Calcutta High Court
Samir Kumar Kar vs State Of West Bengal And Ors. on 7 April, 2004
Equivalent citations: 2004(2)CHN618
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. By this writ application, the petitioner, the seniormost teacher of the concerned college, has prayed for mandamus directing the respondents to withdraw the appointment given in favour of the private respondent No. 10, as teacher-in-charge of the said college and has further prayed for direction upon respondents No. 2 and 5-17 to take a fresh resolution thereby appointing the petitioner as teacher-in-charge of the said college w.e.f. 1st February, 2004.
2. The following facts are not in dispute:
The petitioner is the seniormost teacher in the said college after the retirement of Prof. Bisheswar Maity who was the last teacher-in-charge of the said college and has since retired on 31st January, 2004. It further appears from record that after the retirement of the last Principal of the college, the Governing Body appointed a person as teacher-in-charge from 1st February, 2002 although he was not the seniormost teacher of the said college but he worked upto November 3, 2003. Thereafter, Prof. Bisheswar Maity who was the next seniormost teacher, worked from 1st December, 2003 till 31st January, 2004, After the retirement of Prof. Maity, the Governing Body of the college has appointed respondent No. 10 as teacher-in-charge notwithstanding the fact that he is not the seniormost teacher of the college.
3. Being dissatisfied, the petitioner has come up with the instant writ application.
4. Mr. Bandyopadhyay, the learned Counsel appearing on behalf of the petitioner, has drawn attention of this Court to Annexure 'P-1', the circular No. 525-Edn.(CS) dated 3rd May, 1971 and has contended that in the matter of appointment of teacher-in-charge, in the event of superannuation, etc. of the Principal, it is for Director of Public Instruction, West Bengal to give appointment. Mr. Bandyopadhyay contends that according to the aforesaid circular, the Governing Body of the college has been authorized only to appoint the seniormost teacher as the teacher-in-charge by a specific resolution subject to the approval of the Director of Public Instruction of West Bengal. It is, however, pointed out that in ease the seniormost teacher is unwilling to shoulder the responsibility of the post of the teacher-in-charge and conveys his reluctance in writing, the next seniormost teacher should be appointed as the teacher-in-charge.
5. Mr. Bandyopadhyay further contends that while according approval to the appointment of the seniormost teacher or next seniormost teacher, as the case may be, as the teacher-in-charge of a college, the Director of Public Instruction should satisfy himself that the teacher-in-charge is duly qualified to do full justice to the duties attached to the post of the Principal.
6. By placing reliance upon the aforesaid circular, Mr. Bandyopadhyay contends that in this case, the Governing Body of the college acted without jurisdiction in appointing respondent No. 10 as teacher-in-charge when the petitioner, the admittedly seniormost teacher in the college, has not expressed his reluctance in writing to the Governing Body to accept such appointment.
7. Mr. Bandyopadhyay, thus, prays for direction upon the Governing Body of the college to send the name of the petitioner to the Director of Public Instruction for approval.
8. This application is opposed by the college authority and Mr. Ashok Banerjee, the learned Senior Counsel appearing on behalf of the college authority, has vehemently opposed the contention raised by Mr. Bandyopadhyay.
9. Mr. Banerjee contends that the circular dated 3rd May, 1971 referred to by the petitioner has no application to the fact of the present case. Mr. Banerjee submits that according to Statute 156 of the Vidyasagar University First Statutes, 1983, the "practice and procedure" of University of Calcutta as constituted under the Calcutta University Act, 1979 shall, insofar as those are not repugnant to the provisions of Vidyasagar University Act, Vidyasagar University Statutes, the ordinances and regulations, continue to be in force in respect of Vidyasagar University until altered or repealed and amended. Mr. Banerjee further contends that in the meantime, the Calcutta University has by way of amendment in 1999 has incorporated a specific Statute 101(b) in the Calcutta University First Statutes and according to such provision it is for the Governing Body of the college to appoint teacher-in-charge from among whole-time teachers of the college. Mr. Banerjee submits that according to such amended provision, the seniormost teacher of the college shall be so appointed provided there is no serious charge against him/her, and that he/she is mentally or physically flit. Mr. Banerjee contends that as there are several allegations against the petitioner, the Governing Body of the college after considering these allegations had arrived at a conclusion that the petitioner is not physically or mentally fit to be appointed as teacher-in-charge, Mr. Banerjee, thus, contends that the decision of the Governing Body cannot be challenged by the petitioner as there is no violation of any of the provisions of the said statute.
10. Ms. Sengupta, the learned Counsel appearing on behalf of the University, has, however, opposed the aforesaid contention of Mr. Banerjee and has contended that amended provision of statute 101(b) of the Calcutta University First Statutes is not applicable to a college under Vidyasagar University. Ms. Sengupta further contends that there being no provision either in the Vidyasagar University Act or under the Vidyasagar University First Statutes, 1983, as regards appointment of teacher-in-charge, the circular of 3rd May, 1971 referred to by petitioner should be followed so far the colleges under Vidyasagar University are concerned as it is the State Government who provides fund for the salary of the teaching staff of the colleges.
