Calcutta High Court (Appellete Side)
(Ad) vs University Of Calcutta & Ors on 3 March, 2020
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
W.P. 7842 (W) of 2019
S/L-7
03.03.2020
Samir kanti Bandyopadhyay
Ct-15
(AD)
vs.
University of Calcutta & Ors.
Mr. Balailal Sahoo
... for the petitioner.
Mr. Nilotpal Chatterjee
Mr. Raja Saha
Mr. Sanjoy Mukherjee
... for the Calcutta University.
Mr. T.M. Siddiqui
Ms. Tuli Sinha
... for the State respondents.
Records reveal that the writ petition was admitted with a direction towards exchange of affidavits by an order dated 16th April, 2019. The matter thereafter came up for hearing on 26th July, 2019. On the prayer of the respondents time to file the opposition was extended. In spite of such direction no affidavit-in-opposition has been filed by the University authorities and the State authorities.
Mr. Sahoo, learned advocate appearing for the petitioner submits that the petitioner was appointed in the post of a Junior Assistant in the University of Calcutta (in short, the University) on 24th of September, 1982. On 31st of May, 2004 an advertisement was published by the University inviting applications from eligible candidates for appointment to the post of Estate and Trust Officer (in short, ETO) in the scale of pay Rs.12,000/- to Rs.18,300/-. The same was published in the local newspaper on 3rd of June, 2004. One of the mandatory eligibility criteria was that the applicant must have a degree in law or management. Responding to the said advertisement, the petitioner applied and participated in the selection process but one Mr. Anjan Kumar Dan (in short, Mr. Dan) was 2 selected and appointed in the said post though he did not have any degree in law or management. Aggrieved thereby, the petitioner submitted an application under the provisions of the Right to Information Act, 2005 (in short, RTI Act) on 11th of March, 2010. In response thereto, incomplete information was furnished by a letter dated 28th of May, 2010. By a letter dated 23rd August, 2012, the petitioner objected to the appointment of Mr. Dan and asked the authorities to review the decision towards such appointment. Faced with such objections, the University authorities sought for an opinion from the learned Advocate General of the State, who opined on 16th April, 2014 that the petitioner should be offered a post equivalent to the post of ETO within the employment framework of the University. Thereafter the respondent no.2 issued a letter to the Assistant Secretary, Government of West Bengal, Department of Higher Education on 26th of February, 2015, mentioning therein the resolution adopted by the syndicate of the University on 20th of May, 2014 to appoint the petitioner in a supernumerary post of Officer-on-Special Duty on usual terms and conditions in the scale of pay of Rs.15,600/- to 39,100/- (Pay Band-3) with Grade Pay of Rs.8,000/- with allowances with effect from 21st of May, 2014 till the he attains 60 years and to allow Mr. Dan to continue as ETO. On the basis of such resolution the petitioner was appointed to a supernumerary post of Officer-on-Special Duty equivalent to the post of ETO in the University with effect from 21st of May, 2014 by a letter dated 21st May, 2014 issued by the respondent no.3. Upon joining the said post, the petitioner submitted a 3 representation to the respondent no.2 to grant actual salary pertaining to the post of ETO retrospectively from the date of appointment of Mr. Dan. Such prayer was considered by the Finance Committee and relegated to the State for consideration on 7th July, 2014. The petitioner's pay was, however, notionally fixed with effect from 21st July, 2006, i.e., the date of joining of Mr. Dan, as would be explicit from the document annexed at page 61 of the writ petition. The petitioner thereafter retired on 31st of October, 2015. He was granted extension of three months on the terms and conditions applicable to the supernumerary officers by a memo dated 21st of October, 2015.
Mr. Sahoo submits that after retirement, the pensionary benefits were withheld without any reason whatsoever. Aggrieved thereby, he approached the authorities. Subsequent thereto, by a letter dated 31st of December, 2015 the Accounts Officer of the University intimated the petitioner that the Pro. Vice-Chancellor (B.A. & F.) had approved the payment of provisional pension to the petitioner. In the said memorandum the contents of the resolution of the Finance Committee dated 17th of December, 2015 were recorded from which it appears that the authorities resolved to disburse 90% of the pension (provisional) in favour of the petitioner on the last actual pay drawn.
