THE STATE OF WEST BENGAL & ORS vs ANIRBAN GHOSH & ORS
- Court
- Calcutta High Court
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon’ble Justice Soumen Sen
And
The Hon’ble Justice Saugata Bhattacharyya
MAT 1221 of 2019
State of West Bengal & Ors.
Vs.
Anirban Ghosh & Ors.
MAT 1367 of 2019
State of West Bengal & Ors.
Vs.
Barun Kumar Ghosh & Ors.
For the State: : Mr. Kishore Dutta, Ld. A.G.,
Mr. Joyotosh Majumder, Ld. G.P.,
Ms. Kakali Samajpati, Adv.
For the respondents :Mr. Lakshmi Kumar Gupta, Sr. Adv.,
(MAT – 1221 of 2019) Mr. Arjun Ray Mukherjee, Adv.,
Mr. Partha Pratim Dutta, Adv.
For the Respondent : Mr. Soumen Kumar Dutta, Adv.
(MAT – 1367 of 2019) Mr. Sourav Dutta, Adv.
Hearing concluded on : 22.06.2020
Dated : 03.09.2020
The Court :- The direction for payment of salaries and other benefits
to the writ petitioners equal to that of the regular scale of pay and at par
with full-time permanent teachers of the concerned school by the judgment
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dated 4 July, 2019 has given rise to the present appeal.
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Shorn of details, the Government of West Bengal, School Education
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Department, by a notification No. 219-SE (HS) 6A-5/01 dated 6 June,
2002, created 900 posts of part-time teachers for the Higher Secondary
sections of the Higher Secondary Schools in West Bengal on a fixed pay of
Rs. 2,000 per month on contract basis as part-time teachers to be filled by
the Managing Committee/Ad-hoc Committee/Administrator of the Higher
Secondary School, inter alia, on the following terms and conditions:
(i) The period of contract should be for one year with a provision for
renewal with a break.
(ii) The teaching load for such part-time teacher should be normally
10 periods per week and these posts are meant for up-gradation of
Higher Secondary Schools.
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By a subsequent notification dated 8 August, 2002, being Memo No.
642-1(2a)-SE (HS), the Director of School Education, Government of West
Bengal, issued directions to different schools to take immediate steps to fill
up the regular posts by bringing the matter to the respective School Service
Commissions through the concerned District Inspector of Schools in strict
compliance with the Reservation Rules (100 point roster) and all other rules
and procedures, as framed by the Government from time-to-time. The posts
sanctioned, meant for part-time (contract basis) teachers were also directed
to be filled up simultaneously, as per the terms and conditions laid down in
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G.O. No. 219-SE (HS) dated 6 June, 2002. Following the aforesaid, the
Director of School Education published guidelines for recruitment of part-
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time assistant teachers of recognised Non-Government Higher Secondary
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Schools/Madrasas in terms of G.O. No.1253-SE (S) dated 9 September,
2002. The said guidelines stated that all appointments would be made
strictly according to the aforesaid guidelines and against such part-time
teaching posts only which have been sanctioned by the School Education
Department. All the candidates would be selected by the Selection
Committee to be constituted in terms of the said guidelines. The
appointments made on the basis of such guidelines would be purely on
temporary and contractual basis and for a period of one year. The guidelines
made it clear that before issuing the appointment letter the contract paper
in the proforma prescribed by the Director of School Education would have
to be signed by the candidate and the School Authority. All the candidates
selected in terms of the aforesaid guidelines have signed the ‘Proforma for
appointment of part-time teacher in Higher Secondary Section on
contractual basis’, which contains the following terms and conditions:
1. The appointment of the part-time teacher would be purely
temporary and on contractual basis for 1 (one) year with effect from
the date of joining, provided his/her service in the institution is
found satisfactory throughout this period of 1 (one) year on a fixed
pay of Rs. 2,000/- (Rupees two thousand) only per month without
any allowances. His/Her service would automatically be terminated
on expiry of the period of 1 (one) year or, earlier, if his/her
performance in the school is not found satisfactory and/or in
violation of condition (2) below and as provided herein below.
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2. The teaching load of the part-time teacher would normally be (10)
ten periods per week and he/she would carry out his/her duties in
the School/Madrasa as allotted to him/her.
3. During the vacation period also, the part-time teacher would get
the consolidated pay as stated above.
4. He/she will not claim for an appointment on regular basis on
expiry of his/her term.
5. His/Her appointment is terminable with 1 (one) month’s notice on
either side and before completion of the contractual period of 1
(one) year.
The terms and conditions indicated above were as prescribed in G.O.
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No. 219-SE (HS) dated 6 June, 2002 read with G.O. No. 1253-SE (S) dated
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9 September, 2002. The letter of appointment clearly stipulates that the
appointment would be purely on temporary and contractual basis. The
teaching load of the part-time teachers would nearly be 10 periods per week
and the teachers would not claim for payment on regular basis on expiry of
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their term. Thereafter, on 29 August, 2008, the School Education
Department had taken a decision that for those Higher Secondary schools
which were running with part-time contractual teachers since 2002, no
additional posts should be sanctioned to such Higher Secondary Schools for
the subjects taken care of by the part-time contractual teachers. The
honorarium of the part-time teachers on contractual basis, however, was
enhanced from time-to-time and at present we have been informed that the
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part-time teachers are receiving an honorarium of Rs. 13,000/- per month.
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On 25 February, 2009, while enhancing the emoluments of the part-time
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teachers to Rs. 6,000/- only per teacher per month with effect from 1
January, 2009, it was made clear that there will be no further appointment
of any new part-time teacher (on contract basis) in Non-Government Higher
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Secondary Schools with effect from 1 April, 2007. The existing part-time
teachers (on contract basis) were allowed to continue until further orders.
Reference was also made to the fact that the expenditure to be incurred for
such enhancement would be met out of the budget provision under the head
of Account–2202-General Education-02-Secondary Education-110-
Assistance to Non-Government Secondary Schools.
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On 28 January, 2010 the Government issued an order, being No.
