appointment as an assistant teacher under pass graduate

category he cannot be sanctioned post graduate scale of pay upon acquiring

post graduate qualification subsequent to his date of appointment in view of

Government Order no. 155-SE(B) dated 13th July, 1999 read with Section

14(b) of the Control and Expenditure Act, 2005 unless his/her claim is

covered by the Order No.735-SE(S)/SP-32/2002 as revised by the Circular

No.134-SE(S) dated 3rd November, 2004. The aforesaid Government order

has clearly stated that in such case the scale of pay shall be fixed in terms

of the educational qualification which is mentioned by the School Service

Commission in the recommendation order. In justification we find it

apposite to mention that if a teacher is permitted to upgrade his pay scale

based on higher qualification obtained after his appointment which is on

recommendation of the School Service Commission; it will encourage

candidates to resort to unfair means to get themselves enriched by higher

scale of pay bypassing the method of selection meant for appointment of

teachers under post graduate/honours graduate category at the entry level

by non-disclosure or suppression of higher degree. This appears to be the

reason for amending 12(3) of ROPA 1999. However, claim for increments
and not higher scale of pay may be considered by the District Inspectors of

Schools concerned, it would likely to benefit the students.

187. One of the ways to ascertain the applicability of the Government

Order dated 27th November, 2007 in relation to candidates who were

pursuing higher studies prior to the said circular would be to find out how

the executive authorities interpreted the provision of the Act or the Rules

framed thereunder. In fact they have framed the Rules. They are the

implementing authority and inextricably connected with the framing and

implementing of the Rule.

188.
In
Debala Das v. State of West Bengal (W.P. No.26009(W
) of

2014) the Deputy Director of School Education was considering sanction of

a Higher scale of pay in respect of Smt. Debala Das, Assistant Teacher of

Gopimohanbarh Girls High School, P.O.- Bhagwanpur, Dist- Purba

Medinipur. She joined as an Assistant Teachers in Hons/Post Graduate

degree. The decision was:

"As Smt. Debala Das has joined as an A.T. in Hons/P.G.
Category, she is entitled to draw post graduate scale of pay for
having M.Sc. degree in Physics, her relevant teaching subject in
light of West Bengal Schools (Control of Exp.) Act 2005 and in
terms of G.O.No. 1595-SE(S) dt. 26.12.2005.

As the teacher concerned has partially completed her study
before entering service she would come under purview of G.O.
No. 1595-SE(S) dt. 26.12.2005. Question of taking permission
from D.I.S (SE) concerned may not be applicable here."

(emphasis supplied)
189. The said decision was taken on 22nd June, 2016. It thus, clearly

shows that for all teachers who were pursuing and/or completed their

higher studies prior to the Government Order of 27th November, 2007 would

be covered by the Government Order dated 26th December, 2005 and would

be entitled to higher scale of pay upon acquiring higher degree which is in

consonance with our understanding and interpretation.

190. Consistency and predictability are the hallmark of a sustainable

legislation and good governance. The rules have undergone changes with

time essentially to address the needs of the time. However, we have not

come across rules where financial benefits extended to teachers under

various Government orders are being curtailed or withdrawn in

corresponding statutes. To illustrate after the 1997 Act has come into force

the pay structure and benefits of higher scale of pay for acquiring higher

qualification under ROPA 1998 was not immediately changed.

191. The rules made by the Governor in exercise of its power under

proviso to
article 309
are statutory in nature and irrespective of the fact

whether it is prospective or retrospective, are open to challenge on the

ground of violation of the Constitution including the Fundamental rights

enshrined in part III of the Constitution.

192.
In
Tejshree Ghag & Ors. v. Prakash Parashuram Patil &

Ors.
reported in (2007) 6 SCC 220, it has been ruled that:

"12. ......the State has the power to alter the terms and
conditions of service even with retrospective effect by making
rules framed under [the] proviso appended to
Article 309
of the
Constitution of India, but it is also well settled that the rule so
made ordinarily should state so expressly." (emphasis
supplied)

193.
In
Marripati Nagaraja & Ors. v. Government of Andhra

Pradesh & Ors.
reported in (2007) 11 SCC 522, the Supreme Court has

ruled that:

"16. the State, in exercise of its power conferred upon it under
the proviso appended to
Article 309
of the Constitution of India,
is entitled to make rules with retrospective effect and retroactive
operation. Ordinarily, in absence of any rule and that too a rule
which was expressly given a retrospective effect, the rules
prevailing as on the date of the notification are to be applied.
But if some rule has been given a retrospective effect which is
within the domain of the State, unless the same is set aside as
being unconstitutional, the consequences flowing therefrom
shall ensue. In such an event, the applicable rule would not be
the rule which was existing but the one which had been validly
brought on the statute book from an anterior date." (emphasis
supplied)

194. Francis Bennion's Statutory Interpretation, 7th Edn.,

provides an insight as to the presumption of retrospective legislation. The

learned author has stated thus:

"The essential idea of a legal system is that current law
should govern current activities. If we do something today,
we feel that the law applying to it should be the law in force
today, not tomorrow's backward adjustment of it. [(
Solar
Century Holdings Ltd. v. Secretary of State
for Energy
and Climate Change (2014) EWHC 3677 (Admin) at 92]
We believe that the nature of law is such that '... those who
have arranged their affairs.... in reliance on a decision
which has stood for many years should not find that their
plans have been retrospectively upset.

[(
EWP Ltd v Moore

(1992 QB 460 at 474)]

The principle is sometimes expressed in the maxim lex
prospicit non respicit law looks forward not back. [Jenk
Cent 284. See also 2 Co Inst 292].
As Willes J said in
Phillips v Eyre [(1870) LR 6 QB 1 at 23.] retrospective
legislation is 'contrary to the general principle that
legislation by which the conduct of mankind is to be
regulated ought, when introduced for the first time, to deal
with future acts, and ought not to change the character of
past transactions carried on upon the faith of the then
existing law. (See also Anthlumney, Re, ex p Wilson
[1898] 2 QB 547) (emphasis supplied)

195. The basis of the principle against retrospectivity is 'no more

than simple fairness, which ought to be the basis of every legal rule'. (See

L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship

Co Ltd., 1994(1) AC 486)

196. Having cautioned against undue or mechanistic reliance on

generalised presumptions Lord Mustill then went on to address the question

of how the courts approach the question of what simple fairness demands:

"Precisely how the single question of fairness will be answered
in respect of a particular statute will depend on the interaction
of several factors, each of them capable of varying from case to
case. Thus, the degree to which the statute has retrospective
effect is not a constant. Nor is the value of the rights which the
statute affects, or the extent to which that value is diminished
or extinguished by the retrospective effect of the statute. Again,
the unfairness of adversely affecting the rights, and hence the
degree of unlikelihood that this is what Parliament intended,
will vary from case to case. So also will the clarity of the
language used by Parliament, and the light shed on it by
consideration of the circumstances in which the legislation was
enacted. All these factors must be weighed together to provide a
direct answer to the question whether the consequences of
reading the statute with the suggested degree of retrospectivity
are so unfair that the words used by Parliament cannot have
been intended to mean what they might appear to say.

He then went on to list factors relevant to reaching his decision,
including the value and nature of the rights affected, the
purpose of the legislation and the hardship of the result."

(emphasis supplied)

197. Despite the general principle, there is no doubt that Parliament

does have power to introduce a retrospective effect. Moreover, this approach

is sometimes justifiable, particularly when things have gone wrong. As

Fuller explained:

'It is when things go wrong that the retroactive statute often
becomes indispensable as a curative measure; though the
proper movement of law is forward in time, we sometimes have
to stop and turn about to pick up the pieces'.

198. A policy decision taken by the Government is not liable to

interference, unless the court is satisfied that the rule making authority has

acted arbitrarily or in violation of the fundamental rights guaranteed under
Article 14
and
16.
(See
K Narayana v. State of Karnataka
; AIR 1994 SC

55).

199. Plethora of decisions on either side has been relied upon of

which we have decided to consider few to avoid duplication and

multiplication of authorities. The decisions are:

i) Bhagwan Dass & Ors v. State of Haryana & Ors.
, reported in

1987 (4) SCC 634 is a case concerning equal pay for equal work.

The issue was whether temporary appointees and employees in

regular cadre in the same Government department if are

performing similar duties although by different selection process

or that the appointment or scheme under which appointments

have been made are temporary would be entitled equal pay.

Primarily the issue was with regard to the right of a temporary

employee to claim equal pay for equal work at par with permanent

employees. The said judgment recognised the right of a

temporary employee to claim equal pay only after discharging the

burden of proving similarly in the nature of work.

ii) The principle of equal pay for equal work depends upon pay

structure as observed in
State of Bihar & Ors. v. Bihar

Secondary Teachers Struggle Committee, Munger & Ors.
,

reported in 2019(18) SCC 301. The relevant consideration and

factors are stated thus:
"102. We must also consider observations of this Court in
paragraph 12 in its decision in
Secretary, Finance Department
and Ors. v. West Bengal Registration Service Association and Ors.

1993 Supp (1) SCC 153, which bring out how a 'pay structure' is
evolved. The relevant portion of said paragraph was:

"12. ......Ordinarily a pay structure is evolved keeping in mind
several factors, e.g., (i) method of recruitment, (ii) level at which
recruitment is made, (iii) the hierarchy of service in a given
cadre, (iv) minimum educational/technical qualifications
required, (v) avenues of promotion, (vi) the nature of duties and
responsibilities, (vii) the horizontal and vertical relativities with
similar jobs, (viii) public dealings, (ix) satisfaction level, (x)
employer's capacity to pay, etc. We have referred to these
matters in some detail only to emphasise that several factors
have to be kept in view while evolving a pay structure and the
horizontal and vertical relativities have to be carefully balanced
keeping in mind the hierarchical arrangements, avenues for
promotion, etc. Such a carefully evolved pay structure ought not
to be ordinarily disturbed as it may upset the balance and
cause avoidable ripples in other cadres as well." (emphasis
supplied)

103. We, therefore, have to proceed on the following basic

premise:

103.1 It was open to the State to have two distinct cadres
namely that of 'Government Teachers' and 'Niyojit Teachers'
with Government Teachers being a dying or vanishing cadre.
The incidents of these two cadres could be different. The idea
by itself would not be discriminatory.

103.2. The pay structure given to the Niyojit Teachers was
definitely lower than what was given to Government
Teachers but the number of Government Teachers was
considerably lower than the number of Niyojit Teachers. As
stated above, presently there are just about 66,000
Government Teachers in the State as against nearly 4 lakh
Niyojit Teachers. There is scope for further appointment of
about 1 lakh teachers which could mean that as against 5
lakh teachers the number of State Teachers would
progressively be going down.

103.3. The parity that is claimed is by the larger group with
the lesser group as stated above which itself is a dying or a
vanishing cadre.

103.4. The mode of recruitment of Niyojit Teachers is
completely different from that of the Government Teachers as
stated above.

104. If a pay structure is normally to be evolved keeping in mind
factors such as "method of recruitment" and "employer's capacity
to pay" and if the limitations or qualifications to the applicability
of the doctrine of 'equal pay for equal work' admit inter alia the
distinction on the ground of process of recruitment, the stand
taken on behalf of the State Government is not unreasonable or
irrational. Going by the facts indicated above and the statistics
presented by the State Government, it was an enormous task of
having the spread and reach of education in the remotest corners.
Furthermore, the literacy rate of the State which was lagging far
behind the national average was also a matter which required
attention. The advances made by the State on these fronts are
quite evident. All this was possible through rational use of
resources. How best to use or utilise the resources and what
emphasis be given to which factors are all policy matters and in
our considered view the State had not faltered on any count. As

laid down by
this Court in the decisions in Joginder Singh 1963
Suppl. 2 SCR 169 and Zabar Singh (1972) 2 SCC 275, the State
was justified in having two different streams or cadres. The
attempt in making over the process of selection to Panchayati Raj
Institutions and letting the cadre of State Teachers to be a dying
or vanishing cadre were part of the same mechanics of achieving
the spread of education. These issues were all part of an
integrated policy and if by process of judicial intervention any
directions are issued to make available same salaries and
emoluments to Niyojit Teachers, it could create tremendous
imbalance and cause great strain on budgetary resources.

105. It is true that the budgetary constraints or financial
implications can never be a ground if there is violation of
Fundamental Rights of a citizen. Similarly, while construing the
provisions of the
RTE Act
and the Rules framed thereunder, that
interpretation ought to be accepted which would make the Right
available Under
Article 21A
a reality. As the text of the Article
shows the provision is essentially child-centric. There cannot be
two views as regards the point that Free and Compulsory
Education ought to be quality education. However, such premise
cannot lead to the further conclusion that in order to have quality
education, Niyojit Teachers ought to be paid emoluments at the
same level as are applicable to the State Teachers. The modalities
in which expert teachers can be found, whether by giving them
better scales and/or by insisting on threshold ability which could
be tested through examinations such as TET Examination are for
the Executive to consider." (emphasis supplied)

iii) In
Chaman Lal & Ors. v. State of Haryana
, AIR 1987 SC

1621 the appellants were all trained graduates that is to say, all of

them possessed the B.Ed or B.T degree in addition to the B.A.

degree. They were teachers in government schools in the State of
Haryana. They did not possess the B.Ed and B.T degree when they

joined service initially. They acquired the B.Ed and B.T degree

subsequent to their joining service which was between the years,

1953 and 1973. Some of them acquired B.Ed and B.T degree

before September 5, 1979 and in some cases after 5th September,

1979. In Haryana Educational Service, there were two categories

of teachers described as Masters and Basic Trained teachers. 25%

of the posts of Masters were reserved for promotion from the post

of basic trained teachers. Masters could be promoted to higher

posts. There was a pay revision of the pay scales present to an

order dated 23rd July, 1957 all teachers according to their

qualification were placed in two broad categories.

"Category A :

Rs. 110-8-190/10-250 with a higher start for MA & M.Sc.

as at present. The existence percentage of posts fixed by

Government for scales of Rs.110-8-190/10-250 and

Rs.250-300 should remain unchanged at 35% and 15%

respectively.

Category B :

Lower Rs.60-4-80/5-120, Middle Rs.120-5-175, Upper

Rs.140-10-200.
With a view to providing incentives, it has been decided

that posts falling in these groups should be in the

following as G Group I: Lower Scale 85% Middle Scale

15%.

15% of teachers in this group should straightway be

promoted to the middle scale by a selection based on

seniority and merits, while the rest should be given the

lower scale."

