Biswanath Sommadder, J.@mdashThe writ petitioner was appointed as a lecturer in Chemistry in Nabadwip Vidyasagar College on 06th July,
1981, on leave vacancy, and continued till 17th July, 1984. Subsequently, he was appointed as lecturer in Vidyanagar College as a lecturer in
Chemistry on 1st August, 1984, on a regular basis in a permanent post, through the College Service Commission. The writ petitioner initially
moved this court praying, inter alia, for benefit of his three years service in Nabadwip Vidyasagar College between 06th July, 1981 and 17th July,
1984. By an order dated 6th October, 1993, that writ petition was disposed of with a direction upon the Director of Public Instruction to consider
the writ application and after hearing the petitioner pass a reasoned order in the matter within a time frame as stated in that order. Consequently,
the Director of Public Instruction passed a reasoned order observing, inter alia, that the previous service of the writ petitioner as a lecturer in
Nabadwip Vidyasagar College, Nadia, for the period between 06th July, 1981 and 17th July, 1984, would not be taken into account for the
purpose of protection of the petitioner''s pay and/or for placing the petitioner in senior grade/selection grade scale/reader''s post and accordingly
disposed of the matter. This order of the Director of public Instruction dated 29th December, 1993, was challenged by the writ petitioner in
another writ proceeding, being W.P. No. 494 of 1994, which was disposed of by an order dated 05th November, 1997, whereby the order
passed by the Director of Public Instruction dated 29th December, 1993, stood quashed.
2. According to the writ petitioner, the order dated 5th November, 1997, passed in W.P. No. 494 of 1994, was accepted by the respondents and
no appeal or review was preferred against the said order. In the meanwhile, alleging willful and deliberate violation of the said order dated 05th
November, 1997, the petitioner filed a contempt application. During tendency of the contempt application, the Director of Public Instruction, West
Bengal, issued a memo dated 30th June, 1998, addressed to the Principal, Vidyasagar College, wherein it was stated that the petitioner''s past
service as lecturer in Nabadwip Vidyasagar College could be considered for the purpose of pensioners benefits only. Subsequently, by another
memo dated 18th November, 1998, the Director of Public Instruction, West Bengal, wrote to the Principal, Vidyanagar College asking him to
treat the earlier memo dated 30th June, 1998, as cancelled. On 19th February, 1999, when the contempt petition came up for final hearing, the
Court took note of a memo issued by the Director of Public Instruction dated 18th June, 1998, whereby it was intimated that the service period of
the writ petitioner, between 06th July, 1981 and 17th July, 1984, was taken note for the purpose of calculating the said period as ''qualifying
service''. The Court also observed that the contention of the writ petitioner for inclusion of the service benefit of ''Career Advancement Scheme''
need not be gone into, but, if the petitioner was found otherwise eligible, then the department was to take care of it giving benefits to him. It was
further observed by the Court that the three years period which was directed to be noted for the purpose of ''qualifying service'' was to be included
in the service book so that the petitioner was to get all service benefits at the time of retirement.
3. The writ petitioner has referred to a memo dated 17th January, 1997, and stated that it could be clear there from that the period of service
rendered prior to regular appointment should be counted for the purpose of retirement benefits, provided, there was no break in service for more
than three months. It has also been stated by the writ petitioner that though his pay fixation at Vidyanagar College was made taking into account his
three years service at Nabadwip Vidyasagar College in terms of the memo dated 18th June, 1998, his pay at Chakdah College (where he is
presently working) was not fixed on the basis of last pay drawn by him at Vidyanagar College. According to the writ petitioner, even though such
proposal was submitted by Chakdah College way back in the year 2004, no action was taken by the respondent authorities, till as late as 11th
April, 2011, when such proposal was rejected by the Director of Public Instruction, West Bengal, citing G.O. dated 26.11.2001, which has been
brought on record by means of a supplementary affidavit affirmed by the writ petitioner on 06th June, 2011.
