Calcutta High Court (Appellete Side)
Dr. Gouri Ghosh vs West Bengal University Of Technology & ... on 27 February, 2014
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
27th February,
2014
(Sm)
W. P. 3626 (W) of 2008
WITH
C.A.N. 1959 of 2013
Dr. Gouri Ghosh
-VS-
West Bengal University of Technology & Ors.
Mr. Soumya Majumdar,
Mr. Dibyendu Chatterjee.
...For the petitioner.
Ms. Nandini Mitra,
Mr. Sanjoy Saha
...For the University.
Mr. T. M. Siddiqui.
...For the State.
The writ petitioner was appointed as Assistant Registrar
In-charge on 1st September, 2001 in West Bengal University of
Technology and his appointment was extended from time to time
under the provisions of West Bengal University of Technology
Act, 2000. Writ petitioner was paid an honorarium at the rate of
Rs.8, 000/= per month. Writ petitioner is one of the first batches
of officers appointed in West Bengal University of Technology
(WBUT in short) when the said WBUT was in its nascent stage.
She was appointed pursuant to a selection process conducted
by interviewing her and on consideration of her candidature and
qualification she possessed. She was found eligible for
appointment. Writ petitioner possessed postgraduate
qualification in Mathematics. After the WBUT Act, 2000 was
published on 20th July 2000 in the Official Gazette, when the
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WBUT was its formative stage on the date of notification, the
first regulations were made effective from 27th December, 2002.
The petitioner in her capacity as Assistant Registrar had
assisted the Registrar in the area of general administration,
common entrance test, affiliation, conduct the process of
inspection for new colleges, renewal of affiliation, registration of
newly admitted students etc. During the tenure of petitioner's
service as Assistant Registrar of WBUT, various other officers
had been appointed on ad-hoc as well as permanent basis.
Petitioner being a member of the Executive Council as also the
General Council had played active role in such selection
process. Some time in 2003 petitioner was placed in the pay
scale of Rs.8, 000/- to Rs.13500/-vide letter dated 27th March
2003. She was also granted annual increment in the scale, as a
result of her basic had been revised in the scale over the years.
Pay scale of the petitioner will reveal that in the month of
January 2008 she was drawing a basic of Rs.9700/- with a
gross amount of Rs.13680/-
By a Memorandum dated 14th September, 2005 issued by
the Joint Secretary, Govt. of West Bengal, Higher Education,
University Branch informed the Registrar, WBUT about
regularization of 6 posts of officers, 31 posts of Ministerial Staff,
10 posts of Technical Staff and 14 posts of Group 'D' staff by
way of creation of posts in WBUT. The concerned Joint
Secretary informed the Registrar that he was directed by the
order of the Governor to say that the Governor has been pleased
to create the marginally noted regular posts viz. 6 posts of
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officers, 31 posts of Ministerial staff, 10 post of technical staff
and 14 posts of Group 'D' staff carrying the scale of pay as noted
against each of them, by WBUT, in order to regularize existing
incumbents of the WBUT with prospective effect. It was also
communicated that the charges in this connection may be met
out of the budgetary provisions of this department under the
plan need of Account "2203 Technical Education -00-102-
Assistance to Universities for Technical Education. Technical
Education of State (Annual Plan and Technical Plan) setting up
of technical University-V-31 Grades in Aid -01 Salary Grants".
The marginally noted posts as created above may be filled up. It
is relevant to mention that the last extension of the petitioner
was given on 27th March, 2003. Thereafter no further extension
was ordered but the petitioner allowed to work in the post of
Assistant Registrar, meaning thereby petitioner was
permanently appointed to the post of Assistant Registrar of the
University. On or before 4th October, 2005 a notification was
issued by the Registrar of the University inviting applications in
the prescribed form detailed in the Website for various
permanent posts including that of the post of Assistant
Registrar. Petitioner at that point of time asked for clarification
as regards the issuance of notice inviting applications for the
post of Assistant Registrar, since petitioner was discharging the
duties of Assistant Registrar on permanent basis and had been
placed in the regular scale of pay. At that point of time
petitioner was given to understand that the said process was a
formal one to regularize the petitioner's service. On that
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understanding petitioner applied for the post while she
continued to be a member of the Executive Council and General
Council, by submitting her candidature in the prescribed form.