100-SE (S)/1S-37/09 to ensure that none of the part-time contractual
teachers attached to Government-aided Higher Secondary schools be
terminated or be released or have their contracts not renewed without
obtaining the permission of the District Inspector of Schools (SE) concerned.
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By a subsequent Memo of 23 April, 2010, while enhancing the honorarium
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to Rs. 8100/- with effect from 1 January, 2010, it was clearly stated that
on attaining 60 years of age or winding up of this project the part-time
teachers would be paid an ex-gratia retirement honorarium of Rs. 1 lakh
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only on lump sum basis. By a notification dated 23 April, 2010, the
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Government issued a further order dated 9 June, 2010 by which it was
made clear that no other allowances would be available to the part-time
teachers attached to Non-Government Higher Secondary schools except the
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enhancement at the rate of 5% of the remuneration at every interval of 3
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years, after the enhancement is done as on 1 June, 2010. These persons
would remain engaged till they attained 60 years of age and the State
Government would bear the expenditure. The benefit of 10 days casual leave
and 10 days medical leave was extended to the contractual part-time
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teachers by the Government Order dated 28 July, 2010 subject to the
condition that the part-time teachers would have to take the same number
of classes per week as like as the duties of a regular and full-time teacher.
Some of the part-time teachers were also appointed as examiners by the
West Bengal Council of Higher Secondary Education.
The writ petitioners, being aggrieved by the act of the appellants in not
treating them as equal with the regular teachers, filed writ petitions. One of
the writ petitioners, namely, Anirban Ghosh filed a writ petition for
extending the benefit of equal pay for equal work in connection with the
service of part-time teachers of Khandra High School (HS), District -
Burdwan. The writ petition was disposed of by the Hon’ble Mr. Justice Kar
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Gupta, our former Chief Justice on 8 October, 2013 by directing the
Secretary to the Government of West Bengal, School Education Department
to take a decision in the matter by passing a reasoned order in accordance
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with law by 31 December, 2013 and to communicate the same to the
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petitioner by 15 January, 2014. In terms of the said direction, the
Secretary, Government of West Bengal, School Education Department
decided the matter against the petitioner. The authority concerned has
observed that the service of the petitioner cannot be regularised as a
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permanent teacher. The petitioners were appointed on purely contractual
basis in a part-time post only for Higher Secondary section of the schools
and the State Government till date has not issued any order to regularise
the appointment of part-time teachers against any permanent vacancy. The
extension of 10 days casual leave and 10 days medical leave in a year to the
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contractual teachers as per G.O. No. 1176–SE(S) dated 28 July, 2010 does
not imply that the part-time teacher shall be treated as a permanent
teacher. The said Government Order was meant only for providing leave to
the part-time contractual teachers who were willing to take classes
regularly. The authorities relied upon Section 9 of the West Bengal School
Service Commission Act, 1997 and Section 4 of the West Bengal Schools
(Control of Expenditure) Act, 2005 to deny the claims of the writ petitioners.
Being aggrieved by the said order, Mr. Anirban Ghosh along with Mr. Barun
Kumar filed two separate writ petitions, being W.P. No. 14283 (W) of 2014
and W.P. No. 14319 (W) of 2014.
Both the writ petitions were heard together and disposed of by a
common judgment.
The writ petition was decided without affidavits as, despite several
opportunities being given to the appellants, none of the
appellants/respondents appeared to contest the proceedings. The State and
the other authorities did not appear in the matter since April, 2019. The
learned Single Judge accordingly proceeded on the basis of the materials on
record and the submissions made on behalf of the writ petitioners. The
learned Single Judge allowed the writ petition on the principle of equal pay
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for equal work relying upon a recent decision of the Hon’ble Supreme Court
being State of Punjab & Anr. v. Jagjit Sing h & Ors., reported in 2017 (1)
SCC 148 . The relevant observations of the learned Single Judge in this
regard are:-
‘ The principle of parity of pay scale considered in Jagjit Singh related to
temporary employees performing the same duties and responsibilities
as that of regular employees. The issue for consideration before the
Supreme Court was whether Memorandum/regular 10 pay scale along
with dearness allowance could be extended to temporary employees
engaged on a daily-wage basis, Ad-hoc appointees, casual employees,
contractual appointees and the like. After considering several decisions,
the Supreme Court held that temporary employees possessing requisite
qualifications and appointees against sanctioned posts and performing
similar duties as that discharged by regular employees were entitled to
claim wages at par with minimum pay scale of regular employees
holding the same posts. Before considering whether the aforesaid
principle fits into the facts of the present writ petitions, understanding
what the principle “equal pay for equal work” entails is necessary.
12. The principle has been urged by employees who were appointed on
a contractual or Ad-hoc basis and claimed a parity of pay scale to
employees who were engaged on a regular basis against sanctioned
posts. The underlying sense of entitlement of the employees before the
Supreme Court, as has been discussed in the decisions, was the
similarity of the scale of duties and responsibilities of contractual
employees to those engaged in regular posts. In Jagjit Singh, the
Supreme Court held that the onus of establishing similar parity in the
duties and responsibilities of the subject posts with reference to the pay
scale of the post aspired for, lay on the person who claims it. Further,
the principle of “equal pay for equal work” would be applicable in cases
of unequal scales of pay based on irrational classification or an
absence of classification and the concerned employees should be
performing work of the same quality and sensitivity as those with
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whom the comparison is sought to be made. This would mean that
persons 11 holding the same designation but having dissimilar duties
and responsibilities would naturally be excluded from claiming equal
pay. It was also held that for placement in a regular pay scale, the
claimant has to be a regular appointee (reference: Orissa University of
Agriculture & Technology Vs. Manoj K. Mohanty; (2003) 5 SCC 188. A
few cases where a claim for pay parity was accepted by the Supreme
Court are Dhirendra Chamoli Vs. State of U.P.; (1986) 1 SCC 637,
where it was held that the action of not paying the same wage despite
the work being the same was violative of Article 14 of the Constitution
of India. In Surinder Singh Vs. CPWD; (1986) 1 SCC 639, it was found
that the right of equal wages claimed by temporary employees had its
foundation in Article 39 of the Constitution (Article 39; “Certain
principles of policy to be followed by the State”). The scope was
widened in Bhagwan Dass Vs. State of Haryana; (1987) 4 SCC 634
where the Supreme Court held, inter alia, that the manner of selection
and appointment or the duration of the appointment in temporary cases
would make no difference. The only relevant consideration according to
the Supreme Court was whether an employee is required to discharge
similar duties and responsibilities as regular employees and the
concerned employee possesses the qualifications prescribed for the
post. In State of U.P. Vs. Putti Lal; (2006) 9 SCC 337, State of Haryana
Vs. Charanjit Singh; (2006) 9 SCC 321, U.P. Land Development Corpn.
