Calcutta High Court (Appellete Side)
Dr. Krishna Kishor Goswami vs The State Of West Bengal And Ors on 6 December, 2024
Author: Jay Sengupta
Bench: Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jay Sengupta
WPA 6978 of 2024
with
WPA 14655 of 2024
Dr. Krishna Kishor Goswami
Vs.
The State of West Bengal and Ors.
For the petitioners : Mr. Abhratosh Majumder
Mr. Samim Ahammed
Mr. Arka Maiti
Ms. Ambiya Khatun
Mr. Enamul Islam
.....Advocates
For the State
in WPA 6978 of 2024 : Mr. Swapan Kumar Dutta
Mr. Mrinal Kanti Ghosh
.....Advocates
For the State
in WPA 14655 of 2024 : Mr. Swapan Kumar Datta
Mr. Arindam Ghosh
.....Advocates
For the respondent
nos. 5 and 6 : Mr. Nirbanesh Chatterjee
Mr. Anjan Banerjee
.....Advocates
For the University : Ms. Lina Majumder
.....Advocate
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Heard lastly on : 11.09.2024
Judgment on : 06.12.2024
Jay Sengupta, J:
1. This is an application challenging the respondent University's
resolution dated 02.02.2024, determining the petitioner's retirement age at 60 years and for a direction upon the University to allow the petitioner to continue in service until the age of 62 years.
2. Learned senior counsel representing the petitioner submitted as follows. The writ petition challenged the enforced retirement at the age of 60 years, despite statutory provisions and government circulars mandating a retirement age of 62 years for Krishi Vigyan Kendra employees of the Bidhan Chandra Krishi Vishwavidyalya. The petitioner was appointed under the Krishi Vigyan Kendra (KVK) scheme at Bidhan Chandra Krishi Vishwavidyalaya (BCKV) as a training organiser in 2005. Over the years, the post was redesignated to senior scientist following recommendations of the 6th and 7th Pay Commissions. The petitioner's salary had been consistently paid from the funds of the ICAR. Relevant government orders and University notifications explicitly established the retirement age at 65 for University teachers. The service conditions of the petitioner were guided by the Memorandum of Understanding dated 03.02.2004 executed between the ICAR and the BCKV. The object of the memorandum dated 03.02.2004 was to plan, undertake, aid, promote and coordinate education, research and its application in agriculture, agroforestry, animal husbandry, fisheries, home 3 science and allied science. In terms of clause 6(viii) of the memorandum dated 03.02.2004, the petitioner was entitled to be treated at par with other employees of the respondent University in respect of the age of retirement of the petitioner. In terms of Clause 8(ii) of the memorandum dated 03.02.2004, all staff of KVK were borne on the establishment of the University and administrative control over the employees vested with the University. The petitioner had earlier approached the Hon'ble Court in WPA 18624 of 2023. The Hon'ble Court, by an order dated 28.08.2023, directed the University to hold an executive council meeting to decide the retirement age for KVK employees. The ICAR made submission before the Hon'ble Court that it did not determine the retirement age in KVKs for host institutions. The University, by a letter dated 04.09.2023, sought information from the ICAR as regards the age of superannuation age for the post of senior scientist/programme coordinator of KVKs. By a letter dated 06.09.2023, the ICAR informed that financial support would be available upto the age to 62 years. It also referred to Clause 7(vii) of the MOU dated 03.02.2004. This letter dated 06.09.2023 had not been withdrawn and/or cancelled till date. By an order dated 31.08.2023 the University also constituted a committee to report on the age of retirement of staff of KVKs. However, the report had not been made public till date for reasons best known to the University. Subsequently, by a letter dated 03.12.2023 the ICAR directed the University to stop the salary of the petitioner allegedly because the age of retirement was 60 years. The petitioner had not been receiving any salary since 15.09.2023. Based on such communication alone, agenda was set up for 4 meeting of the Executive Council and ultimately decision was taken on 02.02.2024 that the retirement age of the petitioner would be 60 years in terms of the letter dated 03.12.2023. Challenging the said decision dated 02.02.2024 as well as letter dated 03.12.2023 the instant writ petition being WPA 6978 of 2024 was filed. During pendency of the said writ petition, the University by a notification dated 24.04.2024 further decided that all staff of KVK would be retained until the age of 60 years. By a notification dated 24.04.2024 the petitioner was directed to handover Nadia KVK to another employee of the KVK despite the interim order dated 18.04.2024 passed in WPA 6978 of 2024. ICAR, through its letter dated 06.09.2023, explicitly communicated its no-objection to the petitioner working until the age of 62, underscoring the petitioner's entitlement to continue in service until that age. This letter from ICAR