4. The writ petitioner has also referred to a memo of the State Government dated 21st September, 1988, whereby the benefit of senior scale
lecturers and selection grade lecturers on completion of three years service in case of lecturers possessing doctorate degree and thereafter
Reader''s scale on completion of further period of eight years service was extended to all teachers of non-government colleges. According to the
writ petitioner, having completed five years of service as lecturer in the year 1986 (precisely, on 6th July, 1986), taking into account his three
years'' service in Nabadwip Vidyasagar College and since he holds a doctorate degree, a proposal was submitted by Vidyanagar College, initially
by a letter dated 24th May, 1989, and subsequently, by means of a fresh proposal as contained in a letter dated 30th June, 1998, for grant of
senior scale to him. The writ petitioner has stated that he has completed a total of thirteen years service as lecturer in the year 1994 and under the
said memo dated 21st September, 1988, he became eligible for grant of Reader''s scale on 06th July, 1994, but was denied senior lecturer''s scale
and Reader''s scale not only during the tendency of the earlier writ petition, but even after the order of this Court dated 05th November, 1997.
5. The writ petitioner has contended that consequent upon the order of this Court dated 05th November, 1997, it was incumbent upon the
respondents to grant benefit of senior scale lecturer''s grade on the basis of the proposal submitted by the Vidyanagar College in the year 1989 and
the subsequent proposal dated 30th June, 1998. The writ petitioner has also referred to the order dated 10/18 March, 1999, whereby the
Director of Public Instruction, West Bengal, declared that the writ petitioner would not get benefit of the Career Advancement Scheme (i.e., senior
lecturer''s grade and Reader''s grade), upon taking into consideration his three years period of service between 06th July, 1981 and 17thJuly,
1984, because of a break in service between 18th July, 1984 and 31st July, 1984.
6. The writ petitioner has also referred to a memo dated 8th July, 1999, issued by the Director of Public Instruction, West Bengal, fixing the pay of
31 out of 32 teachers of Chakdah College (where he is presently working), in terms of the revised pay scale and has stated that he has been
denied of such revision of pay due to the illegal, arbitrary and mall fide action on the part of the respondent authorities.
7. According to the learned advocate for the writ petitioner, the issue as to whether the period of service rendered by the writ petitioner at
Nabadwip Vidyasagar College between 06th July, 1981 and 17th July, 1984, was to be counted for pay fixation, computation of pensioner
benefits and for getting benefit under the Career Advancement Scheme is no longer res integra, in view of the judgment of this Court dated 5th
November, 1997, passed in the earlier writ petition, which has not been appealed against by the respondent authorities. According to the learned
advocate for the writ petitioner, in the said judgment it has been held, inter alia, that the aforesaid period of service was regular even though there
was no recommendation of College Service Commission and that the Circular dated 12th November, 1990, was not attracted while the Circular
dated 29th January, 1986, was attracted. In any event, learned advocate submitted that even an erroneous judgment operates as res judicata
between the parties. In this regard he has referred to Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, and Satyadhyan Ghosal and
Others Vs. Sm. Deorajin Debi and Another,
8. He further submitted that in respect of the service rendered by the writ petitioner between 1981 and 1984, the respondent authorities have not
disclosed any contemporaneous circular which would disentitle the writ petitioner from getting any benefit of the Career Advancement Scheme. He
submitted that it is settled law that conditions of service cannot be altered or modified to the prejudice of an employee by subsequent administrative
instructions. Learned advocate has referred to Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and
Another, and Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others, to substantiate this point.
9. It has been further contended by the learned advocate for the petitioner that the Circular dated 30th June, 1998, purporting to clarify/amend the
G.O. dated 12th December, 1990, was clearly misplaced in view of the legal position that a final judgment cannot be set at naught by subsequent
legislative enactment - far less any Government order or executive instruction. In this context, he has relied on the case of S.R. Bhagwat & Ors. v.
The State of Mysore reported in JT 1995(6) SC 444.