Vs. Mohd. Khursheed Anwar; (2010) 7 SCC 739, respectively, the
Supreme Court declared that if the daily wage employees could
establish that they were performing equal work of equal quality and all
other relevant factors were fulfilled, a demand for payment of equal
wages would be justified.
13. There have also been cases where the benefit of “equal pay for
equal work” to temporary employees was declined by the Supreme
Court. These include: Harbans Lal Vs. State of H.P.; (1989) 4 SCC 459,
Grih Kalyan Kendra Workers’ Union Vs. Union of India; (1991) 1 SCC
619, State of Haryana Vs. Tilak Raj; (2003) 6 SCC 123 and State of
Punjab Vs. Surjit Singh (2009) 9 SCC 514 which were decided on the
basis of the employees (petitioners before the court) not being able to
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establish that they were rendering similar duties and responsibilities
as were being discharged by regular employees holding corresponding
posts.’
The learned Single Judge relied upon the supplementary affidavits
filed by the writ petitioners to demonstrate that they are discharging the
same duties and responsibilities as those of permanent/full-time teachers.
The learned Single Judge held that the writ petitioners cannot be treated as
separate and distinct class or said to be claiming benefits for a scale of
duties which is outside the post and profile of the petitioners. The
petitioners claim equal rewards compared to those who are rendering work
equal in all respects to that of the petitioners. If the petitioners have been
performing duties and responsibilities of the same weight, quality and
sensitivity to that of full-time permanent teachers, denying equal pay to the
petitioners would amount to treating equals as un-equals and such artificial
parameters cannot be created between those who are equal in all respects.
The learned Single Judge held that the action to withdraw the notification
specifically providing that temporary teachers would perform the same
duties as regular and full-time teachers is arbitrary and is not supported by
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reasons. On such consideration, the impugned orders dated 27 December,
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2013 and 24 December, 2013 were set aside. The concerned
respondents/appellants were directed to take steps for payment of salaries
and other benefits to the writ petitioners equal to that of the regular scale of
pay and at par with the full-time permanent teachers of the concerned
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school. This would be made effective from 27 April, 2007, which was the
date of the order restraining any further appointment of any new part-time
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teachers on contract basis in Non-Government Higher Secondary Schools
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with effect from 1 April, 2007. This order is challenged before us.
The learned Advocate-General, appearing on behalf of the appellant,
has submitted that the learned Single Judge has overlooked the fact that in
order to apply the principle of ‘equal pay for equal work’, the process of
recruitment for the posts is an essential consideration as in the instant case
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the notification dated 8 August, 2002 and the guidelines dated 9
September, 2002 read with the appointment letter of each of the part-time
teachers, make it abundantly clear that the posts sanctioned are for part-
time teachers for Higher Secondary sections of Higher Secondary Schools,
and are purely contractual in nature. The source of recruitment for the
permanent teacher and part-time teacher is clearly discernable from the
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notification dated 8 August, 2002, where the Government had dealt with
recruitments of permanent teachers through the mechanism of the School
Service Commission and that of part-time teachers on contractual basis in
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terms of the guidelines dated 9 September, 2002 by Selection Committee to
be constituted in the terms of the said guidelines. The appointment, service
condition, pay scale and the recruitment procedure of the two sets of
teachers is completely different. The part-time teachers knew that their
tenure is temporary and renewable after one year. The teacher can only be
appointed in a permanent post provided that there is a declaration of
vacancy and against posts which are sanctioned by the Government. The
creation of permanent posts has a financial implication. The learned
Advocate-General has relied upon Sections 2(p), 4, 5, 7 and 10 of the West
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Bengal Schools (Control and Expenditure) Act, 2005 to demonstrate that
regularisation of a teacher who has rendered service on any casual or part-
time vacancy on contract or any other basis against any permanent teaching
post cannot be done without previous sanction of the State Government. A
part-time teacher cannot claim regularisation by reason of coming into force
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of the West Bengal School Service Commission Act, 1997 with effect from 1
November, 1997. In view of the Act of 1997, appointment to the post of
teacher in a school can only be made on the recommendation of the School
Service Commission, otherwise any appointment made in contravention of
the provision of the said Act would be invalid and would have no effect and
the teacher so appointed would not be a teacher within the meaning of sub-
section (p) of Section 2 of the said Act.