reinforced the petitioner's legitimate expectation and right to be treated at par with other employees under the scheme. The subsequent letter from ICAR dated 03.12.2023, directing the University to stop the petitioner's salary, was not only inconsistent with its earlier position but raised questions about the legality and intent of such a directive. This abrupt change in stance by ICAR, without any compelling reason, amounted to a serious violation of natural justice principles. ICAR's unsolicited interference through the letter dated 03.12.2023, in instructing the University to stop the petitioner's salary, was not only contradictory to its earlier positions, but also amounted to contempt of the Court's order dated 28.08.2023, in as much as the ICAR made submission before the Hon'ble Court that it had no role to play in the matter of age of retirement of 5 the petitioner. Therefore, it could not have instructed the University to retire the petitioner at the age of sixty years. ICAR's letter dated 03.12.2023 which fixed age of superannuation based on alleged State Government Rules was also contrary to the order dated 28.08.2023 which recorded that the State had no role to play in fixing the age of superannuation of the petitioner. The University's resolution dated 02.02.2024, fixing the petitioner's retirement age at 60 based on ICAR's 03.12.2023 letter, was arbitrary, capricious and violative of the petitioner's legitimate expectations, established agreements and the Court's earlier order. Section 2(16) of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974 defined "teachers of the University" to include persons engaged in extension programs such as the KVK. Admittedly, KVKs were under the extension department. Therefore, the petitioner was deemed to be a teacher in terms of the provisions of the Act of 1974. University Notification No. Admn/BCKV/G-1/Pt,-IX/L-178 dated 08.07.2021 fixed retirement age of teaching staff at 65 years of age. However, the ICAR by its letter dated 06.09.2023 had informed that the financial support would exists until the age of 62 years. Therefore, the petitioner was entitled to serve for at least 62 years of age. Thus, the resolution dated 02.02.2024 was liable to be quashed. The notification dated 24.04.2024 being contrary to the Section 2(16) of the Act of 1974 was liable to be quashed and/or set aside. Clause 8(ii) of the memorandum dated 03.02.2003 made it clear that all staff of KVK were borne on the establishment of the University. The letter of appointment of the petitioner was issued by the University. Therefore, the claim of the University that the petitioner was not an employee of the 6 University was misconceived. The Allahabad High Court decided a similar issue in writ A No. 7847 of 2022 involving similar provisions of law. The said judgement was affirmed by the Hon'ble Supreme Court. The resolution dated 02.02.2024 did not adequately consider crucial factors, including ICAR's letter dated 06.09.2023, expressing no objection to the petitioner working until the age of 62. The resolution dated 02.02.2024 not only created a disparity and discrimination against the petitioner, but diverged from the retirement age applicable to similarly situated staff in other state- aided and Central universities run KVKs. Dr. Prabir Kumar Gangopadhayay, scientific personnel in a KVK in Uttar Banga Krishi Viswavidyalaya was allowed to retire on January 31, 2021 when he attained the age of 62 years. Such differentiation violated the constitutional right to equality under Article 14 and went against the principles of natural justice. The resolution dated 02.02.2024 did not consider the letter dated 06.09.2023 issued by the ICAR without assigning any reason. It did not disclose any reason why the letter dated 03.12.2023 was chosen over the letter dated 06.09.2023, particularly when the letter dated 03.12.2023 relied upon a Government order inapplicable in the facts of the present case since the same was framed for non teaching staff. The recommendation of the committee constituted vide an order dated 31.08.2023 in connection with the order passed in WPA 18624 of 2023 was also not placed before the Council only to return an adverse finding against the petitioner. Thus, the resolution was perverse. University's decision to retire the petitioner at the age of 60 contravened the Memorandum of Understanding (MOU) executed between ICAR and the 7 University, as well as the ICAR's letter dated 03.10.2018, both of which explicitly set the retirement age at 62. In any event, Director of Extension lacks the authority to issue notifications determining the retirement age of KVK personnel contrary to the Act of 1974. The Hon'ble Court's order dated 28.08.2023, recognised the limited jurisdiction of the State Government in determining the retirement age of KVK employees and directed the University's Executive Council to decide the matter. No appeal was preferred against the said order and, therefore, the same attained finality.
