In re : Dr. Himangshu Kumar Roy v. . — 1981 DIGILAW 397 (CAL)

ORDER The petitioner 1 to 5 who are teacher of non-Government Colleges. that is, Maharaja Manindra Chandra College and Jogesh Chandra Choudhury College have challenged the validity of the order under Office Memo No. 177-C/Pen dated 28th of May, 1981 issued by the Deputy Director of Public Instruction (Pay Packet Scheme), West Bengal, respondent No.6, wherein it was stated that in accordance with proviso to Statute 104 of the Calcutta University First Statute. 1966 the extension of the whole-time teachers after 65 years of age are not in conformity with the said statute. 2. The petitioner no. 1(a) is the Principal of Maharaja Manindra Chandra College and he completed the age of 65 years on 30th of September, 1981. The petitioner no. 2 similarly completed the 65 years of age on 31.381 as Principal of Jogesh Chandra Choudhury College and his service was duly extended upto the end of the academic session, that is up to 31st of May, 1981 by a resolution of the Governing Body of the said College. He retired from service on and from 1st June, 1981. But his salary for the months of April and May, 1981 have not yet been paid by the Director of Public Instruction (Pay packet Scheme), West Bengal. The petitioner no. 3 is a professor in Maharaja Manindra Chandra College and he completed 65 years of age on 31st Oct. 1981. The petitioner no. 4 is also a professor of the Same College who will complete his 65 years of age on January 31, 1982. The petitioner no. 5 is a professor of Maharaja Mahindra Chandra College and he Completed 65 years of age on 31.10.81. These petitioners have submitted that though they were granted extensions till their attainment of tae age of 65 years in accordance with the provisions of Statute 104(1) of the Calcutta University First Statute, 1966 read with the proviso these petitioners who were and are professors and principals of different colleges are entitled to work as such till the end of the academic year in which they attain the age of 65 years. It has been submitted that the extension of their service granted by the Governing Body of the College up to their completion of the ages of 65 years cannot permit tile college authorities, that is, the respondents, to retire them before the end of the academic year in which they attain the age of 65 years. It has also been stated that an acting Principal of City College, B. Sarkar, since deceased though completed his 65 years of age on July 31, 1978, made an application for extension of service up to the end of the academic year that is, up to May 31, 1979. But this was not considered in his favour though the Inspector of Colleges issued a letter on 26th of December, 1969 that a full time teacher attaining his age of 65 years in an academic year would be allowed to work up to the end of that academic session This letter has been annexed as annexure 'B' to the petition. It has also been stated that B Sarkar, since deceased came up before this court with a writ application challenging the validity of the order refusing to continue his service till the end of the academic year in which he attains 65 years of age. This being registered as Matter No. 568 of 1968 which was ultimately decided on March 29, 1979 by T.K. Basu, J. holding that the petitioner was entitled to the benefit of Statute 104(1), that is, he would retire at the end of the academic year in Which he would attain 65 years of age It has been stated by the petitioners that On 28th of May, 1981, the Deputy Director of Public instruction (Pay Packet Scheme), West Bengal, the respondent no. 6, sent a circular stating as follows: “The Calcutta University has now in their letter No. R(M)/740 dated 22.4.1981 confirmed that the extension of any whole-time teacher after 65 years of age is not in conformity with the statute 104 of the Calcutta University.” It has been submitted that this circular issued by the respondent no. 6 is wholly illegal and contrary to the provisions of the Statute 104(1) of the Calcutta University First Statute, 1966 and as such the said circular is liable to be quashed and set aside. 6 is wholly illegal and contrary to the provisions of the Statute 104(1) of the Calcutta University First Statute, 1966 and as such the said circular is liable to be quashed and set aside. It has also been submitted that previously extension was granted up to the end of the academic year in which the teachers attain the age of 65 years of age and a statement to that effect has been shown in annexure 'A' to the petition. It has been thus contended that the refusal to allow the petitioners to work up to the end of the academic year in which they attain or will attain 65 years of age is wholly illegal, arbitrary and discriminatory. On these grounds the instant application has been made and the petitioners prayed for a writ of Mandamus commanding the respondents to work in accordance with law and to direct the respondents to allow them to retire at the end of the academic year in which they complete or will complete 65 years of age. There was a prayer for issuance of a writ of Certiorari for quashing the impugned circular. 3. The instant Rule was issued and an interim order for maintaining status quo as on the date of issuance of the Rule as regards the petitioners nos. 1 to 5 were directed to be maintained for a period of 3 weeks with liberty to pray for extension of interim order on notice to the respondents. However, the interim order was subsequently' extended till the disposal of the Rule. 4. Mr. R.N. Mitra, learned Advocate appearing on behalf of the petitioner, has submitted that previously under the Calcutta University First Ordinances, 1966 the provision for extension of service of a teacher after his attainment of the age of retirement was made in S.19 of the said Ordinance which specifically provides that a full-time teacher of the University shall ordinary retire on his attaining 62 years of age. Mr. Mitra, submitted that there was no mention of retirement of the teacher of a University at the end of the academic year after attainment of 62 years, of age Statute 104 of the Calcutta University First Statute. 