Soumitra Pal, J.@mdashFacts of the case are that on 31st October, 1995 the petitioner was appointed Assistant Teacher in Netaji Vidyalaya F.P.
School. At the time of appointment he was undergoing B.Ed. course in the 1995-96 session which commenced on 1st July, 1995 and ended on
30th June, 1996. Since the petitioner was not holding the B.Ed. degree, initially he was placed in the ''B'' category. The B.Ed. final examination
was conducted in the month of June, 1996. After completion of the course, by memo dated 18* July, 2001 the petitioner was placed in the ''A''
category and continued to draw salary under the said category till 21st June, 2007 when the Chairman, District Primary School Council, Burdwan,
respondent No. 4 by a memo intimated that since he had obtained the B.Ed. degree after 1st July, 1996 he was entitled to get ''B'' category scale
of pay and not eligible to get ''A'' a category scale of pay from 1st July, 1996. By the said memo the Sub-Inspector of Schools, (P.E.) Durgapur
Circle, respondent No. 6 was directed to calculate the payment made in excess and was requested to submit the written option of the petitioner
regarding the mode of recovery of excess payment. Being aggrieved this writ petition was filed challenging the memo dated 21st June, 2007 on the
ground that since the examinations were completed before 30th June, 1996 it should be deemed that the petitioner had obtained the B.Ed. degree
before 1.7.96 as postulated in the notification dated 31st May, 1996. Drawing analogy from the notification dated 17th September, 1984 that as
the date of obtaining higher qualification by a secondary teacher is counted from the date following the last date of examination, both theoretical
and practical, subject to the condition that the teacher comes out successful in the said examination, it was submitted that the same principle should
govern a primary teacher. Submission was made that since there is no alternative remedy, the writ petition is maintainable.
2. Learned Advocate appearing on behalf of the State respondent relying on Rule 20 of the Rules of the High Court at Calcutta relating to
applications under Article 226 of the Constitution of India submitted that as no representation was filed before moving the writ petition, the petition
is not maintainable. It was contended that as the petitioner had obtained the degree after 1st July, 1996, the issue is covered by the notification
dated 31st May, 1996 and hence, the action of the respondent No. 4 in issuing the memo dated 21st June, 2007 is just and proper. Moreover,
since it is a matter of policy, the issue should be relegated to the authorities for considering the matter on merits. Learned Advocate for the
respondent had relied on a notification dated 26th October, 1971 issued by the Education Directorate (Primary) to highlight the fact that an
incumbent should pass the examination before the appointed day. Reliance was placed on the judgement of the Apex Court in Baij Nath and
others Vs. State of Punjab and another, .
3. The matter was moved on 20th February, 2008 when directions were issued for filing of affidavits. An interim order was passed restraining the
respondents from recovering the alleged excess pay from the salary/service benefits of the petitioner and also restraining the respondents from
lowering down the pay from ''A'' to ''B'' category.
4. In the context of the case the question which falls for consideration is what should be the date for obtaining B.Ed. degree whether the last date
of holding the practical or theoretical examination or the date of publication of the result of such examination.
5. In order to appreciate the issue it is necessary to refer to the relevant provision in the notification dated 31st May, 1996 which is set out
hereunder:
No. 352-SE (Pry.) Calcutta, the 31st May, 1996
From : Shri S. Som.
Joint Secretary to the Govt. of West Bengal.
To : The Director of School Education, West Bengal
The undersigned is directed to invite a reference to memo No. 306-Sc/P.dt. 7.2.67 issued by the Director of Public Instruction, West Bengal and
indicating that there may not be any objection to treat the MA, BT/BA, PGBT teachers of aided primary schools as ''A'' category teachers for the
purpose of payment of Govt. grants on deficit basis.
2. The matter has since been reconsidered by this Deptt. This Deptt. is of the view that BT/B.Ed. degrees are intended for teaching in
secondary/high school and do not impart necessary training in methods of teaching in primary schools.
