Calcutta High Court (Appellete Side)
College & Anr vs State Of West Bengal & Ors on 23 November, 2016
Author: Debangsu Basak
Bench: Debangsu Basak
1
November 23,
2016
R.C. W.P. 24733 (W) OF 2015
Governing Body, Burdwan Raj
College & Anr.
Vs.
State of West Bengal & Ors.
With
W.P. 20533 (W) OF 2015
Dr.Niranjan Mondal
Vs.
State of West Bengal & Ors.
=-=-=-
Mr.Amitava Choudhury
Mrs. M.Choudhury
Mr. N. Roy,
...for Petitioner in
(W.P. 24733 (W) OF 2015)
Mr.Ekramul Bari
Mrs.Tanuja Basak,
...for Petitioner in
(W.P. 20533 (W) OF 2015)
Mr. Amitava Choudhury
Mrs. M. Choudhury
Mr. N.Roy, ...for Respondent
Mr.Pulak Ranjan Mondal
Mrs. Bandana Das,
...for W.B.College Service
Commission
Mr.Supriya Chattopadhyay
Ms.Iti Dutta, ...for State in
(W.P. 24733 (W) OF 2015)
Mrs. Chama Mukherjee
Mrs.Paramita Pal, ...for State in
2
(W.P. 20533 (W) OF 2015)
Two writ petitions are taken up for hearing
analogously as they relate to one college and
appointment of one person therein.
For the sake of convenience, the petitioner in
W.P. 24733 (w) of 2015 is referred to as the College
Authorities and the petitioner in W.P. 20533 (w) of
2015 is referred to as the private respondent in the
judgement. The College Service Commission is
referred to as such.
The College Service Commission undertook
a selection process for the purpose of appointment
for the post of Principal. The private respondent
participated in such selection process. The private
respondent being successful was recommended by
the College Service Commission for the purpose of
appointment as the Principal to the concerned
college being the petitioner herein.
The petitioner filed the writ petition being
W.P.24733 (w) of 2015 assailing the
recommendation of the College Service Commission
in respect of the private respondent stating that the
private respondent is not entitled to the appointment
as he does not fulfil the requisite eligibility criteria
for the post.
The private respondent filed his writ petition
being W.P. 20533 (w) of 2015 seeking appointment
claiming that the college has no business to reject the
recommendation of the College Service Commission
3
for the purpose of granting of appointment to the
post of Principal.
The maintainability of the first writ petition
being W.P. 24733 (w) of 2015 is assailed on the
ground that the Governing Body during the
pendency of the writ petition was replaced by the
District Magistrate as an administrator. Since the
administrator is the District Magistrate and a
Government Official, it cannot be allowed to assail
an order passed by another Article 12 authority,
namely, the College Service Commission. In support
of such contention, the learned advocate for the
private respondent relies upon 2006 (3) Calcutta
High Court Notes 54 (Major General Arun Roy-Vs-
Union of India).
Major General Arun Roy (supra) is a
Division Bench judgement concerning promotion in
the Army. It has held that, an authority cannot attack
its own order.
In the present case, the District Magistrate
has been appointed as the administrator of the
college. He is discharging his function as an
administrator of the college, which is distinct from
that of a District Magistrate itself. As an
administrator of the college, he has to take into
account interest of the college that he represents as
the administrator. While discharging his duties as an
administrator of a college, a District Magistrate
might find that, an action of an Article 12 authority
is contrary to the interest of the Institution. The
Governing Body of the College, if it was in place
4
could have challenged such action. In such situation,
the District Magistrate, acting as an administrator is
entitled to maintain a writ petition. Viewed from
such perspective, it cannot be said that a District
Magistrate acting, as an administrator of a college is
not entitled to assail an order of any Article 12
Authority, if he finds the same not be for the interest
of the college or the same to be vitiated by any
provision of law. Therefore, I find that the writ
petition continued to be maintained at the instance of
the administrator of the college being W.P. 24733
(w) of 2015 to be maintainable.
The next question that remains to be decided
in the two writ petitions is whether the College
Authorities was right in rejecting the
recommendation made by the College Service
Commission in the instant case for appointment of
the private respondent to the post of the Principal of
the college or not. The College Authorities have
denied acceptance of the recommendation solely on
the ground that the private respondent does not fulfil
eligibility criteria.
The learned advocate for the petitioner refers
to an unreported decision of the Hon'ble Division
Bench rendered in W.P. 24596 (w) of 2012
(Governing Body of Bankim Sadar College & Anr.-
Vs-The State of W.B. & Ors.) and submits that the
question whether a recommendation of the College
Service Commission for the post of Principal is
binding or not on the College has been answered in
the negative by holding that the final decision as to
5
whether or not to give appointment to the selected
person is in the realm of the College Authorities.
However, such decision must be bona fide, free from
arbitrariness and in the best interest of the concerned
Institution. He submits that the decision of the
Governing Body of the college is in the best interest
of the Institution, as the officer recommended does
not fulfil the eligibility criteria.
The College Service Commission had
undertook the process of selecting candidates for
appointment as Principals to colleges. It had laid
down the eligibility criteria. The relevant portion of
the eligibility criteria laid down by the College
Service Commission is as follows:
"4.Academic Qualification and Experience
A.For General Degree Colleges
a) A Master's Degree with at least 55%
marks (or equivalent grade or grade point
wherever grading system is followed)
from a recognized
University/Institution........................