Petitioner at the time of making application did not have
knowledge about the government order dated 14th September,
2005 directing regularization of the existing officers against the
respective posts of the University. Petitioner received the copy of
the notification only in February 2008. The petitioner applied for
two increments which had fallen due from the University and
the Finance Committee recommended the case of the petitioner
before the Executive Committee so that petitioner's salary as
Assistant Registrar be fixed on the ground of incremental
benefits. The said decision was communicated by letter dated
17th November 2006 issued by the Registrar, WBUT. The WBUT
further did not take any step for about two years on the
applications made for selection of Assistant Registrar. However,
petitioner having come to know about the Government order
dated 14th September 2005, made a representation to the
Registrar to regularize her service with all benefits. On 30th May,
2007 Govt. of West Bengal Higher Education Department also
wrote to the Registrar of the University to furnish the details of
the employees of the University for retrospective regularization
of service of the WBUT staff. Petitioner got a copy of such order
only on February 2008. Before filing this writ petition, petitioner
got copies of order dated 4th March, 2002 and 7th October, 2005
wherefrom it appears that the WBUT had regularized the initial
appointment of Group 'D' staff. Petitioner wrote to different
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authorities including Vice Chancellor of WBUT and Minister In-
charge of the Department of Higher Education for regularization
of her service.
Subsequently the Govt. order dated 14th September, 2005
was placed in the meeting of the Executive Council of the
WBUT. The Executive Council of the WBUT in their meeting
dated 7th October, 2005 have taken a resolution under Clause 7
which reads as follows: -
"Reporting on Govt. of West Bengal Higher Education
Department's Order on regularization of the posts for non-
teaching staff for the existing incumbents as also certain
other posts to be filled up.
Before the discussion took place on the above subject,
chairman requested the concerned EC Member and others
who were the beneficiaries to leave the meeting place. The
concerned Member and others left the meeting place.
Registrar and Member Secretary informed that an
Order No.547-EDN(U)IU(T)-07/2002 dated 14th September, 2005
from Joint Secretary, Government of West Bengal, Higher
Education Department, University Branch was received
regularization of six (6) posts of Officers, Thirty-one (31)
posts of Ministerial Staff Ten (1) posts of Technical staff and
Fourteen (14) posts of Group 'D' staff by way of creation at
the West Bengal University of Technology. This order
specified the respective scale of pay. In order to regularize
already existing incumbents of the WBUT, the above posts
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of non-teaching staff were created as the said order
mentioned.
Keeping in view of the content of the said order
Registrar and Members Secretary placed a list before the
Council Members. The list contained the following
proposals:
Post sanction: Ministerial Staff (31) posts."
Thereafter this was placed before the Executive Committee
and the Executive Committee of the WBUT on 16th December,
2010 took the following resolution under Item 24.15: -
b) To consider the cases of the employees were on
consolidated pay prior to 7.10.2005.
Some of the employees are working in the
University on consolidated pay for a periods
ranging from 5 to 10 years. Six of the
employees were on consolidated pay prior to
7.10.2005.
Resolved that the six employees who were on
consolidated pay prior to 7.10.2005 will be
provided with a compensation extended to the
full time employees in the pay scale/band
commensurate to their qualification, nature of
job they are performing and will receive benefits
as regards leave, leave salary and gratuity,
except for pension, with retrospective effect
from 01.01.2006. They would be governed by the
same provisions as are in force for the full
7
employees of WBUT. In respect of pay and
allowances, promotion and general conditions of
service, leave salary, age of superannuation and
retirement, except for the purpose of pension.
The resolution were placed before the Finance Committee
and the Finance Committee in their meeting dated 30th
December, 2010 also approved the decision of the Executive
Committee to the following effect.
"The members of the Finance Committee opinion that
the matter should have come to the Finance Committee
first as because it has got financial implications. But as
because it has already been approved by the Executive
Council of the University, the Finance Committee
principally agrees with the Executive Council Resolution."
