Calcutta High Court (Appellete Side)
Government Of West Bengal vs Tarun Kumar Khanra & Ors on 20 July, 2018
Author: Protik Prakash Banerjee
Bench: Dipankar Datta, Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT :
Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Protik Prakash Banerjee
FMA 2801 of 2016
with
CAN 723 of 2018
The Director, Directorate of Technical Education and Training,
Government of West Bengal
v.
Tarun Kumar Khanra & Ors.
For the appellant : Mr. Kalimuddin Mondal,
Mr. Pronab Halder.
For the respondents/ : Mr. Goutam Dey,
writ petitioners Ms. Rituparna Sengupta,
Mr. Anupam Das.
For the applicants : Mr. Utsav Dutta.
in CAN 723 of 2018
Heard on : November 17, 2017, December 4, 2017, December 18, 2017,
January 12, 2018 and January 29, 2018.
Judgment on: July 20, 2018.
PROTIK PRAKASH BANERJEE, J:
1. This is a Letters Patent Appeal from an original order dated March 31,
2016 passed by the learned Single Judge in WP No.30843 (W) of 2014
[Tarun Kumar Khanra and Others--v--State of West Bengal and
Others]. By the said order, the writ petition was allowed as
mentioned therein.
2. The appeal was preferred by the 2nd respondent in the writ petition.
The 2nd respondent is a Director of a Directorate of the State of West
Bengal, the original respondent no. 1 in the writ petition. It has not
preferred any appeal. The Directorate is not a legal person. In order
to prefer and maintain an appeal under clause 15 of the Letters
Patent, 1865, the appellant must show that it is a person aggrieved
by the order against which he proposes to appeal.
3. In the instant case, the operative portion of the order under appeal is
as follows: -
"In such circumstances the State will take expeditious measures to
recognize all junior lecturers working in a polytechnic including the
petitioners as lecturers and will afford such persons with the
appropriate benefits as that of the post of lecturer on and from the
date of their entitlement."
4. There is no direction contained in the order impugned on the
respondent no. 2 in the writ petition, being the appellant. It has not
been explained how it is a person aggrieved by the said order. The
person who could be aggrieved, being either the State of West Bengal
and/or any Secretary of any of its departments who are parties to the
writ petition, has not preferred any appeal. They have allowed the
order now impugned, to become final. On this basis, a preliminary
objection was taken on behalf of the writ petitioners/respondents in
the appeal (hereafter the writ petitioners) that the appellant herein
cannot be aggrieved when the State itself has chosen not to prefer
any appeal. There is another objection taken to the presentation of
the appeal by the present appellant, since, as expressly stated by the
writ petitioners in their affidavit-in-opposition to the stay application
(CAN 9637 of 2016) that before the appeal was preferred and during
the pendency of the writ petition, a new post was created being the
Director in Charge in the rank of Additional Director of Technical
Education and Training, West Bengal, and according to the writ
petitioners, the so called delegation of power to the Assistant Director
of Technical Education and Training, on behalf of a non-existent post,
since the last incumbent was sent on compulsory waiting, and a new
post was created, falls afoul of the Delegation of Financial Powers
Rules 1977. The writ petitioners say that non joinder of this party
was not fatal to the writ petition, since there were other parties
against whom the same reliefs were prayed and they were very much
there. However, because the appeal was preferred purportedly on
behalf of the holder of such non-existent post, in violation of the rules
regarding delegation, the appeal is incompetent.
5. Instead of disposing of the appeal only on these rather technical,
though substantial grounds, involving the interpretation of clause 15
of the Letters Patent, we propose to decide the appeal on merits,
where the State of West Bengal supported the appellant in assailing
the order.
