Pratap Kumar Ray, J. - (1.) :- Heard the learned Advocates appearing for the parties.
(2.) In the instant application, the petitioner has assailed the order dated 21st April, 2003 passed by the District Inspector of Schools (S.E.), Paschim Midnapore (hereinafter referred to as the concerned District Inspector of Schools) whereby and whereunder the post graduate pay scale as granted in favour of the petitioner considering the petitioner as an Assistant Teacher of Social Science subject on consideration of his qualification of M.A. in History was cancelled by a reasoned order. From the impugned decision it appears that the petitioner originally appointed as a teacher of Work Education/Physical Education Group being qualified with B.Sc. However, the petitioner after passing his Special B.A., passed M.A. in History. With the arrangement of the school authority the petitioner since was allotted class to teach the History subject, the then Administrator of the school recommended the petitioner's case for higher scale that is post graduate pay scale and the same was allowed by the District Inspector of Schools concerned. However, the matter was ultimately reconsidered by the present District Inspector of Schools concerned on the reflection of the Gocernment Circular letter. In terms of the Circular letter, which has been relied upon in the impugned order, a teacher, who enhances qualification in a subject not relevant to his teaching post for which he has been appointed would be entitled to get post graduate pay scale subject to the condition of taking classes of that subject with prior permission of the District Inspector of Schools concerned. Admittedly, in this case there was no prior permission of the District Inspector of Schools concerned before the Managing Committee to allow the petitioner to take classes of History subject. It is now a settled legal position that when any statutory provision or any circular letter provides a condition of prior permission, unless and until such permission is accorded, the act as done is absolutely illegal. There is a basic distinction between the two words approval and prior permission. In the case of approval the action remains valid till dis- approved whereas in the case of prior permission action remains invalid unless such permission is accorded prior to taking action. Reliance may be placed to the judgment of the Apex Court passed in the case of U.P. Avas Evam Vikash Parishad & Anr. v. Friends Co-operative Housing Society Limited, reported in (1995) Supple, S.C.C. 456 at paragraph 6. The same principle has been echoed by the Apex Court very recently in another judgment passed in the case High Court of Judicature of Rajasthan v. P.P. Singh, reported in (2003) 4 S.C.C. 39: [2003(2) SLR 15 (SC)]. In view of the legal position of law since the circular letter G.O. No. 57-SE(S) dated 27th January, 1995 is the only circular letter, which provides payment of post graduate pay scale to a teaching staff, who has enhanced such qualification in the subject not relevant to his teaching post has provided a rider of prior permission, in absence of such, the decision of the Managing Committee allotting classes to the petitioner was dehors of the circular letters and the Rule and accordingly the entire action was invalid. Hence the earlier decision as taken by the District Inspector of Schools concerned sanctioning higher pay scale was nothing but an action with reference to an invalid action of the Managing Committee which at the present moment has been corrected by the District Inspector of Schools concerned in the impugned decision.
(3.) Furthermore, from the impugned decision it appears that in the school there are already two teachers in Focial Science Group and there is no need of a Social Science teacher in the school. Such fact of the issue of the impugned order has been denied by the learned Advocate appearing for the petitioner contending, inter alia, that there is a vacancy of Social Science teacher. Be that as it may, since the District Inspector of Schools concerned is the appropriate Authority to decide the matter, this Court cannot deal with the factual issue. It is submitted by the learned Advocate for the petitioner that one Shri Ranjit Kumar Dey, a teacher of Social Science Group has been retired. Having regard to the impugned decision accordingly it appears that cancellation of Post graduate pay scale as granted in favour of the petitioner was legal and directing refund of the overdrawal amount is not at all bad in law. In that view, the portion of the said order cannot be said as arbitrary or in violation of any Rule. But so far as the other factual issue is concerned as has been submitted by the learned Advocate for the petitioner that already a post of Assistant Teacher in Social Science was lying vacant, this Court is directing the District Inspector of Schools concerned to hear the petitioner and the Managing Committee de novo on the said issue so that petitioner's post could be transferred as Assistant Teacher of the Social Science Group in the event such vacancy exists and subject to guidelines as laid down in the Circular letter No. G.O. 57-SE(S) dated 27th January, 1995. Such decision to be reached by four weeks from the date of communication of the order.;