3. Learned counsel representing the respondent University submitted as follows. The petitioner was an employee of the Krishi Vigyan Kendra cent per cent funded by the Indian Council of Agricultural Research (ICAR), Government of India. He was not an employee of the University and in his case, no order issued by the State Department of Agriculture was applicable. In his case, the Orders/Notifications/Circulars issued by the Indian Council of Agricultural Research, Government of India were only applicable. The petitioner (Dr. Krishna Kishor Goswami) was an employee of the Krishi Vigyan Kendra (KVK) of which, the University was only the implementing authority of the KVK-Project. The petitioner was not at all an employee of the University (B.C.K.V.). The appointment letter of Dr. Krishna Kishor Goswami (the petitioner) would speak for itself. The Krishi Vigyan Kendra (KVK) was a project, which was cent per cent funded by the Government of India. As per the Memorandum of Understanding (MOU), the KVK- Project was sanctioned by the Government of India to the Bidhan Chandra Krishi Viswavidyalaya (a State-aided University) with an instruction to implement 8 the same under the management of the University. The salaries of the staff- members of the KVK along with all other perquisites were provided by the ICAR-ATARI, Government of India. As the project (KVK) was implemented under the management of Bidhan Chandra Krishi Viswavidyalaya as per the instruction of the ICAR (Ref. Mou dated 03.02.2003-2004), the Vice- Chancellor of the Viswavidyalaya put his signature on the appointment letter of the petitioner. It did not mean that the petitioner would be considered as the employee of Bidhan Chandra Krishi Viswavidyalaya only for that reason of putting the signature by the Vice-Chancellor on the appointment letter of the petitioner. If he could be the employee of the University, his salary would have been provided by the Department of Agriculture, Government of West Bengal. In the instant case, the petitioner was an employee of the KVK-Project sanctioned by the ICAR to the University (BCKV). All financial liabilities in respect of the petitioner were borne by the Government of India (ICAR-ATARI) and the Department of Agriculture, Government of West Bengal was having no financial liability on the petitioner and other employees of the Krishi Vigyan Kendra. The superannuation age of the Senior Scientist was 62 years in the KVKs directly under the ICAR system and nor for the KVKs running under the State-aided Universities (SAUS). The decision of the ICAR with regard to the age of superannuation of the KVK-employees running under the SAUs had been reflected in the communication dated 03.12.2023 issued by the ICAR- ATARI Kolkata. The Indian Council of Agricultural Research, New Delhi distributed the Krishi Vigyan Kendras to the (a) ICAR Institutes under its 9 own control, (b) State Agricultural Universities and (c) Non-Government Organisations on different occasions and the management systems of the KVKs for different organisations/institutes were also different. The superannuation age of the employees of KVKs under different Organisations had also been decided by the ICAR, which were different. This was admitted by the petitioner in the writ petition. The entire financial grants (including salaries and other financial benefits) as to the employees of the Krishi Vigyan Kendras came from the ICAR, Government of India. In this connection, it might also be mentioned that the University was a State-aided University and it was being maintained with the financial assistance of the State Government. The administrative authority of the ICAR-ATARI Kolkata stated by the communication No. 3(17)/ATARI/Kol/BCKV/ 2023-24 dated 6th September, 2023 addressed to the Vice- Chancellor of the University that the financial liability of ICAR towards payments of salary would be restricted up to 62 years of the retirement age of the Senior Scientist and Head, Krishi Vigyan Kendra under B.C.K.V. But, subsequently the Assistant Administrative Officer, ICAR-ATARI Kolkata through his letter vide F.No.1(4)/ATARI/kol/C.C (BCKV)/2023-24 dated December 03,2023 address to the Director of Extension Education of the University (BCKV) informed that no KVK staff of BCKV was permitted to be in service beyond prescribed age of superannuation i.e., 60 years. In connection with the age of superannuation of the employees of the KVK, the communication of 03.12.2023 was the last and latest one. The University administration was, therefore, going by the