According to Mr. Sahoo from the sequence of facts it is explicit that the appointment of Mr. Dan to the post of ETO was illegal inasmuch as Mr. Dan did not have the qualification to be appointed to the said post. Only a one man panel was prepared. Having admitted that Mr. Dan 4 was illegally appointed and that in the process the petitioner was illegally ousted from the zone of consideration and denied appointment to the post, the University authorities ought to have appointed the petitioner in an equivalent post retrospectively from the date of appointment of Mr. Dan and ought to have disbursed full salary pertaining to the period from 21st of July, 2006 till 21st of May, 2014.
He argues that without any reason whatsoever the University authorities have withheld 10% of the petitioner's dues. Repeated representations were submitted by the petitioner to all authorities but in vain. The Deputy Secretary to the Government of West Bengal, Governor's Secretariat also issued various letters to the authorities, as annexed at Pages-83 to 89 of the writ petition, to consider the petitioner's grievance. However, the respondent authorities did not take any step towards disbursement of the withheld amount of pensionary benefits.
Mr. Chatterjee, learned advocate appearing for the University submits that six candidates appeared in the selection process held in the year 2006 and Mr. Dan was found to be suitable and was accordingly given appointment. The University authorities approached the learned Advocate General seeking an opinion as regards the petitioner's claim and on the basis of the opinion furnished on 16th April, 2014, the Syndicate took a decision to create a post similar to that of ETO and to appoint the petitioner in the same on and from 21st of May, 2014.
Drawing the attention of this Court to the letter of appointment to the petitioner in the said post annexed at 5 page-55 of the writ petition, Mr. Chatterjee submits that such appointment was accepted by the petitioner without any objection. In the said appointment letter there was a clause that "if you are agreeable to accept the offer on the aforesaid terms, you are requested to report for your joining to the undersigned". The petitioner took a conscious decision to accept the appointment to the concerned post on and from 21st of May, 2014. Having accepted such appointment the petitioner cannot turn back and claim actual salaries pertaining to the post of ETO on and from the date of appointment of Mr. Dan.
He further submits that the petitioner did not discharge any service in the post of ETO during the said period from 21st July, 2006 till 21st of May, 2014 and as such he cannot claim actual salary for the said period.
Mr. Siddiqui, learned advocate appearing for the State submits that the appointments given to Mr. Dan in the post of ETO and to the petitioner in the post of Officer- on-Special Duty were irregular. No prior permission was sought for prior to appointment of the petitioner to a supernumerary post of Officer-on-Special Duty equivalent to the post of ETO. The irregularities have been committed by the University and the burden of such irregularities is to be borne by the University. The State cannot be made a party to such illegality and irregularity of the University.
He argues that it had not been the opinion of the learned Advocate General to create a supernumerary post. In fact, the opinion was to accommodate to the petitioner in a post equivalent to the post of ETO within the employment framework of the University.
6
Indisputably the post of ETO was filled up in the year 2006. The appointment of Mr. Dan was, however, not challenged by the petitioner contemporaneously. Mr. Dan has also not been made a party respondent to the present writ petition, which has been preferred in the month of April, 2019. In the year 2006 there was only one post of ETO. The petitioner has not discharged actual service in the concerned post during the said period from 2006 to 2014 and accordingly, the petitioner cannot claim actual benefits for the said period. The petitioner has been accommodated in a post equivalent to the post of ETO created in the year 2014. In the said conspectus, the petitioner's claim for actual benefits pertaining to the period from 2006 to 2014 is not acceptable to this Court and such prayer is refused.
However, the University authorities have already given notional benefits to the petitioner counting the entire period from the date of appointment of Mr. Dan to the post of ETO till the date of appointment to the petitioner in a similar post on and from 25th of May, 2014.
It appears from the document annexed at page 72 of the writ petition that a resolution was adopted by the Finance Committee on 17th of December, 2015 to the effect that "90% of the pension (provisional) be accorded on the last actual pay drawn." No reason is forthcoming why the decision to withhold 10% of the benefits was taken by the competent authority. The University authorities themselves have created a post similar to that of ETO and had appointed the petitioner in the same on and from 21st May, 2014 granting notional benefits on and from the date of 7 appointment of Mr. Dan i.e. on 21st July, 2006 till 21st May, 2014. Having taken such steps, the University now cannot deny its responsibility to disburse the remaining 10% of the petitioner's pensionary benefits. There is also no indication in the appointment letter dated 21st May, 2014 as regards requirement of any post- facto approval from the State authorities.
In view thereof, the University authorities are directed to disburse the remaining 10% of the pensionary benefits to the petitioner positively within a period of four weeks from the date of communication of this order.
With the above observations and directions, the writ petition is disposed of.
There shall 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.
(Tapabrata Chakraborty, J.)