It was noticed that a scale of pay was linked to the qualification. The

question arose whether teachers who started as Basic Trained Teachers and

later acquired the B.Ed or BT. Qualifications, but who could not be adjusted

against posts of Masters would be entitled to the grade of Rs.110-250 which

was earmarked for category A. On consideration of the recommendation of

the Kothari Commission which, inter alia, had strongly expressed the view

that the scale of pay should be linked to the educational qualification and

incentives to teachers of special subject or to teachers with additional

qualifications can be given in the form of advance increment or special

allowances expressed the view that the teachers acquiring BT or B.Ed

qualification would become entitled to higher scale of pay. The Honourable

Supreme Court in deciding the issue has taken into consideration paragraph

3.16 of the Kothari Committee recommendation which states:

"Our attention has been drawn to an anomaly which must be
removed as early as possible, several States restrict, on financial
grounds, the number of posts which carry the scale of trained
teachers who have completed the secondary school course. The
remaining posts are usually assigned to lower scales of pay
sanctioned for teachers with lower qualifications. Not infrequently,
persons with lower qualifications are recruited to these posts even
when qualified and trained teachers are available. This is bad
enough; but what is worse, even trained and qualified teachers
who are recruited against the posts are given, not the salaries of
qualified and trained teachers to which they are entitled but the
lower salaries meant for these posts. As the completion of
secondary school course and two years of professional training
are accepted as the minimum qualification for a primary teacher,
this practice should be abandoned as early as possible and the
principle adopted that every trained teacher who has completed
the secondary school course received the scale of pay sanctioned
for such teachers. This will remove an injustice now being done to
a large number of teachers in service, and create an incentive for
unqualified or untrained teachers to become qualified and
trained." (emphasis supplied)

iv) In Pubjab Higher Qualified Teachers Union & Ors. v. State of

Pubjab & Ors., reported in AIR 1988 SC 892 the issue was

whether the matriculate junior basic trained teachers falling under

category B group II would be entitled to higher scale of pay upon

acquisition of higher educational qualification of B.A., B.T/B.A,

B.Ed etc. The circular dated 23rd July, 1957 was taken into

consideration. Paragraph 3 of the said circular was in relation to

revision of pay scales of teachers under two distinct categories.

Category A and category B inter alia, laid down the requirements

of academic qualifications with respect to each. On interpretation
of paragraph 3 it was observed that the revision of pay of teachers

was based on the principle of linking pay to qualification. The

Kothari Commission strongly expressed the view that the scales of

pay of teachers should be linked to educational qualifications. On

consideration of the relevant clauses it was held:

"12. As a matter of plain construction, we are quite clear in
our mind that Graduate Teachers form a class by themselves
and cannot be subjected to the further requirement of having
JST/JAV training. The words 'plus JAV training' clearly
qualify the word 'Matric' and relate only to Matriculate JBT
Teachers. Such a classification for revision of pay satisfies
the touchstone of
Art. 14
and would render the action of the
State Government in seeking to discriminate between
Graduate Teachers with JST/JAV training and Graduate
Teachers with or without such training, impermissible as the
attempt is to create a class within a class without any
rational basis."

The contention of the petitioner that they are entitled to higher

pay on acquiring or improving their academic qualifications has

been upheld.

v) In
State of Gujarat & Anr. v. Ramanlal Keshav Lal Soni &

Ors.
, reported in 1983 (2) SCC 33 a Constitution Bench of the

Hon'ble Supreme Court was considering retrospective operation of

a statute in relation to the legal rights of the persons likely to be

affected by reason of an amendment giving retrospective

operation. The Constitution Bench of the Court considered the
question whether the status of ex-ministerial employees who had

been allocated to the Panchayat service as Secretaries, Officers

and Servants of Gram and Nagar Panchayats under the
Gujarat

Panchayat Act, 1961
as government servants could be

extinguished by making retrospective amendment of the said Act

in 1978.

The aforesaid matter involves the status of employees of various

municipalities whose services were to a Single Centralized

Panchayat Service as distinct from the "State Service". The

Panchayat service consisted of district cadre, Taluqa cadre and

local cadre (vide Order dated 2nd January, 1967 made under

Section 203
of the Act). The Taluqa and District Development

Officers were officers of the State Government. The Gujarat

Panchayat Service (Absorption, Seniority, Pay and Allowances)

Rules, 1965 were not made effectively applicable unless

equivalence of posts was first determined by Government Order.

Although benefits relating to equation of posts, promotions,

fixation of pay scales and revision thereof (which were made on

the basis of the recommendations of Pay Commissions) were

extended to the District and Taluqa cadres, the State Government

did not make any order in that regard for the staff in the local

cadre. The ex-Municipal employees included in the local cadre

thereupon also filed a writ petition before the Hon'ble Supreme

Court challenging the constitutional validity of the
Amending Act
.
The facts and the issues have been briefly summarized in

paragraph 50 and 51 of
the said judgment
which reads:

"50. It is here necessary to recapitulate a few facts. When
the Panchayat Service was initially constituted soon after the
passing of the gujarat
Panchayats Act
, there were three
cadres, the district cadre, the taluqa cadre and the local
cadre. Secretaries, officers and servants of the old village
panchayats under the Bombay Village Panchayats Act, 1958
became Secretaries, Officers and servants of the new Gram
Panchayats under
Section 325 (2)(x)
of the Gujarat
Panchayats Act, 1961. Talatis and Kotwals, who were
Government servants were Secretaries and officers of the old
village panchayats under the Bombay Village Panchayats
Act and so they became secretaries and officers of the new
gram panchayats under the
Gujarat Panchayats Act, 1963
.
Some municipalities constituted for municipal districts and
municipal boroughs under the Bombay District Municipal Act
and the Bombay Municipal Boroughs Act as applied to areas
in the State of Gujarat, were converted into gram and nagar
panchayats under
Section 307
of the Gujarat Panchayats Act
and all officers and servants in the employ of such
municipalities became officers and servants of interim
panchayats and allocated to the Panchayat Service. Thus,
Secretaries and Officers of dissolved municipalities also
became Secretaries and officers of gram and nagar
panchayats. District Local Boards constituted under the
Bombay Local Boards Act stood dissolved on the passing of
the
Gujarat Panchayats Act
and all officers and servants in
the employment of the Board were deemed to be transferred
to the service of the successor district panchayat under

Section 326
of the Gujarat Panchayats Act. Also allocated to
the Panchayat Service were those Government servants who
were transferred to the Panchayats under Section 157 and
such others officers and servants employed in the State
Service as were necessary (Section 206(iii)). All these
Secretaries, officers and servants became members of a
service under the State as soon as they were allocated the
Panchayat Service. Now, by the
Amending Act
, secretaries,
officers and servants of Gram and Nagar Panchayats who
were allocated to the Panchayat service from the ranks of the
ex-municipal employees are sought to be meted out
differential treatment from the other members of the
Panchayat Service, more particularly the Secretaries, officers
and servants of Gram and Nagar Panchayats who were
drawn from the ranks of secretaries, officers and servants of
old village panchayats, that is the Talatis and Kotwals. Their
status as members of a service under the State is to go with
no option to them. Retrospectivity is sought to be given to the
amending act so that they could not claim that they were
ever Government servants and so could not be made to cease
to be Government servants and so that they could not claim
that they were singled out for differential treatment, for, if
they were never in the Panchayat Service, they could not
complain of being taken out of the Panchayat Service.

51. Now, in 1978 before the
Amending Act
was passed,
thanks to the provisions of the Principal Act of 1961, the ex-
municipal employees who had been allocated to the
Panchayat Service as Secretaries, Officers and servants of
Gram and Nagar Panchayats, had achieved the status of
government servants. Their status as Government servants
could not be extinguished, so long as the posts were not
abolished and their services were not terminated in
accordance with the provisions of
Article 311
of the
Constitution. Nor was it permissible to single them out for
differential treatment. That would offend
Article 14
of the
Constitution. An attempt was made to justify the purported
differentiation on the basis of history and ancestry, as it
were. It was said that Talatis and Kotwals who became
Secretaries, officers and servants, of Gram and Nagar
Panchayats were Government servants, even to start with,
while municipal employees who became such secretaries,
officers and servants of Gram and Nagar Panchayats were
not. Each carried the mark or the 'brand' of his origin and a
classification on the basis of the source from which they
came into the service, it was claimed, was permissible. We
are clear that it is not. Once they had joined the common
stream of service to perform the same duties, it is clearly not
permissible to make any classification on the basis of their
origin. Such a classification would be unreasonable and
entirely irrelevant to the object sought to be achieved. It is to
navigate around these two obstacles of
Article 311
and

Article 14
that the
Amending Act
is sought to be made
retrospective, to bring about an artificial situation as if the
erstwhile municipal employees never became members of a
service under the State. Can a law be made to be destroy
today's accrued constitutional rights by artificially reverting
to a situation which existed seventeen years ago? No."

(emphasis supplied)

Striking down the said amendment on the ground that it
offended
Articles 311
and
of the Constitution, the Court
said:

"52. The legislation is pure and simple, self-deceptive, if we
may use such an expression with reference to a legislature-
made law. The legislature is undoubtedly competent to
legislate with retrospective effect to take away or impair any
vested right acquired under existing laws but since the laws
are made under a written Constitution, and have to conform
to the do's and don'ts of the Constitution neither prospective
nor retrospective laws can be made so as to contravene
Fundamental Rights. The law must satisfy the requirements
of the Constitution today taking into account the accrued or
acquired rights of the parties today.

The law cannot say, twenty years ago the parties had no
rights, therefore, the requirements of the Constitution will be
satisfied if the law is dated back by twenty years. We are
concerned with today's rights and not yesterday's. A
legislature cannot legislate today with reference to a
situation that obtained twenty years ago and ignore the
march of events and the constitutional rights accrued in the
course of the twenty years. That would be most arbitrary,
unreasonable and a negation of history. It was pointed out
by a Constitution Bench of this Court in B.S. Yadav and
Ors. etc. v. State of Haryana and Ors. etc. (1981 )ILLJ
280 SC Chandrachud CJ., speaking for the Court held:

"Since the Governor exercises the legislative power under
the proviso to
Article 309
of the Constitution, it is open to
him to give retrospective operation to the rules made under
that provision. But the date from which the rules are made
to operate, must be shown to bear either from the face of
the rules or by extrinsic evidence, reasonable nexus with
the provisions contained in the rules, especially when the
retrospective effect extends over a long period as in this
case".

Today's equals cannot be made unequal by saying that they
were unequal twenty years ago and we will restore that
position by making a law today and making it retrospective.
Constitutional rights, constitutional obligations and
constitutional consequences cannot be tempered with that
way. A law which if made today would be plainly invalid as
offending constitutional provisions in the context of the
existing situation cannot become valid by being made
retrospective. Past virtue (constitutional) cannot be made to
wipe out present vice (constitutional) by making retrospective
laws. We are, therefore, firmly of the view that the
Gujarat
Panchayats (Third Amendment) Act, 1978
is unconstitutional,
as it offends
Articles 311
and
and is arbitrary and
unreasonable. We have considered the question whether any
provision of the
Gujarat Panchayats (Third Amendment) Act,
might be salvaged. We are afraid that the provisions
are so intertwined with one another that it is well-nigh
impossible to consider any life saving surgery. The whole of
the
Third Amendment Act
must go. In the result the Writ
Petition Nos. 4266-70 are allowed with costs quantified at
Rs. 15,000. The directions given by the High Court, which we
have confirmed, should be complied with before June 30,
1983. In the meanwhile, the employees of the Panchayats
covered by the appeal and the Writ Petitions will receive a
sum of Rs. 200 per month over and above the emoluments
they were receiving before February 1, 1978. This order will
be effective from February 1, 1983 The interim order made
on February 20, 1978 will be effective upto January 31,
1983. The amounts paid are to be adjusted later."

It has been categorically stated that the amendment cannot
go against the object of the principal Act.

The said decision in Raman Lal Keshav Lal Soni (1983) 2
SCR 287 of the Constitution Bench of the Supreme Court
has been followed by various Division Benches of the Apex
Court. (
K.C. Arora v. State of Haryana
(1984) 3 SCR 623;

T.R. Kapur v. State of Haryana
(1987) 1 SCR 584];
P.D.
Aggarwal v. State of U.P.
(1987) 3 SCR 427];
K.
Narayanan v. State of Karnataka
1994 Supp (1) SCC
44];
Union of India v. Tushar Ranjan Mohanty
(1994) 5
SCC 450] and K. Ravindranath Pai v. State of
Karnataka 1995 Supp (2) SCC 246).

vi) A Constitution Bench in
Chairman, Railway Board and Ors. v.

C.R. Rangadhamaiah and Ors.
AIR 1997 SC 3828: 1997 (6)

SCC 582, dealt with the case where the pension admissible under

the Rules in force at the time of retirement was introduced with

retrospective effect. The Court held such an action to be

unreasonable and arbitrary being violative of
Articles 14
and
of

the Constitution of India. The Court observed as under:

"20. It can, therefore, be said that a rule which operates in
future so as to govern future rights of those already in
service cannot be assailed on the ground of retroactivity as
being violative of
Articles 14
and
of the Constitution,
but a rule which seeks to reverse from an anterior date a
benefit which has been granted or availed of, e.g.,
promotion or pay scale, can be assailed as being violative
of
Articles 14
and
of the Constitution to the extent it
operates retrospectively....

24. In many of these decisions the expressions "vested
rights" or "accrued rights" have been used while striking
down the impugned provisions which had been given
retrospective operation so as to have an adverse effect in
the matter of promotion, seniority, substantive
appointment, etc., of the employees. The said expressions
have been used in the context of a right flowing under the
relevant rule which was sought to be altered with effect
from an anterior date and thereby taking away the
benefits available under the rule in force at that time. It
has been held that such an amendment having
retrospective operation which has the effect of taking away
a benefit already available to the employee under the
existing rule is arbitrary, discriminatory and violative of
the rights guaranteed under
Articles 14
and
of the
Constitution." (emphasis supplied)

It is now well settled that accrued rights cannot be taken
away by repealing the statutory provisions arbitrarily.
More so, the repealing law must provide for taking away
such rights, expressly or by necessary implication.

The said decision was in turn followed in
The Vice
Chairman, Delhi Development Authority v. Narender
Kumar & Ors.
, reported in 2022 (1) SCC 641 in
paragraph 35, which reads:

"35. Several previous judgments of this Court dealing
with the question that what is accrued or vested right
were considered in
Chairman, Railway Board v.
C.R. Rangadhamaiah
1997 Supp (3) SCR 63
wherein the impugned Rule in question sought to
disturb the method of calculating the last pay drawn
for the purposes of pension and related allowances.
This impacted the pension disbursement of a large
number of employees who had retired much earlier.
The court observed that the amendments applied to
employees who had already retired and were no
longer in service on the date the impugned notifications
were issued, and adversely impacted the pension they
were drawing. In such context the court held as
impermissible, those benefits which accrued or in other
words had been actually enjoyed and were taken
away by the devise of giving retrospective effect to the
rule.

vii) In M.P. Rural Agriculture Extension Officers Association v.