6. For this, a brief recounting of the facts of the case is necessary. The
writ petitioners were all recruited pursuant to a regular recruitment
process in the post of demonstrators in different disciplines in
polytechnics. The writ petitioner no.1 was appointed on October 8,
1991 in the Belurmath Shilpamandir, which at the relevant point of
time, was a government sponsored polytechnic of the Ramakrishna
Mission organization, whereas the writ petitioners 2, 3, 4, 5 and 6
were appointed on diverse dates between 1997 and 2001 in the
Belghoria Shilpapith, a polytechnic also of the Ramakrashina
Mission. The dates of appointment and the qualification of each writ
petitioner as on that date, appear from a supplementary affidavit filed
by the writ petitioners pursuant to leave granted by this court.
7. The admitted facts show that by a Memo dated June 18, 2007 the
said Belurmath Polytechnic was transposed into a self-financing
polytechnic and the teaching and non-teaching employees of that
polytechnic were to be redeployed against available vacancies in the
Government Polytechnics giving them the status of Government
employees, as a special measure, from the date of their re-
deployment. However, in case of lecturers, separate order of
absorption was to be brought out after getting the views of the Public
Service Commission. Admittedly, no such memo was issued in
respect of the Shillpapith, that is to say, Belghoria Polytechinic. The
petitioners 2 to 6, therefore, admittedly continued as staff of the
polytechnic, without even getting the status of Government servants,
as a special or any other measure.
8. The present case has its genesis in a stroke of the pen which sought
to make laboratory instructors and demonstrators of practical classes
"non-teaching staff", reversing the situation which had prevailed till
1969. The back-story, as it is called these days, has been discussed
in great detail in the case of Anil Ratan Sarkar--v--State of West
Bengal and Others reported in (2001) 5 SCC 327. Being a reported
judgment laying down the law, this Court can take judicial notice of
it, regardless of the fact that none of the parties referred to it. I do so
because this is the canvas on which the present litigation is
portrayed. Their Lordships of the Hon'ble Supreme Court were
pleased to hold that
"The appellants are Science Graduates of different universities in the
country and have been appointed as Laboratory Assistants in
colleges and in addition to their normal duties, the appellants were
supposed to assist the teachers and help the students in practical
classes, impart instructions to the students in practical classes and
to perform demonstration work including preparation of the lesson
units in the practical classes. According to the appellants these
Laboratory Assistants were all along being treated as teaching staff
and pay and allowances including the Government share of
Dearness Allowances were paid to them until the issuance of the
government order No.288 Education (CS) dated 21st March, 1969
wherein Laboratory Assistants of non-government affiliated colleges
were treated as members of the non-teaching staff."
Their Lordships were further pleased to record the position in law, that
"Incidentally, be it noted that Graduate Laboratory Assistants
working in government colleges have been given the status and
designations of Demonstrators and have been accepted as members
of teaching staff. According to the appellants they possess similar
qualifications, experience etc. but even though being similarly
circumstanced, the Graduate Laboratory Assistants of sponsored and
non-government private colleges of West Bengal stands discriminated
against the Graduate Laboratory Assistants of Government colleges in
West Bengal. The earlier writ petition which stands concluded by this
Courts order dated 26th July, 1994 contained detailed list of
University Acts and Statutes wherein teachers have been defined to
include the Instructors."
On this basis, Their Lordships were pleased to uphold the decision of this
court as confirmed by the Hon'ble Division Bench, commanding the State
respondents to treat the Graduate Laboratory Assistants who have already
been redesignated as Laboratory Instructors as teaching staff and to pay
them in accordance with the existing scale of pay prescribed for the
Physical Instructors with effect from 10th August, 1983 with all arrears.
9. So, it cannot any longer be disputed that instructors and
demonstrators in colleges, whether government or non-government,
are "teachers" within the meaning of law. Thus, demonstrators such
as the writ petitioners are "teachers".
