Calcutta High Court (Appellete Side)
Dhimadhab Kirtania & Ors vs The State Of West Bengal & Ors on 7 December, 2017
Author: Samapti Chatterjee
Bench: Samapti Chatterjee
1 2.2017 ks W.P. 10764(W) of 2017 Dhimadhab Kirtania & Ors.
Vs. The State of West Bengal & Ors.
Mr. Pratik Dhar, Mr. Tarun Kumar Das ... For the Petitioners.
Mr. Arunangshu Chakraborty ...For the University.
The petitioners file the present writ petition assailing the order dated 28th June, 2016 issued by the Registrar(Acting), Rabindra Bharati University thereby withdrawing the status of the petitioners as Accompanist Teachers of the University relying on G.O. No.109Edn.(U)/EH/IU(RB)-01/10 dated 28.01.2014 as well as the resolution adopted by the Executive Council Meeting held on 8th July, 2014.
Mr. Dhar, learned senior Advocate appearing for the petitioners submits that right from the date of the petitioners' appointment in the year 1999 onwards, the petitioners have been given the status of Accompanist Teachers. As a result whereof, the petitioners have been appointed by the University Authority as Examiners and also to participate in other programmes considering their status as Accompanist Teachers. Mr. Dhar further submits that in ROPA, 2009 the petitioners' status was also described as Accompanist Teachers. All on a sudden, by the impugned order dated 28th June, 2016, the petitioners' status has been changed from Accompanist Teachers to non-teaching employees relying on a G.O. dated 28th June, 2016 and also the resolution adopted by the Executive Council' 2 s meeting dated 8th July, 2014. Mr. Dhar also submits that the G.O. dated 28th June, 2016 never speaks for change of status of the petitioners. Mr. Dhar draws the attention of this court to the G.O. dated 28th June, 2014. G.O. dated 28th June, 2014 is quoted below :
Mr. Dhar in support of his contention also relies on the corrigendum of the meeting dated 8th July, 2014(appears at page 88 of the writ petition). The Agenda item no.9 dated 8th July, 2014 of that meeting dated 8th July, 2014 is also quoted below:
"Agenda item no.9 Date :8.7.2014.
The extract from the proceedings of the meeting of E.C. held on 08.7.2014 Agenda Item No.9. Corrigendum To discuss the pryer of Sri Tarit Bhattacharya regarding withdrawal of legal case and release of his Pensionary Benefits as applicable for Non-teaching employee. The Executive Council noted the application of Sri Tarit Bhattacharya who has requested for considering him as a Non-teaching employee for setting his dues of Gratuity, Leave encasement and other benefits. For settling his leave records, the previous leave statements which are unavailable, the records may be waived as a special case and leave taken be calculated on the basis of actual leave application submitted by Sri Bhattacharya. After discussion the EC agreed to consider his ase as Non-teaching employee for settling pensionary benefit. It was further resolved that henceforth the Accompanist Teachers of the University will be treated as Non-teaching employee as per G.O. No.109- Edn(U)/EH/1U(RB)-01/10 dated 28/01/2014.
To, The concerned Officer, Establishment Section The above part of the pcoreeding of the meeting of E.C. held on 08.7.2014 is sent to you for taking necessary action, please.
Sd/-
(Dr. Bhaskar Sengupta) Registrar(Acting) "
Mr. Dhar further emphasises that resolution adopted by the Executive Council under agenda no.9 of 8th July, 2014 was subsequently modified on 14th August, 3 2014 thereby deleting that portion the resolution adopted that the Accompanist Teachers will be treated as non-teaching employees. Therefore, Mr. Dhar submits that since the petitioners have been appointed in the year 1999 onwards, therefore, their status should be governed on the basis of the amended clause 22 of Section 2 of the Rabindra Bharati Act, 1981. Mr. Dhar also submits that subsequent amendment of the Act in the year 2012 has no manner of application in respect of the petitioners' status where that clause 22 of Section 2 has been amended as follows:
"(22) "Teacher of University" means a Professor or an Associate Professor or an Assistant Professor or any other person, holding a whole-time substantive teaching post and appointed in a permanent vacancy in a University or recognized as such by the University with prior approval of the State Government."
Therefore, the petitioners are come under the substituted Clause (22) of Section 2 of the said Amended Act, 2012.
Thereby withdrawing the petitioners' earlier status of Accompanist Teachers. Mr. Dhar also vehemently submits that nothing regarding amendment of 2012 has been reflected in the impugned order dated 28th June, 2016. Before parting with his argument, Mr. Dhar submits that since in the impugned order the University only relied on one G.O. dated 28th June, 2016 and the Executive Council meeting dated 8th July, 2014, therefore, on the basis of same G.O., the petitioners' existing status like Accompanist Teachers cannot be withdrawn or altered as non-teaching employees. Therefore, Mr. Dhar submits that the impugned order dated 28th June, 2016 is not tenable and it should be quashed and set aside. In support of his contention Mr. Dhar relies on a decision reported in 1987(1) SCC 405(Mahindhr Singh Gill & Anr. vs. Chief Election Commissioner). 4 Per contra, Mr. Chakraborty, learned Advocate appearing for the University submits that the decision adopted by the University on 28th June, 2016 is not only on the basis of G.O. dated 28th January, 2014. Mr. Chakraborty further submits that impugned order dated 28th June, 2016 has been adopted on the basis of the amendment of clause 22 of Section 2 of the University Act taken in the year 2012 whereby the petitioners' earlier status as Accompanist Teachers has been withdrawn thus describing those Accompanist Teachers as non- teaching employees. Mr. Chakraborty further submits that the petitioners should have challenged the amendment of 2012. Unfortunately, this is lacking in the present case. Mr. Chakraborty further submits that under the amendment of Act, 2012 the petitioners have no authority to enjoy the status of Accompanist Teachers. Because by virtue of that amendment the status of Accompanist Teachers have been abolished thereby introducing the non-teaching employee. In conclusion Mr. Chakraborty submits that there is no ambiguity or infirmity or illegality in the order impugned which deserves interference by this Hon'ble court. Mr. Chakraborty further submits that this writ petition should be dismissed with costs.
Considering the submissions as advanced by the learned Advocate appearing for the parties and after perusing the records, I find admittedly that right from the petitioners' appointment their status as Accompanist Teachers on the basis of the amended Act, 1981. Unfortunately by the subsequent amendment of Clause 22 of Section 2 of the University Act, 2012, the petitioners cannot claim the status of Accompanist Teachers since the Accompanist Teachers' designation 5 has been altered and modified thereby describing them as non-teaching employees. I get some substance in the submission of Mr. Dhar that whatever the submission made by Mr. Chakraborty is not reflected in the order impugned dated 28th June, 2016. Therefore, considering the 1987(1) SCC 405(Mahindhr Singh Gill & Anr. vs. Chief Election Commissioner) supra, in my considered view the University Authority cannot develop or improve their case by submitting affidavit or making argument. Unfortunately, that has been done in the present case in hand though I appreciate the submission of Mr. Chakraborty. Unfortunately, the substance of Mr. Chakraborty's submission is not reflected in the order impugned dated 28th June, 2016. Accordingly, in my considered view the impugned order dated 28th June, 2016 cannot be sustained in the eye of law. Resultantly the order impugned dated 28th June, 2016 as well as the notification dated 3rd August, 2016, issued by the Registrar (Acting), Rabindra Bharati University is hereby quashed and set aside.
But this order will not preclude the University Authority to issue fresh order in accordance with law on the basis of the latest amendment. Accordingly, the writ petition succeeds.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
( Samapti Chatterjee, J. ) 6