State of M.P. & Anr., reported in 2004 (4) SCC 646 the Hon'ble

Supreme Court observed that two different pay scales can be

provided in the same cadre on the basis of educational

qualification even if nature of work is the same and the post are

interchangeable. It reiterated that the recommendation of the pay

commission is not binding on the State and cannot be enforced by

issuing a writ in the nature of mandamus. State can make rules in

exercise of power under proviso to
Article 309
contrary to the

recommendation by evolving policy decision and give the same

retrospective effect. It has categorically stated that a valid

classification can be made on the basis of educational

qualification.

In the instant case a policy decision has been taken to extend

financial benefits upon acquiring higher qualification subject to

fulfilment of certain criteria which inter alia, includes prior

permission and staff pattern of the school. The said policy decision
is based on past experience and the financial capacity and ability

to meet expenses encompassed in the Act of 2005.

There is a rational basis for
the said decision
. It is trite law that

Article 14
does not forbid a reasonable classification.
Article 14

forbids class legislation but permits reasonable classification

subject to the conditions that it is based on an intelligible

differentia and that the differentia must have a rational nexus to

the object sought to be achieved. Constitutional interpretation is a

difficult task. Its concept varies from statute to statute, fact to

fact, situation to situation and subject matter to subject matter.

[See
M.P. Rural Agriculture Extension Officers Association

(supra)]

viii) In
Council of Scientific and Industrial Research & Ors. v.

K.G.S. Bhatt
reported in AIR 1989 SC 1972 it was held that

when any bye law restricts promotion of employee, then it shall be

liable to be set aside. The issue before the Hon'ble Supreme Court

was whether the respondent was entitled for promotional benefit.

The bye-law governed only promotion of junior scientific and

technical staff grade-II who are engaged in scientific work. One

who was engaged in scientific work was alone entitled to benefit of

the bye-law. The respondent no.1 had suffered and stagnated for

about twenty years in same scale from inception due to defective

promotional policy. It was on such consideration the Hon'ble

Supreme Court did not interfere with the relief granted by the
Tribunal and agreed with the views expressed on scope of bye-law

71(b)(ii) which exclude any person under the "administrative

category".

ix) In
O.Z. Hussain v. Union of India & Ors.
, reported in AIR 1990

SC 311 the issue was with regard to the parity in payment and

availability of promotional avenues. The writ petitioners alleged

discriminatory treatment meted out to Scientists of non-medical

wing of Ministry of Health and Family Welfare. From the evidence,

it transpired that promotional avenues were available to similar

officers in other Ministries. On such consideration the Hon'ble

Supreme Court disposed of the application filed under
Article 32

of the Constitution of India with a direction upon the respondent

authorities to frame Rules providing for promotional avenues.

x) J.S. Yadav vs. State of Uttar Pradesh and Anr. reported in

2011 (6) SCC 570 has laid down two principles namely i) vested

right can be taken away only if the law specifically or by necessary

implication provides for such a course and ii) the legislature has

the competence to unilaterally alter conditions of service with

retrospective effect. Although legislature is so competent but

intention of the legislation to apply amended provision with

retrospective effect must be evident from the amendment Act itself

expressly or by necessary implication. Moreover the aforesaid

power of legislator is qualified to the effect that such unilateral

alteration should be in conformity with legal and constitutional
provisions. Any right accrued under the Act/ordinance which

stood repealed would continue to exist unless they have

specifically or by necessary implication been taken away by the

repealing Act. The judgment recognised that the amendment with

retrospective operation can be declared ultra vires when it takes

away the vested right of the petitioners.
In paragraph 25 of the

said decision the Hon'ble Supreme Court referred to its earlier

judgment in
P.D. Aggarwal v. State of UP
reported in 1987(3)

SCC 622 para 18 in which it was held as under:

"18. ...the Government has power to make retrospective
amendments to the Rules but if the Rules purport to take away
the vested rights and are arbitrary and not reasonable then such
retrospective amendments are subject to judicial scrutiny if they
have infringed
Articles 14
and
of the Constitution."

We may also refer to paragraph 27 and 29 of
the said judgment

where the limitation to retrospective operation of a statute was

considered and discussed:

"27. This Court in
State of Punjab v. Bhajan Kaur
(2008) 12
SCC 112, while dealing with the provision of
Section 6
of
the 1897 Act, held as under:

'9. A statute is presumed to be prospective unless held to be
retrospective, either expressly or by necessary implication.
A substantive law is presumed to be prospective. It is one of
the facets of the rule of law
10. ....Where a right is created by an enactment, in the
absence of a clear provision in the statute, it is not to be
applied retrospectively".

xi) In Dist.
Inspector of Schools Kolkata vs. Abhijit Baidya

reported in 2013 (3) CHN (Cal) 711 the Full Bench of this Court

was considering the amendment of para 17 of ROPA 1990. The

question was whether employees have to be given an opportunity

to switch over from CPF-cum-Gratuity to Pension-cum-Gratuity

Scheme in view of the amendment and the retrospective effect of

the amendment was under consideration. It was noticed that the

paragraph 13 of ROPA 1998 is similar to paragraph 17(2) of ROPA

1990. The ratio of the decision is that the amendment of

substitution with retrospective effect cannot take away the right

accrued under existing para 17(2) of ROPA 1990. Any change of

government policy must be in conformity with reasonableness and

principle of natural justice is required to be followed. The

questions answered by the Special Bench are mentioned in

paragraph 9:

i) Whether a person who has opted for revised pay scale
under ROPA, 1990 becomes entitled to pension by virtue of
operation of para 17 of ROPA 1990?

ii) Whether an incumbent who has exercised an option
under ROPA 1990 can still be conditioned to the rider of
option to be exercised under W. Ben. Recognised Non-
Government Educational Institution Employees DCRB
Scheme, 1981, particularly in view of the amendment
effected in paragraph 17(2) vide G.O. 226-SE (B)/1M-

102/98, dated 16th May, 2007 and whether the
amendment made in paragraph 17(2) can be said to be
valid law; that too with retrospective effect?

iii) Whether para 13 of Revision of Pay & Allowance Rules
1998, as amended by Notification dated 13th July, 1999
relating to the employees of W. Ben. Recognized Non-
Government Aided Institutions can be said to be valid in
law?

iv) Whether after amending the para 13 of ROPA 1998 on
13.07.1999 and para 17 of ROPA 1990 in 2007, it was
necessary to give fresh opportunity to employees to revise
option under W. Ben. Recognized Non-Government
Educational institution Employees (Death-cum-Retirement
Benefit) Scheme, 1981?

v) Whether the time-limit fixed under the DCRB Scheme,
1981 to submit option can be extended in suitable cases?

The answer is given in paragraph 74 in the following manner:

"1) An employee who has opted for revised pay scale under
ROPA, 1990 becomes entitled to pension and gratuity by
virtue of operation of para 17 of ROPA 1990. It was not
necessary for him to exercise fresh option as per Memo
dated 16th December, 1991, which was applicable to
employees who had not opted for ROPA 1990. Benefit of
Pension-cum-Gratuity was conferred due to acceptance of
reduced age of superannuation of 60 years under para
17(1) of ROPA 1990 and his right for Pension-cum-Gratuity
so accrued could not have been taken away retrospectively
by substitution of the provisions of para 17 in 2007 or by
substitution of para 13 of ROPA 1998 in 1999.

2) Once option has been exercised under ROPA 1990, a
person cannot be subjected to the rider of the option
exercised under the DCRB Scheme, 1981 as the invitation
of the option under the said Scheme was with respect to the
employees who elected to continue in service till the age of
65 years and to have the benefit of the old scheme. For
such employees, opportunity was given to submit fresh
options as per Memo dated 16th December, 1991.

The amendment made in para 17(2) of ROPA 1990 on May
16, 2007 cannot be said to be valid piece of law as such
provisions cannot be substituted with retrospective effect to
take away the rights already accrued to an employee. So as
to validate provisions of para 17(2) of ROPA 1990, as
substituted, it was necessary to invite option for switching
over to Pension-cum-Gratuity from CPF-cum-Gratuity when
the substitution of para 17(2) of ROPA 1990 was made on
16th May, 2007 with retrospective effect.

3) Para 13 of the ROPA 1998 as amended on 13th July,
1999 cannot be said to be valid in the eye of law as it has
the effect of taking away benefit conferred by para 17(2) of
ROPA 1990, as the ROPA 1998 was made applicable to the
employees who had opted for ROPA 1990 and the benefit
conferred could not have been taken away by substitution
of provisions contained in para 13 of ROPA 1998. It was
clearly arbitrary and an unreasonable exercise of power and
to treat it as valid and legal, it was necessary to invite fresh
option under the DCRB Scheme, 1981 for switching over to
Pension-cum-Gratuity as the provisions had been amended
drastically which could not operate to the prejudice of the
employees in whose favour right to claim Pension-cum-
Gratuity had accrued. The substituted provisions of para
13 of ROPA 1998 fail to qualify Wednesbury principles of
reasonableness. The action was in utter violation of fair
play and justice.

4) In our opinion, after substitution of para 13 of ROPA
1998 on 13th July, 1999 and para 17 of ROPA 1990 on
16th May, 2007, in order to save the provisions from the
vice of arbitrariness, it was necessary to give an opportunity
to the employees to submit fresh option under DCRB
Scheme, 1981. As the option exercised earlier in terms of
the DCRB Scheme, 1981 was made applicable, it was
necessary to give fresh opportunity to exercise an option for
switching over to Pension-cum-Gratuity and the State could
not have acted to the detriment of the employees opting for
ROPA 1990 who chose the rider of reduced age of
superannuation i.e. 60 years under para 17(1) of ROPA
1990.

5) In our opinion, as there was drastic change of provisions
of para 17(2) of ROPA 1990 made by way of substitution in
2007, and ROPA 1998 also interfered with the rights
conferred upon the employees under para 17(2) of ROPA
1990, all the employees who opted for ROPA 1990 ought to
be given fresh opportunity to submit the option to switch
over to Pension-cum-Gratuity".

xii) In
Shrimanta Kumar Mondal & Ors. v. The State of West

Bengal & Ors.
, 1998(2) CHN 276 (Cal), the Special Bench of this

Court had approved the view expressed in Gopalji Sahu v. State of

Bihar, CWJC no.1409 of 1991(R) in which it was held that laying
down the qualification of a teacher in order to maintain the standard of

education in an institution is permissible by way of executive

instruction.

As to the power of the State to specify a date with effect

from which a rule or regulation can be made applicable, the Special

Bench in paragraph 75 of the report relied upon the decision of our

Court in
The State of West Bengal vs. Ratan Behari De
reported in

CalLT 1994(1)SC 8; 1993 LAB IC 2199 in which it was held:

"In this context, it may be remembered that the power of the State
to specify a date with effect from which the regulations framed, or
amended, as the case may be, shall come into force is
unquestioned. A date can be specified both prospectively as well
as retrospectively. The only question is whether the prescription of
the date is unreasonable or discriminatory. Since we have found
that the prescription of the date in this case is neither arbitrary
nor unreasonable, the complaint of discrimination must fail."

(emphasis supplied)

xiii) In
Union of India & Ors. v. M.V. Manohar Nair
reported in

2020 (5) SCC 421 the Hon'ble Supreme Court was considering

whether Modified Assured Career Progression Scheme envisaged

financial upgradation to next grade pay or to grade pay of next

promotional post. In deciding the said issue, role of expert body

prescribing pay scale and incentives was also considered. The

Apex Court observed that the object behind the MACP Scheme is

to provide relief against the stagnation. If the arguments of the

Respondents are to be accepted, they would be entitled to be paid

in accordance with the grade pay offered to a promotee; but yet
not assume the responsibilities of a promotee which would have

an adverse impact on the efficiency of administration.

The change in policy brought about by supersession of ACP

Scheme with the MACP Scheme was after consideration of all the

disparities and the representations of the employees. The Sixth

Central Pay Commission is an expert body which has

comprehensively examined all the issues and the representations

as also the issue of stagnation and at the same time to promote

efficiency in the functioning of the departments, the MACP

Scheme has been introduced which has been accepted by the

Government. After accepting the recommendation of the Sixth

Central Pay Commission, the ACP Scheme was withdrawn and the

same was superseded by the MACP Scheme with effect from 1st

September, 2008. When the government has accepted the

recommendations of the pay commission and also implemented

those, any interference by the Court would have serious impact on

public exchequer. Also when an expert body like the pay

commission had comprehensively examined all issues and

representations the court should not interfere with the

recommendations of the expert body.

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
cannot substitute its views. 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 case where the court takes the view that order/Scheme passed

by the Government is not an equitable one, ordinarily only a

direction could be given to the State Government or the authority

for consideration of the matter and to take a decision. In the

present batch of cases where the Respondents have been claiming

financial upgradation in the grade pay of promotional hierarchy,

no ground have been made out to show that the MACP Scheme

granting financial upgradation in the next grade pay is arbitrary

and unjust; warranting interference.

xiv) In
DDA v. Narendra Kumar
; 2022(11) SCC 641 the Hon'ble

Supreme Court was considering Modified Assured Career

Progression Scheme (MACP Scheme) introduced in supersession

of ACP Scheme with retrospective effect. The issue was whether

employees who had completed eligibility for financial upgradation

under ACP Scheme can insist that such upgradation ought to be

only under ACP Scheme and not MACP Scheme. The Apex Court

held that it is well settled that Central Government in exercise of

legislative power conferred under
Article 309
of the Constitution

can frame Rules having force of law with retrospective effect,

however, where such retrospective application has the effect of

nullifying or refacing intervening events or invalidating benefits
granted to employees the same can be declared unconstitutional.

Factually it was found that none of the employees had actually

earned second financial upgradation though undoubtedly they

had become eligible for consideration. The eligibility ipso facto

cannot translate into entitlement having regard to the ACP

Scheme, i.e., such eligibility was mere expectation. The benefits

under the ACP/MACP scheme were only incentives not embodied

in rules, to relieve stagnation and its continued existence cannot

be turned as enforceable right.

xv) In
Food Corporation of India & Ors. v. Bhartiya Khadya

Nigam Karmachari Sangh & Anr.
reported in 2012 (2) SCC

307 the issue was grant of incentive of two increments to in-

service employee on acquiring prescribed additional qualification

and denial of same to those who had already acquired same

qualifications before entering into service. It was argued that the

said classification is unreasonable and violates
Article 14
and
of the Constitution of India. The said issue was answered in

paragraph 11 to 17:

"11. It is trite law that
Article 14
of the Constitution, which
enshrines the principle of equality, is of wide import. It guarantees
equality before the law and equal protection of the laws within the
territory of India. It implies right to equal treatment in similar
circumstances, except in cases where the two persons form 'a
separate and distinct class and such classification is a
reasonable one based on intelligible differentia having nexus with
the object sought to be achieved'.

