Jagabundhu Adhikari v. State — 1987 DIGILAW 19 (CAL)

JUDGMENT SUSANTA CHATTETJEE, J. 1. THE petitioner is a lecturer as well as a member of the Teacher's Council of Midnapore College under the Vidiyasagar University. He has filed the present writ application stating that on May 1986, a notice was; issued by and/or under the signature of the principal, Midnapore College intimating the whole time teachers, whole time librarian and whole time physical instructor,. that an election is going to be held on July 14, 1986 for the formation of governing body of the Midnapore College. It is also, stated therein that a voters' list for the purpose of holding the election of the governing body of the said college has been prepared by the college authority and names of the laboratory assis tants in the college have been included in the teachers category to enable them to cast their votes in the election for the formation of the said governing body. It Is further stated that the: inclusion of the names of the laboratory assistants is malafide, arbitrary and without jurisdiction and violative of the Vidyasagar University Act, 1981 and the Vidyasagar First Statute 1985. Upon enquiry, the petitioner came to know that as per the Government notification No. 1502-Edn. (CS)5P-2 4/83 dated, Calcutta 10th August 1983 issued by the Education Department (C.S.Branch). ' Government of West Bengal, the inclusion has been made as the designation of the Laboratory assistants has been changed as laboratory instructors and names of the Laboratory assistants have been included in the teachers category. According to the petitioner, there are separate constituencies for non-teaching employees for formation of the governing body of the college as per Statute 10.5 of the Vidyasagar University First Statute, 1985 and the Laboratory instructors may cast their votes from their own category but not as teachers and/or from teachers' category. THEre is a specific difference between a "Teacher" and a "Non-teaching Staff" of an affiliated college as per definitions laid down in Section 2 of the Vidyasagar University Act of 1981. As per the definitions, there are specific qualifications to become "teachers" and there is a sharp distinction as to the qualification of non-teaching staff and the laboratory assistants cannot claim to be teachers by even changing the designation and/or nomenclature. As per the definitions, there are specific qualifications to become "teachers" and there is a sharp distinction as to the qualification of non-teaching staff and the laboratory assistants cannot claim to be teachers by even changing the designation and/or nomenclature. It is alleged that the principal of Midnapore College in collusion with the Vidyasagar University Authority and for some oblique motive and having political bias, prepared the voters' list by including the names of the laboratory instructors 'in the teachers' category so as to enable them to cast their votes for formation of the governing body in two-fold ways, one from the teachers category and the other from the non-teaching staff category. Stating ail such facts, the petitioner has moved this Court to 'obtain necessary reliefs by commanding the Respondents to exclude the names of the laboratory instructors from the category of teachers from the voters list for the election for formation of, the governing body of Midnapore College, under the Vidyasagar University First Statute, 1 985, and to restrain them from holding the election pending correction of the voters' list in the manner as stated therein. 2. THE petition was moved on l0th July,, 1986 and by order dated 10th July, 1986, it was directed that the election should take place as per the voters' list and laboratory assistants would also be entitled to vote but the same be noted separately and no further effect be given to the election and/or no' further steps be taken after the election. An application dated 24th July, 1986 was filed for vacating the aforementioned order dated 10th July, 1986. By an order dated 31st July, 1986 Mr. Jagadindranath Maity, a practing Advocate of this Court was appointed as Special Officer for the purpose of carrying out the day to day administration of the Midnapore College. THE director of public instruction, West Bengal was directed to, make available necessary funds for the purpose of payment of salary of the teaching and non-teaching ' members of the Midnapore College. THE Special Officer was directed not to issue any appointment letter nor to take disciplinary proceeding against any member of the staff. THE director of public instruction, West Bengal was directed to, make available necessary funds for the purpose of payment of salary of the teaching and non-teaching ' members of the Midnapore College. THE Special Officer was directed not to issue any appointment letter nor to take disciplinary proceeding against any member of the staff. It has been alleged in the application for vacating and/or modifying the interim order passed on 10th July, 1986 that under Statute 105(3), the first governing body of the college including the election of the President under the Statute within one year from the date of which the statute came into force and the term of office and the governing body was constituted for four years from the date of such election. THE Vidyasagar University Act came into force on 17th July, 1985, the last date for completion of the constitution