- (1.) None appears on behalf of the State Respondents on January 15, 2014. The hearing of this was adjourned to give the above respondents one more chance. The above order was communicated to the learned Advocate appearing on behalf of the State-Respondents. None appears on behalf of the State respondents when the matter, is called on today. Let the affidavit of service be kept on record. The writ application is filed by the petitioner assailing an order passed by the respondent No. 3 under is memo No. 18/3(iii) 6 dated January 16, 2013. By virtue of the impugned order the prayer of the petitioner for extending the benefit of post graduate scale of pay in connection with his service as an Assistant Teacher of Sedikhan's Dearh Vidyaniketan, District-Murshidabad in Language (Bengali) was rejected.
(2.) Having heard the learned counsel appearing for the petitioner as also after considering the impugned order I find that the above claim of the petitioner was rejected on the following grounds: (i) The staff pattern of the school concerned did not permit granting of the above benefit to the petitioner; (ii) The State Government divided the teaching post into two categories, i.e. graduate category and honours/post graduate category. Since the petitioner was appointed in pass category there is no scope for extending the benefit of post graduate scale of pay in his favour; (iii) The petitioner was not entitled to get post graduate scale of pay in view of the West Bengal Schools (Control of Expenditure) Act, 2005. (iv) The petitioner did not obtain prior permission for appearing in the M.A. Examination;
(3.) The point of law regarding staff pattern has already been decided in the matter of Raghunath Mondal v. State of West Bengal & Ors., 2013 3 WbLR 556and the relevant portions of the above decision are quoted below: The provisions, of the clause 2 of the departmental circular No. 670SE(S)/1M 14/98 dated September 4, 1998 (hereinafter referred to as 'ROPA, 1998') are also quoted below- 2. For High School/High Madrasah/Higher Secondary (Normal Section): (a) Language group-For posts (Two pass degree & two Hons./Master degree) (b) Science & Mathematics - Three posts (one pass degree & two Hons./Master degree.) (c) Social Science - Two posts (one pass degree & one Hons./Master degree.) (d) Work Education, Physical and Social Service - Two posts. They must be having qualifications as mentioned in the procedure 14 SE(S) dt. 8.1.98. (e) Headmaster/Headmistress - One. He/She must be having qualifications as mentioned in the procedure 14 SE(S) dt. 8.1.98. After perusing the aforesaid provisions of the said ROPA, 1998, I find that the same entitles the petitioner who was appointed with higher qualification to enjoy the benefit of the post graduate scale of pay with effect from January, 1996 or the date of improving the qualification, whichever was earlier. With regard to the provisions of Clause 2 of departmental circulars No. 670 SE(S)/1M 14/98 dated September 4, 1998, I find that the same was in operation in a different field which prescribed the staff strength in a particular group of teaching having no nexus with the scale of pay of the assistant teachers of that school. After further scrutiny of the above departmental circular I find that the two groups of assistant teachers namely, for Pass Degree and Honours/Master degree were prescribed in the departmental circular. The petitioners belonged to the group of Honours/Master degree. Therefore, the claim for granting postgraduate scale of pay in accordance with provisions of said ROPA, 1998 cannot be rejected taking recourse to the departmental circular under reference. That apart it is the settled principle of law that when a departmental circular is competed with statutory rules, the rule should prevail. Reference may be made to the decision of C.L. Verma v. State of M.P., 1989 Supp2 SCC 437. Paragraph 6 of the aforesaid judgment is quoted below: 6. The question which arose for consideration in the writ petition before the High Court at the instance of the appellant was whether in the face of the mandate in Rule 29 the administrative order could operate. It is not the stand of the State Government that the order dated May 15, 1981, is one under the proviso to Rule 29. In fact, the tenor of the proviso clearly indicates that it is intended to cover specific cases and individual employees. An administrative instruction cannot compete with statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail. We are, therefore, of the view that the appellant, in terms of Rule 29, ceased to be a Government employee on his attaining the age of 58 years, two days prior to the order of dismissal. In view of the fact that he had already superannuated, government had no right to deal with him in its disciplinary jurisdiction available in regard to employees. The ratio of the decision in R.T. Rangachari v. Secretary of State for India in Council supports the position.;