(See:
State of West Bengal v. Anwar Ali Sarkar
: (
1952) SCR
284 and John Vallamattom and Anr. v. Union of India
: (2003)
6 SCC 611).

12. Before examining the issue at hand on the touchstone of the
aforesaid principle envisaged in
Article 14
of the Constitution, it
would be apposite to refer to the relevant portions of the Circular
dated 29th July, 1985. These read as follows:

"The Food Corporation of India, since its inception, has been
pursuing the policy of Management Development by providing
suitable training facilities both within the Corporation as well as
by nominating its employees to short-term professional courses,
work-shops, seminars, conferences etc. organized by leading
management institutions in India and abroad.

2. These efforts can get an uplift and possibly be supplemented to a
great extent by the involvement of its employees in acquiring
professional management qualifications on their own. In order,
therefore, to fill the basic gaps to acquire knowledge, the matter has
been under consideration for introducing suitable incentive scheme
for motivating the employees of the Corporation to encourage them
to acquire professional qualifications for rapid career advancement
and enabling the Corporation to build a reserve of qualified
professionals from within to back up key positions and to improve
the overall performance and efficiency of the organization. This will
further create an atmosphere of 'professionalism' in the working of
the Corporation. With this end in view it has been decided with the
approval of the Board of Directors to introduce the following
incentive scheme with effect from 1st April, 1984.
3. The following courses of study have been approved for grant of
the two increments as indicated in subsequent pages:

(a).

(b) High professional qualifications viz. MBA, ACA, AMIE, LLB, BL,
ACS etc. All the above courses (Diplomas/Degrees) should be at
least of two years duration.

4. The following are the details of the scheme for grant of incentive:

ELIGIBILITY:

All regular employees of the Corporation would be eligible for benefit
under the Scheme subject to the following terms and conditions:

(i) The scheme would apply to all regular employees of the
Corporation except deputationists/those employed on contract
basis/ casual or on tenure basis.

(ii) Employees covered under (i) above should have acquired or may
acquire higher professional qualifications from recognised
institutions/ Universities during the course of their service in the FCI
with prior permission from the competent authority of the
Corporation. The acquisition of said qualification should be useful to
the Corporation in its operations.

(iii)-(viii)

(ix) In cases where the employees, who join the higher post under
direct recruitment and where for such higher post the prescribed
minimum qualification is the same as acquired by the employee
while in the lower post, the incentive already granted to him/her in
the lower post would not be allowed to continue on his/her
appointment to the higher post.

INCENTIVE ADMISSIBLE:
Employees fulfilling the eligibility conditions
referred to above
would
only be entitled to the benefits under the scheme. The incentives
offered under this Scheme would be in the form of two special
increments as 'personal pay', to be merged in pay at the time of
promotion to the next higher grade. This incentive would be
admissible only on written orders by the competent authority on
merit of each case. The incentive in the form of two increments
would be granted starting from first day of the following month
when the employee concerned has been declared to have passed
the listed Courses or the date of enforcement of this scheme
whichever is later.

ENTITLEMENT:

In order to overcome the administrative difficulties and financial
implications in implementation of the Scheme with retrospective
effect covering all the cases of eligible employees who might have
acquired such higher management or professional qualifications
prescribed in this Scheme once or more than once in the past and
might be holding higher post on promotion or direct recruitment
within the Corporation, the employees would be entitled to the
incentive under this scheme with effect from 1.4.1984 only. Eligible
employees would be entitled to draw incentive increments at the
rates applicable to their present pay scales. Arrears of incentive
increments shall be payable.

In the case of past cases, eligible employees should apply within six
months from the date of the Scheme is circulated. In case of
employees who may acquire any of the above qualifications
hereafter, they may apply as and when they acquire the higher
qualifications in the prescribed Proforma enclosed.

13. It is manifest from a bare reading of the above-mentioned
portions of Circular that the fundamental objective of the Circular is
to provide an incentive to the in-service employees in order to
motivate and encourage them to acquire professional qualifications
in various courses, spelt out in the Circular, for their career
progression and at the same time enable the FCI to build a reserve
of qualified professionals from within the organisation to back up
key positions. Evidently, the incentive will not only improve their
overall performance and efficiency in the organisation, but also, in
the final analysis would strengthen the management with the
advent of an atmosphere of professionalism in the FCI.

14. Our attention was also drawn to Circular No. 27 of 2000, dated
11th September, 2000, empowering the competent authorities to
grant higher start/advance increments to newly recruited
employees at par with the pay drawn in their previous employment
before joining the FCI. It is therefore, plain that the provision to
grant extra benefit to a new recruit possessing higher qualifications
was already in existence. It is also pertinent to note that the said
Circular and the benefit which is sought to be given under any of
the Circulars
,
referred to above
, is not assailed by the Respondents.

Their only grievance is that there is no justification in depriving the
persons, who already possess the higher qualifications from the
benefit of extra incentives, which are being granted to the in-house
employees.

15. We are of the opinion that bearing in mind the aforesaid fact
situation and the objective sought to be achieved by issuance of the
said Circular, there is substantial merit in the stand of the FCI. The
classification adopted by the FCI is between an employee obtaining
a higher qualification after joining service and an employee who
already possessed such qualification before joining the service. As
aforesaid, the main purpose of this classification is to grant an
incentive to the employees already in service in the FCI to motivate
them to acquire higher qualifications for their own benefit as well as
of their employer viz. the FCI. We are convinced that the
classification sought to be made by the FCI between the two sets of
employees bears a just and rational nexus to the object sought to be
achieved by introducing the said incentive scheme. Judged from
this point of view, in our opinion, grant of the incentive in relation to
the in-service employees, in no way amounts to discrimination
between the in-service employees and the employees recruited with
higher qualification, offending either
Articles 14
or 16 of the
Constitution, particularly when the incentive is in the form of a
special increment as 'personal pay' to be merged in pay at the time
of promotion to the next higher grade and thus, having no bearing
on the inter-se seniority and/or to the future promotion to the next
higher grade.

16. The decisions of this Court in
B. Manmad Reddy and Ors. v.
Chandra Prakash Reddy and Ors.
(
supra) and Food Corporation of
India and Ors. v. Ashis Kumar Ganguly and Ors.
(supra), on which
reliance was placed by Learned Counsel for Respondents are
clearly distinguishable on facts inasmuch as these decisions deal
with cases relating to employees being classified into separate
categories for the purpose of promotion on the basis of the source
from which they were drawn and increments being given only to the
Central Government employees on being absorbed into the
corporation respectively, which is not the case here. However, it is
important to note that in both these cases, it was observed that the
doctrine of equal pay for equal work is not an abstract doctrine.

Article 14
of the Constitution permits reasonable classification
based on qualities or characteristics of persons recruited and
grouped together, as against those who are left out. Courts should
interfere with the administrative decisions pertaining to pay fixation
and pay parity only when they find such a decision to be
unreasonable, unjust and prejudicial to a section of employees and
taken in ignorance of material and relevant factors.
17. At this juncture, it would be profitable to refer to the decision of
this Court in H.P. Gupta and Anr. (supra), which is on all fours to
the fact situation in the present appeal. In the said case, grant of
two advance increments to Telecom Officers who acquired
Engineering degree while in service and not to those who possessed
such degree at the time of joining the service was held to be
constitutionally valid. Dealing with a similar controversy, the Court
observed as follows:

The object of giving two advance increments to those officials
who did not possess degree in Engineering before joining the
service, is only to encourage them to get such a degree so that
they could improve themselves while in service. When that
object is satisfied, the contentions that there should be equality
in the matter of payment of salary or other emoluments or that
there should be parity in the matter of giving increments, cannot
be accepted. It is true that in such a situation, certain anomalies
may arise in specific cases when the official who has acquired
degree in Engineering subsequent to joining of service may get
higher salary though junior to those who possessed the
qualification of degree in Engineering even at the time of joining
the service. There cannot be perfect equality in any matter on an
absolute scientific basis and there may be certain inequities
here and there. If the classification is correct and serves a
particular purpose, the same is not to be judicially interfered
with.

We deferentially concur with the observations in the afore-extracted
passage." (emphasis supplied)

200. The careful reading of the aforesaid paragraph would show that

the objective of the circular was to provide an incentive to the in-service

employee in order to motivate and encourage them to acquire professional
qualification and to create a reserve of qualified professionals from within

the organisation to back up key positions. Viewed from this angle and

comparing it with the incentive in the present case it can be vouchsafed

that acquisition of higher qualification after being appointed is expected to

uplift the standard of education and it would benefit both the schools and

the students. A person with a higher degree even if may be ineligible by

reason of his entry in the service with a lower degree can contribute to the

knowledge bank of the school and expectedly can impart better education.

A teacher with a pass-graduate degree although may not expect a higher

scale of pay can legitimately expect an incentive on acquiring of higher

qualification which can act as a cushion for not being considered for

promotion. Education shall be given highest priority and the teachers are

expected to receive decent salary and incentive. As often stated a teacher

takes a hand, opens a mind and touches a heart. The transfer of his soul to

the student's soul seen through the students is the quality of a good

teacher. A teacher can only impart a proper and better education once he

feels secured with his job and expect incentive for acquiring higher

qualification, although he cannot claim higher scale of pay of that of a

teacher who joined service with an Honours-graduate degree or Post

Graduate Degree. He cannot be treated alike since the process of selection

and recruitment are different. However, caught in between stagnation and

promotion, incentive can provide solace to the teachers who have acquired

higher qualifications after they joined service. Although the claim for

incentive cannot be considered to be a Fundamental Right, the obligation
and duties of the state not to provide a decent pay with incentive need not

be overstated. It is a policy decision of the State which we feel needs to be

reviewed. The State must formulate a policy with regard to career

advancement scheme in respect of the teachers facing stagnation and

acquiring higher qualification during employment by way of an incentive.

The number of increments also needs to be reviewed.

xvi) In
Shanti Sports Club and Anr. v. Union of India and Ors.

reported in 2009(15) SCC 705 the Honourable Supreme Court

discussed the ambit of
Article 14
and held that the concept of

equality enshrined in that Article is a positive concept. The Court

can command the State to give equal treatment to similarly

situated persons, but cannot issue a mandate that the State

should commit illegality or pass wrong order because in another

case such an illegality has been committed or wrong order has

been passed. If any illegality or irregularity has been committed in

favour of an individual or a group of individuals, others cannot

invoke the jurisdiction of the High Court or of this Court and seek

a direction that the same irregularity or illegality be committed in

their favour by the State or its agencies/instrumentalities.

xvii) In
Akhtar Hossain Chowdhury v. State of West Bengal &

Ors.
, reported in 2013 (2) CHN (Cal) 632 the argument of Mr.

Moitra that paragraph 3 of the circular dated 27th November,

2007 cannot override the provisions of the
West Bengal Schools

(Control of Expenditure Act, 2005
) was accepted as would be
evident from paragraphs 15 to 18 of
the said decision
. The said

paragraphs read:

"15. Mr. Moitra also submits that Para 3 of the aforesaid
circular dated 27th November, 2007 cannot override the
provisions of the
West Bengal Schools (Control of
Expenditure) Act, 2005
.

16. Mr. Moitra invites our attention to
Section 14 (3)
of the
aforesaid Act, 2005 and submits that the
appellant/petitioner is entitled to draw pay of post
graduate upon acquiring post graduate degree. The said

section 14(3)
is set out hereunder :

"(3) Every teacher of a school shall, if appointed in the
Honours Graduate or Postgraduate 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."

17. It is true that a circular cannot override the specific
provisions of the Act. In the present case, the
appellant/petitioner was admittedly appointed in the
school as Honours Graduate with B.Ed degree. As a
matter of fact, at the time of joining the school qualification
of the appellant was Honours Graduate in Mathematics
and B.Ed. Subsequently the said appellant acquired post-
graduate degree. Therefore, in terms of Section 14(3) of
The West Bengal Act, XIV of 2005 appellant herein is
entitled to draw pay of postgraduate teacher.

Furthermore, Para 3 of the Office order dated 27th
November, 2007 has not been specifically violated in the
present case since the appellant also sought for prior
permission from the concerned District Inspector of Schools
for undergoing post graduate studies through the
managing committee of the school and such permission
was never denied by the said District Inspector of Schools.

18. Considering the aforesaid facts, we are of the opinion
that the District Inspector of Schools should not have
rejected the claim of the appellant/petitioner for higher
scale of pay even after acquiring higher qualification i.e.
M.Sc in Mathematics." (emphasis supplied)

We are in agreement with
the said decision
.

xviii) In
Adeel Uz Zaman v. State of West Bengal & Ors.
, in MAT

No.825 of 2020 decided on 11th February, 2021 a Co-ordinate

Bench constituting of one of us (Soumen Sen, J.) in considering

the claim of the appellant for higher scale of pay directed

consideration of the matter on the ground that appellant was

appointed in science and maths group against a sanctioned

vacancy and at the relevant point of time he was holding B.SC.

(Hons.) degree in Chemistry. It was on the basis of such

qualification he was appointed as a Science Teacher in Chemistry

of the said college. The authority concerned was aware of the fact

that he was pursuing higher studies at the time of his

appointment. In fact, he had completed his Part-I examination in

M.Sc and was pursuing his higher studies. It was on such factual

background we considered the Government Order dated 27th

November, 2007 and observed:
"Clause 1 of the said order is applicable when the teacher
concerned is yet to enrol himself in the course and to appear in
the examination for enhancement of education qualification. The
very fact that he had already enrolled himself prior to his
appointment and that he had already participated in the said
examination and successfully completed M.Sc. part-I, in our
considered opinion he is not required to obtain any prior
permission to enrol himself for the purpose of appearing in the
future examination for enhancement of his educational
qualification as contemplated in clause 3 of the Government
Order dated 27th November, 2007.
In such view of the matter the
decision cited by the Government Pleader passed by a learned
Single Judge in
Purna Chandra Misra
(supra) has no manner of
application.

