JUDGMENT
Pratap Kumar Ray, J.
1. Heard the learned advocate appearing for the parties.
2. In the instant case, the petitioner has assailed the order dated 26th November, 2002 issued under Memo No. 568/1(S)-CC passed by the Director of School Education, West Bengal whereby and whereunder the pay fixation as was earlier done by the District Inspector of Schools (SE) Midnapore vide Memo No. 4774-S dated 22nd December, 1988 considering the petitioner’s qualification as M.A. in Bengali and diploma in English education by fixing Rs. 625/- with effect from 1.4.81 was modified by fixing the admissible pay as Rs. 600/- with effect from 1.4.81 on interpreting the circular letter being Memo No. 171-Edn.(B) dated 15th May, 1984, the concerned memo formulating the guidelines to fix the pay scale on qualification diploma in English literature. It is submitted by the learned advocate for the petitioner that since the petitioner was deputed to undergo training in diploma in English literature at the Institute of English in Calcutta by appropriate resolution of the Managing Committee and the petitioner was allowed salary during the deputation period, the petitioner is legally entitled to get the appropriate increment for his diploma in English literature training. The learned advocate for the petitioner Mr. Roy Chowdhury has placed a document being the letter dated 8th January, 1980 issued by the Headmaster Pingboni High School addressed to the Director. Institute of English. The learned advocate for the petitioner further placed a resolution of the Managing Committee dated 3rd January, 1980 wherefrom it appears that the Managing Committee allowed the application of the petitioner praying deputation to undergo the said training. It appears further that the Managing Committee deputed the petitioner to undergo the said course with full salary for the deputed period. From the records it appears that the petitioner originally was, appointed as an Assistant Teacher in Language Group, He was qualified with B.A. degree only. Subsequently the petitioner enhanced his qualification M.A. in Bengali as well as M.A. in Islamic History. At this juncture the petitioner was deputed to undergo the training of diploma in English literature, which is admitted from the documents of the Managing Committee as placed before this Court. Relevant documents dated 8th January, 1980 being the letter of the Headmaster is reproduced herein below :-
Dt. 8.1.80
‘To
The Director, Institute of English
119, Shyamaprasad Mukherjee Road
Calcutta
– 26
Sub: D.E.L.T. Training at the Institute of Eng. in Cal.
Sir,
I have much pleasure to inform you that Sri Karunasindhu Masanta M.A.P.G.B.T. asstt. Teacher of my school is allowed to have the aforementioned training in your institute. As per application of Sri Masanta, the Managing Committee in its meeting dated 3.1.80 adopted an unanimous resolution to depute him from 10th Jan.’80 to 9th May,’80 with full pay and allowances as per G.A. rules.
A copy of resolution Extract is attached herewith for your initiation and necessary action.
Yours faithfully,
Sd/-8.1.80
Headmaster
Pingboni High School P.O.-Pingboni,
Midnapore”
