Pratap Kumar Ray, J. - (1.) :- Heard learned Advocate for the petitioner. None appears to oppose even at the second call. The petitioner has prayed for a Writ of Mandamus to this effect : "(A) Mandamus commanding the respondent No.3 by directing to give scale of pay with effect from approving the qualification as per G.O. 401 -Edn (B) IM-45/91 dated 10.9.91 forthwith."
(2.) It is the case of the petitioner that since the petitioner has enhanced his qualification to post graduate level in History, the petitioner is entitled to get post graduate pay scale. The petitioner initially was appointed as Assistant Teacher in Language Group when his qualification was B.A. Subsequently the petitioner enhanced his qualification M.A. in History from the University of Burdwan under its correspondence course. The Managing Committee by its resolution dated 15.2.2000 agreed to refer the case of the petitioner to the District Inspector of Schools concerned for higher pay scale as the petitioner was allowed to take the classes of History subject in addition to the Bengali subjects for which he was initially appointed. Learned Advocate of the petitioner has prayed for a Writ of Mandamus in terms of Memo No. 401-Edn(B)/IM-45/91 dated 10.9.91, the relevant provision of which reads thus : "(3) All teachers and librarians of secondary schools who will improve their qualifications in subject relevant to their teachingli appointment shall get higher scale of pay appropriate to their qualifications with effect from the date of improving qualification." On a bare reading of the said clause, it appears that only the teachers who would improve their qualification in the subject relevant to their teaching/appointment would be entitled to get the higher pay scale. It is an admitted fact that the petitioner was an appointee in Language Group where his subject of teaching is Bengali. The petitioner admittedly did not enhance his qualification to M.A. in Bengali. Accordingly, no Writ of Mandamus could be issued in terms of the prayer as made by taking the help of Memo dated 10.9.91. The petitioner never was a Teacher of Social Science Group. Had it been a case that the petitioner was a Teacher in Social Science Group to teach History subject, the petitioner would have been eligible to get the post graduate pay scale for enhancement of the qualification. In that view, the petitioner has no legal right to claim post graduate pay scale. Learned Advocate for the petitioner, however, has placed reliance in support of this claim to memo No. 57-SE(S) dated 27.1.95. Under the said circular letter the relevant provisions are clauses (i) and (ii) which read thus : "(i) Approved Assistant Teachers of non-Government Secondary Schools and Madrasahs who will take classes in subjects relevant to their respective higher qualification, though appointed/approved respectively in a different group/subject other than the aforesaid teaching subject shall, henceforth, be allowed to draw pay according to their respective higher qualification, as prescribed by the State Government, provided 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 off the individual school. If there be more than one Assistant Teacher in a school with relevant higher qualification agreeable to this arrangements, preference shall be in order of seniority. If any school has already effected such an arrangement in its academic interest, the same has to be get approved by the concerned D.I. of Schools, subject to eligibility, for the purpose of drawal of qualification pay by the concerned teachers. (ii) In future, when any clear vacancy of Assistant Teacher occurs in the normal section (Class V to Class X) in a non-Government Secondary School/Madrasah, the authorities of the concerned school may apply to the concerned D.I. of Schools for filling up the vacancy by an existing approved Assistant Teacher of the normal section of that institution who had applied to the school authorities in writing for being placed in that post and who has the requisite higher qualification for that vacant post but in not drawing pay according to such higher qualification by reason of his/her appointment/approval in a different group. The concerned D.I. of Schools may permit the school authorities to place the services of such Assistant Teacher in that post, with effect from a certain date to be indicated by the D.I. of Schools, if the concerned District Inspector of Schools is satisfied that the arrangement will be beneficial to the students. The Assistant Teacher so transferred to the vacant post will be entitled to draw pay according to his/her higher qualification as prescribed by the State Govt. from the date of his/her placement in that vacant post. The concerned Assistant Teacher shall have to take classes from that date as allotted to that new post. In that case, the resultant vacancy shall be filled up according to existing rules. If there be more than one eligible applicant Asstt. Teachers in a school for one such vacant