Our attention is drawn to the definition of “Teacher” in Section 2(p) of
the said Act of 1997, which reads:
“P. ‘Teacher’ means an Assistant Teacher or any other person
holding a teaching post of a school and recognised as such by the
Board or the Council or the Board of Madrasah, as the case may
be, and includes the Headmaster or the Headmistress (but shall
not include the Assistant Headmaster or the Assistant
Headmistress or the Teacher Holding a post against short term
vacancy caused by deputation, leave or lien)”
It is submitted that it would be clear from the said Act and the
circulars and orders disclosed by the writ petitioners that the process of
recruitment of part-time teachers is completely different from the full-time
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permanent teachers and, accordingly, the part-time teachers cannot claim
equal pay. Moreover, our attention is drawn to a Government Order, being
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no. 772-Edn. (S)/188-8/74 dated 8 July 1974 to show that the teaching
load for a permanent teacher should normally be 36 periods per week as
opposed to 22 periods per week which the writ petitioners alleged to have
been taking in a week. This also goes to show that the work load of a
permanent teacher and a temporary teacher is different. The learned
Advocate-General has submitted that although the sheet anchor of the writ
petitioners in claiming the relief is the judgment in Jagjit Singh (supra) , but
the said judgment also does not come to the aid of the writ petitioners as the
subsequent decisions on this point upon noticing Jagjit Singh (supra) have
made it clear that the person who has not gone through the process of
recruitment may itself in certain case makes a difference like the present
one. The learned Advocate-General has relied upon the paragraphs 117, 127
and 128 of State of Bihar vs. Bihar Secondary Teachers Struggle
Committee , reported in 2019 SCC Online SC 722, which reads:
“117. Analysis of the decisions referred to above shows that this
Court has accepted following limitations or qualifications to the
applicability of the doctrine of 'equal pay for equal work':-
i) The doctrine of 'equal pay for equal work' is not an abstract
doctrine.
ii) The principle of 'equal pay for equal work' has no mechanical
application in every case.
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iii) The very fact that the person has not gone through the process
of recruitment may itself, in certain cases, makes a difference.
iv) The application of the principle of 'equal pay for equal work'
requires consideration of various dimensions of a given job.
v) Thus normally the applicability of this principle must be left to
be evaluated and determined by an expert body. These are not
matters where a writ court can lightly interfere.
vi) Granting pay scales is a purely executive function and hence
the court should not interfere with the same. It may have a
cascading effect creating all kinds of problems for the Government
and authorities.
vii) Equation of posts and salary is a complex matter which
should be left to an expert body.
viii) Granting of pay parity by the court may result in a cascading
effect and reaction which can have adverse consequences.
ix) Before entertaining and accepting the claim based on the
principle of equal pay for equal work, the Court must consider the
factors like the source and mode of recruitment/appointment.
x) In a given case, mode of selection may be considered as one of
the factors which may make a difference.
127. If a pay structure is normally to be evolved keeping in mind
factors such as "method of recruitment" and "employer's capacity
to pay" and if the limitations or qualifications to the applicability
of the doctrine of 'equal pay for equal work' admit inter alia the
distinction on the ground of process of recruitment, the stand
taken on behalf of the State Government is not unreasonable or
irrational. Going by the facts indicated above and the statistics
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presented by the State Government, it was an enormous task of
having the spread and reach of education in the remotest corners.
Furthermore, the literacy rate of the State which was lagging far
behind the national average was also a matter which required
attention.
The advances made by the State on these fronts are quite
evident. All this was possible through rational use of resources.
How best to use or utilise the resources and what emphasis be
given to which factors are all policy matters and in our considered
view the State had not faltered on any count. As laid down by
this Court in the decisions in Joginder Singh28 and Zabar
Singh29, the State was justified in having two different streams
or cadres.
The attempt in making over the process of selection to Panchayati
Raj Institutions and letting the cadre of State Teachers to be a
dying or vanishing cadre were part of the same mechanics of
achieving the spread of education. These issues were all part of
an integrated policy and if by process of judicial intervention any
directions are issued to make available same salaries and
emoluments to Niyojit Teachers, it could create tremendous
imbalance and cause great strain on budgetary resources.
128. It is true that the budgetary constraints or financial
implications can never be a ground if there is violation of
Fundamental Rights of a citizen. Similarly, while construing the
provisions of the RTE Act and the Rules framed thereunder, that
interpretation ought to be accepted which would make the Right
available under Article 21A a reality. As the text of the Article
shows the provision is essentially child-centric. There cannot be
two views as regards the point that Free and Compulsory
Education ought to be quality education. However, such premise
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cannot lead to the further conclusion that in order to have quality
education, Niyojit Teachers ought to be paid emoluments at the
same level as are applicable to the State Teachers.
The modalities in which expert teachers can be found, whether by
giving them better scales and/or by insisting on threshold ability
which could be tested through examinations such as TET
Examination are for the Executive to consider.”
The learned Advocate-General has submitted that unless there is
complete parity between the two posts they should not be treated as
equivalent to claim parity of pay scale. If the source and mode of
recruitment is different parity in pay scale cannot be claimed. Moreover, the
financial implication is a relevant factor for accepting the revision of pay. It
is submitted that since the source and mode of recruitment are different as
well as the nature of responsibilities, the claim of the writ petitions for equal
pay cannot be allowed. Unless they are duly selected and appointed as
regular teachers they cannot claim pay parity. In this regard reliance has
been placed on the following decisions.
1) State of Haryana & Ors. v. Charanjit Singh & Ors.
reported in 2006 (9) SCC 321 (paragraph 22, 23)
2) S.H. Baig & Ors. v. State of Madhya Pradesh & Ors.,
reported in 2018 (10) SCC 621, (paragraph 18)
3) Punjab State Power Corporation Ltd. v. Rajesh Kumar
Jindal & Ors., reported in 2019 (3) SCC 547 (paragraph 39)
4) Punjab State Electricity Board & anr. v. Thana Singh &
Ors., reported in 2019 (4) SCC 113. (paragraphs 20 to 23)
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The learned Advocate-General has further submitted that the post of
part-time teacher is not considered as a teaching post under the West
Bengal Schools (Control of Expenditure) Act, 2005 and the appointments
were not made in terms of the West Bengal School Service Commission Act,
1997 or the Act of 2005. The appointment was only contractual. Under such
circumstances, claim for equal pay for equal work is not maintainable. In
this regard reliance is placed on Apangshu Mohan Lodh & Ors. v. State of
Tripura & Ors., reported in 2004 (1) SCC 119 .
Lastly, it is submitted that the writ petitioners have accepted the
appointment as contractual and have consciously signed the appointment
letter. It is not now open for them to challenge the nature of appointment as
contractual. In this regard reliance is placed on State of Maharashtra &
Ors. v. Anita & Anr., reported in 2016 (8) SCC 293 .
