IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE PRESENT: The Hon’ble Mr.Justice Subrata Talukdar W.P.449 of 2013 Ratna Mitter -vs.State of West Bengal & with W.P.450 of 2013 Mitali Ghosh -vs.State of West Bengal & with W.P.451 of 2013 Ila Chakraborty -vs.State of West Bengal & with W.P.452 of 2013 Snigdha Singh -vs.State of West Bengal & with W.P.453 of 2013 Soma Dutta -vs.State of West Bengal & with W.P.454 of 2013 Anita Nigam -vs.State of West Bengal & with ORS.ORS.ORS.ORS.ORS.ORS.W.P.455 of 2013 Geeta Kumari Singh -vs.State of West Bengal & ORS.with W.P.456 of 2013 Krishna Bhattacharyya -vs.State of West Bengal & ORS.For the Petitioners : Mr.Saktipada Jana MRS.Ujani Pal (Samanta) For Respondent Nos.4, 5 & 6 : Mr.Sanjay Kumar Baid MRS.Arunima Lala Sengupta Heard on : 24/02/2016 Judgement on : 21/09/2016 Subrata Talukdar, J.: Since all the above noted writ petitions raise common questions of facts and law, they are taken up for hearing analogously and are being decided by this common judgment and order.
The facts of the fiRs.petitioner, Ms.Ratna Mitter, who is an approved teacher of the respondent-school in issue and challenges the inaction on the part of the School Authority to extend to the petitioner the benefits of pay scales as revised from time to time by the School Education Department, Government of West Bengal along with the corresponding dearness allowance (for short DA).also cover the other petitioners who are all similarly situated.
Sr.Saktipada Jana, Ld.
Counsel appearing for all the above noted writ petitioneRs.argues that by a notification of the School Education Department (for short the Department) bearing the No.641-SE(Law)5S-577/2001 dated 29th May, 2002 it was, inter alia, decided that the authorities of all the DA getting schools recognized by the West Bengal Board of Secondary Education (for short the Board) in which the State provides the DA component for both the approved teaching and non-teaching staff shall be required to pay salaries at the appropriate scales of pay from their own resources to such approved teaching and non-teaching employees of Government Aided Schools with immediate effect.
Sr.Jana further argues that by the said notification dated 29th May, 2002, DA at the rate prescribed shall be paid in supersession of all previous orders on the condition that such posts are duly sanctioned by the Government meaning thereby the appointment of both teaching and non-teaching staff to these posts are approved.
It was made clear that no school shall claim DA in respect of any nonapproved staff who is not within the sanctioned strength.
Sr.Jana points out that the notification dated 29th May, 2002 was to take immediate effect and the scales of pay at the rates as fixed by the said notification of 29th May, 2002 were to be in terms of the Revision of Pay and Allowances Rules, 1998 (for short ROPA1998.
Counsel for the petitioner submits that the revised scales of pay in terms of ROPA1998was made notionally effective from 1st January, 1998 with actual effect to be given from 1st April, 1997 in terms of the recommendation of the 4th Pay Commission.
However, by the notification dated 29th May, 2002 such revised scales came into effect immediately, i.e.from 1st June, 2002.
Therefore, Sr.Jana submits that in terms of ROPA1998the basic pay of the petitioner ought to have been placed at the scale of Rs.6000-12000/- as Assistant Teacher having Masters Degree with training qualification.
The fixation as on 1st June, 2002 in terms of the notification dated 29th May, 2002 ought to have been at Rs.7350/- per month.
In digression of the condition prescribed by the said notification dated 29th May, 2002, the pay scale of the petitioner which was required to be fixed at Rs.7350/- effective as on 1st June, 2002, was actually fixed at the said scale of Rs.7350/- by the School Authority on 16th March, 2012, i.e.after the lapse of nearly a decade.
Therefore, the petitioner became entitled to difference in salaries for the period between June, 2002 to March, 2012, since the petitioner only received a salary of Rs.6000/- instead of Rs.7350/- as per ROPA1998applicable to Masters Degree holdeRs.Ld.
Counsel for the petitioner also argues that the School Authority implemented the revision of pay scale as directed by the Government from time to time by fixing the basic pay of the petitioner at Rs.7350/- however to be effective from the month of April, 2012.
Under the circumstances, the petitioner became entitled to the difference in salaries for the period between 1st June, 2002 to 16th March, 2012, which is yet to be paid by the School Authority.
Sr.Jana clarifies that the second limb of the petitioner’s argument is that the School Authority failed to pay the DA as disbursed by the State Authority in respect of the revised salaries of the petitioner for the period between June, 2002 to March, 2009.
Ultimately, the deficit DA component in respect of the petitioner’s salaries was refunded to her on 20th March, 2012.
The petitioner is therefore entitled to the difference in the DA component upon revision of pay scale to Rs.7350/- per month with effect from 1st June, 2002 till 16th March, 2012 during which period the petitioner received only a salary of Rs.6000/- per month along with the corresponding DA component as refunded to her on 20th March, 2012.
The third limb of Sr.Jana’s submissions is that in the meantime the State Government has implemented ROPA2009with effect from 27th February, 2009.
Such revision of pay scales as recommended by the 5th Pay Commission was extended to all teaching and non-teaching staff of State Schools.