3. The undersigned is accordingly directed by order of the Governor to say that for the purpose of sanction of pay scale to a primary school
teacher as trained Matriculate/School Final/Madhyamik passed or equivalent. The primary teachers Training Certificate only from a recognised
Primary Teachers Training Institute of this State shall be accepted w.e.f. 1.7.96.
4. The undersigned is further directed to say that the cases already decided on the basis of the memo No. 306-Sc/P dated 7.2.67 of the DPI,
West Bengal need not be reopened. Also the cases of the Primary School teachers who have obtained BT/B.Ed./PGBT degree/diploma before
1.7.96 may be decided in terms of the said memo dated 7.2.67 of the DPI, West Bengal.
5. All concerned may be informed accordingly.
Sd/- S. Som
Joint Secretary.
(Emphasis supplied)
6. In this context it is appropriate to refer to the notification dated 17th September, 1984 which is as under:
No. 253-Edn. (B) Dated, the 17th September, 1984
From : Shri M.M. Sinha Roy, I.A.S,
Deputy Secretary to the Government of West Bengal.
To : The Director of School Education, West Bengal,
6, Bhabani Dutta Lane, Calcutta-73
Sub : Revision of pay scales of the teachers of Non-Govt./aided/sponsored educational institutions.
The undersigned is directed to say that note 2(b) and 2(c) of Annexure-I of the G.O. No. 372-Edn. (B) dated 31.7.81 read thus:
2(b) All existing secondary school teachers who have improved their qualifications not relevant to their teaching subjects will be allowed the higher
scale on qualification basis after five years'' teaching counting from the date on which higher qualification was obtained.
2(c) in future, Secondary School teachers will be allowed higher pay scale on qualification basis only when they obtain such higher qualification in
the subject relevant to their teaching/appointment."" A question has been raised as to the date which may be taken into consideration regarding
obtaining higher qualification."" The Governor is now pleased to direct that the date of obtaining higher qualification will count from the date
following the last date of examination both theoretical and practical-subject to the condition that the incumbent concerned comes out successful in
the said examination. This principle will be applicable in the case of teachers appointed in high school, jr. high schools, jr. and high madrasahs.
All concerned have been informed.
Sd/- Illegible
Deputy Secretary
7. It is to be noted that the Education Department has two wings - Primary and Secondary. Since by notification dated 17th September, 1984 in
the case of the secondary teachers the date of obtaining higher qualification is counted from the date following the last date of examinations - both
theoretical and practical - subject to the condition that the incumbent concern comes out successful in the said examination, there is no reason why
the same analogy should not be made applicable to a primary teacher. In my view, once a primary teacher becomes successful in the B.Ed.
examination, it should relate back to the last date of the examination, provided it was held before 1st July, 1996. The word ''obtained'' appearing in
the notification dated 31st May, 1996 should be interpreted contextually and not literally and also in the manner as explained otherwise even if
B.Ed. examinations were held months or weeks before Ist July, 1996 an incumbent would be prejudiced if results were published after 1st July,
1996. The notification dated 17th September, 1984 though relating to secondary teachers in my view is a pointer in that direction. In the instant
case as admittedly the B.Ed. examination was completed before Ist July, 1996 and the petitioner was successful, there is no reason why he should
not be treated to have ''obtained'' his degree or had passed B.Ed. examination before Ist July, 1996. The argument that the writ petition is not
maintainable as the petitioner did not file any representation before filing the petition does not hold good as there was immediate threat of
implementing the impugned memo by deducting the amount. Since the Apex Court had no occasion to deal with the proposition as to what should
be the date of obtaining or acquiring the degree, the principles of law in Baij Nath (supra) are not applicable to the facts of the case the writ
petition is, thus, allowed. The memo dated 21st June, 2007 cannot be sustained and is, therefore, set aside and quashed.
8. No order as to costs.
9. Urgent xerox certified copy of this judgement and order, if applied for, be given to the appearing parties on priority basis.