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1958 DIGILAW 215 (CAL)

University Of Calcutta v. Advocate Bengal

1958-08-07

G.K.MITTER

body1958
JUDGMENT 1. THIS is an originating summons taken out by the University of Calcutta for determination of certain questions which are said to have arisen in connection with the Tagore Law Professorship founded by the late Mr. Prasunno Coomar Tagore. The questions framed are mainly based on the differences of opinion as to whether it is the Senate or the Syndicate of the University of Calcutta which should make the appointment of Professors under the said endowment. 2. PRASUNNO Coomar Tagore died leaving a Will dated October 10, 1862 thereby creating, inter alia, a trust in favour of the University of Calcutta for the establishment of a Law Professorship to be called the "tagore Law Professor" by providing remuneration for the persons to be appointed professors. The founder directed his trustee or trustees to make over to the University sufficient amounts to provide a monthly sum of Rs. 1,000/- to be applied by the University for the purpose of the said endowment. The provision in the Will which touches the question in issue before me is as follows: "I declare that the right of appointing the Professor to the said "tagore Law Professorship" and removing and dismissing the incumbent therefrom shall be vested in the Senate of the University. . . . . It is my will that the said "tagore Law Professorship" shall, save as herein provided be as to be the kind of law which is to be taught and in all other matters and things, regulated by and subject to the control of the Senate of the said University" The Senate of the University accepted the trust and made rules and/or schemes dated December 19, 1931 and September 15, 1945 in connection therewith. The details of the rules are to be found in paragraph 4 of the affidavit of Jogesh Chandra Mukharji, the Assistant Registrar of the University filed herein in support of the summons. According to the scheme, it is for the Faculty of Law of the University to select in the month of June in each year not mere than three subjects upon one of which the Professor for the year after the next was to be required to deliver a course of at least twelve lectures. Immediately after the selection of the subjects the Syndicate was to publish advertisements in newspapers inviting applications from candidates for the professorship. Immediately after the selection of the subjects the Syndicate was to publish advertisements in newspapers inviting applications from candidates for the professorship. A candidate was required to send a synopsis of his proposed lectures etc. It was for the Faculty of Law to consider upon report submitted to it by a Special Committee appointed for the purpose the relative claims of the candidates and make recommendation for election of the candidates to the Senate. Even after election the appointment of a professor might ha cancelled by the Senate in certain circumstances, The Senate was further authorised to grant an extension of time for the performance of his duty by the professor elected. 3. UNTIL 1951 no difficulty seems to have arisen in the matter of appointment of professors under the said endowment. In that year the Calcutta University Act of 1951 was enacted whereby the Senate and the Syndicate of the University have been given different functions and large powers of appointment of teachers and other employees have been given to the Syndicate. A question has therefore arisen as to whether it is the Senate or the Syndicate which can make these appointments and vary or cancel the terms of appointment. 4. THE relevant provisions of the Act to which my attention was drawn by learned counsel are as follows: under section 1 the Act was to be styled the Calcutta University Act of 1951. This section was to come into force at once and the rest of the Act was to come into force on such date or dates as the State Government might, by notification in the official Gazette, appoint and different dates might be appointed for different provisions of the Act. The definition section is section 2 of the Act. Sub-sections (1), (m) and (q) thereof are as follows: (1) "teacher" means a Professor, Reader, Lecturer or any other person holding a teaching post, appointed or recognised by the University or appointed by a College. (m) "teacher of the University" means a Professor. Reader, Lecturer or any other person hold a teaching post, appointed or recognised by the University. (q) "university Professor," "university Reader" or "university Lecturer" means a Professor, Reader or Lecturer appointed or recognised as such by the University. Section 3 provides as follows: 2. (m) "teacher of the University" means a Professor. Reader, Lecturer or any other person hold a teaching post, appointed or recognised by the University. (q) "university Professor," "university Reader" or "university Lecturer" means a Professor, Reader or Lecturer appointed or recognised as such by the University. Section 3 provides as follows: 2. (1) The first Chancellor and Vice-Chancellor of the University and the first members of the Senate, the Syndicate and the Academic Council and all persons who may hereafter become such officers or members so long as they continue to hold such office or membership shall on and from the appointed day constitute a body corporate by the name of the University of Calcutta. (2) The University shall have perpetual succession and a common seal and shall sue and be sued by the name of the University of Calcutta. Under sub-section (4) of section 4 the University is given the power to institute Professorships, Readerships, Lectureships and any other teaching posts required by the University and to appoint persons to such Professorships, Readerships, Lectureships or other teaching posts, or to recognise persons as such Professors, Readers, Lecturers or holders of other teaching posts. Under sub-section (11) of that section the University was given the power to hold and manage endowments and to institute awards, fellowships, traveling fellowships, scholarships, studentships,, stipends bursaries exhibitions, medals and prizes. The authorities of: the University are given as the following under section 15 of the Act: 1. The Senate. 