3. Let the original document as placed before this Court be kept with the record.
4. In the writ application, the petitioner no where stated whether the petitioner was a teacher of Bengali subject of Language Group or teacher of English subject of Language Group. Under the staff pattern as introduced in the school service long back in the Language Group three teachers are eligible to be appointed, one Bengali and another English and last one Sanskrit or other subject, if any. Since the petitioner by producing the document today has claimed his teaching post in English in the school in question and thereby has claimed pay fixation by granting increment for diploma in English literature training, this Court is accepting the petitioner as a teacher in English subject. Now from the records it appears that the petitioner so long has enjoyed post graduate pay scale for his teaching post in Bengali due to his qualification M.A. in Bengali. A teacher cannot occupy both the two posts in a school namely of English subject and Bengali subject simultaneously in a school. Either the petitioner to be considered and approved in post as a teacher of Bengali subject or a teacher of English subject. Since the learned advocate for the petitioner, Mr. Roy Chowdhury has submitted that the petitioner is a teacher of English subject and for that reason he was deputed for training in diploma in English literature and necessary documents have been produced before this Court to that effect, the Court will consider the case of the petitioner as a teacher in English subject in the concerned school. Under the Rules and Regulations under Grants-in-Aid a teacher in English subject even if he qualifies himself in the post graduate degree on other subject here in the case Bengali, is not entitled to enjoy post graduate pay scale. The post graduate pay scale for higher qualification as introduced by Memo No. 33-Edn.(B) dated 7.3.1990 speaks that the teacher concerned must be an appointee in that particular teaching subject to enjoy the post graduate pay scale. Since it is an admitted fact that the petitioner is not at all an appointee in the teaching subject Bengali in the school in question, so the petitioner was not eligible to get post graduate pay scale as enjoyed by the petitioner so long. This issue has not at all been considered either by the District Inspector of Schools concerned or by the Director of Schools Education, West Bengal. In that view, this Court feels that the pay fixation as done is totally a wrong pay fixation. Furthermore, it appears that the decision of the District Inspector of Schools concerned dated 22nd December, 1988 annexed at page 26 relying upon the Memo No. 1569(16) G.A. dated 21st September, 1985 has no applicability on the date when such decision taken on 22nd December, 1988 as the aforesaid Memo No. 1569(16) G.A. dated 21st September, 1985 was cancelled by Memo No. 1157(17) “G.A. dated 10th May, 1988. The Memo No. 1569 (16) G.A. dated 21st September, 1985 and Memo No. 1157 (17) G.A. dated 10th May, 1988 are set out hereinbelow:
No. 1569(16) GA Dated, the 21st September, 1985
In connection with the subject mentioned above the undersigned has to state that some reports of anomalies in connection with the fixation of pay of the teachers with D.E.L.T. before and after 1.4.81 are received in this Directorate and therefore this guideline should be followed to sort out the anomalies.
The fixation of pay a teacher with D.E.L.T. before 1.4.81 and 10 years’ teaching experience on the date of option should be made in the following manner in terms of Government Order No. 408-Edn.(B) dated 13.9.83 and No. 171/Edn.(B) dated 15.5.84.
The pay of the above category of teachers should be fixed at Rs. 600/- on 1.4.81 in terms of Government Order No. 171/Edn.(B) dated 15.5.84 and the one incremental benefit should be extended to them provided they complete 10 years’ teaching experience on the date of option in terms of Government Order No. 492(6)-Edn.(B) dated 26.10.81 to make it Rs. 625/-.
In this connection it may be mentioned that before issue of the Government Order No. 171-Edn.(B) dated 15.5.84 it was noticed that due to fixation of pay in terms of Government Order No. 372-Edn(B) dated 31.7.81 the pay of Jr. teachers with D.E.L.T. after 1.4.81 has been higher than that of the Sr. teachers with D.E.L.T. before 1.4.81 and that is whey the Government Order No. 171/Edn.(B) dated 15.5.84 has been issued to protect the interest of Sr. teachers.”
No. 1157 (17) GA Dated, 10th May, 1988
The undersigned has to state that this DSE’s Circular No. 1569 (16) G.A. dt. 21.9.85 on the above noted subject is hereby cancelled. The fixation of Pay of the teachers who got D.E.L.T. diploma prior to 1.4.81 should be read in terms of G.O. No. 171/Edn.(B) dated 15.5.84. Fixation of Pay of such category of teachers made in terms of the above said Circular may please be submitted to this office for further examination. …
Sd/- J. Dutta
for D.S.E.W.B.”