For getting the benefit of the resolution of the Executive
Council, as approved by the Finance Committee of the WBUT,
writ petitioner moved this writ petition in 2008. Writ petitioner
also prayed for interim order restraining the respondent from
taking any steps towards filling up Assistant Registrar of the WBUT pursuant to the notification dated 4th October 2005. However, subsequently an application for amendment was made for implementation of the decision taken by the Executive Council meeting held on 16th December, 2010 and for granting benefits in terms of the decision of the Executive Council. At the time of moving interim order was passed in terms of prayer 'G' of the writ petition which reads as follows: - 8
"An interim order direction the respondents to maintain status-quo as regards the service of your petitioner to the post of Assistant Registrar of WBUT and treat her as other employees who had already been regularized in service with effect from 07.10.2005 pursuant to the government order dated 14.09.2005 being annexure "P-4" herein commissionerate to the post and not to fill up the post of Assistant Registrar by any other person till the disposal of this application."
Subsequently direction for filing affidavits were given during pendency of this writ petition and writ petitioner superannuated on 31st December 2013.
Mr. Majumdar, learned counsel appearing for the writ petitioner submits that WBUT was created by a statute under the provisions of West Bengal University of Technology Act, 2000. He submits that the WBUT guided by its own statute. According to him, powers of the University are prescribed under section 5 of the aforementioned Act. He submits under sub section 27 of section 5 WBUT was given power to appoint, either on contract or otherwise, visiting Professors, Emeritus Professors, Consultants, fellows, scholars and such other persons as may contribute to the advancement of the objects of the University. He further submits that the aforementioned Act has an overriding effect as stipulated under section 27 of the said Act. According to him, provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in 9 any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
According to him, there is no requirement under the Act to obtain approval from State for giving such appointment or creation of posts. He submits that the WBUT being a statutory authority is to Act as per relevant statute framed in this regard. In the instant case WBUT has appointed the petitioner as Assistant Registrar initially on ad-hoc basis and thereafter her tenure was extended from time to time. Petitioner was allowed to be a member of the Executive Council and General Council of the WBUT. By a circular dated 14th September, 2005 the post of six (6) officers along with other non-teaching employees were regularized and charges in this regard was to be made out of the budgetary provisions of the Department of Higher Education Department University Branch under the plan need of Account "2203 Technical Education-00-102-Assistance to Universities for Technical Education.
Mr. Majumdar also submits that on the basis of the Govt. order dated 14th September, 2005 bearing No.547- Edn(U)/IU(T)-07/2002 the University authorities also regularized 31 posts of Ministerial Staff. He further submits that the petitioner was not aware of the government memo dated 14th September, 2005 and that was the reason for her making application to take part in a regular selection process as per advertisement issued by the WBUT. He submits that on the basis of the aforementioned government circular dated 14th September, 2005 the Executive Council of the WBUT took 10 resolution as regards the six 6 officers including their consolidated pay prior to 7th October, 2005 and resolved that six 6 employees who were appointed prior to 7th October, 2005 will be provided with a compensation extended to the full time employees in the pay scales commensurate to their qualification, nature of job they are performing and will receive benefit as regards leave, leave salary and gratuity except her pension with retrospective effect from 01.01.2006. This would be governed by the same provisions as are in force for full time employees of the WBUT in respect of pay and allowance, promotions and general conditions of service, leave salary, age of superannuation except for the purpose of pension. Mr. Majumdar further submitted that the matter was place before the Finance Committee of the WBUT and the Finance Committee also opined, principally agreeing with the Executive Council recommendation. It was also pointed out by Mr. Majumdar that the concerned Assistant Registrar, Higher Education Department, University Branch, Govt. of West Bengal by another memo issued on 16th August, 2011 bearing No.576-Edn (U)/IU-07/09 informed the Registrar of the WBUT that there is some violation of existing guidelines and rules as regards granting increments to Sri Kaushik Roy, lecturer WBUT and granting promotion to Dr. P.K.Dan. So far the other resolution the government did not object.