Mr. Joytosh Mazumder, the learned Government Pleader
supplemented the argument of Mr. Advocate General. Mr. Mazumder has
emphasised that the writ petitioners at the relevant point of time were
taking classes in Higher secondary sections of additional subjects and of
various other subjects in the secondary sections. Mr. Mazumder submits
that the writ petitioners could not have taken classes for the normal
sections (Class – V to Class-X) and their nature of duty does not come
nearer to that of the regular teachers.
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Per contra, Mr. Lakshi Kumar Gupta, Senior Advocate, has submitted
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that the writ petitioners, although appointed on a temporary basis on 11
January, 2003 has been discharging his work as a teacher uninterruptedly
and continuously till date and has been discharging the same work as that
of a permanent regular teacher. The teachers were appointed for a fixed
tenure against permanent posts, but subsequently their appointment was
made to continue till their attaining 60 years of age and hence they cannot
be treated as contractual teachers. In such circumstances, describing these
teachers as contractual teachers is a contradiction in terms. The workload of
the petitioner is no less than that of the regular teacher inasmuch as the
petitioner has been assigned with works that are usually assigned to a
permanent regular teacher like that of being an examiner and scrutinizer for
the West Bengal Council of Higher Secondary Education for the subject of
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Economics on 26 December, 2013.
It is submitted that the respondents have taken a policy decision not
to appoint any additional teachers for some of the Higher Secondary Schools
which were running with part-time contractual teachers since 2003 with no
additional posts being sanctioned to such Higher Secondary Schools for the
subjects taken care of by the part-time contractual teachers meaning
thereby that the Government has stopped the recruitment process of the full
time teacher on permanent basis as the performance of the contractual part-
time teachers was found to be satisfactory and at par with regular teachers
already appointed. The very fact that the services of these contractual
teachers were continued uninterruptedly shows that they were found to be
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indispensable. Our attention is drawn to the letter dated 28 July, 2010 in
which the Joint Secretary to the Government of West Bengal Education
Department has communicated his decision to sanction ten days casual
leave and ten days medical leave to the part-time contractual teachers
attached to different Government-aided/sponsored Higher Secondary
schools under the Directorate of School Education, Government of West
Bengal, subject to the condition that they have to take equal number of
classes per week like the duties of regular and full time teachers.
Mr. Gupta submits that this communication itself shows that the
contractual teachers were taking equal number of classes per week as that
of the regular full time teachers.
It is submitted that the writ petitioner is a teacher of Economics in
standards 11 and 12 at Khandra High School and is taking 22-26 classes
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per week in terms of the Government Order dated 29 August, 2008 as no
additional teacher was sanctioned by the Government for the subjects which
have contractual teacher posted. Our attention is drawn to paragraph 6 of
the supplementary affidavits filed by the writ petitioner in which it has been
stated:
“ That the said school has a total number of 1193 students for this
academic year reading in standards 5 to 12, and for the same the
requirement as per Government circular dated 08.07.1975 was
27 teachers and at present in terms of government circular dated
05.03.1998 is 15 teachers”.
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It is submitted that the school has a sanctioned strength of 11
permanent teachers for standards 5 to 12. There is a shortfall of 16 teachers
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as per the circular dated 8 July,1975. Furthermore, none of the other
teachers can take the class of Economics on the basis of their academic
qualifications.
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Mr. Gupta has drawn our attention to the order dated 8 October,
2013 passed in the earlier petition in which the Secretary of the Government
School Education Department was directed to take a decision with regard to
the prayer made by the petitioner for equal pay for the equal work and the
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order passed by the Secondary Education on 27 December, 2013.
It is submitted that the authority has completely ignored the issue
regarding the claim of equal pay by shutting its eyes to the ground situation
of the number of classes the writ petitioner has to necessarily take in the
interest of the students, as was realized by the respondent authorities while
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issuing the order being G.O. 1176-SE(S)/1S-37/09 dated 28 July, 2010.
It is submitted that the chart disclosed in the supplementary affidavit
showing allotment of classes would clearly demonstrate that the writ
petitioner was discharging duties by taking equal number of classes akin to
the permanent full time teachers.
The learned Senior Counsel submits that the selection of candidates
was done by following the elaborate Guideline framed by the State for this
special recruitment drive undertaken with a special object as would appear
from Government order no.219-SE(HS)-16A-5/01 dated June 6, 2002. It is
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submitted that the authority felt great difficulty in overcoming the G.O. No.
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1176-SE(S) dated 28 July, 2010 which required such teachers to take the
same number of classes as the permanent teachers do. In an attempt to
wriggle out of this difficulty the said authority has withdrawn the said G.O.,
knowing fully well that such withdrawal is only paper work. The so-called
contractual part-time teachers will have to continue taking the same
number of classes as the regular teachers as they have been doing since at
least September 2008, that is, after issuance of the Government Order No.
1757(20) GA dated 24.08.2008 when additional appointment of teachers
was stopped in respect of the subjects being taught by teachers like the
petitioner. The petitioner is entitled in law to get the same treatment
regarding pay and all other service benefits as are being enjoyed by the
permanent teachers recognised as such by applying the ratio laid down in
Bhagwan Dass vs. State of Haryana and Ors., 1987 (4) SCC 634; Jaipal and
Ors. vs. State of Haryana, 1988 (3) SCC 354; and State of Punjab and Ors.
vs. Jagjit Singh, 2017 (1) SCC 148, no matter whether the mode of
appointment is different.
The grievance of the petitioners finds support from Article 23(2) of the
Constitution as they are being exploited by making them work full time and
denying equal pay which was a factor considered in Jagjit Singh (supra).