said latest communication dated 03.12.2023 received 10 from the ICAR-ATARI, Kolkata. Moreover, the petitioner had already been handed over the charge on 10.05.2024 pursuant to the order of extension education BCKV dated 24.04.2024. The retirement age of KVK employee would be 60 years. Accordingly, the University authority was going by that. The Section 2(16) of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974 (as amended upto date), which provided "teacher" meant a person appointed or recognised by the University for the purpose of imparting instruction or conducting and guiding research or extension programmes and included any other person who may be declared by statutes to be a teacher. This was applicable to the teacher/scientists of the University and not for the scientists of the Krishi Vigyan Kendras. In this connection, the Section 14(6)(b) of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974 (as amended up to date) might also be mentioned here which provides "Every teacher shall normally share his time at least in two functions of teaching, research and extension, unless otherwise permitted by the Executive Council". The petitioner was solely engaged in extension work under KVK and he never shared his time in two functions out of three functions prescribed in the above provision of the BCKV Act, 1974. According to him also he was having experience in extension activities only. It was further reiterated that the University teachers/scientists were maintained by the State Government (Department of Agriculture) with the State Government prescribed allowances, but the scientists of the KVKs were maintained by the Government of India with the allowances prescribed by the ICAR, Government of India. The retirement age of the teachers of the University 11 was also decided by the State Government. In the instant case, the scientist of the KVK could not be compared with the teachers of the University. The teachers/scientists of the University and the Scientists of the Krishi Vigyan Kendras were different. The scientists of the KVKs were not the employees of the University; all financial and other benefits were maintained by the ICAR, Government of India. But, in case of the teacher/scientists of the University, the financial benefits were maintained by the Department of Agriculture, Government of West Bengal. In compliance with the High Court order dated 28.08.2023, an endeavour had been initiated to place the matter before the Executive Council and subsequently, the University administration tried to place the issue before the Executive Council for discussion and decision, but, because of an instruction received from the Department of Agriculture, Government of West Bengal regarding not holding the meeting of the Executive Council, the matter could not be placed before the Executive Council in time. The letter vide F.No. ATARI/Kol./1-G/2018/103 dated 03.10.2018 of the ICAR-ATARI, wherein the superannuation age of KVK- employees, which KVKs were under direct control of ICAR. Contextually, it might be mentioned that the Indian Council of Agricultural Research, New Delhi distributed the Krishi Vigyan Kendras to the a) ICAR Institutes under its own control, b) State Agricultural Universities and c) Non-Government Organisations on different occasions and the management systems of the KVKs for different organizations/institutes were also different. The superannuation age of the employees of KVKs under different Organizations has also been decided by the ICAR which were different. There was a clear 12 direction by the ICAR-ATARI as to the age of superannuation of the KVK Employees under the SAUs which automatically superseded the letter no.3(17)/ ATARI/Kol./BCKV/2023-24 dated 6-9-2023 by the ICAR-ATARI. The University had, received a communication vide F.No. ATARI/Kol./Court Case (WPA No. 6978/2024)/2024-25 dated 05.08.2024, wherein it had clearly been mentioned as follows:- "The age of superannuation of KVK employees functioning under SAUS/NGOs etc. Host Organizations of KVKs of West Bengal and Odisha is 60 years. The retirement age can always be lower than that of the analogous posts in ICAR, if respective host organization so decides. Accordingly, any payment of salary (to any KVK staff of any SAU, NGO, etc. Host Organizations) after attaining of age of 60 years (by any Non-ICAR Host Organization/SAU/NGO etc.) shall be the sole responsibility of the concerned SAU, NGO Host Organizations. In case overpayment has erroneously paid from ICAR funds, corrective measures shall be taken."