Mr. Majumdar submits that the WBUT also acted on the basis of memo dated 14th September, 2005 and regularized the other employees, taking decision according to the said memo which was also accepted by the Finance Committee. There is no 11 illegality or unfairness on the part of the WBUT to take such resolution as per the government memo. He submits that WBUT is to act on the basis of the Executive Council resolution, which was approved by the Finance Committee and the benefits should be realized in favour of the writ petitioner. He further submits that in spite of issuance Memo order dated 14th September 2005 petitioner's service was not regularized. WBUT issued a notice for holding a regular selection for filling up the post of Assistant Registrar.
Mr. Majumdar, learned counsel appearing for the writ petitioner submits that on moving the writ petition this Hon'ble Court by an interim order directing the respondents to maintain status quo as regards the service of the petitioner to the post of Assistant Registrar and to treat her with other employees who were regularized in service with effect from 7th October, 2005 pursuant to the Government order dated 14th September, 2005 and not to fill up the said post by any other person till the disposal of this writ application. Mr. Majumdar further submits that interim order continued and the writ petitioner served WBUT as Assistant Registrar. However, during pendency of this writ application she retired on 31st December 2013. He further submits that the writ petitioner in fact was regularized and entitled to get benefits arising out of resolution taken by the Executive Council as approved by the Finance Committee. Mr. Majumdar submits that WBUT authorities properly understood the scope and purport of the order dated 14th September 2005 and they have taken resolution directly in terms of 12 aforementioned government memo long back. Therefore, there is no scope to take a different plea by WBUT or there is no scope to refuse the benefits available to the petitioner on the basis of the resolution taken by them.
Ms. Mitra, Learned counsel appearing for the WBUT submits that by memo No.982-Edn (U)/IU(T)-07/09 dated 1st November, 2012 issued by Assistant Secretary, Higher Education Department, Government of West Bengal, University Branch the Registrar of the WBUT was informed about the confirmation of agenda in the 24th Executive Council dated 16th October, 2010 not to be granted confirmation in any subsequent Executive Council meeting. She submits that this document was not available with them at he time of affirmation of affidavit-in-opposition. However, subsequently WBUT received the communication and she produced a copy of the same. According to her, the government is not agreeable to allow this resolution to be confirmed in Executive Council meeting. Since the WBUT is to pay the financial benefit to the petitioner and the government is giving grant in that regard, the WBUT cannot extend such benefit specially when the government not accepting the resolution. She also submits that in terms of Section 3 of West Bengal University Control of Expenditure Act, 1976 the WBUT cannot create any teaching and non-teaching posts involving financial liability without prior sanction of the State Government. According to her, WBUT acted contrary to Section 3 (1). In the instant case, the Executive Council and the Finance Committee have taken an erroneous decision. 13 Therefore, the writ petitioner could not be granted benefit as claimed for.
Ms. Mitra, further submits that the memo dated 14th September, 2005 relates to confirmation of Ministerial staff only. She submits that the posts of officers are concerned it should be filled up by regular selection. She submits that the Executive Council meeting is not based on the government memo dated 14th September 2005. Therefore, the writ petitioner should not be allowed to have the benefits.
Mr. Siddiqui, learned counsel appearing for the State submits that according to Section 3(1) of the West Bengal University Control and Expenditure Act, 1976 no post could be created by the WBUT. He further submits that the posts created by memo dated 14th September, 2005 is to be filled up in a regular manner by a fresh selection process. Therefore, there is no scope for giving benefit to the petitioner as per resolution taken by the Executive Council of the WBUT. Learned counsel for the State further submits that being a member of the Executive Council the writ petitioner was present when a decision for holding regular selection process was decided. Therefore, petitioner cannot question the decision of the WBUT to invite applications and to hold a fresh selection for filling up the vacancy.
Mr. Siddique, submits that in view of the provision of the Act WBUT cannot create any post so there is no question of giving benefit to the petitioner. As per decision and/or resolution taken by the Executive Council. Therefore, approval 14 of the Finance Committee is of no value specially when the government will not approve the same. He also submits that there was prayer for regularization that was not accepted. According to him, this should be rejected at this stage.