10. An expert committee was appointed under the aegis of the
Central Government to consider the plight of teachers in polytechnics
and colleges and ultimately it recommended that the lowest teaching
post be that of a lecturer. This was to be done by re-structuring the
staff pattern. In 1978, by an office order, the Union of India accepted
this recommendation and asked the respective State Governments
and Union Territories to consider the possibility of revising the staff
structure of existing engineering colleges and polytechnics keeping in
view the above guidelines and recommendations laid down by the
expert committee. The history of polytechnics, as is available from
the records including the website of the All India Council for
Technical Education, and its predecessor bodies which were
established as a Provisional Council, back in 1945, show that
polytechnics were established to fill a gap in technical education, and
as technical institutions, as long as they abided by the basic criteria
which were laid down by such Council, could be private or
government, or sponsored by the government. The basic criteria were
laid down by the Council but were subject to approval by the
Government.
11. Subsequently, the Union legislature enacted the All India
Council for Technical Education Act, 1987 pursuant whereto the
State legislature enacted the West Bengal State Council of Technical
Education Act, 1995. Pursuant thereto, the entire field of technical
education including polytechnics, came under the purview of the said
central statute and the state statute, as provided for thereby. A
comparison of the provisions of the two statutes, shows that the
appropriate government under each statute, had a general rule
making power for carrying out the purposes of the respective Acts
and without prejudice to such generality, some specific areas were
also enumerated. At the same time, the Council (or for one year, its
Chairman) was given power to frame regulations for carrying out the
purposes of the Act. Since the purposes of the Act would remain the
same, it is trite that the power of the Government to make rules and
the power of the Council to make regulations, must be construed
harmoniously - particularly when the regulations made by the
Council only take effect when they were approved by the Government.
In other words, if the Government made certain provisions by rules in
respect of a particular matter - say staff pattern - they would be for
the purposes of the Act and the fact that the State Council had not
made a regulation for such a staff pattern, though it had the right to
do so, would not make the rules made by the Government ineffective.
Again, since the Act of 1995 in West Bengal does not differentiate
between a polytechnic set up by the Government, sponsored by the
Government or under private management, a rule made in respect of
a particular matter - again, let us take the example of staff pattern -
must be held to be applicable to that matter in all polytechnics.
12. However, the State of West Bengal persisted in keeping a
strange discrimination contrary to the law laid down by the Hon'ble
Supreme Court as above. It treated the demonstrators and
instructors in technical institutions, even when they were teachers in
the eye of law, as a class apart, and grudgingly gave them a
designation of "junior lecturers", which was unknown to the law
(including the statutory rules made for the purpose of carrying into
fruition the above statutes). In fact, the writ petitioners were also
appointed as "junior lecturers", though admittedly from the very
beginning they were made to discharge the functions and perform the
duties of a lecturer. I say admitted because not only was this found
to be so by the learned Single Judge, this finding of fact being
returned on the basis of records, His Lordship also returned a finding
that this assertion of the writ petitioners was not denied by the
respondents in the writ petition. These findings were also not
challenged in appeal.
13. When, therefore, the State of West Bengal accepted the
recommendations of the expert committee and gave effect to the
statutory mandate of fixing the educational standards and
qualifications of teachers in the said technical institutes (including
polytechnics), it was merely doing that which was fair and reasonable
and would prevent the continuance of the hostile discrimination
against such existing "junior lecturers" by making an impermissible
classification. This the State of West Bengal did by amending the
rules regulating recruitment to the posts of lecturers in engineering
colleges and polytechnics issued by a notification dated March 15,
2004 as subsequently amended, through a notification dated April 8,
2000 being No. 350--TET (Poly)/10E-1/2004 issued under Article
309 of the Constitution of India. This was not for fresh recruitment.
The amendment pertained to Rule 11C. After Rule 11C, the following
was directed to be added by way of amendment, by order of His
Excellency the Governor: -
"Transitory Provisions"
Notwithstanding anything contained elsewhere in these rules, the
existing teaching incumbents below the rank of Lecturers such as
Junior Lecturers (erstwhile Demonstrators), Assistant Lecturers etc.
who have already acquired the minimum qualification for the posts
of Lecturers shall be promoted to the post of Lecturers by
surrendering equal number of posts now held by them. Rest of such
incumbents who have yet to acquire such minimum qualification for
the post of Lecturers shall be given the opportunity to improve their
qualification by the end of the period of five years from the date of
issue of this notification.