11. Therefore, the only question that arises for determination in this writ application is whether the amended provision of Statute 101(b) of the Calcutta University First Statutes is applicable to the colleges under Vidyasagar University.
12. To appreciate the aforesaid question, the provision contained in Statute 156 of the Vidyasagar University First Statutes, 1983 is quoted below:
"Statute 156. The practice and procedure of the University of Calcutta as constituted under the Calcutta University Act, 1979 (West Bengal Act 38 of 1979) shall, insofar as they are not repugnant to the provisions of the Act, these Statutes, the Ordinances and the Regulations, continue to be in force in respect of the University, until altered, repealed or amended."
13. After hearing the learned Counsel for the parties and after going through the aforesaid provision, I find that by virtue of Statute 156, the Vidyasagar University has merely recognized the "practice and procedure" of the University of Calcutta insofar as those are not repugnant to the provision of Vidyasagar University Act or the Statutes, Ordinances or Regulations. The said Statute 156 does not say that anything contained in either Calcutta University Act or in the First Statutes of Calcutta University, should be applicable, but only the "practice and procedure" of Calcutta University should continue to be in force in respect of Vidyasagar University.
14. At this stage, it may not be out of place to mention here that Statute 101(b) of Calcutta University First Statutes has been incorporated in the year 1999, long after Statute 156 of Vidyasagar University Statutes was enacted. Thus, by virtue of Statute 156 of the Vidyasagar University First Statutes, any provision subsequently incorporated in Calcutta University First Statutes cannot be applicable to the colleges under Vidyasagar University even if I assume for the sake of argument that "practice and procedure" means procedural part of any of the provisions contained in Calcutta University First Statutes.
15. After the creation of Vidyasagar University under the Vidyasagar University Act, the University itself is authorized to enact provision in the statutes, regulations or ordinances incorporating the terms and conditions of any post of a college or University. Thus, if the Vidyasagar University decides to lay down any condition for appointment of teacher-in-charge, in that case, it will itself formulate such provision; but object of Statute 156 was not to include within its First Statutes anything that by subsequent amendment will be incorporated in Calcutta University First Statutes. The language of Statute 156 is clear that "practice and procedure" of University of Calcutta should continue to be in force meaning thereby that the "practice and procedure" of University of Calcutta as it existed at the time of enactment of Statute 156 should subsist so long those are not repealed.
16. I am unable to accept the submission of Mr. Ashok Banerjee, the learned Advocate appearing for the college, that by virtue of Statute 156, any subsequent amendment of Calcutta University First Statutes will be applicable to the Vidyasagar University, although, the University itself is entitled to incorporate those provisions in its own statute.
17. Thus, the provisions contained in Statute 101(b) of Calcutta University First Statutes incorporated by way of amendment in 1999 cannot be applicable to the colleges under Vidyasagar University by virtue of Statute 156 of Vidyasagar University First Statutes, 1983.
18. Moreover, creation of a post in the name of "teacher-in-charge" by virtue of Statute 101(b) falls within the domain of "substantive law" and therefore, any subsequent amendment in the Calcutta University First Statutes creating a new post cannot be applicable to the colleges under Vidyasagar University with the aid of Statute 156 mentioned above as the post of "teacher-in-charge" is not found in the Vidyasagar University Act or First Statutes.
19. Therefore, for the purpose of appointment of teacher-in-charge, the 1971 circular referred to by the petitioner is still binding upon all colleges under the University,
20. I have already pointed out that by virtue of such circular, it is for the Director of Public Instruction to take final decision as regards appointment of teacher-in-charge of the college in case of vacancy of the post of Principal. The only person that the Governing Body of the college is required to recommend is the seniormost teacher and if he is unwilling and declares in writing that he would not accept such post, in such a case, the name of next seniormost teacher should be recommended. Ultimate decision is of Director of Public Instruction and the college authority may, if so required by Director of Public Instruction, convey to him if there is any allegation as regards physical or mental unfitness of the seniormost teacher.
21. Therefore, it is clear that the college authority acted without jurisdiction in appointing the private respondent No. 10 in post of teacher-in-charge of the said college by violating the notification mentioned in Annexure 'P-1' of the writ application.
22. I, thus, quash the said appointment of respondent No. 10 and direct the Governing Body of the college to appoint the petitioner, he being the seniormost teacher and to send his name for approval to the Director of Public Instruction. Such appointment should be made within 15 days from today and should be conveyed to Director of Public Instruction for approval within a week thereafter.
23. The writ application is disposed of with the above direction.
24. In the facts and circumstances, there will be, however, no order as to costs.
Later:
25. Let xerox certified copy of this order, if applied for, be given to the learned advocates for the parties by tomorrow.