Dipankar Datta, J.:— None appears for the State despite service. Affidavit-of-service filed in Court today shall be retained with the records.
The petitioner had earlier approached this Court by filing a writ petition numbered as W.P 27259 (W) of 2006 praying for, inter alia, the following relief:
“a) A writ in the nature of Mandamus by directing and/or commanding the respondents, more particularly the D.I of Schools (S.E), 24-Prgs.(N), Barasat to give approval and/or sanction in getting higher scale of pay, since the date of taking classes in Higher Secondary Stream of Rongaon High School Authority having requisite qualification in favour of the petitioner in terms of Govt. Circular 57-S.E. (S) dated 27.01.1995 and thereby make the Rule absolute”;
It was pleaded in paragraphs 6, 7 and 9 of the said writ petition as follows:
“6. That your petitioner states that since the date of joining i.e on 12-02-1999, he has been working as Assistant Teacher of Bongaon High School, having his educational qualification B.Sc (Honours) in Chemistry with B.Ed and since the date of joining your petitioner has been receiving only Graduate scale of pay, but he is not getting the benefit of Honours' scale and few days after the joining of the petitioner another teacher namely, Nirmal Kumar Sadhu (B.Sc Honours in Chemistry, B.Ed) was died who took the chemistry classes in Higher Secondary stream in regular way and who was getting the benefit of Honours scale and after his death petitioner in regular way taking Chemistry classes in Higher Secondary stream of the said school in place of the said deceased Assistant Teacher, Nirmal Kumar Sadhu.”
“7. That your petitioner states that after the death of the said Assistant Teacher, Nirmal Kumar Sadhu, since 1999 with due permission of the school authority your petitioner in regular way, in place of the said Assistant Teacher and as a qualified Assistant Teacher your petitioner being the Honours graduate in Chemistry requested the respondent Authority for having the benefit of the higher scale, but inspite of repeated requests, none of the respondent did take any steps to consider the petitioner's claim in getting Higher Scale/Honours' scale as regular Assistant Teacher of Higher Secondary stream of the said school.”
“9. That your petitioner states that since the death of the said Nirmal Kumar Sadhu, your petitioner being the only qualified Assistant Teacher having B.Sc (Honours in Chemistry), B.Ed, with due permission of the school authority is taking the Chemistry classes as per daily routine alloted by the school authority and for the last 7 years your petitioner with the entire satisfaction of the students of Higher Secondary stream of the school as well as the school authority is taking the Chemistry classes in H.S Stream of the said school and there is no such allegation of the students about the teaching of the petitioner in Chemistry subject.”
In paragraph 8 of the said writ petition it was pleaded by him that a representation dated July 17, 2006 addressed to the Secretary of the school praying for grant of higher scale of pay/honours scale as a regular qualified assistant teacher of the higher secondary stream of the said school did not yield any positive result, for which the writ petition had to be presented.
A learned Judge of this Court by order dated September 26, 2012 disposed of the writ petition by passing, inter alia, the following order:
“********************
Heard the learned Counsel appearing for the parties and considered the submissions made by the learned Counsel appearing for the parties. There are circulars in favour of granting higher scale of pay.
In my view, the writ petitioner is entitled to get higher scale of pay for his Honours degree.
Accordingly, I direct the District Inspector of Schools (SE), North 24-Parganas to release the higher scale of pay in favour of the writ petitioner within eight weeks from the date of communication of this order.”
The district inspector, acting in compliance with the aforesaid order dated September 26, 2012 passed an order on March 07, 2013 to the following effect:
“In compliance with the Solemn Order dated 26.09.2012 passed by Hon'ble Justice Ashoke Kumar Dasadhikari in the above Writ Petition Honours Graduate Scale of Pay is hereby sanctioned in favour of Sri Sujit Kumar Adhikari, Assistant Teacher of his School as he has been taking Chemistry Classes of Higher Secondary Section of the School. This Higher Scale of Pay is sanctioned w.e.f 17.07.2006, the date of his application for Higher Scale of Pay to the School Authority.”
Feeling aggrieved by the order of the district inspector, whereby higher scale of pay was sanctioned in favour of the petitioner with effect from July 17, 2006 and not with effect from February, 1999 i.e the date from which the petitioner allegedly started taking classes in the higher secondary section, this writ petition has been presented praying for, inter alia, the following relief:
“(a) Issue a Rule calling upon the respondents to show cause why a writ or writs in the nature of mandamus should not be issued by commanding the respondents to release the Honours scale of pay in favour of the petitioner from the date of joining in the school i.e from 12.02.1999 instead of 17.07.2006
(b) Issue a Rule calling upon the respondents to show cause why a writ or writs in the nature of mandamus should not be issued by commanding the respondents, particularly the respondent no. 3 to release the arrear Honours scale of pay with effect from 12.02.1999 i.e the date of joining in the school.”
Having heard Mr. Barua, learned advocate appearing in support of the writ petition, I am of the view that the petitioner is not entitled to higher scale of pay with effect from February, 1999. Despite a prayer being made before the learned Judge in seisin of the earlier writ petition filed by the petitioner for grant of higher scale of pay w.e.f February, 1999, no order was passed in regard to such prayer. Having regard to Explanation (V) of Section 11 of the Code of Civil Procedure (hereafter the ‘Code’), the prayer of the petitioner for higher scale of pay with effect from February, 1999 must be deemed to have been refused by the learned Judge. It is settled law that Section 11 of the Code is applicable to writ proceedings and if any authority is required, reference may be made to the decision reported in (2010) 13 SCC 158: Omprakash Verma v. State of A.P
I am of the further view that the learned Judge had left the issue of fixation of the date from which the petitioner would be entitled to higher scale of pay open and the district inspector in his discretion having fixed July 17, 2006 (i.e when he first made the representation for higher scale of pay) as the date from which he would be entitled to the higher scale of pay, has not exercised discretion unreasonably warranting interference.
The writ petition stands dismissed. There shall be no order as to costs.
Records of W.P 27259 (W) of 2006 shall stand detagged.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously.
Comments