From the of the District Inspector of Schools concerned which is the basic point for argument in this writ application by the petitioner it appears that on 22nd December, 1988 the District Inspector of Schools concerned applied Memo No. 1569 (16) G.A. dated 21st September, 1985 though such memo was cancelled on 10th May, 1988 that is two months prior to the decision as taken by the District Inspector of School concerned fixing higher incremental benefit for qualification diploma in English literature training. The decision of the District Inspector of Schools concerned dated 22nd December, 1988 reads thus :-
Memo No. 4774-S Date. 22.12.88
… In reference to the subject quoted above the undersigned has to state that the pay of Sri Karunasindhu Masanta, M.A., Dip.-in-Edn., D.E.L.T. (prior to 1.4.81) asstt. Teacher of his school, is reflxed Rs. 625/- w.e.f. 1.4.81 including 10 years benefit in terms of D.S.E. W.B.’s Memo No. 1569 (16) G.A. dt. 21.9.85 on condition that no arrear is admissible prior to 31.8.83. Sri Masanta may be informed accordingly from his end. ..”
5. In that view, this Court feels that initial pay fixation fixing pay at Rs. 625/- as on 1.4.81 relying upon the circular letter of 21st September, 1985 was absolutely an illegal decision as on that date the circular letter dated 21st September, 1985 had no existence. In that view, the said decision which has been relied upon by the petitioner as basic document to claim the benefit of two increments for diploma in English literature training and one increment for ten years benefit inservice is hereby set aside and quashed. As a resultant effect it appears that the decision of Director of Schools Education, West Bengal is also erroneous. Since the Director of School Education, West Bengal did not at all consider that whether the petitioner, who has claimed himself as English teacher and thereby claimed pay fixation for his diploma in English literature would be entitled to get post graduate pay scale for his enhanced qualification M.A. in Bengali and M.A. in Islamic Hostory. Further the incremental benefits for diploma in English literature training is available only to those teachers who are teaching in English subject in the concerned school and or institute. By Memo No. 3416-Edn.(D)/5P-29/64 dated 22nd June, 1965 issued by the Deputy Secretary to the Government of West Bengal it was directed by the order of the Hon’ble Governor that only those teachers who are teaching English would be entitled to draw two increments in the respective scale of pay on completion of the training course at the Institute of English. The Memo No. 3416-Edn.(D)/5P-29/64 dated 22nd June, 1965 is set out hereinbelow:
No. 3416-Edn.(D)/5P-29/64 Dated 22nd June, 1965
…… In modification of Government Order No. 3818-Edn.(D), dated the 30th December, 1964, the undersigned is directed by the order of the Governor to say that the Governor is pleased to direct that the teachers of Government and aided Secondary schools and Lecturers of Government and Sponsored Training Colleges teaching English, who would successfully complete the training course of the Institute of English, Calcutta, be allowed to draw two increments in the respective scales of pay from the date of resuming their duties in the respective institutions.
2. The grant of two increments to English Teachers and Lecturers on completion of above training would not affect the normal dates of increments of the persons concerned i.e. after drawal of these two advance increments, the persons concerned should be allowed to draw their next increment, as usual.
3. The Accountant General, West Bengal, has been informed.
4. This order is issued with the concurrence of the Finance Department of this Government, vide their U.O. No. A. VII/2805, dated the 10th December, 1964.
Sd/-
H.B. Ghosh
Deputy Secretary to the
Government of West Bengal”
6. Hence, it appears that until and unless a teacher is appointed to teach the English subject, there is no scope for deputing any teacher to undergo such diploma course in English literature. The circular letter being Memo No. 1620-Edn(S) dated 16th October, 1973 has cleared the position, which reads thus :-
Memo No. 1620-Edn (S) Dated 16th October, 1973
“In Clarification of G.O. No. 3416-Edn(D) dated 22nd June, 1965 the undersigned is directed to say that the benefit of two advance in the respective scales of pay may be allowed to the Asstt. Teachers of Government and Aided Secondary Schools on successful completion of the training course at the Institute of English, Calcutta subject to the condition that the teachers’ teaching load in English, is not less than 50% of his total work-load.
The aforesaid condition should not however, affect the teachers, if any, who have already been allowed the said benefit, of advance increments.
To make the scheme purposeful in future while deputing teachers for the aforesaid training course, the authorities of the schools concerned should confine, as far as practicable, the selection within Honours or M.A. degree holders in English. Suitable instructions may please be issued in this respect to all the schools.
