Calcutta High Court (Appellete Side)
Of Advance Technology And Management ... vs Subhangshuman De And Ors on 22 May, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
22.5.2014
kc(178)
CAN 5204 of 2014
In
A.S.T. 233 of 2014
The Governing Body, Durgapur Institute
of Advance Technology and Management and Ors.
-versus-
Subhangshuman De and Ors.
Mr. Shamim Ul Bari,
Mr. Subham Kanti Bhakat...............For the appellants.
Mr. Saptangshu Basu, Senior Advocate,
Mrs. Rita Ganguli......................... For the respondent
No. 1/writ petitioner.
Mr. Tapan Kumar Mukherjee, Mr. Ashok Kumar Ganguly...................For the State.
By consent of the parties, the appeal itself is taken up for hearing, treating the same as on day's list and dispensing with all the formalities.
This mandamus appeal is directed against an order passed by learned Single Judge of this Court on 28th April, 2014 in W.P. 18054(W) of 2013. By the said order, the respondents were directed to allow the writ petitioner to join his duties within a fortnight. The writ petition was directed to be placed for hearing after two weeks. The legality of the said order is under challenge in this mandamus appeal at the instance of the college authority, which was one of the respondents in the writ petition.
Let us now consider the merit of this appeal in the facts of the instant case. Here is the case, where we find that the writ petitioner was appointed as Lecturer in Computer Science and Engineering Department of Durgapur Institute of Advance Technology and Management which is purely a private institution. Admittedly, the writ petitioner was within the probation period and his probation period was not extended. He claims that he could not join his duties from 2nd July, 2011 as 2 he met with an accident for which he had to be admitted in hospital for treatment. Be that as it may, there is nothing on record to show that the service of the writ petitioner was ultimately confirmed after completion of the probationary period. Since the writ petitioner could not join his duties from 2nd July, 2011, the college authority engaged another lecturer for the said post.
The lecturer, who was subsequently engaged, has not been impleaded as party in the writ petition. Two lecturers cannot be engaged in one post. As such, we feel that for effective adjudication of the dispute involved in the writ petition, presence of the lecturer who has subsequently been engaged is also necessary.
The instant writ petition was filed by the petitioner seeking issuance of a Writ of Mandamus commanding the respondents to cancel, withdraw and/or rescind the impugned order dated 31st May, 2013 passed by the respondent no. 3. A further relief was sought for by way of issuance of Writ of Mandamus commanding the respondents to forthwith allow the writ petitioner to resume his duties as Assistant Professor in the said college along with all arrears and consequential benefits arising therefrom.
We find that the learned Single Judge by the impugned order directed the college authority to allow the writ petitioner to resume his duties forthwith. By grant of such relief by way of interim order, we find that the ultimate relief, claimed by the writ petitioner, was granted by the learned Trial Judge by the impugned order. Grant of such interim order cannot be sustained as we feel that such an order can only be passed ultimately, provided the order dated 31st May, 2013 passed by the respondent no. 3 is set aside. That apart, the defect of parties in the writ petition also cannot be ignored.
3Accordingly, we set aside the impugned order passed by the learned Trial Jude on 28th April, 2014. We grant leave to the writ petitioner to implead the lecturer who was subsequently engaged by the college authority in the said post as party respondent in the writ petition by amending the cause title. The writ petitioner is also directed to serve a copy of the writ petition on the added respondent. The appellant is directed to intimate the name and address of the lecturer who has subsequently been engaged by the college authority as disclosed in paragraph 10 of the stay application filed in connection with this appeal, to the respondent no. 1/writ petitioner, within a week from date.
We are informed by Mr. Basu, learned Senior Counsel appearing for the respondent no. 1/writ petitioner that despite direction given earlier by the learned Trial Judge for filing affidavit in opposition to the writ petition, no such affidavit in opposition was filed by the respondents. Leave is granted to the respondents to file affidavit in opposition to the writ petition within three weeks after the reopening of the Court after the Summer Vacation peremptorily. Reply, if any, be filed by the writ petitioner within a week thereafter. We request the learned Trial Judge to hear out the writ petition, as expeditiously as possible.
The appeal is allowed. Since the appeal itself is allowed, no further order need be passed on the stay application. The stay application is, thus, deemed to be disposed of.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties.
(JYOTIRMAY BHATTACHARYA, J.) 4 (SUDIP AHLUWALIA,J.)