Learned Government Pleader has also relied on two decisions of
the Hon'ble Apex Court in the cases of U.P. Avas Evam Vikas
Parishad & Anr.-vs.-Friends Coop. Housing Society Ltd. &
Anr. reported in (1995) Supl. (3) SCC 456, paragraph 6 and
High Court of Judicature for Rajasthan-vs.-P.P. Singh &
Anr. reported in (2003) 4 SCC 239, paragraph 40, in support of
his argument that any claim for higher benefits cannot be allowed
unless the prior permission is taken. In U.P. Avas Evam Vikas
Parishad & Anr. (supra), at paragraph 5 another judgment of
the Apex Court in Life Insurance Corporation of India-vs.-
Escorts Ltd. and Ors.: (1986) 1 SCC 264 was referred in
which the distinction between approval and permission was
considered, in the context of
Section 29 (1)
of the Life Insurance
Corporation of India Act. It was observed that the difference
between approval and permission is that in the first case the
action holds good until it is disapproved, while in the other case it
does not does not become effective until permission is obtained.
But permission subsequently granted may validate the previous
act. In our respectful reading of the said two decisions it does not
appear to us that there is any embargo under the statute or the
relevant rule to grant any ex post facto permission if there is
sufficient reasons otherwise to grant permission.

There cannot be any doubt that a person with higher qualification
would be expected to have better knowledge in the subject and
the students are likely to be benefited by reason of acquiring such
higher qualification. The benefit of higher qualification is no doubt
benefit the teacher in terms of money but the students are the
beneficiary of such acquired knowledge. The institution is as such
benefited. It would be the endeavour of all schools to have
academic excellence and it is the duty of the State to encourage
academic excellence in all the institutions since the ultimate
beneficiary would be the students. We feel that some guidelines
should be in place to decide a case like the present one as
absence of any such guidelines may lead to arbitrary rejection of
a deserving candidate.

We are not unmindful of the fact that the
West Bengal Schools
(Control and Expenditure) Act, 2005
was enacted to provide for
the control of expenditure in the schools in West Bengal and
unless the authorities are of the opinion that such expenditure
towards payment of the higher salary of a teacher would be a
futile exercise or would not be beneficial to the schools or the
students, the authorities may decline payment of higher scale of
pay. Higher scale of pay would encourage the teacher and would
be a motivating factor which ought not to be ignored. The
consideration for denying higher scale of pay could be that,
already there are sufficient numbers of teachers having
Honours/post-graduate degree on the same subject in the
institution and, as such, payment of higher scale of pay would be
a burden on exchequer. In other words staff pattern may not
justify any higher qualified teacher in a particular subject. In the
present case appellant is in receipt of honours graduate scale of
pay, staff pattern cannot be a bar for extending the benefit of post
graduate scale of pay. We also observe that the relevant Rule
does not prevent the authorities from giving an ex-post-facto
approval if occasion so arises." (emphasis supplied)

We are in agreement with the view expressed.

In fact in
Debola Das
(supra) the authorities allowed Debola to
higher scale of pay as she had partially completed her study
before entering service and hence no prior permission from DI
would be required.

xix) In
The State of West Bengal v. Megnath Roy
, in MAT 514 of

2019 decided on 16th December, 2019, the same bench that had

decided
Adeel Uz Zaman
(supra) considered the School Education

Department Clause 3 of the Notification dated 27th November,

2007 and interpreted the relevant rules in favour of the writ

petitioner and allowed the writ petition on the following reasoning:

"It appears from record that the writ petitioner made
representation to the Ad Hoc Committee of the previous
school on 23rd April, 2010 to allow him to pursue the course
of master degree in Geography through distant mode of
education. Thereafter, he joined the present school and
similar application was made to the Managing Committee of
the present school. The Managing Committee of the present
school vide resolution dated 23rd June, 2013 allowed the
petitioner to pursue higher studies without affecting the day
to day academic necessity of the students. The petitioner
completed the distance education course successfully and
obtained master degree in Geography. When he approached
the District Inspector of Schools (SE) for higher scale of pay,
the same was denied on the ground that he had not obtained
the said degree after obtaining prior permission from the
District Inspector of Schools vide issuing memo dated 23rd
April, 2018.

There cannot be any doubt that at the time when he joined
the present school he was already pursuing his higher
studies but the only mistake possibly he had done not to
seek the permission in terms of Clause 3 of the Government
Circular dated 27th November, 2007.

Mr. Jana, learned Counsel for the respondent had drawn our
attention to a communication dated 8th June, 2017 from the
Deputy Director of School Education to the District Inspector
of Schools (SE) directing such authorities to refer the case to
the Directorate and not to the School Education Department
for disposal of cases of higher scale of pay of teachers of
secondary schools as per existing rules in case such
authorities facing difficulty. Under
Section 14(3)
of the West
Bengal Schools (Control of Expenditure) Act, 2005, Honours-
graduate teacher is entitled to draw pay scale of post-
graduate teacher upon acquiring postgraduate degree in the
manner as may be specified by the order.

On 27th November, 2007, the School Education Department,
Secondary Branch issued Order No. 593- SE(B)/ES/O/B/
1M-98/2007, wherein clause 3 it is stated that the teacher is
required to seek prior permission of concerned District
Inspector of Schools only when he wants to draw additional
increment/higher scale of pay for obtaining such higher
qualification through the Managing Committee of the School.
There is nothing on record to show that the Managing
Committee has forwarded the request of the writ petitioner to
the District Inspector of Schools for higher scale of pay for
obtaining higher qualification. Undoubtedly, the writ
petitioner, at the time of joining the present school was
already pursuing the higher studies and the Managing
Committee of the present school had permitted him to pursue
such course without affecting academic interest of the
institution.
Section 14(3)
, as it stands, does not require any
prior permission to be taken for obtaining higher
qualification. However, manner in which a teacher must be
entitled to higher scale of pay upon acquiring post-graduate
degree is indicated in the Government Order dated 27th
November, 2007."

xx) In Trilochan Jana v. State of West Bengal &

Ors., reported at 2008 (2) WBLR (Cal) 913 the learned Single

Judge considered Clause 16(5) of ROPA 1990, Clause 12(5) of

ROPA 1998 and Sub-
section 3
of
Section 14
of 2005 Act and held

that even if it is possible to urge that a subsequent enactment

may do away with certain benefits that had been conferred by

earlier regulations on an employee but the provision by which it is

sought to be taken away is subject to strict construction and any

benefit of doubt has to be given to the person whose benefit is

sought to be taken away.

Sub-
section 3
of
Section 14
and
Section 20
of Act 2005 was

interpreted in the following manner:

"10. SUB-SECTION 3 is worded differently and the
effect of it is quite distinct from subsections 1 and 2 of
Section 14
. Sub-
section 3
equates honours graduate
and postgraduate teachers and says that teachers of
either category would be entitled to draw the pay of
post graduate teachers upon acquiring post graduate
degree. Sub-
section 3
of
Section 14
does not reflect on
the rights conferred under clause 16 (5) of ROPA, 1990
as preserved or modified by clause 12 (5) of ROPA,
1998.
Section 16
and
Section 20
are the savings and
overriding provisions of the Act of 2005:
Section 16

preserves the previous rights in the limited manner as
specified therein.
Section 20
is the omnibus overriding
provision: "20. The provisions of this Act or any rules
or orders made thereunder shall have effect
notwithstanding anything to the contrary contained in
any other law for the time being in force or in any
contract, custom or usages to the contrary,"

(11). SECTION 20 will apply in a case where there is
any express provision in the Act of 2005 which is in
conflict with any provision or any contract or custom or
usage contrary to such provision existing at the time of
coming into effect of the said Act of 2005. Since
Section
14 (3)
of the said Act of 2005 does not detract from
clause 16 (5) of ROPA, 1998 as preserved in a slightly
modified form by clause 12 (5) of ROPA, 1998.
Section
has no manner of application in the matter of
curtailing any right that the writ petitioner had under
the relevant clause of the earlier regulations."

(emphasis supplied)

xxi) In
Chaitali Banerjee v. The State of West

Bengal & Ors., reported in 2019 (2) CHN (Cal) 568 Justice

Talukdar has considered the Memo dated 27th November, 2007
and interpreted the word "and" in the said Memo as conjunctive in

the facts of the said case.

In
Chaitali Chatterjee
(supra) a provisional certificate was

granted in favour of the writ petitioner with an enrolment number

and on basis of such enrolment number the writ petitioner

completed her M.SC Part-II Course on 7th February, 2010. Having

regard to the admitted fact that she completed the post graduate

course on the basis of such certificate the claim of enhancement

of qualification in terms of Clause 1 of Memorandum Dated 27th

November, 2007 was treated as single enrolment in the composite

M.SC Course prior to taking up duties in the school.

xxii) In
Pannalal Mahata v. State of West Bengal &

Ors.
, in W.P. No.22280(W) of 2012 decided on 30th July, 2015

on noticing that the District Inspector School Purulia granted post

facto permission in favour of one Shri Gorai to enhance his

qualification and was allowed post graduate scale of pay with

effect from 25th July, 2013 that is, the date following the last date

of examination Pannalal being similarly placed should be given

the same benefits more so when the staff pattern permits another

teacher by reason of the retirement of one of the teachers in the

mean time.

However, we must clearly state that no appointment can be made

disregarding staff pattern even if a teacher acquires higher
qualification. If such higher qualification is acquired with the

prior permission then it must be presumed that the authority

concerned consciously and with having the knowledge of all

essential facts granted permission for acquiring higher

qualification involving financial benefits.

201. It is well settled that rules can supplement the statute and

cannot supplant it. There is presumption against the retrospective operation

of the statute. The 2005 Act read with the Government Memorandum dated

26th December, 2005 makes it clear that to effectuate the purpose of the

2005 Act different categories of teachers on fulfilment of certain conditions

would be entitled to get financial benefits. Admittedly the Government

Memorandum of 26th December, 2005 was issued in the name of the

Governor unlike the Government order dated 27th November, 2007. It is

authenticated under Clause (3) of
Article 166
of the Constitution of India.

When the Parent Statute does not contemplate retroactive operation all

financial benefits payable to the teaching and non-teaching staff under

different ROPA till the government order was issued dated 27th November,

2007 cannot be denied, curtailed or taken away. The court should not lean

in favour of an interpretation which would deny a benefit to the employees

by reason of a subsequent statute unless the later statute expressly bars

any such benefits retrospectively.
The reason being that any such

interpretation would result in arbitrariness. It would be harsh and

irrational to give to the Government order dated 27th November, 2007 a

retrospective effect. The doctrine of fairness also is to be considered as a
relevant factor for construing the retrospective operation of the statute. [See

Government of India & Ors. v. Indian Tobacco Association
; 2005(7)

SCC 396] Valuable rights have accrued in favour of the teaching and non

teaching staff under several ROPAs till the
Expenditure Act
of 2005 was

introduced and given effect to the financial benefits. Moreover, the 2005 Act

is not intended to deny financial benefits to a Honours graduate degree

holder to obtain post graduate degree. A teacher, who has pursued and

completed post graduate degree prior to 27th November, 2007 cannot be

denied post graduate scale of pay if he has joined course prior to the coming

into force in 2005 and has completed the course by the time the

Government order dated 27th November, 2007 has come into force or

become effective. We also do not find the rationality for selecting the date of

convocation for the purpose of extending financial benefits for the simple

reason that the relevant and important date is the date of publication of the

result and on the basis of the result so published and declared a teacher

would be entitled to post graduate scale of pay.

202. Similarly, the scale of pay to which a teacher joined cannot be

altered to his/her disadvantage.

203. The staff pattern introduced vide Government order dated 8th

July, 1974 and 4th September, 1998 is for the purpose of equitable

distribution of the available posts as to enable pass degree holder to also

complete for appointment as Assistant teacher. The issue of staff pattern vis

a vis higher scale of pay was explained by Justice Dipankar Datta as His

Lordship then was before His Lordship's elevation as the Chief Justice of
Bombay High Court and thereafter to the Hon'ble Supreme Court of India in

Shivaji Chakraborty vs. State of West Bengal and Ors. (WP
9657(w) of

2009) decided on 23rd June, 2010 in the following words:

"Once a teacher with pass-degree is appointed, the object for which
such Government Orders were introduced is sub-served. The said
Government Orders do not lay down any restriction on a teacher
from enhancing his educational qualification. It has to be
remembered that enhancing of educational qualification by a
teacher serves two-fold purpose: (i) the likelihood of hike in pay in
the absence of available channel of promotion a teacher encourages
to enhance his qualification and thereby the prospect of stagnation
in service is averted and (ii) to some extent at least the students to
whom lessons are imparted are benefited by the knowledge the
teacher has derived after successfully obtaining the Master's
Degree. At the time the petitioner was appointed or when he
enhanced his qualification after permission was accorded, there
was no statutory provision in the field that could stand in the way of
he being granted the higher scale of pay for acquiring higher
qualification. The petitioner was granted permission by the
Additional District Inspector and based on such permission, he
obtained necessary study leave in accordance with the Leave Rules
and his leave has also been sanctioned by the Board. The ultimate
success that the petitioner achieved by obtaining Master's Degree
would be set at naught if the State respondents are now allowed to
deny his claim based on a law which was not in existence on the
date right accrued in his favour to have higher scale of pay offered
to him. It is settled law that a vested right cannot be taken away by
an enactment, unless of course, such enactment has retrospective
operation. As already been noted, the Act has not been given
retrospective operation provisions of
Section 16
of the Act may also
be taken note of in this connection which reads as follows:
"16. Notwithstanding anything contained elsewhere in this Act,
the terms and conditions of service of a teacher or a non-teaching
staff in the employment of a school immediately before the
commencement of this Act, shall not be varied to his
disadvantage in so far as such terms and conditions relate to the
appointment of such teachers and nonteaching staff to the post
held by them immediately before the commencement of this Act".

Therefore, the act cannot stand in the way of the petitioner being
offered the higher scale of pay. (emphasis supplied)

Undoubtedly persons similarly placed as Shivaji Chakraborty would

be entitled to higher scale of pay on enhancement of their qualification

and we are in agreement with the view expressed in this regard.