of the governing body of the Midnapore College was up to 16th July, 1986. THE copy of the writ petition along with letter of the learned advocate dated 11th July 1986 was served in the office of the College on 12th July, i 986 after election of the non-teaching staff was completed on 11th July, 1986. By .order dated 14th July, 1986, this Court modified the order that the order dated 10th July, 1986 will not prevent the election of the governing body but no step/steps be taken pursuant thereto and the election will abide by result of the case. Accordingly, the election of the president has been held on 16th July, 1986 and the governing body has been constituted in terms of Statute 105(III) of Vidyasagar University Act but owing to the interim order as passed on 19th July, 11986 as well as on 15th July, 1986 the governing body cannot function and a deadlock has been created. Unless the new governing body is allowed to function in terms of Statute, there Will be several complications and the interest 'of the respondents will be seriously prejudiced. An affidavit- in- opposition has also been filed on behalf of the Respondent Nos. 25 against the main writ application and there is an affidavit- in- reply. THE Special Officer has also filed a report. On consent of all the parties, the entire matter on merit is taken up for final hearing by this Court. It is stated . An affidavit- in- opposition has also been filed on behalf of the Respondent Nos. 25 against the main writ application and there is an affidavit- in- reply. THE Special Officer has also filed a report. On consent of all the parties, the entire matter on merit is taken up for final hearing by this Court. It is stated . in the said affidavit- in- opposition that the post of. laboratory assistant is a teaching post under Statute 156 the practice and procedure of the University of Calcutta to which the Midnapore College was affiliated shall in so far as to they are not repugnant, the provisions of the Act, Statute, Ordinance and regulations continued to be in force in respect of the University altered, repealed or amended, the post of laboratory assistant is a post of whole time teacher within the meaning of Statute 105(I)(c). The Deputy Inspector for colleges addressed the letter dated 6th June, 1 986 to all Principals Teachers in- charge and administrators of colleges under the University intimating that the governing body must be constitutes within one year from the date of coming into force of the statute i.e. 17th July, 1986 and along with the letter an explanation pursuant to an order of the Vice- Chancellor dated 4th June, 1986 under Statute 157 was annexed referring to Statute 68(I)(c) to the effect that instructors/demonstrators and any other person who are certified by the Head of the Institution concerned as participating in teaching work shall be deemed to be teachers for the purpose of election under the said statute. In view thereof, all the laboratory instructors of the affidavited colleges are entitled to cast their votes in the teachers' category and their names have been included in the voters' list with the designation of the laboratory assistant redesignated as laboratory instructors under Section 2(20) of the Act, Demonstrators, Inspector or any other person holding a teaching post are included in the category of teachers and as such they are entitled to participate; in the election both in the governing body of the affiliated colleges and/or the University authorities and so far as the Midnapore College is concerned, it is apparent from Annexure "A" that there are posts of laboratory assistants in the college and they are also included in the teaching category under the Act and the Statute. That apart the Government Order dated 10th August, 1983, makes the position clear and it is not contrary to the Act and the Statute also. The qualification as prescribed for librarian, Assistant librarian and demonstrators enables them to be included as teachers. The writ petitioner himself participated in the election and on 19th July, 1986 a letter was received intimating the name of the governing body. The method of voting in Statute 105(l)(c) has been amended from a simple majority to proportionate majority and this amendment was made in or about July, 1986. Since the election of the teachers constituency has been held unanimously the question as to whether the laboratory assistant should be included has become academic inasmuch as even if they are excluded from the list of voters, the election of the Governing Body will be valid and the writ application has become infructuous. 3. I have heard at length the arguments made by both sides. It is argued on behalf of the petitioner that prior to 1973, there were three posts of laboratory assistants m the college one each in the department of Botany, Zoology and Physiology. They were all Class (HI) employee of the Government and they voted in the category of non-teaching employee yees. By the order under Memo No. 1502-End.