Calcutta High Court (Appellete Side)
West Bengal University Of Technology & ... vs Dr. Gouri Ghosh & Ors on 16 December, 2016
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
MAT 708 of 2014
West Bengal University of Technology & Anr.
Versus
Dr. Gouri Ghosh & Ors.
For the appellants : Mr. Joydeep Kar,
Ms. Nandini Mitra,
Mr. Sanjoy Saha
For the respondents : Mr. Soumya Majumder,
Mr. Siddhartha Roy
For the State : Mr. T.M. Siddique
Heard on : 02/08/2016, 03/08/2016, 04/08/2016, 24/08/2016 and 17/11/2016
Judgment on: 16/12/2016
Debasish Kar Gupta , J. :
This appeal is directed against a judgment dated February 27, 2014 passed in W.P. 3626 (W) of 2008 holding that the respondent was entitled to get the benefits as prayed for in terms of the resolution of the Executive Council Meeting dated December 16, 2010. There was further direction upon the concerned respondents to release all benefits in favour of the respondent.
The fact which was taken into consideration by the learned single Judge is stated below in a nutshell:-
The respondent no.1 was engaged as Assistant Registrar In-Charge of the appellant University on ad hoc basis initially for a period of six months with effect from September 1, 2001, or the actual date of her joining on acceptance of the office order dated August 31, 2001. Her monthly honorarium was Rs.8000/- only. By virtue of an office order dated March 26, 2002 her consolidated pay was fixed at Rs.8000/- only per month. By a subsequent order dated March 27, 2002, the respondent no.1 was appointed as Assistant Registrar of the appellant University with effect from March 1, 2003 in the pay scale of Rs.8000/- to Rs.13500/- for one year on contract basis fixing her basic pay at Rs.8500/- only per month and in addition her consolidated allowance was fixed @ 40% of the basic pay plus Rs.100/- per month as Medical Allowance.
By a Government order dated September 14, 2005 regular posts of six (6) officers, thirty one (31) Ministerial Staff, ten (10) technical staff and fourteen (14) Group-D staff were created in order to regularise already existing incumbent of the appellant University against those posts with prospective effect. The post of Assistant Registrar was also included among other posts of officers under the appellant University.
The appellant University published an advertisement dated October 4, 2005 in the website of the University inviting applications from the eligible candidates for filling up of the post of Assistant Registrar permanently, amongst other posts. Those who were already in the services of the appellant University were directed to apply through proper channel. It was further mentioned in the above advertisement that the selection for the posts advertise might not be restricted to the applicants only. The respondent no.1 submitted her application in respect of the post of Assistant Registrar in response to the above advertisement as also participated in the selection process.
Subsequently, the respondent no.1 submitted a representation dated May 23, 2007 to the effect that she had come to know the decision of the Government for regularisation of existing incumbent of the post of Assistant Registrar under the appellant University amongst others. She further prayed for regularisation of her service to the post of Assistant Registrar under the appellant University thereof.
In the 8th Meeting of the Executive Council held on October 7, 2005, the proposal of regularisation of services of existing incumbents in 31 posts of Ministerial Staff under the appellant University was accepted and approved in terms of the Government Order dated September 14, 2005. In the above meeting a point was raised by one the members of the Executive Council for filling up of the posts of officers under the appellant University by way of regularisation of the existing incumbents in terms of the above Government Order dated September 14, 2005. In reply the Vice Chancellor, who was the Chairman of the Executive Council of the appellant University, told that the above issue could be taken up at the appropriate level.
By a communication dated May 30, 2007, the Higher Education Department University Branch, Government of West Bengal directed the University to furnish the following information for taking necessary action from end of the Government:-
"1. Whether all the posts created under this Department's memo No.547-Edn(U)/1U(T)-07/2002 dated 14.09.2005 have been duly filled up by the University.
2. If so, furnish the names, designations, dates of joining as per the prospective effect mentioned in the above G.O.
3. Dates of actual joining from which the University is seeking for retrospective effect in respect of those employees.
4. Whether all these employees have rendered continuos service in the University from the dates of their actual joining."
Thereafter, the respondent no.1 filed the writ application, which gives rise to this appeal, for issuing a writ in the nature of mandamus commanding the appellant University to regularise her service in the post of Assistant Registrar of the appellant in terms of the Government Order dated September 14, 2005 read with the above communication dated May 30, 2007, amongst other prayers.
It is submitted by Mr. Joydeep Kar, learned senior advocate, appearing on behalf of the appellant University that the respondent no.1 was appointed purely on ad hoc basis. It was a contract service based on the terms and conditions mentioned in her order of engagement dated August 31, 2001, which were modified from time to time. She had no legally enforceable right for her absorption in the above post permanently for the reason that regularisation should not be a mode of appointment. According to him, regularisation of service of the respondent no.1 could only be made in accordance with law. It is further submitted by him that a Court sitting in writ jurisdiction could not direct the appellant University to regularise the service of the respondent no.1 which was not within the scope of judicial review.