By Order of the Governor
Sd/- A.K. Bal
Secretary to the Governor of West Bengal
Dated, Kolkata, the 8th April 2009."
14. It is trite, that these transitory provisions came into force with
effect from the date of the publication of the said notification. The
rules therefore stood amended expressly in case of the junior
lecturers such as the writ petitioners who, as appears from the
records, were then in service, subject to the conditions mentioned in
the said transitory provisions. Those who did not have the
qualification for the post of lecturers - had they sought recruitment
under the recruitment rules then in vogue - had a period of five years
from the date of the said notification, to improve their qualification.
Five years from April 8, 2009 would expire on April 7, 2014. The
supplementary affidavit I have referred to above, shows (inter alia, at
page 274 of Volume III of the paper-book) that the writ petitioners all
acquired their minimum qualifications or improved their
qualifications to that of a minimum qualification required for
lecturers, either before 2009 or within 2012, that is to say, within
April 7, 2014. I must also point out here, that the relevant
recruitment rules had laid down the essential qualifications for initial
recruitment also in March 2009. Therein, essential qualifications for
the post of a lecturer in different disciplines in such technical
institutions, were prescribed in the alternative, by use of the word
"or". One of the alternative essential qualifications was a bachelor's
degree from a recognized university/institute "or its equivalent" but
teaching experience was also another alternative essential
qualification. Besides, a degree or diploma in technical teaching was
also prescribed as a desirable qualification. From this it is clear, that
a diploma - such as what some of the writ petitioners have - was also
a qualification which the State of West Bengal by rules has held to be
equivalent to a bachelor's degree as the essential minimum
qualification.
15. Thereafter, the State of West Bengal made further rules
regulating recruitment to the posts of lecturer in engineering or non-
engineering or technology in Government polytechnics, by a
notification dated November 19, 2012. These were clearly for new
recruitment of candidates, through selection by the Public Service
Commission and were unabashedly for direct recruitment. They made
no provision for the existing teachers who had been
upgraded/promoted by the operation of the transitory provisions
notified by the notification dated April 8, 2009. Rightly so, because
that had already happened by operation of such notification, subject
to the junior lecturers thus upgraded/promoted acquiring the
minimum essential qualifications for a lecturer as required under the
March 2009 recruitment rules aforesaid, within April 7, 2014. This
right had vested in those upgraded lecturers (from junior lecturers)
such as the writ petitioners, as on April 8, 2009. They could not be
divested of those accrued rights. The Rules of 2012 therefore, could
not have the effect in law, of either divesting them of their said rights,
or require them to participate in a process of direct recruitment to the
post of lecturers, since they could not be made to participate in a
process of recruitment to a post to which they had already, in the eye
of law, been promoted or upgraded. That the State Government, in
defiance of its own rules, thereafter proceeded to continue to treat
them as junior lecturers, first on the ground that these transitory
provisions, already notified, required the concurrence of the finance
department to be given effect to, does not change the position that in
equity as well as in law, the said so called "junior lecturers" are
required to be treated as lecturers as they had already acquired that
right on April 8, 2009. The casual flick of the pen of a civil servant
cannot undo the effect of that which is law and has been notified by
His Excellency the Governor, of the same State Government, of which
the civil servant, however high and mighty, is a mere employee.
16. It was on the basis of these facts, that the learned Single Judge
ruled in favour of the writ petitioners and passed the order which is
now under appeal.
17. The order has been challenged in the memorandum of appeal,
on several grounds, which I summarize as follows: -
a. First, that the writ petitioners are all Government servants and
therefore, regardless of the justice of their cause and the
correctness of the finding by the learned Single Judge, the
Court under Article 226 of the Constitution of India did not
have jurisdiction as a court of first instance to redress the
grievances. The writ petitioners ought to have approached the
State Administrative Tribunal. Reliance was placed on the
provisions of Article 323A of the Constitution of India, the
provisions of the Administrative Tribunals Act, 1985 and also
the law laid down authoritatively inter alia in L.