10. So far as break in service of seventeen days between the writ petitioner leaving Nabadwip Vidyasagar College and joining Vidyanagar College
is concerned, learned advocate for the writ petitioner submitted that such break was for no fault on the part of the writ petitioner but due to delay
in issuance of the appointment letter by the Governing Body of Vidyanagar College, over which he had no control. In this regard, learned advocate
has referred to a similar case where the Court has condoned the break in service of a teacher when such break was for no fault on his part. The
said decision was rendered by the Court in the case of Krishan Lal v. The State of Haryana & Ors. reported in 1982(2) SLR 599. He has also
referred to an unreported judgment of this Court dated 26th April, 2000, in CO. No. 7094(W) of 1995, which, according to the learned
advocate, has been complied with.
11. Learned advocate finally submitted that the writ petition should be allowed in the facts and circumstances of the case along with the
interlocutory application, being G.A. No. 1506 of 2010, praying for grant of two increments for the PhD degree obtained by the writ petitioner,
with effect from 27th July, 1998, in terms of the G.O. dated 26th November, 2001.
12. On the other hand, learned senior Advocate appearing on behalf of the State respondents, submitted that the writ petitioner was not entitled to
get any benefit under the Career Advancement Scheme with effect from 01st August, 1986, by reason of his break in service between 18th July,
1984 and 31st July, 1984 (i.e., for a period of fourteen days). He further submitted that the writ petitioner''s first appointment as a lecturer in
Chemistry in Nabadwip Vidyasagar College was a temporary appointment on leave vacancy for a span of three years without any
recommendation from the West Bengal College Service Commission. However, the second appointment of the writ petitioner as lecturer in
Vidyasagar College was made on the recommendation of the West Bengal College Service Commission. He submitted that the writ petitioner,
having been appointed contrary to the mandate contemplated in the West Bengal College Service Commission Act, 1978, his very first
appointment as lecturer in Chemistry in Nabadwip Vidyasagar College was without any legal sanctity. As such, the writ petitioner cannot be
permitted to assert any judicially enforceable legal right before this Court for redress of his grievances. He further submitted that although the
Governing Body of the college had the power and authority to appoint teachers purely on temporary basis pending formation of the College
Service Commission, in terms of the West Bengal College Teachers (Security of Service) Act, 1975, the Governing Body had no power or
authority to unilaterally extend such service beyond six months. In this regard, he referred to a memo dated 20th June, 1978, issued by the
Director of Public Instruction, West Bengal, which, according to him, stipulated in no uncertain terms that terms of such temporary appointment
may be extended on six monthly basis up to two years with prior approval of the Government. He further submitted that in the case of the writ
petitioner no such prior approval for extension had been obtained from the Government in writing and the service rendered by the writ petitioner
never entitled him to any benefit. Even such arrangement of recruiting and/ or continuing with temporary teachers was discontinued with effect from
02nd November, 1979.
13. With regard to the two memos/government Orders dated 29th January, 1986, and 17th January, 1997, which have been relied on by the writ
petitioner - he submitted that the same do not come to any aid of the writ petitioner since he is not entitled to get the benefit of his service in
Nabadwip Vidyasagar College, as his name was not recommended by the West Bengal College Service Commission for such appointment in
terms of the statutory provision. Pay protection was granted to teachers who worked against temporary vacancies having been appointed on the
recommendation of the West Bengal College Service Commission and upon subsequent re-allotment of name by the Commission in terms of
memo/Government Order dated 29th January, 1986. The writ petitioner, not having fulfilled the criteria and/or conditions laid down by the
Government in the aforesaid two memos/government Orders, could not claim any entitlement of the benefits, which he is claiming in the present
proceeding. He further submitted that in any event, irrespective of whether the two aforesaid memos/ Government Orders applied or not, there,
admittedly, occurred a break of fourteen days between 18th July, 1984 and 31st July, 1984 and there was no statutory provision or any policy
whereby the tenure of one month could be extended by another fourteen days for the purpose of moving from one college to the other. When the
Government, by way of an executive order, has specified one month for moving from one college to other, the time frame stated therein cannot be
extended by this Court in exercise of its Constitutional writ jurisdiction. In this context, learned senior advocate for the State respondents has
referred to the case of The Martin Burn Ltd. Vs. The Corporation of Calcutta, . He finally submitted that in the facts and circumstances of the
case, the writ petition ought not to be entertained by this Court and should be dismissed.