204. We agree with the submission of the learned Advocate General

that career advancement scheme does not create any vested right or a legal

right to claim higher scale of pay. It was introduced to take care of

stagnation qua promotion. The teacher is not precluded from acquiring

higher degree and compete for the higher post during the recruitment

process. The process of selection and recruitment are different. Acquiring of

higher qualification is not a fundamental right but a person acquiring a

higher qualification is entitled to participate in the examination for higher

post or for promotion if such qualification is commensurate with the post for

which he applied. A person with Pass Graduate Degree cannot be treated at

par with an Honours Graduate or a Post Graduate. The qualifications at the

entry level are the determining factor.
205. The word 'vested' came up for consideration in
M.G.B. Gramin

Bank vs. Chakrawarti Singh
; 2014(13) SCC 583 in connection with a

scheme for compassionate appointment. The court observed as under:

"11. The word 'vested' is defined in Black's Law Dictionary (6th
Edition) at page 1563, as:

'Vested',-fixed; accrued; settled; absolute; complete. Having the
character or given in the rights of absolute ownership; not
contingent; not subject to be defeated by a condition precedent.
Rights are 'vested' when right to enjoyment, present or
prospective, has become property of some particular person or
persons as present interest; mere expectancy of future benefits,
or contingent interest in property founded on anticipated
continuance of existing laws, does not constitute 'vested rights'.

12. In Webster's Comprehensive Dictionary (International Edition) at
page 1397, 'vested' is defined as Law held by a tenure subject to no
contingency; complete; established by law as a permanent right;

vested interest. (Vide:
Bibi Sayeeda v. State of Bihar
; AIR 1996 SC
516; and
J.S. Yadav v. State of Uttar Pradesh
: (2011) 6 SCC 570)

13. Thus, vested right is a right independent of any contingency and
it cannot be taken away without consent of the person concerned.
Vested right can arise from contract, statute or by operation of law.
Unless an accrued or vested right has been derived by a party, the
policy decision/scheme could be changed. (Vide:Kuldip Singh v.
Government, NCT Delhi : AIR 2006 SC 2652).

206. The aforesaid decision was considered in
Secretary to

Government Department of Education (Primary) and Ors. v. Bheemesh

Alias Bheemappa
; 2021 SCC Online SC 1264 in which after considering

all the decisions with regard to the scheme that would be applicable to the
legal heirs of a deceased in the die-in-harness category, it was observed that

in cases where benefit under the existing scheme was taken away or

substituted with a lesser benefit the Hon'ble Supreme Court in its earlier

decisions directed the application of the new scheme, but in cases where the

benefits under an existing scheme were enlarged by a modified scheme after

the death of the employee, this court had applied only the scheme that was

in force on the date of death of the employee. This is fundamentally due to

the fact that compassionate appointment was always considered to be an

exception to the normal method of recruitment and perhaps looked down

upon with lesser compassion for the individual and greater concern for the

rule of law.

207.
In
State of M.P. & Anr. v. Shakri Khan
; 1996(8) SCC 648

the issue was with regards to the entitlement of an incentive scheme

introduced after the respondent was appointed. The government had

introduced a scheme of granting two advance increments for the Lower

Division Clerk who passed Hindi typewriting test. They prescribed the last

date for passing the test as 30th July, 1973 and those who passed the Hindi

typewriting test prior to that date were declared eligible to get two advance

increments. The respondent passed the test in December, 1979 and based

his claim on the basis of certain instructions issued from time to time that is

between 20th April, 1974 and 15th January, 1979. The Hon'ble Supreme

Court agreed with the State that the Government having had the power to

extend the benefit it also has the power to put a cut off date. Consequently,

the cut off date, that is, 30th July, 1973 for passing the test is a proper
classification. It was held that all those who did not pass the test prior to

the date but appointed earlier to the date are not eligible to two advance

increments on their passing the said test after the cut off date. This

judgment was cited by the Learned Advocate General to demonstrate the

ineligibility of candidates who were appointed in a pass-graduate category

and obtained higher qualification in the course of their employment. They

cannot question at this stage that they should be treated at par with the

candidates who have been recruited as Honours Graduate or Post Graduate.

208. The decision in FMA 2368 of 2015 (
State of West Bengal &

Ors. v. Gautam Ghosh & Ors.
) decided on 5th April, 2019 was relied upon

to show that the date of issuance of provisional certificate and the

convocation are different. The date of convocation shall be relevant. The

paragraphs relied upon are:

"We would have had absolutely no difficulty in allowing the
additional benefit to the respondent no. 1/petitioner if the Rules
had enabled the said respondent no. 1 to claim for higher scale
of pay from the date of acquisition of the degree. We are in
respectful agreement with the view expressed by the Division
Bench that for the purpose of acquisition of doctorate degree the
date of provisional certificate should be the relevant date.
However, paragraph 12 (5) of ROPA 1998 says that a teacher
acquiring a doctorate degree shall be entitled to the benefit of
two additional increments from the date of the convocation on
which the degree is awarded. When the law based on which a
claim is made fixes the period from which a benefit can be
claimed it cannot be altered by giving an interpretation on when
a degree is acquired by a candidate. That will be altering the
provisions of the relevant Rules. If the date of convocation is the
only relevant date and if the Rules stipulate that the date of
convocation is the date on which the degree is awarded
whether in a given case it can be said that a candidate had
acquired the degree before, becomes a consideration not very
relevant for the purpose. It must 6 be remembered that
acquisition of qualification and awarding of degree are two
different things and paragraph 12(5) of ROPA 1998 fixes the
date from which such claim can be made to the date of
convocation which has been recognised as the date when the
degree is awarded.

In the present case, the convocation was held on March 9, 2006
when ROPA 1998 was not in operation. The petitioner has
claimed additional benefits on the basis of ROPA 1998.
Therefore, the Rules on which the claim is made must be in
existence on which he has acquired the qualification and after
the introduction of ROPA 1998 with effect from January 1, 2006
ROPA 1998 had ceased to be in existence on the date the
convocation was held and the date on which the degree was
awarded upon the petitioner. Since the Rules themselves had
ceased to exist on the date the degree was awarded the
petitioner/respondent no. 1 must be held to be ineligible that
the benefits claimed by him under ROPA 1998.

We agree with the learned Single Judge that the Act does not
contain any provision which disentitles the petitioner from
claiming the benefit. While holding this the learned Single
Judge was also required to clarify that if the Act does not
contain any bar where lay the source of the petitioner's
entitlement. That entitlement was in ROPA 1998 which was not
examined by the learned Single Judge.
Thus, we have no alternative to hold that the respondent no.
1/petitioner is not entitled the benefit."

209. However we are not agreeing with the view that the conferment

of degree of the convocation would be the relevant date for the reasons we

have already indicated.

210.
In Director of Treasuries in
Karnataka & Anr. v. V.

Somyashree
reported in AIR 2021 SC 5620 the Hon'ble Supreme Court

was considering the entitlement of a divorced daughter to be considered for

compassionate appointment. It was held that at the relevant time when the

employee died and when applicant made an application for appointment on

compassionate ground, divorced daughter, was not within the definition of

dependent and hence not eligible for appointment on compassionate

grounds.

211. We are faced with two apparently conflicting decisions of two

Division Benches with regard to entitlement of a teacher who was appointed

in pass category and thereafter enhanced his qualification during his

employment would be entitled to a higher scale of pay. The initial

appointment for the post is under "pass category''.

212.
In
Tarak Chandra Roy
(supra) the question for consideration

was:

"After the School Service Commission Act, 1997 came into force
would the appointees get the benefit of the higher scale of pay
despite being interviewed and selected in pass category".
213. The selection test was only in pass category. There was no

vacancy in the post of Honours graduate/Post graduate teacher in the

physical education. Admittedly, Tarak was a post graduate degree holder in

physical science and in 1998 when he participated in the selection process

for educational teachers there was no vacancy in the post of Honours

graduate/Post graduate teacher.

214. The learned Single Judge dismissed the writ petition on the

ground that after the Act of 1997 came into force there had been different

categories for appointment and extension of benefit of higher scale of pay

because improvement of qualification is no more permissible.

215. Tarak joined the school on 23rd March, 1999 as an assistant

teacher in physical education. The appointment was duly approved by the

District Inspector of School. On 27th September, 2001 Tarak made a

representation to the DI for the grant of Masters Degree scale of pay. The

representation was not considered for which a writ petition was filed being

WP 449(w) of 2003. This writ petition was disposed of on 25th January, 2003

by directing the Secretary of Managing Committee of the school to pass a

reasoned order after hearing. The Managing Committee in its meeting held

on 22nd February, 2003 recommended the case of Tarak for higher scale of

pay to the District Inspector of School. The DI rejected the recommendation.

The contention of Tarak was that he acquired Masters Degree in Physical

Education before qualifying in the School Service Commission that is prior

to March in 1999, and claimed higher scale of pay in terms of Government

Order No.417-SE(S)/5P-33/98 dated 8th March, 2000.
216. This order provides that the higher scale of pay would be

admissible to those physical education teachers who have obtained such

higher post graduate degree on completion of two years regular course from

a recognized University. The petitioner having completed the post graduate

qualification from a recognized university claimed higher scale of pay under

the aforesaid circular. This circular was issued in modification of the earlier

circular, i.e. G.O. No.796-Edn(S)/5P-78/93 dated 22nd November, 1993

where the benefit of higher scale of pay to the Physical Education teachers of

the Secondary School and Junior High Schools including those of

Madrashas of various types having Masters Degree in Physical Education

from a recognized University was allowed.

217. Tarak claimed to be qualified under both the circulars for the

higher pay scale. Tarak claimed that having acquired the higher

qualification earlier to being selected, the promulgation of the enactment of

West Bengal Schools (Control of Expenditure) Act, 2005
would not be

applicable as the vested rights of the petitioner could not be taken away.

218. The respondents contended that the circular dated 22nd

November, 1993 has no manner of application in respect of assistant

teacher of physical education appointed on the recommendation of the

commission subsequent to the 1997 Act. Similarly, the Circular dated 8th

March, 2000 has no manner of application as it is merely clarificatory of the

Circular dated 22nd November, 1993. Moreover, Tarak participated in the

selection test of 1998 in pass graduate category and he was appointed as an

assistant teacher in the pass category. He again participated in another
selection test in the year 2002. His name was again recommended on the

basis of the fresh recommendation. He again joined in the same post but in

a different school with the approval of the DI on 22nd April, 2003. The scale

of pay of the petitioner was fixed in terms of Government Order dated 12th

February, 1999 and 13th July, 1999 and the later categorically provides that

if a teacher is appointed by the Commission his pay would be fixed in the

scale of pay as per his qualification as mentioned by the said Commission.

Tarak having been appointed in the pass category clearly, therefore, could

not claim benefit of his post graduate qualification.

219. On such consideration the Hon'ble Division Bench presided over

by the then Chief Justice of the Calcutta High Court held:

"We have considered the submission made by the learned
counsel. In our opinion, the petitioner being an appointee
subsequent to the promulgation of the
West Bengal Service
Commission Act, 1997
cannot be given the benefit of Circular
dated 22nd November, 1993 and 8th March, 2000. Petitioner
having been appointed as Assistant Teacher pass category can
only get the pay scale specified by the commission for that post.
Even otherwise the benefit of Circular dated 22nd November,
1993 and 8th March, 2000 would not confer any vested right
upon the Assistant Teachers. NO such right has been protected
under the
West Bengal Schools (Control of Expenditure) Act, 2005
.
In view of
Section 14
of the 2005 Act no graduate category
teacher is entitled to claim any additional increment for acquiring
any qualification than the qualifications specified for such post.
The provision in
Section 16
would not be applicable to aid the
claim of the petitioner as by virtue of
Section 20
of the 2005 Act
the Circulars and orders existing previously stand abrogated.
That being the position of law, the petitioner would not be entitled
to claim higher scale of pay. We, therefore, dismiss the writ
petition." (emphasis supplied)

220. The Special Leave Petition being SLP (Civil)... CC No.5406 of

2009 was dismissed on 4th May, 2009.

221.
In
Sampa Sahu v. State of West Bengal (W.P. No.
15866 of

2000), the learned Single Judge took note of the decision of the Division

Bench in this manner:

"28. Be it noted that the Division Bench was concerned with the
case of a teacher of Physical Education. The requisite minimum
qualification for all posts of teachers of Physical Education is Pass
Graduate. Therefore, no case was made out before the Division
Bench of discrimination between two sets of teachers performing the
same duties and functions and possessing the same educational
qualification."

222. Tarak was decided on 17th of January, 2008.

223. Subsequent thereto, on 8th April, 2008, Sauvik Ghosh & Ors.

(supra) was decided by another Division Bench in which same issue came

up for consideration. The facts are little different. Unlike Tarak, Sauvik

passed the Bachelor of Physical Education in the first class from the

University of Kalyani in 1999. Thereafter he took admission in the two year

post graduate course conducted by the University of Kalyani.

224. In 1999 he appeared in the Regional Level Selection Test (in

short 'RLST') conducted by the West Bengal School Service Commission for

appointment as Assistant Teacher of Physical Education in aided non-
government schools. He cleared the selection test. He was recommended for

appointment by the Commission on 8th March, 2001 to the post of assistant

teacher of Physical Education in an aided non-government

secondary/higher secondary school. At the material point of time when he

was appointed to the school he had appeared for the Masters of Physical

Education final examination but the result was published on 22nd

September, 2001 after he was appointed.

225. On successful completion of the Masters in Physical Education

Sauvik made a representation to the District Inspector of Schools concerned

for re-fixation of the pay in the higher post graduate scale. The Director of

school education refused to grant post graduate scale of pay.

226. This has resulted in a writ petition being filed by Sauvik. The

writ petition was allowed and the authorities concerned were directed to fix

the scale of pay by granting him the higher post graduate scale of pay.

227. This order was under appeal.

228. The main ground urged in the appeal was that the learned

Single Judge ignored the Government Order No.155-SE(B) dated 13th July,

1999 in terms whereof the post graduate scale of pay can only be granted to

teachers appointed to posts for which the requisite qualification is a post

graduate degree. Moreover, a teacher appointed through the School Service

Commission could, in terms of the said Government Order, be given the

scale of pay pertaining to the qualification as recorded by the School Service

Commission in its recommendation.
229. The said judgment was also challenged on the ground that such

direction is contrary to the 2005 Act, and in particular
Section 14(2)
of the

said Act which provides that every teacher of a school, who is appointed in

a post of the graduate teacher category, shall be entitled to draw the scale of

pay of the graduate teacher and shall not be entitled to claim any additional

increment or higher scale of pay for acquiring any qualification, other than

the qualification specified for the post.

230. The Hon'ble Division Bench posed the following question for

determination in the appeal:

"The question is, whether teachers appointed after 13th July,
1999 and/or teachers who improved their qualifications after
13th July, 1999 can be denied the scale of pay pertaining to their
higher qualification, either on the ground, that the School Service
Commission, concerned did not mention the higher qualification in
its recommendation or on the ground that the higher qualification
was not necessary for the teaching post held by the concerned
teacher, having regard to the approved staff pattern of that
school."