Chandrakumar--v--Union of India and Others reported in
AIR 1997 SC 1125.
b. Second, that the order under appeal is not restricted only to the
parties who approached the Court under Article 226 of the
Constitution of India, but all junior lecturers, including those
who were not parties and had not approached the Court.
c. Third, and this ground requires to be quoted as framed, "For
that the Learned Judge erred in law in holding that the
petitioners are functioning as Junior Lecturers be treated and
be accorded all benefits as that of a lecturer."
d. Though this was not expressly taken as a ground, the appellant
argued that the writ petitioners had not challenged the Rules of
2012 for direct recruitment but were seeking to have the
advertisements issued in terms of the said rules cancelled, but
without the rules being challenged, they had no right to
upgradation as they had abandoned prayer (c) of the writ
petition.
The other grounds are either mere repetitions of the above grounds or are
omnibus, vague grounds which are taken by way of precaution in the place
of careful drafting, as if by rote.
18. Dealing first with the ground that the writ petitioners are
Government servants, it is the case of the appellant itself that the
services of the 43 staff of Belur Shilpa Mandir, run by Ramakrishna
Mission, was transferred to the Government/State of West Bengal
according to paragraph 2 of the application being CAN 9637 of 2016
in the appeal. The services of the employees of Belgharia Shilpapith
were not stated to be so transferred to the State of West Bengal. So
far as the reliance of the appellant on the ground that the writ
petitioners have themselves stated at paragraph 3 of the writ petition
that they were appointed as demonstrators under the State of West
Bengal, this is belied by the fact that the appellant himself admits
and discloses records to show that the services were initially under a
sponsored polytechnic under the Ramakrishna Mission and in case of
only one polytechnic the services were transferred to the
corresponding posts in Government polytechnic, that pertaining to
the writ petitioner no.1. If all the writ petitioners were Government
servants, then the services of such alleged Government servants in
one polytechnic in Belur would not have been required to be
transferred to the Government of West Bengal. Thus, the other writ
petitioners, apart from the writ petitioner no.1, at least are not
Government servants, nor can be stated to have the status of
Government servants under the memorandum relied upon by the
appellant. Therefore, they at least had and have the right to
approach this Court directly under Article 226 of the Constitution of
India. Once the questions of law are decided, the writ petitioner no.1,
who may have the status of a Government servant as a special
measure, may rely on the decision on such question of law to
approach the appropriate authority for the benefit of the judgment
and if it is refused, to the appropriate forum for Government servants
for his relief, and the decision of this court in appeal on such
question of law as to the status of a junior lecturer being upgraded to
lecturer, would be binding on such forum as law laid down. As a
matter of fact, it is the case of the writ petitioner no. 1 that initially he
was recruited in then Belur Shilpa Mandir (as relied upon by the
appellant) but thereafter his services were deployed in North Calcutta
Polytechnic. The appellant has not alleged that this was a
Government polytechnic. This answers the first ground, which
therefore is negated and is held against the appellant.
19. Of course, that begs the question how the writ petitioners who
were recruited as junior lecturers in such non-Government
polytechnics, can claim that the transitory provisions relating to
promotion of junior lecturers to the post of lecturers in Government
polytechnics and engineering colleges are applicable to their cases.
