University of Calcutta v. Ramprosad Ghose — 1998 DIGILAW 2 (CAL)

JUDGMENT Satya Brata Sinha, J. All these three appeals as also the contempt matter being F.M.A.T. No. 3473 of 1996 were taken up for hearing and are being disposed of by this common judgment. 2. Bereft of all unnecessary details the fact of the matter lies in a very narrow compass. The University Grants Commission created certain posts initially for a period of 3 years in the Centre of Advanced Study, Department of Ancient Indian History & Culture. The writ petitioners/respondents were appointed in various posts in the said Centre upon compliance of all formalities. From a perusal of the writ application it appears that prior to such recruitment, advertisement had been issued and interview had been taken by the Selection Committee and the appointment had either been made by the Director of the Centre or by the Deputy Registrar of the University. The said appointment admittedly had been taken place long back. Ram Prosad Ghose was appointed on 4th October, 1985, Sm. Swapna Chakraborty was appointed on 15.12.78, Sm. Sima Mukherjee on 13.11.85 and Sunil Kumar Biswas was appointed on 14.11.77. 3. The writ petitioners in all the writ applications joined their respective posts. It is also admitted that pursuant to the recommendation of the University Grants Commission the University of Calcutta took over the aforementioned Centre wherefor sanction had also been accorded by the State of West Bengal. The concerned departments which were initially treated as temporary departments of the University of Calcutta were also directed to be treated as permanent departments of the University by the State of West Bengal in terms of the letter dated 14.4.82 in exercise of the power conferred upon it under section 8 of the Universities (Control and Expenditure) Act, 1975. 4. Thereafter a departmental committee was constituted. The said Departmental Committee held its meeting on 29.1.91 and made various recommendation to the Syndicate. In the said writ application all concerned including the petitioners were recommended for being affirmed. It appears that the Syndicate of the University also by a resolution dated 7.11.89 resolved: "Further resolved that in respect of the incumbent as mentioned in Sl. The said Departmental Committee held its meeting on 29.1.91 and made various recommendation to the Syndicate. In the said writ application all concerned including the petitioners were recommended for being affirmed. It appears that the Syndicate of the University also by a resolution dated 7.11.89 resolved: "Further resolved that in respect of the incumbent as mentioned in Sl. 1, 2, 3 and 4 of the item, the Syndicate in principle feels that this should be regularised and the following Committee be formed to give effect to the matter in details and to submit a report thereon." As the University agreed in principle to consider the suitability of the persons who served as casual workers in different branches of the University Schemes/Project employees during the period from 1986 to 1988, the Registrar, Calcutta University, informed the Heads of the Department of A.I.H.C. for the aforementioned purpose as regards casual workers working in different branches. In the year 1990 the University introduced a new scale of pay with effect from 1.1.86 and the employees have been asked to exercise option in the prescribed form. The Sub-Committee also submitted their report before the Syndicate on 29.1.91. It appears that the Syndicate did not accept the report of the said Committee and referred the matter back to the same. In this situation, the petitioners filed three writ applications and all the writ applications were heard by three Benches and all the writ applications were allowed keeping in view the fact that despite the fact that the matter had been pending for a long time before the Syndicate but no action had been taken. It has also been held that keeping in view the facts and circumstances of the case, the Syndicate should not have taken such a long time in arriving at one conclusion or other. 5. Mr. B.R. Bhattacharjee, learned counsel, appearing on behalf of the appellants in F.M.A.T. 2251-52 of 1996 as also in the contempt matter and Mr. Sadhan Roy Chowdhury, learned counsel, appearing on behalf of the appellant in F.M.A.T. 1861 of 1996 made the following submission : (1) The services of the writ petitioners could not have been regularised and at least in one of the cases as no prayer in that regard has been made. In any event such direction for regularisation could not have been made as the statutory rules interdict in the matter. In any event such direction for regularisation could not have been made as the statutory rules interdict in the matter. (2) The petitioners having been appointed in the project and having been appointed by the University in terms of the Calcutta University First Ordinance, 1979 the question of their regularisation does not arise. The learned counsel in support of the aforementioned submission has placed strong reliance on the decisions reported in 1996 Lab IC 1326 and 100 CWN 748. 