Reliance is place by Mr. Kar on the decision of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., reported in (2007) 1 SCC 408 in support of his above submission.
It is submitted by Mr. T.M. Siddique, learned State advocate that by virtue of the Government Order dated September 14, 2005, the creation of the posts of officers and other staff of the appellant University was regularised. Those should have been filled up adhering to the recruitment rules. According to him, no legally enforceable right was conferred upon any of the existing officer or staff of the appellant University for regularisation of his/her service under the University on the basis of the above Government Order.
On the other hand, Mr. Soumya Majumder, learned advocate appearing on behalf of the respondent no.1 submitted that according to the Government Order dated September 14, 2005 (hereinafter referred to as the said Government Order), was issued for regularisation of the services of existing incumbents in respect of the posts of six officers of the appellant University, amongst others. Consequent thereupon, the appellant University regularised the services of existing incumbents in 31 posts of Ministerial Staff under the appellant University. But the action on the part of the appellant University in initiating a selection process for appointment of Assistant Registrar, amongst other posts of officers inviting applications from the eligible candidates was not only arbitrary but also in violation of the said Government Order. It is also submitted by him that the Executive Council of the appellant University was the competent authority under the provisions of the West Bengal University of Technology Act, 2000 (hereinafter referred to as the said Act, 2000) to take a decision for filling up of the post of Assistant Registrar. But no decision was taken by the Executive Council of the appellant University to initiate selection process for appointment of Assistant Registrar which had been created by the said Government Order with a view to regularise the services of the existing incumbent in the post of Assistant Registrar amongst others. Therefore, according to Mr. Majumder, the initiation of the selection process in question was without jurisdiction and liable to be set aside.
Having heard the learned Counsels appearing on behalf of the respective parties as also after giving our thoughtful consideration to the facts and circumstances involved in the present appeal we find that the decision of the learned single Judge in respect of the following two issues are to be examined:-
(i) Whether the Government Order dated September 14, 2005, conferred a legally enforceable right upon the respondent no.1 for regularisation of her service in the post of Assistant Registrar of the appellant University.
(ii) Whether the initiation of selection process for filling up of the post of Assistant Registrar of the appellant University permanently on the basis of creation of the above post, amongst other posts by Government Order dated September 14, 2005, was without jurisdiction and/or arbitrary.
With regard to the first contention, the learned single Judge arrived at a conclusion that the said Government Order was issued for regularisation of the existing incumbent in the post of Assistant Registrar of the appellant University amongst other existing incumbents in the posts of officers, ministerial staff, technical staff and Group-D staff, mentioned in the above Government Order. After considering the above Government Order, we find no infirmity in above conclusion of the learned single Judge.
After considering the above Government Order, we do not find any substance in the submissions made by Mr. Siddique, learned advocate appearing for the State that the said Government Order was issued for regularisation/creation of permanent post of Assistant Registrar, amongst other posts, of the appellant University. The said Government Order not only speaks of regularisation of the service of existing incumbent in the post of Assistant Registrar, amongst other posts of the University, but also communication dated May 30, 2007, relates to collection of information regarding such regularisation with retrospective effect.
While we address the second issue, we find that under the provisions of sub-section (1) of Section 15 of the said Act, 2000, the Executive Council should be the chief executive body of the University. Under the provisions of sub-section (2) of Section 15 of the said Act, 2000, the administration, management and control of the University and the income thereof should vest in the Executive Council which should control and administer the property and funds of the University, subject to the general supervision of the General Council.
In absence of any rules and regulation framed under the said Act, 2000, the Executive Council of the appellant University had the power to take a decision for giving effect to the said Government Order in its letter and spirit. No material is brought on record to show that any decision was taken in the meeting of the Executive Council of the appellant University in the matter of filling up of the vacancy of Assistant Registrar on the basis of the said Government Order. On the contrary, our attentions have been drawn towards the minutes of the Executive Council Meeting held on February 28, 2008, to show that the Chairman of the Executive Council, i.e. the Vice Chancellor told in reply to a question raised by a member that the issue of regularisation of the existing incumbents in the post of officers would be taken up at the appropriate level. We fail to understand what would be the appropriate level other than the Executive Council to take a decision in this regard. In view of our discussions made hereinabove therefore, initiation of the selection process under challenge was not sustainable in law. There was no infirmity in the impugned judgment in this regard.
With regard to the question of arbitrariness, we are of the opinion that no material is brought on record by the appellant university to show the reasons for its discriminatory action in regularising the services of existing incumbents in the post of ministerial staff on the basis of the said Government Order on one hand and to initiate selection process inviting applications from the eligible candidates to fill up the post of Assistant Registrar of the University, amongst the posts of other officers.
In the decision of Indian Drugs & Pharmaceuticals Ltd. (supra) the claim of the employees was not based on any Government Order creating posts for regularisation of the existing incumbents in those posts unlike the case in our hand. In view of the above distinguishable facts and circumstances the above judgment does not help the appellant University.
Therefore, this appeal stands dismissed.
There will be, however, no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.
I agree. (Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)