1966 have clearly provided in clause 1 that a full-time teacher of a university shall retire at the end of the academic year in which he attains the age of 62 years. 1966 have clearly provided in clause 1 that a full-time teacher of a university shall retire at the end of the academic year in which he attains the age of 62 years. It has been submitted by Mr. Mitra that it was specifically provided in this Statute that a teacher of a college even though he attains 62 years of age before the end of the academic year still he cannot be retired but has to be allowed to continue to work as such till the end of the academic year in which he attains the age of 62. Proviso to Statute 104 empowers the Governing Body to extend the term of service of a teacher in exceptional cases as provided therein up to his completion of the age of 65 years. Such extension, of course, shall not be for more than two years at a time, Mr. Mitra has submitted that even in the case of extension, of service of a teacher up to 65 years the teacher will retire and cease to work after the end of the academic year in which he reaches the age of 65 Mr. Mitra has submitted that this has been provided specifically In Statute 104(1) because if a teacher is retired in the midst of an academic session it will create much difficulty to the students. Mr. Mitra therefore submitted that the observation, made by T.K. Basu, J. while considering Statute 104(1) is correct and this should be accepted. 5. Mr. Tapas Roy, learned Senior Advocate appearing on behalf of the respondent no. 7 has submitted that the decision of T. K. Basu, J. in Matter no. 568 of 1978 is not correct inasmuch as though Statute 104(1) specifically states that a teacher shall retire at the end of the academic year in which he attains the age of 62, proviso to the said Statute does not at all mention that a teacher whose extension of service comes to an end will retire at the end of the academic year to which the extended period of service ends. It has also been strenuously urged by Mr. Roy that the language of the proviso being very simple and clear it will be given effect to and nothing should be imported in it. It has also been strenuously urged by Mr. Roy that the language of the proviso being very simple and clear it will be given effect to and nothing should be imported in it. He further submits that the extension of the term of service of a teacher may be granted up to his completion of the age of 65 years. But the Governing Body in its discretion will determine for which period extension of the service of a teacher including principal shall be granted. It has been submitted in this connection that if extension of a teacher is granted till his completion of the age of 65 years as mentioned in the proviso it cannot be interpreted that the teacher who completes the age of 65 years before the end of the academic year has to be allowed to continue till the end of the academic year, Mr. Roy has referred to Maxwell's Interpretation of statuses, 12th Edn. at page 190 which runs as follows: "If a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, that the proviso will prevail on the principle that it speaks the last intention of the makers". 6. Mr. P.K. Basu, for State also adopted the argument of Mr. Roy. 7. The provisions of Statute 104(1) of the Calcutta University First Statute, 1966 specifically provides that a teacher will retire on his attaining the age of 62 years at the end of the academic year in which he attains such age. The proviso to the said Statute empowers the Governing Body to extend the service of a teacher up to his completion of the age of 65 years. In the context of the General Provisions of the said Statute 104 the words "at the end of the academic year" will also apply to the case of a teacher whose service is extended up to the completion of the age of 65 years In my opinion, the proviso and the General Provision are to be considered together and a harmonious interpretation is to be given. In this connection it is pertinent to refer to the observations made in the case of Commissioner of Income Tax, Mysore v. Indo Mercantile Bank Ltd. reported in XXXVI Income Tax Reports, 1959, which runs as follows: "The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were from the main enactment a portion which, but for the proviso, would fall within the main enactment. Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. 'It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso'. Therefore, it is to be construed harmoniously with the main enactment. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect." 8. I am also bound by the decision of T.K. Basu, J. delivered in Matter no. 568 of 1978 on March 29, 1979 B Sarkar v. State of West Bengal & ors. on the same question. His Lordship has held when the term of service has been extended to 65 year the teacher is entitled to the benefit of Statute 104(1), that is to say, he is only due to retire at the end of the academic year in which he attains age of 65. 9. The contentions on behalf of the petitioners having succeeded the Rule succeeds and it is made absolute. Let a Writ of Mandamus be issued directing the respondents to act in accordance with Statute 104(1) of the Act and to allow the petitioners 1(a) to 5 to work as teachers in non-Government Colleges till the end of the academic year in which they attain the age of 65 years. Let a writ of Certiorari also be issued commanding the respondents to pay to the petitioner no.2 his salaries in accordance with law for his rendering service up to the academic year. Let a writ of Certiorari also be issued commanding the respondents to pay to the petitioner no.2 his salaries in accordance with law for his rendering service up to the academic year. Let a writ of Certiorari be issued quashing, canceling and setting aside the circular dated 28th of May, 1981 issued under Office Memo No. 177/l(250)C/Pen by the respondent no. 6, Deputy Director of Public Instruction (Pay Packet Scheme), West Bengal. There will, however, be no order as to costs. Rule made absolute.