post, preference shall be in order of seniority. No further approval of appointment will be necessary." Under clause (i) in the event any teacher enhances his qualification in the subject not relevant to his teaching, as in the instant case, two conditions were required to be fulfilled before appointing a teacher in the other subject, namely, (a) prior permission of the District Inspector of Schools concerned to allot classes to the particular teacher in the other subject in which he has enhanced qualification and which is not his subject of teaching as per appointment; (b) the decision of the Managing Committee to take the service of the teacher and the consent of the teacher. In the instant case, consent of the petitioner is there and the Managing Committee decision is also there, but the prior permission of the District Inspector of Schools is absent. When any circular or statute provides that prior permission is required to be taken from an authority, action if taken without any prior permission becomes void abinitio. Reliance may be placed to the judgment of the Apex Court in U.P. Abasan and Vikash Parishad & Anr. v. Friends' Co-operative Housing Society Limited, 1995 Suppl. III SCC 456, wherein the Apex Court relied upon the earlier judgment in the case of L.I.C. v. Escorts Limited reported in (1986) 1 SCC 264. In that judgment, the Apex Court held that when the statute provides approval of other authority with reference to any action, the act holds good till it is disapproved, whereas in the case of permission act will not be effective till permission is given. The same view has been re-echoed by the Apex Court in the case of High Court of Judicature of Rajasthan v. P.P. Singh, (2003) 4 SCC 239 : [2003(2) SLR 15 (SC)]. Applying the aforesaid dictum of the Apex Court, in the instant case, it appears that no prior permission was accorded by the District Inspector of Schools concerned allowing the petitioner to take classes of History subject though there was a consent of the Managing Committee. In that view of the matter, resolution of the Managing Committee allowing the petitioner to take classes, being an act "not effective" as there was no permission accorded by the District Inspector of Schools concerned. Furthermore, in the instant case, language has been used by wording the same as "prior permission". Had it been a case of simple permission, the court would have considered post facto permission, but since the circular letter strictly applied the words "prior permission", there is no scope to refer the matter back to the District Inspector of Schools to accord post facto permisison with reference to the decision of the Managing Committee by which the petitioner has been allowed to take classes of History subject. It is also a settled law that where in a statute prior permission or prior sanction or prior approval words are used, until and unless such permission, approval or sanction is there before hand, the entire act becomes void abinitio. Reliance may be placed in the case of Baijnath v. State of M.P., a judgment of 3 Judges Bench of Apex Court, reported in AIR 1966 SC 220, wherein with reference to the case on issue of sanction for prosecution under section 197 of the Code of Criminal Procedure, the court expressed the view that since there was no prior sanction the entire prosecution was bad in law and there was no scope to post facto sanction, once the cognizance was taken, and accordingly the Apex Court held that cognizance of prosecution was invalid. The same principle is applicable in the instant case also Hence, the petitioner is not coming under the purview of clause (i) of the memo dated 27.1.95. So far as clause (ii) is concerned, the petitioner surely has made out a case for transferring his Group from Language Group to Social Science Group to enjoy the post graduate pay scale in the event there is no teacher in the sanctioned post of Social Science Group. Clause (ii) provides such scope of transfer of any teacher from normal section. Considering clause (ii) accordingly this court directs the District Inspector of Schools concerned to consider the case of the petitioner for transfer of his Group from Language to Social Science Group, in the event there is a vacant post of teacher of History subject in the Social Science Group of secondary section and/or there is a vacancy of teacher of History subject in the High Secondary Section. Such decision is to be taken by the District Inspector of Schools concerned upon hearing the petitioner as well as the Managing Committee of the school within 4 weeks from this date, and the decision be communicated to the petitioner within 2 weeks thereafter.
(3.) With the aforesaid observation the writ application is partly dismissed so far as prayer (a) is concerned and partly allowed in terms of the added prayer. Leave is granted to add prayer for relief under clause (ii) of the aforesaid memo dated 27.1.95 for consideration of the case of the petitioner. Petition partly allowed. ;