231. The Hon'ble Division Bench while acknowledging that the

Government has power to issue orders and orders lawfully issued by the

government would have the force of law, has however, held that a

government order which contravenes a fundamental right guaranteed under

the Constitution would be null and void. The School Service Commission is

required to act fairly, reasonably and in accordance with law. The School
Service Commission is obliged to record correctly the education qualification

of the candidates as disclosed, subject however, to verification.

232. The School Service Commission cannot omit or ignore

educational qualifications as disclosed by a candidate which could be higher

to the qualification required for the post and the commission might choose

not to give any credit for such higher educational qualification other than

the requisite educational qualification for the teaching post for the purpose

of selection but cannot describe a candidate with post graduate degree as a

graduate in any communication.

233. The government order dated 13th July, 1999 was interpreted as

follows:

"From the language and tenor of the Government Order dated
13th July, 1999, it is apparent that the recommendation of the
School Service Commission applies to initial fixation of pay and
not to refixation upon enhancement of educational qualifications
or otherwise. If there is any discrepancy between the actual
educational qualification and the educational qualification
mentioned in the recommendation of the School Service
Commission, the actual qualification would have to be taken into
account. From the language and tenor of the same Government
Order there does not appear to be any bar to grant of higher scale
of pay to a teacher recommended through the School Service
Commission, who has later enhanced his/her qualifications. If, as
argued on behalf of the State, the Government Order dated 13th
July, 1999 were to mean, initial fixation would be on the basis of
the educational qualifications mentioned in the recommendation
of the School Service Commission, irrespective of whether the
qualifications had correctly been recorded or not, 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 of qualification, the teacher would not be entitled to
the higher scale of pay pertaining to qualification, 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
inter alia for the reasons elaborated
hereinafter."

234. The relevant Government Orders regarding the staff pattern of

schools G.O. Nos.772-Edn.(S) dated Calcutta the 8th July, 1974; 403-SE (S)

dated Calcutta the 3rd February, 1992 and 670-SE(S) dated Calcutta the

4th September, 1998, were also considered in the light of the subsequent

government orders and the 2005 Act and it was held that there could be no

reason as to why different qualifications have been fixed for the same

teaching posts, involving the same teaching duties. The Government Orders

pertaining to staff pattern have nothing to do with salary and allowances.

Salary and allowances are fixed on the basis of separate Rules for Revision

of Pay and Allowances framed from time to time.

235. The State is certainly competent to classify teachers on the

basis of qualifications, responsibilities, duties, length of service and the like

for the purpose of fixation of their pay and allowances. The classification

must, however, meet the test of reasonable nexus with the object sought to

be achieved by the classification.
236. The Hon'ble Division Bench found that there is no rational

criteria for fixation of different qualification for different teaching posts

which had nexus with the duties and responsibilities pertaining to teaching

posts. It was observed: "Where all assistant teachers constitute a single

class and as per the government orders pertaining to salary and allowances

of their scales are to be fixed on the basis of qualifications in the relevant

teaching subject, payment of different scales to two teachers with the same

qualifications, teaching the same subjects in the same classes, in the same

or in different aided non-government schools or Madrasahs and thus equally

circumstanced, on the basis of a sham classification based on the requisite

qualification for the teaching post, as per the approved staff pattern, which

is in no way related to the duties and responsibilities pertaining to the

teaching posts, amounts to denial of equal pay for equal work and offends

Article 14
of the Constitution of India. It is immaterial that separate

selection tests are conducted by the School Service Commission for posts

earmarked for Pass Graduates and posts earmarked for Honours

Graduates/Post Graduates."

237. The conclusions are:

"The Government Order dated 13th July, 1999 in so far as the
same provides that teachers who improve their qualifications or
are appointed with higher qualifications in subjects relevant to
their teaching, would get higher scale of pay provided the higher
qualification was a requisite qualification for the post as per
approved staff pattern of the school is patently, discriminatory
and violative of
Article 14
of the Constitution of India for reasons
stated hereinabove.

As observed above, the order dated 13th July, 1999 is
prospective. The said order discriminates between teachers who
improved their qualifications and/or were appointed with higher
qualifications before 13th July, 1999 and those who improved
their qualifications and/or were appointed with higher
qualifications after 13th July, 1999 without rational
justification.

Teachers who were appointed with higher qualifications or
improved their qualifications before 13th July, 1999 continue to
get the higher scale of pay irrespective of the qualification for the
post. Therefore, even in case of teachers, with higher
qualifications, holding posts for which the higher qualification is
not necessary, one set of teachers would get the higher scale of
pay pertaining to actual educational qualification and the other
set would get the scale pertaining to the qualification fixed for
the post, though both sets are of equal status and required to
discharge the same duties and responsibilities."

238. Justice Indira Banerjee as Her Ladyship then was before Her

Ladyship's elevation as the Chief Justice of Madras High Court and

subsequently to the Hon'ble Supreme Court of India authored the aforesaid

judgment and in a subsequent decision in
Sampa Sahu (Mondal
) (supra)

revisited the issue upon consideration of
Tarak Chandra Roy
(supra) in

paragraphs 21to 29. The said paragraphs read:

"(21) The staff pattern of Schools including Madrasahs were, at all
material times governed by Government Circulars and/or Orders
issued in this regard from time to time. The relevant Government
Orders Indicate that qualifications for the same teaching post were
to be fixed percentage wise. Out of two posts of Language Group
teachers in a Junior High School, the minimum requisite
qualification for one post was Pass Graduate and the minimum
requisite qualification for the other Honours Graduate/Masters
degree. When additional posts were sanctioned, the same
percentage ratio was maintained. Thus, if a School was sanctioned
two posts of Bengali Teachers who were required to teach Bengali
in the same classes, the minimum requisite qualification for one
post could be Pass Graduate and the minimum qualification for the
other post could be Honours/Masters degree in Bengali.

(22) There were teaching posts in Junior High Schools/Madrasahs
for which the requisite qualification was Pass Graduate and there
were teaching posts, also, in Junior High Schools/Madrasahs for
which the minimum qualification was Honours Graduate and/or
Post Graduate degree. The fixation of a higher qualification for
some posts and lower qualification for others, apparently had
nothing to do with the teaching duties pertaining to the post, at
least at the material time.

(23) It also appears that although there has recently been some
change in the rules of appointment through the School Service
Commission, at the material time, Honours Graduates and Pass
Graduates had to compete in a common selection test.

(24) In the aforesaid circumstances, the payment of scale
pertaining to qualification to one teacher and denial of scale
pertaining to qualification to another teacher, teaching the same
subject in the same class in the same school or in different aided
recognized Non-Government schools would violate the principle of
equal pay for equal work and offend
Article 14
of the Constitution
of India.
(25) If the minimum requisite qualification for some posts of
Assistant Teachers of Language Group was B. A. (Honours) and/or
M. A degree, the minimum qualification for the teaching post for the
aforesaid category could have to be deemed as B.A.
(Honours)/M.A. degree.

(26) Mr. Bhattacharya, learned Advocate appearing on behalf of the
State cited a Division Bench judgment of this Court in
Tarak
Chandra Roy v. State of West Bengal and Ors.
, reported in 2008(2)
Calcutta Law Times 240 (HC).

(27) In the aforesaid case, the Division Bench was of the view that
after the enforcement of the
West Bengal School Service
Commission Act, 1997
, the circulars dated 22nd November, 1993
and 8th March, 2000 pertaining to teachers of Physical Education
had no manner of application.

(28) There could be no doubt that the salary might be fixed on the
basis of scale of pay as mentioned by the School Service
Commission, upon verification of mark sheets and certificates, as
there is s presumption of correctness in the same. However, in the
instant case, it appears that the School Service Commission has not
recorded the academic qualification of the petitioner correctly.

(29) Be it noted that the Division Bench was concerned with the
case of a teacher of Physical Education. The requisite minimum
qualification for all posts of teachers of Physical Education is pass
graduate. Therefore, no case was made out before the Division
bench of discrimination between two sets of teachers performing
the same duties and functions and possessing the same
educational qualification."
239. Another Division Bench considered the same issues in Md.

Sohidullah & Ors. (FMA 583-585 of 2006) decided on 16th November, 2007

and 22nd November, 2007.

240. Three appeals were disposed of by
the said judgment
. The writ

petitioners were Md. Sohidullah, Smt. Nirupama Bairagi and Shyam Sundar

Mahanto.

241. Sohidullah was a post graduate degree holder in Zoology. He

competed for the post of assistant teacher in Zoology in pass graduate in the

northern region. At the relevant time there were 13 main vacancies in

Honors/Post graduate category. Although he was post graduate degree-

holder, to secure the employment he competed for the pass category.

242. Nirupama was B.SC (Hons.) in Geography and she also

competed for the pass category and she was selected as such. She

subsequently obtained post graduate degree. However, she was not allowed

post graduate scale of pay as she was not selected in Honors/Post graduate

category to have the benefit of circular dated 3rd June, 2002.

243. Shyam Sundor was a candidate under died-in-harness category,

he was admittedly pass graduate. He competed for the post in pass

graduate. He later improved his qualification by obtaining post graduate

degree. He passed out M.A. Part I from Burdwan University (correspondence

course) prior to his selection in the post. After joining he applied for

permission to sit for M.A. Part II examination. The Managing Committee

forwarded his application to the DI Schools. The DI by a letter dated 13th
June, 2003 asked for qualification from the higher authority being Director

of School Education. However, no such qualification had come from the said

Director. Shyam sat for the examination and successfully obtained post

graduate qualification. However, he was not given the benefit of higher scale

of pay on the ground that he was selected in pass category.

244. The learned Single Judge allowed the writ petition on the

reasoning that there cannot be any discrimination between the teachers

obtaining higher qualification being appointed prior to the School Service

Commission Act coming into force and the teachers appointed through

School Service Commission.

245. On behalf of the writ petitioners it was argued that Circular

dated 12th February, 1999, 13th July, 1999 and 13th June, 2002 are in the

nature of incentives to the teaching staff who wanted to improve their

qualifications and hence there cannot be any discrimination between the pre

1997 appointees and post 1997 appointees.

246. The staff pattern is for administrative convenience and cannot

in any way deny equal pay for equal work and appropriate pay should be

given in accordance with the admitted qualification. The discrimination,

sought to be created by way of staff pattern violates the basic principles of

Article 14
of the Constitution and as such, is illegal.

247. The circulars are ambiguous as it did not clearly extend the

benefit to the post 1997 appointees. Hence, beneficial interpretation should

be given in favour of the grantee being the teaching staff in question.
248. On behalf of the State it was argued that the State as a matter

of policy wanted to give incentives to teachers who wanted to acquire higher

qualification for the betterment of the students at large, however, such

benefit is restricted to teaching staff appointed prior to the School Service

Commission Act, 1997 coming into force. The government as a policy

decision categorized the post of teaching staff in different educational

institutions.

249. The State relied upon the decision of the Hon'ble Supreme Court

in
Haryana v. Haryana Civil Secretariate Personal Staff Association

reported in AIR 2002 SC 2589 where the writ petitioners have relied upon

the decision in
Government of West Bengal v. Tarun Kumar Roy & Ors.

reported in 2004 (
1) SCC 347 and Union of India & Ors. v. Kaumudini

Narayan Dalal & Anr.
, reported in 2001 (10) SCC 231.

250. The Hon'ble Division Bench has decided the appeal in favour of

the State save and except the matter relating to Shyam Sundor Mahato. The

reasoning in short is that prior to the 1997 Act educational institutions

should appoint teaching and non teaching staff directly subject to the

approval of State when aid was extended to such institutions by the State.

At the relevant time, for the teaching staff, graduation is the minimum

eligible qualification. The State has its financial constraints. It has to

allocate funds as per revenue collection and other financial resources. When

any financial benefit is extended by the State the State must have say in the

same matter. The State despite their constraint as a matter of policy wanted

to give incentive to the teaching staff who were appointed prior to 1997
appointees, so that they acquired higher qualification for the benefit of the

students at large.

251. The Hon'ble Division Bench did not find any ambiguity and/or

inconsistency in the three circulars. In reference of the first circular dated

12th February, 1999. It was observed:

"The first circular dated February 12, 1999 clearly provides that
higher pay scale would be given to the teaching staff who would
improve or have improved his/her qualification. It means, a
teaching staff who had acquired higher qualification after his
appointment, was only entitled to such benefit. This benefit was
given with effect from January 1, 1996. Hence, School Service
Commission appointees cannot come within the zone of
consideration in any way. In the second circular dated July 13,
1999 it was provided that School Service Commission appointees
would get their pay fixation as per their qualification so intimated
by the Commission. The benefit was also extended on and from
January 1, 1996 therein. The third circular makes it more clear
where identical benefit was given for the post 1997 appointees
who appeared in post-graduate examination prior to appointment
and was selected in Honours category and the result was not
published till his/her appointment.

On a combined reading of three circulars we feel that although
Shohidullah and Nirupama did have requisite higher qualification
being postgraduate and honours, as the case may be, they chose
to compete for the pass category. Hence, they are not entitled to
the benefit of the higher pay scale.

The State is funding the schools by providing inter alia the salary
for the teaching staff. They have their financial scheme through
their annual budget. They prepare their budget as per financial
resources they have in their hands. They, in their wisdom, wanted
to give additional incentives to those teaching staff, who wanted
to acquire higher qualification which would ultimately enure to the
benefit of the students at large. However, the teachers who
already had higher qualification and did not utilize such
qualification at the time of entry in service, they cannot get benefit
of those circulars and in our view, the State is right in denying
such benefit to those teaching staff.

It is true that in the case of Sohidullah his qualification was not
mentioned in the recommendation made by the Commission. We
feel that this was a mistake on the part of the Commission.
Shohidullah did disclose his postgraduate qualification in his
application. He however, despite mentioning such higher
qualification, had chosen to compete in pass category. Hence, the
Commission while recommending him should have mentioned his
post-graduate qualification coupled with a note that he was
selected in pass category as applied for.

In such view of the matter, Sohidullah is not entitled to claim
postgraduate scale as he was selected in pass category on the
basis of his application. The learned Judge, in our view, erred in
allowing the writ petition of Sohidullah.

In the case of Niruparna it is true that she obtained post-graduate
qualification after she was selected for the post. She also despite
having honours qualification, did choose to compete in pass
category. Hence, she was also not entitled to benefit of the circular
dated June 3, 2002. She had honours in Geography. She should
have competed in honours/post-graduate category. Had she done
so, she would have been entitled to post-graduate scale after
acquiring the same in course of her service.
Hence, in our view, Niruparna should also be denied post-
graduate scale on the same logic for which we deny benefit to
Sohidullah. We feel that the learned Judge erred in allowing her
writ application." (emphasis supplied)

252. The Hon'ble Division Bench has noted that in paragraph 9 and

10 of the decision in the case of
State of Haryana
(supra) the Apex Court

observed that equation of post, determination of pay scale and other allied

decisions should be left to the executive and not open for judicial review.