The case of Jagjit Singh considers claim of daily wagers / contractual
employees having no permanence of service. Indisputably the situation of
claimants given permanence in service was not the subject matter as in the
instant matter the appointment of the petitioners is not a backdoor entry
22
but by following a selection process at state level, however, the initial
appointment was on contractual basis but subsequently the same was made
permanent and the petitioner’s status ceased to be merely contractual. This
situation did not come up in Jagjit’s case. The petitioner qualifies the
required standard mentioned in paragraph 42.5 of Jagjit’s case for claiming
equal pay. Requirement of being regular appointees as mentioned in
paragraph 42.6 of Jagjit Singh’s case was accepted by the Government
in course of time by making the petitioner permanent by
stopping appointment of additional teachers and by requiring the petitioner
to take equal number of classes. In Jagjit Singh’s case, court found that all
conditions for grant of equal pay were satisfied, however, court only allowed
minimum pay.
Mr. Gupta has submitted that the question of equal pay for equal
work is distinct and separate from the question of regularization. Even if
regularization cannot be granted equal pay cannot be denied. Mr. Gupta has
submitted that these teachers have been rendering their service
uninterruptedly and sincerely for almost 17 years but they have been
deprived of their legitimate dues. The State cannot act arbitrarily and
indulge in unfair exploitation of teachers.
On the basis of the aforesaid submission we have to assess the merits
of the order passed by the learned Single Bench.
The undisputed fact that has emerged from the pleadings and the
submissions made on behalf of the parties is that the Government by
23
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notification dated 6 June, 2002 sanctioned 900 posts of part-time teachers
on contractual basis. The part-time teachers would be required to take 10
periods per week and carry out their duties in school as allotted to them.
During vacation, they would get consolidated pay of Rs. 2000/- per month
without any allowance. They would not claim appointment on regular basis
on expiry of their tenure and their appointment would be terminable on one
month notice on either side and before completion of the contractual period
of one year. These terms are contra-distinguishable from the posts filled up
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through the respective School Service Commission vide notification dated 8
August, 2002 for the purpose of filling up the regular posts of teachers
following the Reservation Rules (100 point roster) and all other rules and
procedures, as framed by the Government from time-to-time. The
honorarium of the part-time teachers on contractual basis was, however,
enhanced from time-to-time and presently the part-time teachers are
receiving an honorarium of Rs. 13,000/- per month. The Government,
perhaps, was satisfied with the performance of the part-time teachers, who
were appointed for up-gradation of Higher Secondary Schools as is
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discernible from the notification dated 25 February, 2009. The
Government, while enhancing the emoluments of the part time teachers to
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Rs. 6,000/- only per teacher per month with effect from 1 January, 2009,
made it clear that there would be no further appointment of any new part-
time teacher (on contract basis) in Non-Government Higher Secondary
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Schools with effect from 1 April, 2007. The existing part-time teachers (on
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contract basis) would continue until further orders. On 28 January, 2010,
24
the Government issued an order to ensure that none of the part-time
contractual teachers attached to Government-aided Higher Secondary
Schools would be terminated or be released or their contracts renewed
without obtaining the permission of the District Inspector of Schools (SE)
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concerned. By a subsequent Memo of 23 April, 2010, while enhancing the
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honorarium to Rs. 8,100/- with effect from 1 January, 2010, the
Government protected the service of the contractual teachers by securing
their age of retirement at 60 years of age and clarified that on attaining 60
years of age or winding up of this project, they would be paid an ex-gratia
retirement honorarium of Rs. 1 lakh only on lump sum basis. By a
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subsequent notification dated 23 April, 2010, the Government issued a
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further order dated 9 June, 2010, by which it may be clear that no other
allowances would be available to the part-time teachers attached to non-
Government Higher Secondary Schools except the enhancement at the rate
of 5% of the remuneration at every interval of 3 years, after the
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enhancement was done as on 1 June, 2010. The service of the teachers
would remain protected till they attained 60 years of age and the State
Government would bear the expenditure. The benefit of 10 days casual leave
and 10 days medical leave was extended to the contractual part-time
th
teachers by the Government Order dated 28 July, 2010 subject to the
condition that the part-time teachers would have to take the same number
of classes per week as like the duties of a regular and full-time teacher. The
documents reveal that the part-time teachers were also appointed as
examiners by the West Bengal Council of Higher Secondary Education and
25
assigned the duties and responsibilities which regular teachers would be
expected to perform.
th th
The sequence of events from 6 June, 2002 till 28 July, 2010 would
demonstrate that the service of the contractual teachers were considered to
be indispensable and their services were retained and secured up to 60
years of age with some benefits extended to them which are available to
permanent teachers. The appointment of the teachers, as it stands, has now
become a tenure based appointment up to 60 years with some facilities of a
regular teachers being extended to these part time teachers.
The writ petitioners have filed supplementary affidavits which
disclosed the nature of their duties in their respective schools. The Head
Master of the concerned schools has issued statements disclosing the
number of classes per week the writ petitioners take from academic session
2007-08 to 2020. The statements of the respective Head Masters and Head
Mistresses would clearly demonstrate that in addition to the duties that the
said writ petitioners discharged, they take equal number of classes per week
as like the duties of regular and full-time teachers of both normal and
Higher Secondary School in terms of order No. 1176-SE(S)/IS-37/09 dated
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28 July, 2010 of the Joint Secretary, Government of West Bengal School
th
Education Department, Secondary Branch with effect from 28 July, 2010.
The nation can only progress if the people are educated not in the
sense of running riots in their brains but respect for human values and
scientific bent of mind. The teachers can contribute significantly towards
26
developing such values and make them creative, intuitive and rational. It
would be suicidal for a society to belittle the dignity of the teachers or to
treat them unfairly. Every teacher whether contractual or regular is a
teacher. If a contractual teacher performs same and/or similar duty that of
a regular teacher, irrespective of source of recruitment the teacher concern
can legitimately make a claim for minimum basic pay that his counterpart is
receiving from the Government towards his salary. Unlike a contractual
teacher as commonly understood, it is a tenure based appointment with
certain facilities and to that extent it is not at par with ad hoc appointees or
contractual appointees on a year to year basis.