6. Mr. Roy Chowdhury, learned counsel for the appellant submits that in any event when the matter had been pending before the Syndicate, the writ petition filed by the writ petitioner was pre-mature. 7. Mr. Dilip Kumar Mitra, learned counsel appearing on behalf of the respondents took us through the judgment delivered by the learned trial Judge as also the writ applications and submitted that it would appear therefrom that the appointments of the petitioners were not back door ones. The learned counsel contends that prior to the appointment of the writ petitioners all the requisite formalities had been complied with. The learned counsel contends that the State of West Bengal having made the temporary department into a permanent one, the concerned employees would automatically become permanent employees and in that view of the matter, the question of following the recruitment rule in terms of the Calcutta University First Ordinance, 1979 does not arise. It was submitted that the Syndicate which is the final authority had deferred the matter for a long time and in that view of the matter, the learned court below could not be held to be unjustified in issuing the declaration to the effect that the writ petitioners were permanent employees of the University. The learned counsel further contends that the very fact that the service of some of the employees have been regularised clearly goes to show that there had been discrimination as against the petitioners. 8. Mr. The learned counsel further contends that the very fact that the service of some of the employees have been regularised clearly goes to show that there had been discrimination as against the petitioners. 8. Mr. Kalyan Kumar Bandopadhyay, learned counsel, appearing on behalf of the writ petitioner in F.M.A.T. 2252 of 1996 submits that the writ petitioner in the said case had also been appointed in terms of the Recruitment Rules and keeping in view the fact that the Committee recommended confirmation of the services of the petitioners and further in view of the adoption of the principle of the Syndicate to absorb the petitioners as permanent employees of the University it cannot turn round and contend that the impugned judgment is illegal, It has been pointed out that the point taken before this court has not been taken before the learned trial Judge. In support of the aforementioned contention Mr. Bandopadhyay, learned counsel, has relied upon a recent decision of the Supreme Court of India in the case of Smt. Vijay Goel & Ors. vs Union of India & Anr. reported in JT 1997(8) SC 696 and the decision of a learned single Judge of this court in the case of G. Bose vs. State reported in 1997(1) CLJ 111 . There cannot be any doubt that regularisation cannot be a mode of recruitment. 9. It is now well settled that illegality cannot be perpetuated. Keeping in view the aforementioned principle of law we have to consider the peculiar facts and circumstances of this case. It is not the case of the respondents that the writ petitioners were appointed through back door. It is also not the case of the appellant that the appointments of the petitioners were made for any extraneous consideration. The respondent had not denied that in view of the notification issued by the State of West Bengal in respect of the staff pattern as also in terms of the said Act, temporary department has been directed to be made permanent. It is not in dispute that the State of West Bengal has accepted the entire responsibility to continue the scheme specified by the University Grants Commission and has also undertaken to bear the financial responsibility. Difficulty might have arises if the project has not been taken over by the University. It is not in dispute that the State of West Bengal has accepted the entire responsibility to continue the scheme specified by the University Grants Commission and has also undertaken to bear the financial responsibility. Difficulty might have arises if the project has not been taken over by the University. From a letter dated 22.1.95 it appears that the University of Calcutta has approved the said project and in that view of the matter there cannot be any doubt whatsoever that the petitioners who were although initially appointed for the purpose of the aforementioned project, were entitled to be considered for appointment. The question which only arises in this case is as to whether the provision for recruitment as laid down in the Calcutta University First Ordinance, 1979 had been followed or not. Sections 10, 26, 27 and 28(1)(a) which are relevant for the purpose of the present case read as under:- "Appointment of other employees. 10. (1) Appointment shall be made to posts of, (a) Superintendents, employees ranking between senior assistants and superintendents and senior assistants, research assistants, laboratory assistants, library assistants and other academic or non-academic posts below the rank of officers, by the Syndicate on the recommendation of the Establishment Committee; (b) Junior assistants and permanent posts of lower subordinate staff of any category by the Establishment Committee, subject to delegation of such powers by the Syndicate and reported to the Syndicate for record; (c) Omitted. (d) Omitted. Explanation.