20. As discussed above, inter alia, at paragraph 11 of this
judgement, there does not appear to be any reason why two different
standards of staff pattern ought to be made applicable in case of
Government and non-Government or Government sponsored
polytechnics. The entire scheme of technical education under the
provisions of the Act of 1987 made by the Union legislature, appears
to be for the purpose of introducing uniform standards of excellence,
performance, curriculum, efficiency and practicality among all
polytechnics, as a national initiative and on an All-India basis. That
is why, even where a State Government makes a statute contrary to
the provisions of the Central Act of 1987, the State statute to the
extent of such contrariness, even in case of a private college, has
been held to be void by the Apex Court. I rely upon the judgment in
the case of State of Tamil Nadu--v--Adhiyaman Educational and
Research Institute reported in (1995) 4 SCC 104, paragraph 27, at
page 124 where it was held by the Hon'ble Supreme Court as follows:
-
"27. The provisions of the State Act enumerated above show that if it
is made applicable to the technical institutions, it will overlap and
will be in conflict with the provisions of the Central Act in various
areas and, in particular, in the matter of allocation and disbursal of
grants, formulation of schemes for initial and in-service training of
teachers and continuing education of teachers, laying down norms
and standards for courses, physical and institutional facilities, staff
pattern, staff qualifications, quality instruction assessment and
examinations, fixing norms and guidelines for charging tuition and
other fees, granting approval for starting new technical institutions
and for introduction of new courses or programmes, taking steps to
prevent commercialisation of technical education, inspection of
technical institutions, withholding or discontinuing grants in respect
of courses and taking such other steps as may be necessary for
ensuring compliance of the directions of the Council, declaring
technical institutions at various levels and types fit to receive grants,
the constitution of the Council and its Executive Committee and the
Regional Committees to carry out the functions under the Central
Act, the compliance by the Council of the directions issued by the
Central Government on questions of policy etc. which matters are
covered by the Central Act. What is further, the primary object of the
Central Act, as discussed earlier, is to provide for the establishment
of an All India Council for Technical Education with a view, among
others, to plan and coordinate the development of technical
education system throughout the country and to promote the
qualitative improvement of such education and to regulate and
properly maintain the norms and standards in the technical
education system which is a subject within the exclusive legislative
field of the Central Government as is clear from Entry 66 of the
Union List in the Seventh Schedule. All the other provisions of the
Act have been made in furtherance of the said objectives. They can
also be deemed to have been enacted under Entry 25 of List III. This
being so, the provisions of the State Act which impinge upon the
provisions of the Central Act are void and, therefore, unenforceable."
21. Since under the provisions of the West Bengal State Council of
Technical Education Act, 1995, the power to lay down norms and
standards for courses, curricula, physical and instructional facilities,
staff pattern, staff qualifications, quality instructions, assessment
and examinations, is uniform, under Section 15(1)(viii), there cannot
be two separate staff patterns for Government polytechnics and non-
Government polytechnics, for the same purpose, especially when the
State of West Bengal has accepted the recommendations of the expert
body by making the said Rules of 2009 as amended by the transitory
provisions for junior lecturers already in service and for direct
recruitment by the Rules of 2012, where also there is no scope for
having junior lecturers, but only lecturers as the lowest teaching
post. The State has made the rules for carrying out the purposes of
the Act of 1995, under Section 32 thereof, and no distinction has
been made between Government polytechnics and private
polytechnics so long as they are affiliated to the Council established
by the said statute and it is nobody's case that the Ramakrishna
Mission Shilpapith at Belgharia is not affiliated to the Council and/or
courses of study therein do not lead to a diploma of the Council.
Therefore, of necessity, it must be held that if a polytechnic is
affiliated to the Council and a course of instruction therein leads to a
diploma of the Council, then they are to be guided and controlled by
the Rules made by the State of West Bengal, particularly in the
matter of the lowest level of teaching post, being the former
demonstrators, re-designated junior lecturers and upgraded by the
transitory provisions to lecturers. In other words, under its power to
make Regulations, the Council, whose regulations in terms of section
15(1)(viii) as to the staff pattern and qualifications would have been
binding on both the Government and non-Government polytechnics,
could not make any regulations making any qualitative changes,
different from the staff pattern made by the State of West Bengal
through such rules. These regulations are itself valid and effective
only if they are approved by the same State of West Bengal, which
could not, under Article 14 of the Constitution of India, approve one
staff pattern for Government polytechnics and another staff pattern
for non-Government polytechnics, when the diploma awarded by the
Council in both cases under the same course of study/instructions,
would be the same. This is a conclusion which becomes irresistible if
the ratio in the case of Adhiyaman Educational and Research
Institute [supra] is considered in its context. Thus, on the
consequential issue as stated in paragraph 19, I hold that the rules
made by the State of West Bengal under the provisions of the 1995
Act, for its purposes, so far as they are in consonance with the
intention of the Union Legislature and that which has been accepted
by the Union Government for the purposes of technical education
including in respect of staff pattern, uniformly for all polytechnics,
throughout the country, would apply with equal force to both
Government polytechnics and non-Government, private or
Government sponsored polytechnics.