I have carefully considered the submissions made by the learned counsel appearing for the respective parties. It is undisputed that the WBUT is a creature of Statute. It has to function as per statutory provisions. The authorities have power to appoint as stipulated under sub section 27 of Section 5 of the West Bengal University of Technology Act, 2000, which do not prescribe any requirement of taking prior permission of either state or any other authority. The relevant provision is quoted herein below : -
(27) "to appoint, either on contract or otherwise, visiting Professors, Emeritus Professors, Consultants, fellows, scholars, and such other persons as may contribute to the advancement of the objects of the University"
According to provisions of sub section 27 this Act will have overriding effect. The relevant section is quoted herein below :-
27. "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 15
This WBUT is authorized to appoint the petitioner and there is no necessity to take prior approval. Accordingly the contention of state counsel fails.
The writ petitioner was appointed as Assistant Registrar on ad-hoc basis for a particular period and subsequently this period was extended. Under Memo No.-Edn(U)/IU(T)-07/2002 dated 14th September, 2005 Government decision for regularization of six officers including the post of Assistant Registrar was communicated. By this memo Joint Secretary, informed the Registrar of WBUT that Governor has been pleased to create the marginally noted regular posts, viz. Six (6) posts of Officers, Thirty One (31) posts of Ministerial Staff, Ten (10) posts of Technical Staff and Fourteen (14) posts of Group 'D' staff carrying the scales as noted in their memo to the WBUT in order to regularize already existing incumbents of the WBUT with prospective effect. Therefore, there is no scope to raise any doubt about the decision of the government, which is clear and specific. This memo was taken into consideration by the WBUT in their minutes of 8th Executive Council meeting held on 7th October 2005. In the Executive Council meeting memo dated 14th September, 2005 was taken into consideration when the writ petitioner, being member of the council, was requested by the Chairman to leave the meeting since petitioner is a beneficiary and it was recorded that the concerned member and other interested beneficiaries left the meeting place. Resolution taken in the 8th Executive Meeting on 7th October, 2005 reads as follows :-
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Reporting on Govt. of West Bengal Higher Education Department's Order on regularization of the posts for non- teaching staff for the existing incumbents as also certain other posts to be filled up.
Before the discussion took place on the above subject, chairman requested the concerned EC Member and others who were the beneficiaries to leave the meeting place. The concerned Member and others left the meeting place.
Registrar and Member Secretary informed that an Order No.547-EDN(U)IU(T)-07/2002 dated 14th September, 2005 from Joint Secretary, Government of West Bengal, Higher Education Department, University Branch was received regularization of six (6) posts of Officers, Thirty-one (31) posts of Ministerial Staff Ten (1) posts of Technical staff and Fourteen (14) posts of Group 'D' staff by way of creation at the West Bengal University of Technology. This order specified the respective scale of pay. In order to regularize already existing incumbents of the WBUT, the above posts of non-teaching staff were created as the said order mentioned.
Keeping in view of the content of the said order Registrar and Members Secretary placed a list before the Council Members. The list contained the following proposals:
Post sanction: Ministerial Staff (31) posts." Accordingly Executive Council in it's meeting on 14th September 2005 recorded that in order to regularize the existing 17 incumbents of the WBUT, 6 posts officers and other non- teaching posts were created. Subsequently by another Executive Council Meeting held on December 16, 2010 a resolution was taken to the effect that these employees who were on consolidated pay prior to 7th October 2005 will be provided with compensation extended to the full time employee in the pay scale etc. The relevant portion of the resolution noted under Item No.24.15 as follows: -
b) To consider the cases of the employees were on consolidated pay prior to 7.10.2005.
Some of the employees are working in the University on consolidated pay for a period ranging from 5 to 10 years. Six of the employees were on consolidated pay prior to 7.10.2005.