In the given facts and circumstances of the case, it cannot be denied
that the writ petitioners have performed their duties with sincerity and
largely contributed and assigned the effort of the Government for up-
gradation of the Higher Secondary Schools. The writ petitioners are
performing the duties of the regular teachers both in the normal and Higher
Secondary section. Even if they are not recruited through the School Service
Commission but their appointment is neither illegal nor irregular. The
appointment is now of a fixed tenure.
The learned Single Judge was influenced by the decision of the
Hon’ble Supreme Court in Jagjit Singh (supra) . In paragraph 44 to 46.10 of
the said judgment, the Hon’ble Supreme Court discussed all the judgments
on the concept of equal pay for equal work till that date and, upon noticing
the discordant note in State of Haryana vs. Jasmir Singh, reported in
1996 (11) SCC 77 , observed that having regard to a large number of
27
judgments, some of which were of the larger Benches, the benefit of the
principle in question was extended to temporary employees (including daily
wagers). Therefore, the views in Jasmir Singh (supra) could not be
accepted. It was irreconcilable and inconsistent with the large number of
judgments on this point.
The later judgment relied upon on behalf of the appellant does not
dilute the ratio in Jagjit Singh (supra) . Jagjit Singh (supra) has considered
a large number of cases where a claim for pay parity raised by the hands of
the temporary employees was accepted by the Apex Court by applying the
principle of equal pay for equal work with reference to the regular
employees. Our Constitution envisages the State to be a welfare state. The
social contract theory is the precursor to the modern theory of democracy.
Inspired by the philosophy of Hobbes, Mill and Bentham, the framers of the
Constitution had conceived the State to be a welfare socialist egalitarian
State. Discrimination on any ground is against the concept of fairness.
Forced labour is strictly prohibited. It is the duty of the State to prevent
exploitation of people at all level. The person who is required to perform a
perennial job should not be deprived of at least the benefits of equal wages
that a regular employee earns for doing the same kind of job. Artificial break
in the service with a view to deprive a legitimate claim has been deprecated
in a large number of decisions. However, all jobs may not be perennial and
the Government may create a post for a particular project, and the job
seekers, with their eyes wide open when accept such employment, cannot,
thereafter, claim regularisation on the completion or fulfilment of the
28
projects. The principle of equal pay for equal work flows from Article 14 and
21 of the Constitution. The State cannot create a stratagem or a cloak under
the garb of temporary employment to perpetrate and perpetuate
exploitation. Inequality is an anathema to the constitutional right of
equality.
In the instant case, as mentioned earlier, the writ petitioners were
appointed to facilitate upgradation of the school to Higher Secondary Section
and had discharged their job flawlessly, diligently and to the satisfaction of
all the authorities. The documents disclosed in the supplementary affidavits
clearly support our conclusion. In fact, the Government also ensured their
employment till they attain the age of 60 years with certain benefits
extended to them which are available to regular teachers. A welfare state
committed to a socialist pattern of society cannot deprive its teachers, who
are in fact the backbone of the society, of their legitimate claims. The writ
petitioners are not claiming regularisation. In fact, having regard to the
process of recruitment involved in the instant case the writ petitioners knew
that it is not possible for them to seek regularisation, instead they prayed for
an honourable settlement of their legitimate dues. We are satisfied that the
writ petitioners are discharging the same duties and responsibilities that of
regular teachers for the period to be stated hereinafter. Although a regular
teacher may perform additional job than a part-time teachers and the
source and mode of these recruitment are different, but it cannot be
overlooked that these part time teachers cannot be denied at least payment
of salaries equal to the basic pay of their counter-part particularly in view of
29
the decision of the School Education Department that there shall be no
sanction of any additional post for Higher Secondary Schools which were
running with part-time contractual teachers since 2002 with effect from
April 1, 2007.
The State has not been able to demonstrate that the duties and
responsibilities of the writ petitioners are different from that of the regular
teachers. The very fact that the writ petitioners were and have been
performing their duties since their initial date of appointment in 2003
uninterruptedly till date only speaks volumes of the contribution that they
made for upgradation of school to a Higher Secondary school. The appelants
have also recognised their efforts for such upgradation and secured their
employment till they attain 60 years of age. Fairness requires that the State
should extend at least some benefits if not all to these teaches, in parity,
with the pay and benefits extended to a regular assistant teacher for the
period as stated above.
The country needs dedicated teachers. The teachers deserve better
treatment, security and standing in the society. The schools, colleges and
universities require proper infrastructure and an environment conducive to
learning. The society expects the teachers to devote more time in school,
colleges and universities rather than in private tuitions and private tutorials
mushrooming all over the country charging exorbitant fees.
We have given our anxious consideration raised by the learned
Advocate General and the Government Pleader with regard to the eligibility
30
of the writ petitioners to claim parity in payment. On the basis of the
documents on record particularly pages 334 to 340 in MAT No. 1221 of
2019 and at page 25 of the supplementary affidavit affirmed by Barun
st
Kumar Ghosh on 21 February, 2020, it appears that the writ petitioners
have been taking classes on a regular basis since 2010 in their respective
schools and the nature of the duties as disclosed in the supplementary
affidavit, clearly justify a minimum claim for basic pay that their
counterparts are receiving at least from January 2010 till the date of
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withdrawal of the G.O. dated 28 July, 2010 vide memo dated 24
December, 2013.
While appraising the rival contentions on the factual aspect of
rendering extent and nature of duty by the writ petitioner we cannot shut
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our eyes to the G.O. No. 1176-SE(S) dated 28 July, 2010 which is
reproduced below:
“ Government of West Bengal
School Education Department
Secondary Branch
Bikash Bhawan, Salt Lake, Kolkata – 91.
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No. 1176-SE(S)/1S-37/09 Dated Kolkata, the 28 July, 2010
From : Sri. T.K. Adhikari
Joint Secretary to the Govt. of West Bengal.
To : The Director of School Education, West Bengal,
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Bikash Bhawan, 7 Floor, Salt Lake, Kolkata – 91.
Sub : Sanction of 10 days C.L. and 10 days Medical Leave
31
in respect of contractual part-time teachers attached to
Non-Govt. Higher Secondary Schools under Directorate
of School Education, Govt. of West Bengal.
