SAHIDULLAH MUNSHI,J. - (1.) In this writ petition the petitioner has made out a case that - a) Before completion of his 'Alim' examination and during the continuance of the same, his father unfortunately died in harness as a teaching staff of Kanupat Pallimangal Harendra Sikshayatan and after his death the petitioner made an application before the concerned authority for compassionate appointment in place of his father in the died-in-harness category. The school issued a letter dated 22nd July, 1988 informing the petitioner that he has been substantively appointed in the additional post of Class-IV staff vide Director of School Education's Memo No.2012/(149) GA dated 9th December, 1986. The petitioner duly joined the said institution as a Class-IV staff and subsequently, appointment of the petitioner was also approved by the District Inspector of Schools (S.E.), Howrah, initially for a period of two years subject to extension. b) The petitioner is an approved Group-D staff of the said Institution since 1988 and he completed his B.A. Degree in the year 2000. He also completed M.M. and M.F. examination under the West Bengal Madrasah Education Board in the year 1995 and 1996. c) The petitioner sought for permission for conducting Master of Arts in the subject Bengali. Thereafter, the Headmaster of the Institution forwarded all relevant papers with regard to the same before the concerned District Inspector of Schools (S.E.), Uluberia sub-Division for permission from the Managing Committee of the Institution and the Managing Committee, by a Resolution dated 19th September, 2014, permitted the petitioner for pursuing M.A. course. The petitioner duly completed his M.A. Degree in 2006 from Netaji Subhas Open University. d) The petitioner appeared before the 3rd State level selection test, 2009 under the West Bengal Madrasah Service Commission and he duly passed the said selection test. The Commission recommended the name of the petitioner in Kushadanga Anwarul Ulum Siddiquia Senior Madrasah (hereinafter referred to as the said Senior Madrasah) against regular vacancy in the post of Arabic (Madrasah) (Pass) and informed respondent no.8 to issue appointment letter in favour of the petitioner. The appointment letter was duly issued by the respondent no.8 on 18th August, 2010 in pursuance whereof the petitioner duly joined the said Madrasah on 21st August, 2010 in the post of Assistant Teacher for the subject Arabic. The said appointment was subsequently, approved by the District Inspector of Schools (S.E.), Howrah. e) The petitioner made an application before the Administrator of the said Senior Madrasah on 9th March, 2013 and prayed for M.A. scale of pay. The said application was forwarded to the District Inspector of Schools (S.E.), Howrah, for favourable action by the Administrator of the said Madrasah. f) The District Inspector of Schools (S.E.), Howrah, by his Memo dated 10th June, 2015, addressed a letter to the Director of Madrasah Education praying for sanction of higher scale of pay in Bengali in favour of the petitioner. By the said Memo the District Inspector of Schools forwarded necessary papers submitted by the Madrasah authority on the question of grant of M.A. scale of pay in Bengali in favour of the petitioner. By the said Memo the District Inspector of Schools sought for necessary instruction from the Director of Madrasah Education. g) By a Memo dated 27th August, 2015, the Director of Madrasah Education, on the question of grant of higher scale of pay in favour of the petitioner, has held that the petitioner was not an existing teacher when the higher qualification was acquired by him. He has referred to the circular dated 30th November, 2000 on the strength of which the petitioner and the school authority sought for grant of benefit of higher scale of pay, could not be available to the petitioner since he was not an existing teacher when the higher qualification was acquired by him. The circular which is referred to relates to grant of Post-Graduate scale of pay in favour of a teacher, namely, Mr. Riyazuddin Gazi who was in service as an existing teacher as on 31st March, 1981 and, therefore, in his case the abovementioned circular was made applicable to grant him higher scale of pay. By such Memo the Director of Madrasah Education has further observed that the petitioner was initially appointed as a clerk and subsequently, he became qualified for the post of Assistant Teacher and joined Kushadanga Anwarul Ulum Siddiquia Senior Madrasah on 21st August, 2010, i.e., prior to the said date, he was a non-teaching staff. Therefore, the question of considering him as an existing teacher does not arise and as such, his claim for allowing Post-Graduate scale of pay in his favour in terms of the aforesaid Government Order cannot be considered. On such consideration, the Director of Madrasah Education, West Bengal, refused to grant higher scale of pay in favour of the petitioner taking advantage of the said Government Order being No.2135-S.E. (B) dated 30th November, 2000 as prayed for by the Madrasah authority through a letter dated 27th April, 2015. By a Memo dated 27th August, 2015 the District Inspector of Schools passed a reasoned order and rejected the petitioner's claim for grant of higher scale of pay. In the above backdrop of the case, the petitioner has made a prayer for quashing of the said Memo dated 27th August, 2015 issued by the Director of Madrasah Education, West Bengal and for a further direction upon the concerned authorities to grant to the petitioner higher scale of pay. In support of his case the petitioner has submitted that the authority concerned has failed to take into consideration of the relevant circular which was passed by the Government on 30th November, 2000 for granting higher scale of pay and without considering the same, the respondent Director of Madrasah Education has passed an order against the petitioner. Mr. Jaharlal Dey, appearing for the respondent-State, submitted that the petitioner was a clerk but not an existing teacher and, therefore, he is not entitled to get benefit of higher scale of pay in terms of the abovementioned circular of November, 2000. According to Mr. Dey, the writ petition does not call for any interference by this Hon'ble Court.
(2.) I have heard the parties and considered the materials on record in detail. In this case, the undisputed case is - 1) The petitioner was appointed as a Group-D employee before his name was recommended by the Service Commission and he improved his qualification while he was a Group-D staff with the permission of the Managing Committee of the school where he employed as a Group-D staff. 2) The petitioner was recommended for being appointed as an Assistant Teacher in the Pass category by the Regional Level Service Commission and has passed in the Pass category scale of pay which was approved by the District Inspector of Schools (S.E.), Howrah. 3) The Director of Madrasah Education, while passing the impugned order on the question of grant of higher scale of pay in favour of the petitioner, has held that the petitioner was not an existing teacher when higher qualification was acquired by him. 4) The school authority referred to the circular dated 30th November, 2000 on the strength of which the petitioner and the school authority sought for grant of benefit of higher scale of pay but since the petitioner, at the relevant point of time, was not a teacher but he was a Group-D employee of the school, he is not entitled to get benefit of the said circular which is meant for the existing teachers only. Therefore, so far this point is concerned, the finding so arrived by the Director of Madrasah Education does not call for any interference and the petitioner's plea cannot be accepted.
(3.) This apart, it appears from Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005, a teacher, who is appointed in the Pass category, cannot automatically switch over to Post-Graduate category only on the ground that he had higher qualification on the day of his initial appointment. Sub-Section 2 of Section 14 of the said Act says that when a teacher of a schools shall, if appointed in the Post-Graduate teacher category, be entitled to draw in the scale of pay in which he is appointed and he will 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. Sub-Section 3 of Section 14 says that every teacher of a school shall, if appointed in the Honours Graduate or Post-Graduate 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. Section 14 of the West Bengal Schools (Control of Expenditure) Act, 2005 is set out herein below for the purpose of convenience :- "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 of 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 for Post-graduate 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." ;