(CS)SP/24/83, the post of laboratory assistant in Government Colleges sponsored or non-sponsored were re-designated as laboratory instructors but the status of non-teaching staff was directed to remain unchanged. In Midnapore College as well as in all the Colleges, affiliated to Vidyasagar University, the laboratory instructors are not members of the: teachers council created in terms of Chapter III of the Vidyasagar University First Regulations, 1985. In Chapter III of the Vidyasagar University First Regulations, 1985, the minimum qualification for appointment of teachers for courses of under graduate classes in Arts and Science have been elaborated. The laboratory assistant/instructors do not qualify by their educational qualifications to be defined as teachers as per provision laid down in Chapter (IV) of the said- regulation. In the prospectus of the college for the Session 1986-87, the list of teaching staff is been published department wise which does not include the names of the laboratory assistants instructors. The Vidyasagar University Act refers to instructors as "Teachers" which can be found only in the post-graduate level of the University. The same has got no relevance with any laboratory instructors . The Vidyasagar University Act refers to instructors as "Teachers" which can be found only in the post-graduate level of the University. The same has got no relevance with any laboratory instructors . of under- graduate colleges. The Statute 157 of the Vidyasagar University First Statute, 1985, has been itself interpreted by the Respondents inasmuch as the definition of "Teacher" and "Librarian" of an affiliated college cannot, be interpreted by. Order under Statute 68(l)(c) but under Section 2(2 0) and 2(12) of the Vidyasagar University Act. The statute 68(l)(c) comes within Chapter VI which is specifically meant for the election of members of the Governing Body under no provision of the statute and/or the Act the laboratory assistants/instructors are eligible to cast their votes in the election of the governing bodies of the college as teachers. The Vice Chancellor has no authority to interpret the statute beyond the provision of the Vidyasagar University Act. The Principal/Secretary published the voters' list in a most arbitrary and malafide manner. In the under- graduate colleges, the State Government is the competent authority to create or approve the post of both teaching and non-teaching employees. The amendment dated 16.7.86 was issued only to prejudice the case of the petitioner. The system of proportionate representation requires the quota to be obtained any a candidate to get himself elected. The inclusion of 23 laboratory instructs and 2 assistant librarians in the voters' list is prejudicial to the petitioner and his group. The quota has been raised to a higher level helping the respondents to create artificial majority in their own favour. 4. IT has been argued on behalf of the respondent no. 25 that the application has become infructuous since the election of teachers representative of the Governing Body has been held unanimously on 14.7.86 even leaving aside 23 laboratory instructors. The petitioner along with three teachers representatives participated in the election and the petitioner has been elected, and he cannot approbate and deprecate. The main issue related to inclusion of laboratory instructors in the voters' list and other allegations are irrelevant for the purpose of the adjudication of the present application, besides the question of quota and proportionate representation the allegations made in the writ petition are unwarranted and uncalled for. The main issue related to inclusion of laboratory instructors in the voters' list and other allegations are irrelevant for the purpose of the adjudication of the present application, besides the question of quota and proportionate representation the allegations made in the writ petition are unwarranted and uncalled for. Section 2(20) includes "Instructors" and the order dated 10.8.83 of the Government provides hat a teacher includes a person who may be declared to be a teacher, it is also submitted that the Vice-chancellor of Vidyasagar University in exercise of his power under Statute 157 and 171 read with Section 10(3) the Act directed that the laboratory assistants now called laboratory instructors be put in the category of teachers for the purpose of election of the Governing Body of affiliated colleges and the University authorities. There are allegations and counter-allegations as to the service of the notice and/or the absence of the lawyers on the date of hearing when interlocutory orders were made and/or as to the communication of the interlocutory orders passed by this Court which have no bearing and/or impact upon the hearing of the main writ application on merit and I do not propose to discuss the same accordingly. 5. HAVING heard the submission of the respective parties and on perusal of the materials on record, 1 find the main controversy is as to whether the laboratory assistants now re-designated as laboratory Instructors can be regarded as teachers and/or their names can be included in the voters' list in the teachers category to enable them to cast votes in the election for constituting the governing body in accordance with law and as per the Vidyasagar University, Act and the Statute. Section 2(20) of the Vidyasagar University Act, 1981 defines the word "Teachers" which runs a follows: - " A teacher means a Professor, Associate Professor, Assistant Professor, Reader, Principal, Lecturer, Demonstrator, Instructor or any other person holding a teaching post including a part time teaching post, appointed for recognised by the University or appointed by the affiliated college or institution". 6. CHAPTER 8 of the Vidyasagar University First Statute 1985 deals with the governing bodies of colleges. It starts from Statuses 105 to statute 114. 