4. The respondent Nos. 3 to 6 took a similar stand as the respondent University. They denied any parity between the petitioner and a regular teacher of the University. In fact, they denied that the ICAR-ATARI had given any no-objection with regard to the claim of the petitioner in its letter dated 06.09.2023.
5. I heard the learned counsels for the parties and perused the writ petitions, the affidavits and the written notes of submissions.
6. It is true that the appointment letter of the petitioner as a training organiser in 2005 was issued by the Vice Chancellor of the BCKV. Over the 13 years the post was redesignated as senior scientist following recommendations of the 6th and 7th Pay Commissions. It is also true that as per the memorandum dated 03.02.2004 the petitioner is entitled to be treated at par with the other staff in respect of the age of retirement.
7. However, it is also a fact that the service conditions of the petitioner were being guided by a memorandum of understanding dated 03.02.2004 executed between the ICAR and the BCKV. More importantly, it was the ICAR and not the concerned department of the State Government who was funding the salary payable to the petitioner. Therefore, it is not in doubt that the petitioner's employment was quite unique unlike the unusual employment of a teacher of a University. It arose out of an agreement and was substantially guided by the same.
8. As rightly contended on behalf of the petitioner that as per Section 2 (16) of the BCKV Act, 1974 "teachers of the University" meant a person appointed by recommendations of the University for the purpose of imparting instructions or conducting of the guiding research or extension programmes and included any person who might be declared by the statues to be a teacher. However, Section 14(6)(b) of the said Act also provided that every teacher shall normally share his time, at least in two functions of teaching, research and extension, unless otherwise promoted by the Executive Council. The petitioner herein was solely engaged in extension work and did not share his time in two out of the three functions prescribed in the said Act. This is a significant aspect which distinguishes the petitioner from the others employed by the University as teachers. 14
9. Therefore, it is dubitable indeed whether the subsequent University notifications establishing the retirement age of University teachers at 65 years would squarely apply to the present petitioner.
10. However, the ICAR, through its letter dated 06.09.2023, clearly stated that the financial liability of ICAR towards payments of salary to Senior Scientists/Programme Coordinator of the KVKs run by BCKV would be restricted upto 62 years. This would amount to a no objection to the petitioner to work till the age of 62. This would have surely inspired a legitimate expectation in the mind of the petitioner that he would be employed in such capacity till such age and would be expected to take such age as the age of superannuation. The subsequent letter of the ICAR dated 03.12.2023 directing the University to stop the petitioner's salary was inconsistent with its earlier position. Such abrupt change in stand taken by the ICAR, without citing any special or exceptional reason, can be treated only as an arbitrary and irresponsible act, which should not bind the University, especially in view of the ICAR's earlier communication dated 06.09.2023.
11. Therefore, even if an age of superannuation of 65 years as available to other University teachers is not strictly available to the present petitioner in view of the above referred special facts and circumstances attached to his employment, the petitioner cannot be forced to retire before attaining the age of 62 years.
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12. It was further contended by the petitioner that similarly circumstanced KVK employee of another University was allowed to retire at the age of 62 years.
13. Pursuant to an order passed by this Court, the University passed a resolution dated 02.02.2024 fixing the petitioner's retirement age at 60 years. This was purely based on the said letter of the ICAR dated 03.12.2023, which was itself arbitrary and violative of the petitioner's legitimate expectations. It also exposes the apparent weakness of the University and its inability in independently deciding the retirement age of the petitioner and instead acting at the dictat of the ICAR.
14. In view of the above discussions, the University's resolution dated 02.02.2024 is set aside and the matter is remanded back to the Executive Council of the University to decided afresh the retirement age of the petitioner in terms of the above observations and in accordance with law, expeditiously, preferably within a period of 8 weeks from the date of communication of this order. In the event the age is pegged by the University at 62 years, the ICAR shall be liable to bear the consequent financial burden. At least till the decision is arrived at by the University in this regard, the petitioner shall be at liberty to work in such capacity at the University unless he has already attained the age of 62 years.
15. With these observations and directions, the writ petitioner is disposed of.
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16. Urgent Photostat certified copy of this order, if applied for, be given to the parties, upon completion of requisite formalities.
(Jay Sengupta, J.)