2. The Syndicate. 3. The Finance Committee. 4. The Academic Council. 5. The Faculties. 6. The Boards of Studies. 5. THE Board of Health. 8 The Board of Residence and Discipline. 9. Such other toddies as may be declared by the Statutes to be the authorities of the University. Section 16 shows how the Senate is to be composed and under section 17 the Senate shall be the supreme governing body of the University, and shall have power to review the action of the Syndicate and the Academic Council, save where the syndicate or the Academic Council has acted in accordance with the powers conferred on them by or under this Act. The Senate shall exercise all powers of the University not otherwise specifically provided for and all powers which are necessary to give effect to the provisions of this Act. The powers and duties of the Senate are thus enunciated in section 18. The Senate shall exercise all powers of the University not otherwise specifically provided for and all powers which are necessary to give effect to the provisions of this Act. The powers and duties of the Senate are thus enunciated in section 18. 18 In particular and without prejudice to the generality of the powers conferred by section 17, the Senate shall have the following powers: (1) to make Statutes and amend or repeal the same; to institute, after considering the views of the Syndicate and the - Academic Council, Professorships, Readerships, Lectureships, and any other teaching posts required by the University, to create posts of employees of the University, to prescribe the terms and conditions of service for such posts and to abolish any such post, if necessary. 7. The composition of the Syndicate is given in section 2c of the Act and the powers of the Syndicate are contained in section 21 which include, inter alia, the following: (g) subject to the provisions of this Act and the Statutes, to appoint the teachers and other employees of the University, fix their emoluments, if any, define their duties and the conditions of their service, and provide for the filling" up of temporary vacancies; (h) to suspend or discharge or dismiss in accordance with the provisions contained in the Statutes, the teachers and other employees of the University; (i) to accept endowments, bequests, donations and transfers of any movable or immovable properties to the University on its behalf, subject to the approval of the Senate. 6. THE Faculties included in the list of University authorities are given in section 28 of the Act. Section 33 shows the scope of the Statutes-really in the nature of regulations. 33. Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely: (g) the administration of endowments and the institution and conditions of award of fellowships, traveling fellowships, scholarships studentships, stipends, bursaries, exhibitions, medals and prizes, (h) the classification and the mode of appointment and suspension and dismissal of teachers of the University. Section 34 shows how Statutes are to be made. Section 34 shows how Statutes are to be made. Under section 46 every University Professor shall be appointed on the recommendation of a Selection Committee consisting of- (a) the Vice-Chancellor who shall be the Chairman of the Committee, (b) the Dean of the Faculty concerned, (c) a person having special knowledge of the subject in which the professor is to impart instruction, nominated by the Chancellor not being a member of any of the authorities of the University, and (d) two persons nominated by the Syndicate, having special knowledge of the subject in which the Professor is to impart instruction, not being a member of any of the authorities of the University. Sub-section (2) of that section shows how every University Reader and every Lecturer is to be appointed by the University. Under section 49 he University shall have a fund referred to as the University fund to which shall be credited- (1) its income from fees, lines, endowments and grants, if any; and (2) any contribution by any Government; and which shall include all trusts endowments, and grants hitherto created or made in favour of the University. Chapter X of the Act comprising of sections 51. to 53 contain transitory provisions. Section 52 runs as follows : (1) The Chancellor shall within three months from the date of the publication of this Act in the Official Gazette appoint, in consultation with the Minister, on such terms and conditions as he thinks fit, a person to be the Vice-Chancellor (in this Act referred to as "the first Vice-Chancellor") shall hold office for a period of two years and upon his appointment, the person holding office as the Vice-Chancellor of the University of Calcutta immediately before the date of such appointment, shall vacate his office. (2 ). The first Vice-Chancellor shall, with the approval or the Chancellor and with the assistance of a Committee, consisting of not more than six members nominated by the Chancellor, cause, the first Statutes, the first Ordinances and the first Regulations of the University to be framed. (4 ). (2 ). The first Vice-Chancellor shall, with the approval or the Chancellor and with the assistance of a Committee, consisting of not more than six members nominated by the Chancellor, cause, the first Statutes, the first Ordinances and the first Regulations of the University to be framed. (4 ). The