22. So far as the second ground, id est, as extracted in paragraph
17 (b) of this judgment is concerned, it is trite, that when a question
of law based on interpretation of the rules and regulations and
statutes is decided by a superior court of record such as this Court,
on the basis of facts apparent from the records, whoever is similarly
circumstanced, and can show that he is so circumstanced, is entitled
to the benefit of the judgment, even if he had not approached the
Court, so long as he approaches the authority which is to grant such
benefit, within reasonable time from coming to know of the judgment.
Therefore, even if I were to restrict the benefit of the judgment to the
writ petitioners 2, 3, 4, 5 and 6, the writ petitioner no.1 or any person
similarly situated as him can also approach the appropriate forum
and any person similarly circumstanced as the other writ petitioners
can approach the polytechnic or the authority which can grant the
upgradation, as the case may be, for the same benefit, and if it is
denied, can approach the writ court (in case the person is not a
Government servant) or the appropriate tribunal (in case the person
is a Government servant). Hence, this ground is not sufficient to
require a reversal or remand of the order under appeal, but a
modification in the light of my above observation ought to be
sufficient.
23. The fourth ground as I have summarized in paragraph 17(d) of
this judgment, on the basis of the arguments made from the Bar
appears to be wholly misconceived on the face of prayer (b) of the writ
petition. Prayer (b) of the writ petition is in the following form: -
"A writ of and/or in the nature of Mandamus do issue commanding
the respondent authorities and/or their men, agents and
subordinates and each of them to show cause as to why the
recruitment rules notified by notification No.881 - PET (Poly)/4A -
02/2011 dated 19.11.2012 as published in the Official Gazette
dated 21.11.2012 should not be declared as bad in law, accordingly
be set aside, cancelled or quashed."
Even though I agree with the learned Single Judge that the writ petitioners
were not required to challenge the said recruitment rules of 2012 which
only provided for direct recruitment, that is to say, fresh recruitment,
without affecting the vested rights of upgradation/promotion of these writ
petitioners, it is clear that these rules were also challenged, though
ultimately the learned Single Judge did not decide such challenge. Since
the learned Single Judge has clearly held, however, that the State cannot
terminate the employment of the existing junior lecturers to appoint
lecturers to such ensuing vacancies, and further that the writ petitioners
are not seeking to participate in the fresh recruitment process and are not
required to do so, for new recruitment, but they are entitled to be upgraded
to lecturers on the basis of the said vested right under the transitory
provisions, the said recruitment rules of 2012 and not holding them to be
ultra vires, do not stand in the way of the relief sought by the writ
petitioners and granted by the learned Single Judge. Thus, this ground
also fails.
24. The third ground was quoted by me as in paragraph 17 (c)
above to demonstrate the difficulties which face a Court of Appeal
when the language in which the ground is framed is so defective, that
it is not clear whether a finding of fact or its effect is being
challenged. It is not clear whether the finding of fact that the writ
petitioners are functioning as junior lecturers is being challenged, or
whether treating and according them the benefits of lecturer are being
challenged. There is no challenge to the finding of fact that the writ
petitioners, while designated as "junior lecturers" perform all the
functions and duties of lecturers or that they perform and discharge
the same functions and duties as lecturers. It cannot be challenged,
in law, in view of the judgment in Anil Ratan Sarkar (supra) that they
are teachers. It cannot be challenged that the lowest category of
teachers in polytechnics, by virtue of the rules aforesaid, is "lecturer",
and in fact, it has not been challenged by the appellant. In the
absence of such a challenge, the direction to upgrade them as
"lecturers" with consequential benefits and treating them as lecturers,
cannot be challenged. Therefore, this ground also fails.
