Higher Pay Scale Cannot Be Claimed When Duties Are Performed Without Obtaining 'Prior Permission' As Per Statutory Provisions Calcutta High Court

The petitioner was appointed and had been working as an Assistant Teacher and had qualified Masters of Commerce ( M.Com) and Semister Examination 1990. The petitioner was appointed as a Work Education Teacher for classes V to X. On account of the paucity of teachers, at the request of the relevant school authority, the petitioner used to take commerce classes for classes XI and XII. Petitioner's request for a higher pay scale was rejected by the third respondent by a decision dated July 8, 2016, which was impugned in the present case.

The counsel for the petitioner stated that the service condition of the petitioner was governed under the West Bengal Services (Revision of Pay and Allowance) Rules, 1990 (ROPA). He argued that the petitioner deserved higher pay scale under the Career Advancement Scheme under Rule 16 of the ROPA, as he had acquired a higher qualification, though not in the subject for which he was appointed as an Assistant Teacher.

He argued that a circular containing administrative instruction issued by the Department of School Education in 1995. The circular provides that, an Assistant Teacher, who was appointed for a particular subject, if possessed a higher and proper qualification on any other different subject, subject to the compliance with the formalities, as mentioned in the said 1995 Circular, the teacher would be allowed and eligible to take classes in the higher section, on such subject in which he had acquired the higher qualification other than the subject for which he was appointed.

He argued that similarly placed candidates had received a higher pay scale and by refusing to grant such higher pay scale to the petitioner, Article 14 of the Constitution of India and the principle of equal pay for equal work were violated.

The petitioner stated that his class routine had received the seal of the District Inspector of School and was within his knowledge.

The counsel for the respondent argued that since the petitioner was appointed as an Assistant Teacher in a subject different from that of his higher education, he was not eligible to get such higher pay scale.

He argued that the 1995 Circular specifically provided for a prior permission which was necessary to be obtained from the concerned District Inspector of Schools. For the petitioner, no such prior permission was obtained by the school, and hence, the 1995 Circular did not apply to the petitioner.

The Court noted that all the teachers of secondary schools who had improved or would improve their qualifications or who were appointed with higher qualification in the subject or group relevant to their teaching/appointment should get higher scale of pay, apropos to their qualifications. The petitioner was appointed as an Assistant Teacher in the subject of Physical Education, in which he had the qualification of B.P.Ed. He had qualified Masters of Commerce (M.Com) which was a higher qualification but in a different subject. Since his original appointment was for the subject Physical Education he cannot claim a higher pay scale, the Court held.

The Court also noted that, as per the 1995 Circular, for allotment of classes of a higher section to an Assistant Teacher for a subject where he possesses a higher qualification than the subject for which his appointment was made as Assistant Teacher, a prior permission of the concerned District Inspector was a mandatory pre-requisite. From the records it did not appear to the Court that the relevant school had asked for any such prior permission for allotment of classes to the petitioner in the higher section in commerce subject.

The petitioner argued that the class routine permitting the petitioner to take Commerce classes in the higher section was within the knowledge of the concerned District Inspector of Schools as it contained the seal of the same.

However, the Court held that the seal and signature of the District Inspector of Schools is not acceptable as "prior permission". The expression "prior permission", as used in the said 1995 Circular, must be read in the light of the entire circular as a whole, coupled with the relevant provisions under ROPA. The District Inspector of Schools, while giving his prior permission, must do so with an application of mind.

The Court declared that this was not a case of Article 14, as the case was of non-compliance of the relevant mandatory statutory provisions, which were crucial for the case of the petitioner.

Finding that the impugned order did not suffer from any infirmity, wither procedural or legal, the Court dismissed the petition.

Case Title: DILIP KUMAR GHOSH VS. STATE OF WEST BENGAL AND ORS.

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