State Government shall by notification in the official Gazette, appoint a date, and on and from such date the Senate the Syndicate, the Academic Council, the Faculties and the Boards of Studies shall commence to exercise their respective functions and the first Statutes, the first Ordinances and the first Regulations as framed under sub-section (2) shall come into force and be the first Statutes, the first Ordinances and the first Regulations of the University. (5) The first Statutes, the first Ordinances and the first Regulations of the University shall remain in force until new Statutes, new Ordinances and new Regulations are made under the provisions of this Act. (9) The provisions of this section shall have effect notwithstanding anything contained elsewhere in this Act or in any other law. 7. UNDER section 54 all properties, all rights of whatever kind used, enjoyed or possessed by and all interests of whatever kind owned by, or vested in, or held in trust by, or for the University of Calcutta as constituted prior to the appointed day as well as all liabilities legally subsisting against the said University shall pass to the University as constituted under this Act. 8. OF the sections already mentioned sections 2 and 52 came into force with effect from August 1, 1951. Sections 4, 17, 18, 21, 33, 46 and 54 came into operation with effect from March 12, 1954. The first statutes made under section 52 (2) of the Act contain elaborate provisions relating to the constitution, powers and duties of the Senate, Syndicates and the Academic Council Statutes were also framed relating to special Professors, Readers, Lecturers and Fellows. Sub-clause (a) of clause 1 provides that notwithstanding anything contained elsewhere the Syndicate may appoint special Professors, Readers, Lecturers, Fellows, etc. on such terms and conditions as it thinks fit, funds of the University permitting and clause 2 provides that the Professors, Readers, Lecturers and Fellows appointed under endowments were to be governed by the terms thereof. Sub-clause (a) of clause 1 provides that notwithstanding anything contained elsewhere the Syndicate may appoint special Professors, Readers, Lecturers, Fellows, etc. on such terms and conditions as it thinks fit, funds of the University permitting and clause 2 provides that the Professors, Readers, Lecturers and Fellows appointed under endowments were to be governed by the terms thereof. Under clause 42 (2), Part VI of the first statutes for the institution and maintenance of University Colleges the appointment of Professors, Readers and Lecturers under endowments shall, notwithstanding anything in the foregoing clauses of the statute, be governed by the terms of the endowment in each case. 9. IN the year 1955 certain appointments of "tagore Law Professors" were made in terms of the schemes and/or rules mentioned hereinbefore. Some of the said Professors, it is alleged, could not submit synopsis of their lectures in time in terms of the said rules and/or schemes and some of them applied for extension of time to submit copies thereof in terms of the said rules and/or schemes. It is stated in the affidavit in support of the summons that on 'June 19, 1956 a resolution was moved and accepted by the Senate to the following effect: "no further extension of time shall be granted to the Tagore Law Professor for any year prior to 1955 for submission of the manuscript of his lectures or for delivery of the said lectures, and that his appointment shall stand cancelled on the expiry of the extended period already granted to him if he has failed or fails to submit the manuscript of his lectures or to deliver the said lectures, as the case may be within such extended period, and that proper steps shall be taken within one month from the date of this resolution or the expiry of such extended period, whichever is later, for fresh appointment of a professor for the year according to the law." 10. IT is also stated in paragraph 10 of the said affidavit that as a result of the passing of the said resolution there were serious disputes and differences amongst the members of the University and/or its authorities, inter alia, as to whether the Senate had any power notwithstanding the aforesaid schemes and the rules to cancel the appointment of any of the "tagore Law Professors" and particularly without notice to the said Professors concerned and whether the Calcutta University Act, 1951 applied or the terms and conditions of the endowment created by the late Prasunno Coomar Tagore as read with the rules and schemes hereinbefore mentioned were to apply and accordingly six questions were framed for determination by this court. The questions are as follows: 1. Whether the Calcutta University Act, 1951 or the terms of the endowment created by the Honourable Prasunno Coomar Tagore since deceased in respect of the "tagore Law Professorship" will apply to the appointment, dismissal and/or cancellation of "tagore Law Professorship. ' 2. Whether the rules and/or the schemes framed by the Senate of the University dated 19th December, 1935 as amended on 15th September, 1945 are valid and binding so far as the same provide for procedure regarding appointment, dismissal and/or cancellation of "tagore Law Professorship. " 3. Whether the Syndicate or the Senate is the proper authority which can appoint, dismiss or cancel the appointment or regulate the terms and conditions of the appointment of "tagore Law Professorship. " 4. Whether the resolution of the Senate dated 19th June, 1956 is valid and binding on the University and the Professors concerned. 5. Whether the Calcutta University Act, 1951 has any application to "tagore Law Professorship Endowment' and if so to what extent. . 