Resolved that the six employees who were on consolidated pay prior to 7.10.2005 will be provided with a compensation extended to the full time employees in the pay scale/band commensurate to their qualification, nature of job they are performing and will receive benefits as regards leave, leave salary and gratuity, except for pension, with retrospective effect from 01.01.2006. They would be governed by the same provisions as are in force for the full employees of WBUT. In respect of pay and allowances, promotion and general conditions of 18 service, leave salary, age of superannuation and retirement, except for the purpose of pension. It is also recorded that the resolution was placed before the Finance Committee held on 30th December 2010. The resolution taken by the Finance Committee approving Executive Council resolution reads as follows: -
"The members of the Finance Committee opined that the matter should have come to the Finance Committee first as because it has got financial implications. But as because it has already been approved by the Executive Council of the University, the Finance Committee principally agrees with the Executive Council Resolution."
Therefore, this decision of the Executive Council of the College is an outcome of the Government Memo dated 14th September 2005. Thus there is no illegality or irregularity in taking such decision. It is pertinent to mention that this Hon'ble Court passed an interim order in favour of the writ petitioner, which reads as follows: -
"An interim order direction the respondents to maintain status-quo as regards the service of your petitioner to the post of Assistant Registrar of WBUT and treat her as other employees who had already been regularized in service with effect from 07.10.2005 pursuant to the government order dated 14.09.2005 being annexure "P-4" herein commissionerate to the post and not to fill up the post of Assistant Registrar by any other person till the disposal of this application."19
In view of the interim order passed by this Hon'ble Court the WBUT could not hold the selection process for the post of Assistant Registrar and the petitioner continued in service till the date of her retirement on 31st December, 2013.
Taking note of the aforementioned facts it can safely be concluded that WBUT, being the creature of statute viz, The West Bengal University of Technology Act, 2000, is authorized and empowered to give appointment either on contract or otherwise which may contribute to the advancement of the objects of the University. Therefore, I do not find any illegality in such appointment of the petitioner in the post of Assistant Registrar of the University. Although the petitioner was appointed for a particular period was extended from time to time and she continued in the post till before her retirement. The Government by its own memo dated 14th September, 2005 indicated that six (6) posts including the post of the petitioner is to be regularized. The Executive Council Meeting on 2005 in terms of the aforementioned memo took a decision to regularize the employees and again in 2010, this resolution was approved in the Finance Committee Meeting. At this stage there is no scope to issue any other memo as issued by the Assistant Secretary of Higher Education Department, University Branch refusing to grant confirmation of the resolution taken in the Executive Council meeting. Executive Council meetings were held in absence of the petitioner since she is the beneficiary and therefore, there is no scope to take a view that the petitioner is in any way involved in the matter. Executive Council decided to 20 take such resolution following the Government decision as communicated. Accordingly petitioner is entitled to get benefit of regularization as well as other benefits resolved in the Executive Council meeting which was approved by the Finance Committee.
In my considered opinion the provisions of West Bengal Control of Expenditure Act, 1976 has no manner of application especially when the Act of 2000 by which University is governed has an overriding effect on other laws. In terms of the West Bengal University of Technology Act, 2000 there is nothing wrong in taking such resolution as per the government memo dated 14th September, 2005. So far as the plea taken by the learned counsel appearing for the State that the writ petitioner was present in the Executive Council Meeting. I find from the Minutes of 8th Executive Council that since petitioner was the beneficiary she was requested to leave the meeting and she left the meeting which was recorded and resolution taken on the basis of aforementioned G.O. in her absence. The resolution taken in 2010 is a second resolution after the first one, which was resolved in 2005. WBUT disclosed the resolution taken on 8th Executive Council Meeting in 2005 in their affidavit-in- opposition. It is specifically mentioned that the Executive Council meeting presided on the basis of memo dated 14the September, 2005.
It is true that the writ petitioner made an application when notification for fresh selection was made but it was clarified in the writ petition by making specific averments to the 21 effect the petitioner was not aware of the government memo wherein the government allowed regularization of her service along with other five (5) officers.
In my view the subsequent memo issued on 1st November, 2012 cannot supersede the memo issued by the Government on 14th September, 2005.
Accordingly this writ petition succeeds and the writ petitioner is entitled to get the benefits as prayed for in terms of the resolution of the Executive Council meeting dated 16th December 2010. The concerned respondents are directed to release all benefits within six weeks from the date of communication of the order.
Learned counsel appearing on behalf of the University prays for stay of operation is refused.
There would be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.)