Sd/-
S. N. Chowdhury
Deputy Secretary.”
7. In the said circular letter of 16th October, 1973 it is provided that only Honours or M.A. degree holders in English would be suitable to be deputed for such training course. It appears from the records of the writ application that the petitioner neither qualified with M.A. in English or Honours in English at the relevant time when he was deputed to undergo the training course. But it appears that the Managing Committee has deputed the petitioner considering a teacher of English subject. Hence, for all purposes the petitioner now would be deemed as teacher of English subject. In that view, the petitioner is legally entitled to get two increments in accordance with law for his diploma in English literature training. But the petitioner was not entitled to get post graduate pay scale so long wrongly as he enjoyed as the petitioner never was M.A. in English but he qualified himself M.A. in Bengali and M.A. in Islamic History. Hence, it appears that the entire pay fixation issue was wrongly done and there was a mistake to fix the pay scale. The Director of School Education, West Bengal did not also consider this issue. Hence, the decision of the Director of School Education, West Bengal as impugned is set aside and quashed. It appears from the records that the pay fixation was not done properly. Since the petitioner has claimed the teaching post in English and thereby two increments for diploma in English literature, the petitioner all through would be considered as a teacher having qualification of graduate degree for the purpose of pay fixation. The petitioner cannot claim both namely, post graduate pay scale as a teacher of Bengali subject for his qualification M.A. in Bengali and two increments for diploma in English literature subject as a teacher of English subject. Hence, it appears that the District Inspector of Schools as well as the Director of School Education, West Bengal both committed gross mistake in fixing the pay scale of the petitioner. It is true that the petitioner has now retired. But the retirement of the petitioner will not allow the petitioner to enjoy higher pay as was wrongly fixed since the payment was made from the public exchequer. The petitioner might have influenced the Managing Committee to depute him as English teacher though the petitioner at the material time was enjoying the post graduate pay scale as per his post as Bengali teacher. Hence, for rectification and/or modification of the gross mistake as committed, the concerned officer has the jurisdiction to entertain the issue even at the post retirement stage. If any administrative order is issued on mistake, such mistake may be cured and it cannot be said that it is irreversible. “Wade”, the learned author of Administrative Law, has cleared the position at it appears from the passage at page 262 of the book Administrative Law, 7th Edition by H.W. Wade and C.F. Forsyth which reads thus :
“A mistake may lead to action being taken upon a wholly wrong basis so that some different action needs to be substituted. This happened where a local education authority agreed to pay the cost of school transport for a girl, supposing that she lived more than three miles from the school and that they therefore had a statutory duty to pay. When it was found that the distance was less than three miles, so that they had a power to pay but no duty, they refused to do so. The Court of Appeal rejected the plea that the original decision was irrevocable, since it was not taken in the exercise of any power to determine a question of legal right and could not affect the duty to exercise discretion when the true facts appeared.”
8. The identical question cropped up before the Court of Appeal in England in the case Rootkin v. Kent CC, reported in (1981) 1 WLR 1186 and it was decided that nobody can claim any right over the mistake. Having regard to such position irrespective of the fact that the petitioner has already retired from service, this Court directs that the petitioner’s pay fixation should be done In proper way in terms of the observations of this Court within two months from this date by hearing the petitioner, the District Inspector of Schools concerned as well as the Managing Committee of the School, by the Director of School Education, West Bengal, on considering all the papers and documents including verification of the staff pattern of the school and the teaching post as held by the petitioner at the relevant time. A reasoned decision to be communicated to the petitioner within two weeks from the date of taking such decision. All retirement benefits to be released in pursuance of the decision of the pay fixation by the said officer within six months from the date of taking such decision subject to the decision of deduction of excess amount from retrial benefits.
9. With the aforesaid observations and findings writ application is disposed of on rejecting the prayer of the writ application.