6. Whether the Statutes framed or to be framed by the Senate under the Calcutta University Act must be in consonance with the provisions of the Calcutta University Act, 1951, notwithstanding the provisions of the Endowment. The Advocate-General of West Bengal as representing public charities has been made a defendant herein and he has appeared by counsel before me. When the originating summons first came into the list for hearing, directions were given by Bachawat, J. for service of the summons on the persons whose rights might be affected by the resolution mentioned and they are as follows: 1. Dr. When the originating summons first came into the list for hearing, directions were given by Bachawat, J. for service of the summons on the persons whose rights might be affected by the resolution mentioned and they are as follows: 1. Dr. Hemnath Sanyal, appointed on November 29, 1952, his subject being "relationship of the States and the Indian Union under the Constitution including the questions relating to the merger." 2. Sri Ramaprasad Mookerjee, appointed on September 9, 1953 to deliver lectures on "the History of Development of Hindu Law in British India. " Subsequently in 1949 he changed the subject to "hindu Law restated" 3. Sri N. C. Chatterjee, appointed for 1946, on January 20, 1951 to deliver lectures on "fundamental Rights." 4. Prof. Pramathanath Banerjee, appointed on November 29, 1952, for 1947, to deliver lectures on "development of Public International Law in the Twentieth Century. " 5. Sri K. P. Khaitan, appointed, for 1949 on January 20, 1951 to deliver lectures on "prerogative Writs." 6. Prof. G. H. Paton, appointed, on April 25. 1953 for 1940, the subject being "law of Torts." 7. Dr. S. N. Banerjee, appointed, on January 20, 1951 for 1951, the subject being "labour Legislation with special reference to India." 11. ALL there persons were served with copies of the originating summons and affidavit of service has been filed, herein showing that service of the summons was effected on all of them by registered post but not one of them, has appeared at the hearing of the originating summons to put forward their views in the matter. 12. THE different points of view which had found favour with the different authorities of the University were put very fairly before me by Mr. Roy and I am indebted to him for his able and lucid exposition of the subject with reference to the various provisions of the Act. So far as the sections in the Act itself are concerned there would have been no difficulty but for section 46 which provides a course somewhat different from that adopted by the Senate in this case but, as was pointed out by Mr. So far as the sections in the Act itself are concerned there would have been no difficulty but for section 46 which provides a course somewhat different from that adopted by the Senate in this case but, as was pointed out by Mr. Roy, section 46 did not come into force at once on the framing of the Act but it was section 52 which came into operation on August 1, 1951 and, therefore, the statutes framed under section 52 (2) are to have effect notwithstanding anything contained in the Act, under sub-section (9) of section 59. Under the statutes special Professors, Readers, Lecturers and Fellows appointed under endowments have to be governed by the terms thereof. In my view, therefore, so long as the first statutes hold the field there can be no question of the Syndicate having any right to appoint any person as a "tagore Law Professor. " Difficulties may arise if and when the statutes are altered and new ones passed but that is not what I am concerned with on this summons. The Calcutta University Act, 1951, read with the first statutes so far as I can see, is not in conflict with the terms of the endowment created by the late Prasunno Coomar Tagore and the answer to question No. 1 therefore is that the Calcutta University Act, 1951 will apply to 'the appointment, dismissal and/or cancellation of a "tagore Law Professorship," regard being had to the terms of the said endowment. Question No. 2: So long as the first statutes are in operation it will be for the Senate of the University to decide what course it should adopt for the appointment, dismissal and/or cancellation of a "tagore Law Professor. " question No. 3: In view of the above it must be held that it is the Senate which is the proper authority to appoint, dismiss or cancel the appointment or regulate the terms and conditions of the appointment of "tagore Law Professors." In view of the answer to the above 1 do not think it necessary to answer the other questions. Questions Nos. 5 and 6 are vague and hypothetical. Questions Nos. 5 and 6 are vague and hypothetical. As far as question No, 4 is concerned it seems to be based on the hypothesis that the resolution was passed after compliance of all formalities It may be based on questions of fact which are not admitted and hence 1 do not propose to record any answer to it. 13. MR. Sen appearing on behalf of the Advocate-General of West Bengal also drew my attention to some of the sections mentioned above but he contended that the Advocate-General was not a necessary party and he relied on the judgment in In re. Carnarvon Harbour Acts (1) [(1937) Ch 72]. I do not think that what Farwell, J. said of the position of the Attorney General in that case applies to the Advocate-General in the case before me. In the English case there was no question of the Attorney -General representing any charity but so far as the present case is concerned the Advocate-General certainly represents all public charities and the endowment created by the late Prasunno Coomar Tagore certainly relates to a public chantey. So far as the costs are concerned the University will pay and bear its own costs and also pay the costs of the Advocate-General, assessed at Rs. 500, from out of the funds of the endowment in question.