Axiomatically by the notification dated 29th May, 2002 the employees of the DA getting schools also became entitled to revision of salaries as well as the corresponding DA component under ROPA2009 Sr.Jana accordingly submits that the petitioner is entitled to claim the pay fixation and the DA component as revised under ROPA2009and extended to the teaching and non-teaching approved staff of DA getting schools such as the present respondent.
Sr.Jana points out that there is no delay in preferring the present writ petition since the revision of pay was given effect to by the School Authority from 16th March, 2012 qua the petitioner and the present writ petition has been filed soon thereafter in the year 2013.
In support of his submissions Sr.Jana relies upon the judgment of this Hon’ble Court In Re: Sushil Kumar Pandey being WP14892W) of 2009 as well as the judgment of the Hon’ble Apex Court in Frank Anthony Public School Employees’ Association versus Union of India and ORS.reported in 1986 (4) SCC707 Arguing for the School Authority, Sr.Sanjay Kumar Baid, Ld.
Counsel raises the primary point that the present claim of the petitioner is barred by limitation.
Sr.Baid argues that the claim of the petitioner is in the nature of a money claim which purportedly became due under the said notification dated 29th May, 2002.
Such money claim is enforceable under the statute of limitation within a period of three years from the date of such claim having arisen.
Sr.Baid points out that by her own declaration, the petitioner agreed to finally accept the difference in the DA component as revised by the State Government from the School Authority and therefore is precluded from claiming such difference through this writ petition.
According to Sr.Baid, the petitioner has waived her claim to receive any further pay revision in as much as the petitioner continued to receive the basic pay of Rs.6000/- even after ROPA2009was announced and, upon revision of her basic pay to Rs.7350/-, the petitioner was paid her arrear DA component by way of full and final settlement of her claim.
Sr.Baid next argues that it is a commonly understood fact that the School Authority is required to pay the revised benefits to its teaching and non-teaching staff from the fees collected from students.
It is not in dispute that the School Authority does not receive any financial assistance from the State Government.
The fees charged from the students are kept at a bare minimum since the school primarily caters to underprivileged children.
The school has grown around an orphanage and, it is settled by judicial authority that unless the teaching and non-teaching staff recognise the ground realities, the school shall have no option but to close down.
In support of his arguments as above Sr.Baid relies upon the following judicial authorities:• MANU/DE/0059/2010=166 (2010) DLT649in the matter of Chander Bhan S/o Shri Chhotey Lal versus Union of India (UOI) (through Secretary) Ministry of Urban Development; • 2007 (3) CHN223in the matter of Hind Spectron Manufacturers PVT.LTD.& Anr.
versus UCO Bank & Ors.; • 2004 SCC Online Cal 156 in the matter of Centrotrade Mines & Minerals LTD.versus Hindustan Copper Ltd.; • 2010 (12) SCC538in the matter of State of Mdhya Pradesh & ORS.versus Yogendra Shrivastava; • 2000 (9) SCC432in the matter of Municipal Employees Union (Regd.) Sirhind & ORS.versus State of Punjab & Ors.; • MANU/WB/0316/2015 in the matter of State Trading Corporation of India LTD.& ORS.versus Alok Kumar Ghosal & Ors.; • MANU/MH/0078/2001 in the matter of Sunanda Pandharinath Adhav & ORS.versus State of Maharashtra & ORS.(at Paragraph 14).• 2005 (13) SCC407in the matter of Shivaji Shikshan Prasarak Mandal & Anr.
versus State of Maharashtra & Ors.Having heard the parties and considering the materials on record, this Court has no doubt in its mind that the petitioner, being an approved teaching staff of the school in issue, deserves to be treated without any discrimination as specified under the notification dated 29th May, 2002.
This Court notices that it is also not in doubt that the School Authority is receiving the DA component of its approved teaching and non-teaching staff from the State Government.
Admittedly the deficit of the DA component receivable by the petitioner was paid to her on 20th March, 2012 consequent to the revision of her basic salary with effect from 16th March, 2012.
The application of the notification dated 29th May, 2002 to the school in issue along with such similarly situated schools has not been disputed.
Neither has the rationale behind the said notification dated 29th May, 2002 questioned by the School Authority in the present proceeding.
The presumption therefore, in law, is that such notification dated 29th May, 2002 is intra vires.
It is also trite law that Article 14 of the Constitution of India forbids both discriminatory treatment and unreasonable classification.
The School Authority showed its willingness to act under the notification dated 29th May, 2002 by revising the pay of the petitioner after nearly 10 years to Rs.7350/- per month under such notification although the same ought to have been revised from 1st June, 2002.
The School Authority further paid the deficit DA component qua such revision with effect from 20th March, 2012.
It is also not in dispute that the School Authority continues to receive DA support from the State Government.
In terms of such DA support it became mandatory upon the School Authority to implement the terms of the notification dated 29th May, 2002 which apply with full force to a school receiving DA component from the State Government.
In connection with the argument raised by the School Authority that the receipt by the petitioner of the full deficit DA component on 20th March, 2012 constitutes waiver of her rights, this Court finds that the rights of the petitioner are based on the notification dated 29th May, 2002 which has the force of a statute.
The rationale behind the notification dated 29th May, 2002 and its application has been upheld in the judgment of this Hon’ble Court in WP14982W) of 2009 in the matter of Sushil Kumar Pandey & ORS.versus State of West Bengal & Ors.Such notification dated 29th May, 2002 having statutory flavour, the claim of the petitioner cannot be held to be barred by the principles of waiver or acquiescence since, no estoppel can be claimed agains