-In this Ordinance "assistant" includes a technical assistant, a stenographer, a typist, a mechanic and a skilled labourer, whether in the University Press or elsewhere. (2) Qualifications necessary for appointment to post of different categories of employees referred to in Paragraph (1) shall be determined by the Syndicate. 26. (1) There shall be an Establishment Committee consisting of the following members : (a) The Vice-Chancellor-Chairman; (b) The Pro-Vice-Chancellor for Business Affairs and Finance; (c) The Pro-Vice-Chancellor for Academic Affairs; (d) A nominee of the State Government; (e) There members of the Syndicate other than the Non-teaching staff and Student nominated by the Syndicate; (f) The Registrar-Member-Secretary. (2) The Secretary of the Establishment Committee shall maintain a record of its proceedings and shall perform for the Committee such functions as may be assigned to him. (2) The Secretary of the Establishment Committee shall maintain a record of its proceedings and shall perform for the Committee such functions as may be assigned to him. (3) Nominated members of the Establishment Committee shall hold office for a term of two years from the date of nomination : Provided that if any such member ceases to be a member of the Syndicate, he shall cease to be a member of the Establishment Committee. 27. The function of the Establishment Committee shall be,- (a) to recommend to the Syndicate qualified persons for appointment as superintendents, employees ranking between senior assistants and superintendents and senior assistants, research assistants, laboratory assistants, and library assistants and for appointment to other academic or non-academic posts below the rank of officers; (b) to make appointments of junior assistants and permanent posts of lower subordinate staff of any category and report to such appointments to the syndicate for record; (c) to advise the Syndicate in the matter of formulating policies to govern conditions of employment, pay, increment of pay, promotion, retirement, extension of service, leave and other matters related to employment in the University; (d) to advise the Syndicate regarding minimum qualifications for appointment to various posts of employees other than Professors, Readers, Lecturers and Officers of the University; and (e) to recommend to the Syndicate plans and procedure for increasing the efficiency of service in the University : Provided that the Establishment Committee may delegate such of its powers and functions as it deems fit to the Registrar of the University. 28. (1A) The Establishment Committee shall also obtain names from the Employment Exchanges of Calcutta, Howrah, 24-Parganas, Nadia and Murshidabad for consideration for appointment in the posts of junior assistants and those of lower subordinate staff of any category, when the case is not for promotion. Meetings of Establishment Committee. (1) The Establishment Committee shall ordinarily meet once a month. Meetings of the Committee shall be convened by the Secretary of the Committee on such dates and at such times and places as may be determined by the Chairman or, in his absence, by the Vice-Chairman. (2) Not less than three days’ notice shall be given of a meeting of the Committee. (3) Four members shall be quorum". 10. Meetings of the Committee shall be convened by the Secretary of the Committee on such dates and at such times and places as may be determined by the Chairman or, in his absence, by the Vice-Chairman. (2) Not less than three days’ notice shall be given of a meeting of the Committee. (3) Four members shall be quorum". 10. In view of the order proposed to be passed by us it is not necessary to consider the submissions made at the Bar nor it is necessary to consider the findings arrived at by the learned trial Judge in great details. The context in which the petitioners were appointed and had been allowed to continue in services despite the fact that it was initially a scheme of the University Grants Commission is not in dispute. The petitioners although were not employed by the University, at all point of time it was given out to them that the scheme of the University Grants Commission has been accepted by the State Government and they would be allowed to continue in service and the same would be treated as a department of the University. Prior to the appointment of the petitioners there having been an advertisement and interview taken by the Selection Committee and all other rules required for the purpose of valid selection having been complied with, there cannot be any doubt that the initial appointments of the petitioners were not violate of the Recruitment Rules nor were violative of Articles 14 and 16 of the Constitution of India. It further appears from the affidavit and various documents produced before us that the State