14. Having regard to the facts and circumstances of the instant case, it is clear that although the writ petitioner''s initial appointment as lecturer in
Chemistry of Nabadwip Vidyasagar College was not made on a recommendation of the West Bengal College Service Commission, in view of the
judgment and order dated 05th November, 1997, passed in the earlier writ petition, the period of service between 06th July, 1981 and 17th July,
1984, shall be deemed to be held as regular service rendered by the writ petitioner. The said judgment and order dated 5th November, 1997, has
not been appealed against by the State respondents and has, therefore, reached its finality. Hence, it would operate as res judicata between the
parties. In this regard, one may notice the observations made by the Supreme Court in paragraph 7 of Satyadhyan Ghosal''s case (supra), which
has been relied on by the learned advocate for the petitioner:
(7) The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not
be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question
of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher
Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties
to canvass the matter again. This principle of res judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure; but even
where section 11 does not apply, the principle of res judicata has been applied by Courts for the purpose of achieving finality in litigation. The
result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was
correct.
15. In Mohanlal Goenka''s case (supra), which has also been relied on by the learned advocate for the petitioner, the Supreme Court in no
uncertain terms and quite categorically observed to the effect that there is ample authority for the proposition that even an erroneous decision on a
question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the
question whether or not it operates as res judicata.
16. Thus, relying on the observations made by the Supreme Court, it can be held that not only the earlier decision of this Court rendered on 05th
November, 1997 in W.P. No. 494 of 1994, binds the parties in the instant proceeding, the State respondents cannot render it nugatory by not
giving any effect to it, even if the said decision was erroneous. Consequentially, the break in service, between 18th July, 1984 and 31st July, 1984,
i.e., for a period of fourteen days, caused by the writ petitioner''s cessation of service in Nabadwip Vidyasagar College and assumption of duty in
Vidyanagar College, cannot be attributed to any fault or laches on his part. It is the admitted position that there was delay on the part of the college
authorities of Vidyanagar College in issuing appointment letter in favour of the writ petitioner and as such the delay on the part of the writ petitioner
joining service as lecturer in Vidyanagar College which resulted in his break in service was totally beyond his control. He had no role to play in the
matter as the break in service was caused solely due to administrative laches on the part of the concerned college authorities and the writ petitioner
cannot be penalised for it. The judgment of the Supreme Court in the case of Martin Burn Ltd. (supra), has no manner of application at all in the
facts of the instant case, in view of what has been discussed hereinbefore. This Court, therefore, holds that the writ petitioner''s seniority for the
purpose of fixation of pay shall be computed on and from the date of initially joining service on 06 July, 1981, as lecturer in Chemistry at
Nabadwip Vidyasagar College. However, in view of the submission made by the learned advocate for the petitioner which has been recorded in
the judgment and order dated 05th November, 1997, the writ petitioner shall not be entitled to claim any extra pecuniary or monetary benefits for
the services rendered by him from 06.07.1981 till 17.07.1984, save and except the other service benefits which he is likely to get for the service
rendered by him during those three years. Consequentially, the period between 18th July, 1984 and 31st July, 1984, shall be considered as a
continuous period of service rendered by the writ petitioner and shall not be construed as a break in service. The impugned memos dated 18th
November, 1998, and 10th/18th March, 1999, issued by the Director of Public Instruction, West Bengal, are, thus, liable to be set aside and
quashed and are accordingly set aside and quashed. The memo dated 11th April, 2011, issued by the Director of Public Instruction, West Bengal,
during the tendency of the instant writ petition, whereby the proposed fixation of pay of the writ petitioner as a Reader in Chemistry of Chakdah
College on his obtaining Ph.D. degree was not approved - which has been brought on record by the writ petitioner by a supplementary affidavit -
is liable to be set aside and is accordingly set aside in view of the observations made hereinabove. The writ petitioner shall be entitled to all
consequential benefits including benefits accrued in his favor on account of obtaining his PhD degree and the respondent authorities are directed to
give the writ petitioner the benefits of the Career Advancement Scheme with effect from 27th July, 1996, and reflex his pay accordingly.
The writ petition stands disposed of accordingly.
Biswanath Sommadder, J.