253.
In the case of
Government of West Bengal
(supra) the Apex

Court in paragraph 14 of the decision observed, "the holders of a higher

educational qualification can be treated as a separate class. Such

classification, it is trite, is reasonable. Employees performing the similar job

but having different educational qualification can, thus, be treated

differently."

254. The Hon'ble Division Bench has also noted that the three

circulars have not been challenged by the writ petitioners. We are of the view

that ratio in Md. Sohidullah & Ors has correctly interpreted the aforesaid

three circulars.

255. A Hon'ble Bench in FMA 557 of 2007 (
Baisali Banerjee v. The

State of West Bengal & Ors.
decided on 10th March, 2008) had considered

the claim of a post graduate degree holder in physical education for a higher

scale of pay. At the time of her selection for the post of physical education

her post graduate result was yet to be published.
256. The School Service Commission recommended her as a physical

education teacher as a pass graduate. After declaration of result she applied

for higher scale of pay which was denied by the State. Identical question

arose in Bhaskar Chakrabory v. State of West Bengal & Ors. (W.P.2326

(W) of 2002) allowing the writ petition and directed the extension of post

graduate scale of pay to the writ petitioner who was identically

circumstanced with Baisali. The State accepted the said order and extended

the benefit to Bhaskar.

257. The State has objected to the grant of higher scale of pay in view

of
Section 14
of 2005 Act as the qualification recorded by the School Service

Commission and mentioned in the respective letters of recommendation

mentioned Baisali as a pass graduate. The prayer of Baisali was allowed on

the following reasoning:

"Prior to 1996 the State from time to time extended the benefit
of higher pay scale to the teachers who acquired post graduate
qualification in course of service. Initially such extension was
restricted to subject relevant to his/her teaching. The said rule
was relaxed and the post graduate degree holders, being pre-
1996 appointees were all extended post graduate scale. Such
benefit was given by the State probably to encourage the
teaching staff to improve their qualification for the welfare of the
student. Our attention has not been drawn to any other reason
for extension of such benefit by the State counsel. If that be the
position there could not be any distinction between Pre 1096
appointees and Post 1996 appointees.
The appellant is a Physical Education teacher. There is no
honours course taught by any of the Universities in the State.
Hence there could be no such category in the School Service
Commission in the concerned subject. We also do not find any
such distinction being made in Physical Education by the
School Service Commission. Hence all candidates who are
having appropriate qualification in Physical Education are
considered in one category i.e. pass category. If that be the
position their subsequent acquisition of post graduate
qualification cannot be equated with any other subject.

In the instant case the appellant undertook post graduate
study. She appeared in the post graduate examination. Before
the result could be published she was selected and appointed
in the post.
In the case of
Bhaskar Chakraborty
(supra) the
identical situation happened. Hence in our view, the appellant
was entitled to the benefit of the higher pay scale.

Let us now examine the said Act of 2005 to find out whether
there is any hindrance in the way of extending higher pay scale
to the appellant. Appellant was appointed in 2001. She
acquired post graduate qualification in 2001. Hence she was to
be considered contemporarily. Her case was unnecessary kept
pending. Her prayer could not be considered to her
disadvantage under the provisions of the said Act of 2005 in
this regard. Learned Counsel appearing for the appellant has
successfully drawn our attention to
Section 16
wherein it is
provided that notwithstanding anything contained in the said
Act, the terms and conditions of service of a teacher shall not be
varied to his or her disadvantage in the view of the
commencement of the said Act.

In Circular dated June 03, 2002 the State considered the cases
of the candidates who were undergoing post graduate studies
or had appeared at the post graduate examination but result
was yet to be published. Those candidates, if selected, in
honours category were extended post graduate scale after
acquiring post graduate qualification. Since in Physical
Education there is no such distinction between pass category
and honours category the benefit of the circular dated June 03,
2602 should be extended to the Physical Education teachers
being similarly circumstanced with
Bhaskar Chakraborty

(supra) and the present appellant.

The State is directed to consider the prayer for extension of the
higher pay scale in the light of the observations made herein."

258. In our considered opinion the acquiring of higher qualification

does not create a fundamental right nor does it create a vested right.

259.
In
Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad

and Ors.
reported in (2019) 2 SCC 404 in discussing the scope of judicial

review in policy matter involving prescribed qualifications it was held:

"26...It is no part of the role or function of judicial review to
expand upon the ambit of the prescribed qualifications. Similarly,
equivalence of a qualification is not a matter which can be
determined in exercise of the power of judicial review. Whether a
particular qualification should or should not be regarded as
equivalent is a matter for the State, as the recruiting authority, to
determine...

27. While prescribing the qualifications for a post, the State, as
employer, may legitimately bear in mind several features
including the nature of the job, the aptitudes requisite for the
efficient discharge of duties, the functionality of a qualification
and the content of the course of studies which leads up to the
acquisition of a qualification. The State is entrusted with the
authority to assess the needs of its public services. Exigencies of
administration, it is trite law, fall within the domain of
administrative decision-making. The State as a public employer
may well take into account social perspectives that require the
creation of job opportunities across the societal structure. All
these are essentially matters of policy. Judicial review must tread
warily..."

260.
In
The State of West Bengal v. Ganesh Chandra Samanta

and Ors.
, decided on 29th November, 2023 a Division Bench constituting of

one of us (Soumen Sen, J.) in considering the claim of the appellant

Workshop Instructors for higher scale of pay under ROPA Rules, 1981 on

the principle of equal pay for equal work observed:

"86. The Courts have consistently held that even if the nature of
the work involved in two posts may sometime appear to be more
or less similar, however, if the classification of the posts and
determination of pay scale have reasonable nexus with the
objective or purpose sought to be achieved, the pay commissions
would be justified in recommending and the State would be
justified in prescribing different pay scale for the seemingly similar
posts.

87.The power of judicial review in the matter involving financial
implications are also very limited. The Courts have over the
years given due credence to the wisdom of the pay commission
and not interfered with such policy matters involving financial
implications unless a gross case of arbitrariness or unfairness
are established.
88. The principle of equal pay for equal work has no mechanical
application in every case and
Article 14
permits reasonable
classification based on qualities or characteristics of persons
recruited and grouped together as against those who have left
out. A classification based on difference in educational
qualifications and processes of recruitment justify a difference
in pay scale. (see
State of Bihar vs. Bihar Secondary
Teachers Struggle Committee
reported in (2019) 18 SCC

301)."

261. When the post for which appointment is made, does not require

a candidate with Honours or Post graduate degree the state cannot be

saddled with the financial burden of paying enhanced scale of pay for

teachers with higher qualification. In fact candidates with Honours

graduate/post graduate category would be over qualified for the classes for

which they are appointed based on staff pattern. It was for this reason while

laying down the eligibility criteria the authorities take into consideration the

suitability of the candidate for the post.

262. The State is required to make budgetary allocation to meet

salaries and other allowances extended to teachers. The State cannot be

asked to pay enhanced scale of pay to a teacher for acquiring higher

qualification in the course of his employment or who had consciously

participated in a selection process which does not require a higher

qualification for the said post. If a teacher has consciously applied for a post

under the pass graduate category in spite of having an Honours

Graduate/Post Graduate qualification he/she/they cannot claim as a matter

of right higher pay scale in view of the Government Orders dated 13th July,
1999. Re-fixation of salary has to be decided on the basis of the extant

rules. The change in policy if not arbitrary or affecting a vested right or a

fundamental right should not be interfered with keeping in mind that such

change in policy has been necessitated by reason of change in

circumstances. An expert body conversant with the relevant rules, realities

and requirements of the students and educational institutions has framed

rules. Statutory orders have been issued to implement the Act and the rules

framed thereunder.

263. The re-fixation of higher scale of pay as considered in Sauvik

was possibly confused with a claim for increments or incentives which may,

in a given circumstance, be considered not on the basis of a fundamental or

a legally enforceable right but on an expectation.

264. If one scrutinized the ROPAs since 1970s and the several

government orders issued in between it would appear that the government

has emphasized that the higher qualification should be in the relevant

subject with few exceptions like Government order dated 27th January, 1995

extending certain financial benefits by way of increment to Assistant teacher

alleging higher scale of pay even if their initial appointments were in

different group/subject which we feel was issued primarily to mitigate the

hardship caused to the educational institutions and the students by reason

of delay in approving teachers in time.

265. The claim of higher pay scale on acquiring higher degree cannot

be considered to be a vested right and elevated to a legal right. It is no more
than a reasonable expectation. However, such expectation must arise from

the course of dealings and conducts.

266. The State Government has recognized CAS which is in the

nature of incentives which can be extended to teachers acquiring higher

qualification but it cannot be claimed as a matter of right. The state has to

assess if on acquisition of higher qualification by a teacher it would benefit

the educational institutions and the students.

267. It is true that while the teacher may not claim as a matter of

right that having joined the institution in the pass graduate category he

would be entitled to receive higher scale of pay at par with teachers who

have been recruited for the Honours graduate/Post graduate category in

view of different recruitment rules and object and purpose for such

recruitment, however, can claim, a reasonable approach from the State to

consider suitable increments in view of stagnation and lack of opportunity

for promotion. Undoubtedly, a teacher with a better and higher qualification

can be an advantage to an educational institution and it is expected that the

teacher should not be deprived of increments and/or incentives.

268. At the same time as we have observed earlier, it cannot

encourage a backdoor entry for teachers who have joined in the pass

graduate category and thereafter on improvement of their qualification claim

higher scale of pay.

269. Even if the School Service Commission records the qualification

of a candidate as Honours graduate for the recruitment in the pass graduate
category, the recommendation in a pass graduate category by the

Commission can only be for the said category for the simple reason that for

the said post, Honours and/or Post graduate category candidates are not

required and the recruitment process for Honours/Post graduate category is

different.

270. There could be instances where an Honours graduate or post

graduate candidate may suppress qualification and participate in the

selection process in the pass graduate category and take the easy path and

avoid competing with candidates who are Honours graduate and/or Post

graduate for the selection to Honours and/or Post graduate category with

the hope to utilize such degree after joining to claim higher scale of pay.

271. The prospective operation of the 2005 Act would also be clear

from
Section 14(3)
of the 2005 Act. All other circulars existing prior to the

2005 Act in relation to financial benefits upon acquiring higher qualification

are required to be considered in accordance with rules existing when an

application seeking permission for pursuing higher education and

recommendation of the Managing Committee is made. The rights of the

parties are required to be decided on the basis of the Government order and

circulars existing on that date.
The Act
does not take away such right as the

said Act is prospective in nature. The said provision cannot affect any right

that has accrued or crystallized in favour of a teacher on the basis of the

government order or circulars issued prior to the 1997 Act has come into

operation.
272. On the basis of the aforesaid discussion we answer the

reference in the manner following:

a). Enhancement of pay on acquisition of higher qualification
during the service career is dependent upon the relevant rules
operating at the time of acquisition of higher qualification and
cannot be claimed as a matter of right in absence of Rules.

For example, a teacher joined the school with a pass graduate
degree and during his service career the teacher enhanced his
qualification and claimed higher scale of pay on the basis of the
said degree. The said claim has to be decided on the basis of the
relevant rules existing at the time of his acquiring higher
qualification. If he has joined the school with a pass graduate
degree after the government circular dated 12th February, 1999 he
would not be entitled to post graduate scale of pay unless the
teacher is covered by the Government Order No. 735-SE(S)/SP-
132/2002 as revised by the Circular No.134-SE(S) dated 3rd
November, 2004. Any other interpretation would encourage a back
door entry. A teacher upon acquiring higher qualification can
always compete in the recruitment process for a post
commensurate with the higher qualification and therefore the
question of stagnation does not arise. However, the State shall
formulate a scheme for incentives to teachers who may have joined
the school with a pass graduate degree but enhanced his/her
qualification with the permission of the Managing Committee and
the D.I irrespective of the staff pattern as such incentive would
encourage teachers to perform better and it will act as a cushion
against stagnation.

b) We answered the question in the negative.

c) Vires of Section 14 and 20 of the West Bengal School (Control
and Expenditure, Act), 2005 is not under challenge. The ground of
challenge was that persons who have received benefits earlier
under court orders or by the government, could they have been
denied similar benefits to persons similarly placed. In absence of
pleading to the effect that the said Rules are ultra vires this issue
cannot be decided. [See
Union of India v. E.I.D. Parry (India)
Ltd.
2000(2) SCC 223]

d) We are of the view that
Tarak Chandra Roy
(supra) has been
correctly decided.

We are of the view that
Tarak Chandra Roy

(supra) has to be read along with the Government Order dated 3rd
June, 2002. However
,
the said judgment
has to be read with the
Order No.735-SE(S) SP-132/2002 as revised by the Circular
No.134-SE(S) dated 3rd March, 2004. The said judgment has also
to be read in terms of the interpretation of the said two
government orders in this judgement.

e) The reference of Nirmaledu (supra) is answered in the negative
with the qualification as provided in answers to question (a) and

(d) above.

f) In respect of
Anupam Santra
(supra) and
Chandra Bhusan
Dwivedi
(supra) we are of the view that the date of convocation is
not relevant for the purpose of entitlement to higher scale of pay.
The relevant date would be the declaration and/or publication of
results and the teacher should be entitled to draw pay of post
graduate teacher category in terms of Government Order
No.1595-SE(S) dated 26th December, 2005.

g) If a teacher has partially completed higher study before entering
service he/she would come under purview of G.O. No.1595-SE(S)
dated 26th December, 2005 and the question of taking permission
from DIS-SE concerned would not arise.

h) With regard to the effect of omission of Clause/Rule 12(5) of
Government Order No. 25-SE(B)/IM-102/98 dated 12th
February, 1999 in G.O. No.46/SE(B)/1/2009 dated 27th
February, 2009 we are of the view that the Government Order
dated 27th February, 2009 cannot operate retrospectively and take
away the benefits available under the Rule/Rules in force at that
time. The said Rule cannot be given effect to invalidate benefits
granted to the employees under Clause 12(5) of the Government
Order dated 12th February, 1999. However, with regard to the
benefits to be enjoyed under the Government Order dated 12th
February, 1999 vis-a-vis the Government Order dated 27th
February, 2009 the ratio in
Mala Sanyal
(supra) shall be followed.

273. The reference is answered accordingly.

I agree (Soumen Sen, J.)

(Harish Tandon, J.)

I agree

(Kausik Chanda, J.)