SURESH SINGH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) FACTS of the case are that on 31st October, 1995 the petitioner was appointed Assistant Teacher in netaji Vidyalaya F. P. School. At the time of appointment he was undergoing B. Ed. course in the 1995-96 Session which commenced on 1 st July, 1995 and ended on 30th June, 1996. Since the petitioner was not holding the B. Ed. degree, initially he was placed in the 'b' category. The B. Ed. final examination was conducted in the month of June, 1996. After completion of the course, by memo dated 18th July, 2001 the petitioner was placed in the 'a' category and continued to draw salary under the said category till 21st June, 2007 when the Chairman, district Primary School Council, Burdwan, respondent No. 4 by a memo intimated that since he had obtained the B. Ed. degree after 1st July, 1996 he was entitled to get 'b1 category scale of pay and not eligible to get 'a' category scale of pay from 1st July, 1996. By the said memo the Sub- Inspector of Schools, (P. E.) Durgapur Circle, respondent No. 6 was directed to calculate the payment made in excess and was requested to submit the written option of the petitioner regarding the mode of recovery of excess payment. Being aggrieved this writ petition was filed challenging the memo dated 21st June, 2007 on the ground that since the examinations were completed before 30th June, 1996 it should be deemed that the petitioner had obtained the B. Ed. degree before 1 7. 96 as postulated in the Notification dated 31st May, 1996. Drawing analogy from the Notification dated 17th September, 1984 that as the date of obtaining higher qualification by a secondary teacher is counted from the date following the last date of examination, both theoretical and practical, subject to the condition that the teacher comes out successful in the said examination, it was submitted that the same principle should govern a primary teacher. Submission was made that since there is no alternative remedy, the writ petition is maintainable.

(2.) LEARNED Advocate appearing on behalf of the state-respondent relying on Rule 20 of the Rules of the High Court at Calcutta relating to applications under Article 226 of the Constitution of India submitted that as no representation was filed before moving the writ petition, the petition is not maintainable. It was contended that as the petitioner had obtained the degree after 1st July, 1996, the issue is covered by the Notification dated 31st May, 1996 and hence, the action of the respondent No. 4 in issuing the memo dated 21st June, 2007 is just and proper. Moreover, since it is a matter of policy, the issue should be relegated to the authorities for considering the matter on merits. Learned Advocate for the respondent had relied on a Notification dated 26th October, 1971 issued by the Education Directorate. (Primary) to highlight the fact that an incumbent should pass the examination before the appointed day. Reliance was placed on the judgment of the Apex court in Bay Nath and Ors. v. State of Punjab and Anr. , reported in AIR 1996 SC 2395.

(3.) THE matter was moved on 20th February, 2008 when directions were issued for filing of affidavits. An interim order was passed restraining the respondents from recovering the alleged excess pay from the salary/ service benefits of the petitioner and also restraining the respondents from lowering down the pay from 'a' to 'b' category.