6. CHAPTER 8 of the Vidyasagar University First Statute 1985 deals with the governing bodies of colleges. It starts from Statuses 105 to statute 114. Statute 105 makes it clear that save as otherwise provided in Statute 112 the Governing Body of a College shall consist of the following prin- ciples:- (a) The president to be elected in the manner prescribed in the paragraph 2. (b) The Principal of the College who shall be the Secretary oi, the Governing Body, Ex-office. (c) Four members to toe elected on the basis of simple majority through vote by secret ballot from amongst themselves, But the teachers, whole time librarians and whole time physical instructors of the college, holding appointments against the post approved by the State Government, competent authority at a meeting to be convened for the purpose of principal of the college and presided over by him or in his as sense by teacher of the college authorised by the principal as such. (d) To represent the whole time non-teaching employee. of the college holding appointments against posts approved by the State Government/Competent authority and elected on the basis of simple majority through vote by secret ballot from amongst themselves. Such, election shall be conducted by the principal of the college or, in his absence by the teacher of the college authorised by the principal. (e) To members to be nominated by State Government at least one of whom shall be an educationist. There is reference of Statute 157 which provides that in the case of any doubt or difficulty as to the interpretation of the Statutes, the matter shall be referred to the Vice- Chancellor and his decision thereon shall, subject to the provision of the Act, be final. In exercise of the power under the Vidyasagar University First Statute 1985, the Vice- Chancellor of Vidyasagar University by his memo dated 4.6.86 directed that laboratory assistant now called laboratory instructors be put in the category of teachers for the purpose of election of governing bodies of affiliated colleges and the University authorities. In exercise of the power under the Vidyasagar University First Statute 1985, the Vice- Chancellor of Vidyasagar University by his memo dated 4.6.86 directed that laboratory assistant now called laboratory instructors be put in the category of teachers for the purpose of election of governing bodies of affiliated colleges and the University authorities. There is a Government letter dated 6th June, 1986 and it was addressed to all principals / teachers- in- charge and administrators of colleges that in terms of statute 106(3) of the Vidyasagar University First Statute, 1985, the principal of every college affiliated to the University shall take necessary steps to constitute the first governing body of that college including election of president under the statute within one year with the effect from the date of which the statute comes into force and the direction of office of the governing bodies so constituted shall be four years from the date of election. It was clarified that Statutes 68(1) says instructors, teachers, demonstrators and any other persons who are certified by the Head of the Institution concerned as participating in teaching work shall be deemed to be a "teacher" for the purpose of election under those statutes. Therefore, the use of the expression "whatever may call an assistant librarian, a deputy librarian can vote in the constituency of librarian in the University authorities election". 7. AFTER considering the submissions of the respective parties and considering the materials on record. I find that in view of the definitions of teachers and designation of laboratory assistants and/or instructors it cannot be said that it relates to only University at the post-graduate level and not at the under- graduate colleges. The definitions relate to the entire framework of the University and of its affiliated colleges. By looking to the Act, Statute, and the circular, there cannot be any other interpretation that the laboratory instructors do not come under the category of teachers for the purpose of election of the Governing body of the colleges concerned. It cannot be argued that the names of the laboratory assistants included in the voters' list for the purpose of holding election of the governing body of Midnapore College, are something otherwise bad in law. It cannot be argued that the names of the laboratory assistants included in the voters' list for the purpose of holding election of the governing body of Midnapore College, are something otherwise bad in law. The petitioner cannot obviously ask for exclusion of the names of the laboratory assistants as Instructors from the voters' list irrespective of the fact as to whether there has been any election of the teachers category unanimously or not. Other questions raised by the petitioner are extraneous to the main point of grievance and those are not required to be gone into even incidentally and this Court refrains from entering into any other controversy since the main contention of the petitioner fails. The writ petition is dismissed without any order as to the costs. 8. ALL interim orders are vacated. There will be stay of operation of the order for a fortnight. The college authorities are directed to pay all the out stating dues to the Special Officer within a fortnight from date. Writ petition dismissed.