25. Now that I have demonstrated why on merits the order under
appeal does not deserve to be interfered with, the preliminary
objections raised by the writ petitioners about the locus of the
appellant to maintain the appeal as a person aggrieved, or on the
basis of impermissible delegation of power, do not require to be
decided. Even if the appellant had been a person aggrieved, he would
still have lost on merits in the matter of reversal of the order or
obtaining a remand. Since the questions of law and fact required to
be decided are substantial, I would, in the interests of justice and the
greater good, hold that the appellant was a person interested even if
not a person aggrieved, and therefore hold that the question of his
locus is immaterial in view of the larger public good of deciding the
issues raised in this appeal.
26. As a result, while the appeal fails on merit, in view of the
discussions aforesaid and the conclusion that I have recorded in
paragraph 18 in respect of the first ground summarized in paragraph
17 (b) of this judgment, I hold as follows: -
a. The order impugned is confirmed on the question of law that all
junior lecturers whether called "Demonstrators" or otherwise,
who were in service as on April 8, 2009, in all polytechnics,
engineering colleges and institutions in West Bengal, whether
Government, Government sponsored, non-Government and
private, by virtue of the transitory provisions notified by the
notification dated April 8, 2009, are entitled to be
upgraded/promoted as Lecturers provided that they had the
requisite minimum qualification of either a degree or diploma in
the requisite subject (engineering or science as the case may
be) in terms of the recruitment rules till March 2009 or if they
improved their qualifications within 5 years from April 8, 2009.
b. The findings of fact in the order impugned are affirmed.
c. The finding that the writ petitioners were not required to
challenge the recruitment rules of 2012 because they pertain to
fresh recruitment and not to promotion or upgradation, is
confirmed. This is with the caveat that though they were
challenged in the instant writ petition, such challenge was not
decided.
d. The rules made by the State of West Bengal in March 2009 for
recruitment of Lecturers in Government colleges and the
transitory provisions of April 8, 2009 both apply to all
polytechnics, engineering colleges and institutions in West
Bengal, whether Government, Government sponsored, non-
Government or private.
e. The benefits of the order impugned in the appeal shall be
available to all persons who were similarly situated as the writ
petitioners 2 to 6, but where the person has the status of a
Government servant, even as a special measure, the grant of
such benefit shall be enforceable before the West Bengal State
Administrative Tribunal, in case the Government polytechnic
refuses to upgrade his services, and the writ petitioner no. 1
shall have the right to apply to the appropriate authority of the
State of West Bengal for such upgradation on the basis of this
order and in case of any refusal, shall have the right to
approach the said Administrative Tribunal. This direction is
passed in terms of the amended provisions of Rule 53 of the
Rules of this Court relating to applications under Article 226 of
the Constitution of India for the ends of justice.
f. The upgradation would be done by the appropriate authorities
with effect from April 8, 2009 in respect of the writ petitioner
no. 6 who acquired his AMIE qualification and diploma in
winter 1996 and in respect of the writ petitioner no. 4 who
acquired his diploma in 1992 and his degree in 1998;
g. The upgradation would be done by the appropriate authorities
with effect from 2012 (taking the date to be December 31, 2012,
the last date of the year) in case of the writ petitioner no. 5, the
writ petitioner no. 3 and the writ petitioner no. 2 who either
acquired their diploma or their degree in 2012;
h. The writ petitioner no.1 would be entitled to claim the benefit of
upgradation from the appropriate authority of the State of West
Bengal with effect from April 8, 2009 since he had the
minimum qualification from before April 8, 2009.
27. The appeal is therefore dismissed with the above observations.
There shall be no order as to costs.
28. In view of the aforesaid judgment no order is required to be
bound on CAN 723 of 2018. It stands disposed of accordingly.
(PROTIK PRAKASH BANERJEE, J.)
DIPANKAR DATTA, J.
I agree.
(DIPANKAR DATTA, J.)