The undersigned is directed to say that after careful consideration,
the Governor has now been pleased to accord sanction of 10(ten) days casual
leave and 10 (ten) days Medical Leave to the part-time contractual teachers
attached to different Govt. aided/Sponsored Higher Secondary Schools under
the Directorate of School Education, Govt. of West Bengal subject to the
condition that they have to take equal number of classes per week as like as
the duties of regular and full time teachers.
2. This order issues with the concurrence of the Finance (Audit) Deptt.’s
U.O. No. 1151 Gr. P (Service) dt. 10.06.2010.
3. All concerned may kindly be kept informed immediately.
Sd/- T.K. Adhikari,
Joint Secretary
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No. 1176/1(4)-SE(S) Kolkata, the 28 July, 2010 ”
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We are aware of the fact that subsequently the said G.O. dated 28
July, 2010 was withdrawn by the Secretary, School Education Department,
Law Branch vide issuing memo No. 1541/SE(Law)/SL/5S-615/2013 dated
th th
24 December, 2013. The issuance of said memo dated 28 July, 2010
extended the benefit of 10 days’ casual leave and 10 days’ medical leave to
the part-time contractual teachers attached to different government-
aided/sponsored higher secondary schools with a rider that they were
32
required to take equal number of classes per week as attended by the
regular and full-time teachers. Insertion of this condition unleash implied
approval by the School Education Department, Secondary Branch, to permit
the contractual teachers to take equal number of classes per week as taken
by the approved teaching staff in a government-aided secondary school till
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the date of withdrawal of the said G.O. dated 28 July, 2010 vide memo
th
dated 24 December, 2013.
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It is also discernable from the G.O. dated 28 July, 2010 and the
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subsequent memo dated 24 December, 2013 whereby the previous G.O.
th
dated 28 July, 2010 stood withdrawn that the contractual teachers were
eligible and permitted to perform similar job as that of approved teaching
staff and could take equal number of classes like the permanent approved
teachers.
But for the period earlier to 2010 we are unable to arrive at a definite
conclusion on the basis of the materials on record that the writ petitioners
have discharged same and/or similar duties of a regular teacher in the
respective institutions. However, it is left open to the writ petitioners to
apply before the Secretary (School Education Department) in justification
of basic pay for the period from 2007 to 2009 demonstrating discharge of
similar duties that of a regular teacher for the said period. Mr. Gupta has
made a passionate argument with regard to the entitlement of the writ
th
petitioners post 24 December, 2013 by which previous Government Order
th
dated 28 July, 2010 was withdrawn. Mr. Gupta has submitted that in
view of the disclosure made in the supplementary affidavits showing that the
33
writ petitioners have been discharging duties similar to that of the regular
th
teachers notwithstanding the memo dated 24 December, 2013 the
Government as a model employer should extend suitable benefits to the
teachers who are sincerely and devotionally performing their duties.
Although our heart is with the writ petitioners but in the given facts we
cannot interfere with the policy decision of the government as it has
financial implications and the purpose and object of appointment of
contractual teachers are significantly different from that of the regular
teachers. However, at the same time we feel that the writ petitioners should
not be the victim of exploitation in a socialist republic and the Government
may consider upgradation of the service conditions of the writ petitioners
based on record since it cannot be denied that the schools have been
benefited by the services rendered by the writ petitioners for more than a
decade.
Under such circumstances, we modify the order of the learned Single
Judge by directing the appellant to make payment of salaries equal to basic
pay in the scale of pay of a regular teacher working in Higher Secondary
Section in a Non-Government Aided Higher Secondary School with effect
from 28 July, 2010 being the date of the order which is quoted above till
th
24.12.2013 when the precious G.O. dt. 28 July, 2010 stood withdrawn
under G.O. dt. 24.12.2013. The said Government order restrain any further
appointment of any new part time teachers on contract basis in non-
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government aided higher secondary school with effect from 1 April, 2007.
The arrear salary shall be paid positively within four weeks from date. In the
34
event, the writ petitioners made a representation before the Secretary
(School Education Department), in justification of basic pay for the period
th
from April 2007 till December 2009 and after 24 December 2013
demonstrating discharge of similar duties, within a period of 4 weeks after
the lockdown is relaxed and the normal functioning of the schools and
colleges are restored, the Secretary, shall consider such representation
within a period of 3 weeks thereafter upon giving an opportunity of hearing
to the writ petitioners as well as concerned schools. The representations can
be sent in the designated email of the Secretary in addition to hard copies.
Ms. Kakali Samajpati, learned advocate appearing for the appellant shall
furnish such email address to Mr. Partha Pratim Dutta Advocate and Mr.
Sourav Dutta, Advocate respectively being the learned advocate for the writ
petitioners within one week from date. It is needless to mention that Covid
protocol in place on the date of hearing shall be strictly followed. The
school authorities shall be under an obligation to produce the attendance
register and the class routines for the aforesaid period before the Secretary
(School Education Department) along with any other materials as may be
directed in order to enable the Secretary (School Education Department) to
decide the claim of the writ petitioners. It is needless to mention that the
Secretary shall be guided by the principle laid down in this order and shall
not deny the claim of the petitioners merely because of their initial
contractual appointment in view of the fact that the school education
department had taken a decision not to sanction any additional post for
these higher secondary schools which were running with part time
35
st
contractual teachers since 2002 with effect from April 1 , 2007. The
Secretary shall pass a reasoned order which shall be communicated to the
writ petitioners and the concerned schools within two weeks from the date of
the order. The order may be communicated at email address of the writ
petitioners & their advocates to be provided by the parties while forwarding
the representations in addition to hard copies.
The Government as a model employer may also sympathetically
consider if some more benefits that are available to the regular assistant
teachers could be extended to the writ petitioners till they attain 60 years.
The appeal succeeds in part.
In the facts and circumstances of the case there shall be no order as
to costs.
(Soumen Sen, J.)
(Saugata Bhattacharyya, J.)