.................
...................................................... ....................
d)At least 15 years of teaching/administrative experience in recognized Universities, Colleges and other Institutions of High Education, as clarified in Note 1 below.
e) A minimum score in the academic performance indicator (API) based Performance Based Appraisal System (PBAS), with emphasis on published work, designed in accordance with UGC guidelines. It is also desirable, but not essential, that the candidate should have experience of guiding research.
Note I:
6Teaching Experience: As a whole time faculty at least in UGC scale of pay in recognized University/College/Institution of High Education, Research Experience: Post-doctoral research experience in any recognized Institution of Higher Education.
Administrative Experience: Experience of working in an administrative capacity in any recognized University/College/Institution of Higher Education in at least Assistant Professor Scale.
Note2: The API format, designed in accordance with the UGC guidelines, will be uploaded in our website well before the commencement of the interview for the pot. Candidates will be required to fill in the format in their own handwriting and produce the same before the selection committee"
The learned advocate for the petitioner refers to a notification dated April 24, 2015 and submits that librarians of a Government college/assistant librarians was directed to be considered as staff of the college with effect from April 24, 2014 and that the same cannot have a retrospective effect. In the present case, the selection process was initiated much prior to the circular dated April 24, 2014. The circular not having retrospective effect, the claim of the private respondent is ill founded.
The learned advocate for the petitioner refers to the definition of teacher obtaining in Section 2 (21) and (22) of the Burdwan University Act 1981 and submits that a librarian is not contemplated to be a teacher within the definition of such sections.7
Consequently, an assistant librarian cannot be considered to be a teacher as the college concerned is affiliated to Burdwan University.
The learned advocate for the private respondents submits that, the petitioner has the requite qualification. He contends that, the petitioner has 15 years of experience. In support of such contention, he refers to various documents in the affidavit in reply and submits that the private respondent have more than requisite experience.
He submits referring to 1994 (1) Supreme Court cases 169 (Chancellor and Another-Vs- Dr.Bijayannanda Kar & Anr.) that the Court ought not to sit in appeal over a decision taken in the academic field.
The post held by the private respondent for the period from August 1, 1998 till March 2003 and even beyond that is not in dispute. The private respondent acted as an assistant librarian of a college from August 1, 1998 and worked in such post till March 2, 2000. He was appointed as the lecturer of another college from March 3, 2000 and worked therein as such. For the period from April 13, 2000, the private respondent can justifiably be considered to have the requisite qualification. For the period from August 1, 1998 till March 2, 2000 when he worked as assistant librarian, can such period be considered to be in the nature of work of an assistant professor is the question in the two writ petitions.
It appears that the Burdwan University Act 1981 defines a non-teaching staff in Section 2 (13) 8 thereof. Non-teaching staff does not include a librarian. A teacher is defined in Section 2 (21) and (22). Although the post of librarian or assistant librarian is not named in any of those two sections, in my view, reading sub-section 2(13) and the Clause "or any other person appointed or recognized by such University" a librarian and an assistant librarian would come within the meaning of a teacher under the provisions of the Burdwan University Act 1981. The Clause "any other person appointed or recognized by such University", in Sub-section (21) and (22) of Section 2 would mean such Clause permits the University to recognize any person to be a teacher other than those mentioned in Sub-section (21) and (22). Sub-section (13) recognizes a librarian to be a teacher by nature of the definition of the non- teaching staff therein active.
The University Grants Commission (UGC) has considered librarians and assistant librarian as qualified to the post of assistant professor and have extended the benefits to such post by their notification of maintenance of standards 1998. In Regulation 8.0.0 U.G.C. has provided that the previous service should be counted in the manner laid down therein in accordance with the circular. Also, an assistant librarian has to be treated to discharging functions of a teacher for the period he has discharged duties as an assistant librarian. The scale of pay prescribed by the U.G.C. for Assistant Librarian is the same as that of a lecturer senior scale. Aassistant librarian is also considered to be an 9 officer within the meaning of Clause (IV) of Sections 7 of the Burdwan University Act as will appear from the Burdwan University Act First Statutes.
The period of service of the private respondent as an Assistant Librarian on and from August 1, 1998 till March 2, 2000 therefore has to be taken into consideration. Taking such period into consideration, it cannot be said that the private respondent does not fulfil eligibility criteria.
The Governing Body of a college no doubt retains the power to reject a recommendation of appointment by the College Service Commission as laid down by the Hon'ble Division Bench in the Governing Body of Bankinm Sardar College & Anr. (supra). However, such a decision must be bona fide, free from arbitrariness and in the best interest of the concerned Institution. Applying such ratio to the facts of this present case, the ground of rejection of the candidature of the petitioner as recommended by the College Service Commission, does not withstand scrutiny. Such ground not being sustainable, it would not be proper to deny the appointment of the petitioner as the principal of the college concerned on the recommendation of the College Service Commission.
In such circumstances, the two writ petitions are disposed of by requesting the College Authorities to accept the recommendations of the College Service Commission in respect of the private respondent and to process the appointment in 10 accordance with law. It is expected that the College Authorities act in accordance with this order within a period of four weeks from this date.
Urgent photostat certified copy of this order, if applied for, will be available to the applicant within a week from the date of putting in the requisites.
( DEBANGSU BASAK, J. )