of West Bengal had exercised its statutory power in sanctioning the posts, staff pattern as also issuing a direction for conversion of the temporary department into a permanent department. It is however beyond any doubt that the Syndicate which according to the learned counsel for the appellant is a higher authority to make appointment had taken up the matter from time to time and had appointed a Committee to consider the suitability of the persons. There has been no dispute also before us that the said Committee had found the petitioners to be suitable for appointment. This court, however, at this stage cannot ignore the provision of law that such appointments are conformed to the requirement of Chapter-III of the Ordinance. There has been no dispute also before us that the said Committee had found the petitioners to be suitable for appointment. This court, however, at this stage cannot ignore the provision of law that such appointments are conformed to the requirement of Chapter-III of the Ordinance. Having given our anxious thought to the aspect of the matter including the decisions cited at the Bar and various other decisions reported in AIR 1995 SC 962 and 1997(4) SCC 88 and the decision cited by Mr. Bhattacharjee, learned Counsel, that the proper course would be to refer the matter to the statutory Committee constituted for the recruitment. There cannot be any doubt that justice is higher than law but it is also true that justice has to be administered in accordance with law. Recruitment of the petitioner could be made only in terms of the aforementioned Ordinance. In our opinion, therefore, it would not be proper for us to give a declaration that the petitioners are also permanent employees in view of the recent decision of the Apex court as also of this court. 11. We however cannot but express our dissatisfaction over the manner in which the entire matter has been dealt with. The Calcutta University is a State within the meaning of Art. 12 of the Constitution of India. It is therefore required to act reasonably. Statutory authority should exercise its statutory duty within a reasonable time. 12. There cannot be any doubt that the petitioners are entitled to all monetary benefits given to them by the State Government including payment of their salary to which they were entitled to keeping in view the scale of pay payable to the persons similarly situated. 13. It is true as was submitted by Mr. Bandopadhyay, learned counsel, on the basis of a decision in the case of Raghave Rajgopalachari vs. State of Assam reported in 1972 SLR 915 the University could not assail its own action. However it is also true that when illegality comes to the notice of the court it cannot direct the authority to act thereupon, inasmuch as, a writ can be issued only if there existed legal right of the petitioner and a corresponding legal duty on the respondent. The decision in Raghava Rajgopalachari case was in respect of a service matter and there had been no case of violation of the constitutional provision. The decision in Raghava Rajgopalachari case was in respect of a service matter and there had been no case of violation of the constitutional provision. In the case of Smt. Vijay Goel (supra) the staff of the Safdarjang Hospital were selected in accordance with the Recruitment Rules and there existed regular vacancy to which the petitioners before the Apex court were appointed. They were also qualified and were appointed only after undergoing the selection process and found suitable by the selection Board. In this situation, the Apex court held that they could not be treated as ad hoc employees. In that case also the question of any back door appointment did not arise. 14. Having regard to the facts and circumstances of this case, we, therefore, dispose all the appeals with the following directions : (1) The case of the writ petitioners be placed before the statutory Committee, namely, the Establishment Committee and the said Committee should take decision in the matter upon taking into consideration the background of the case as also the previous decision taken by the State of West Bengal and the different body of the University including the Syndicate and the Selection Committee at an early date and not later than one month from the date of communication of this order. (2) In the event the Establishment Committee recommend the case of the writ petitioners, there cannot be any doubt the Syndicate shall, in terms of the aforementioned and Calcutta University First Ordinance, 1979 direct their appointment. While doing so, the Syndicate should consider the desirability of granting of appointment with retrospective effect keeping in view the fact that the posts were permanent and the petitioners have been working therein. (3) The Syndicate shall also allow the petitioners to give their option in terms of 1990 Circular. 15. In view of the order passed by us in the appeals, we feel that no purpose will be sub-served in keeping the contempt matter pending. Accordingly, the Rule issued in the contempt matter is discharged. 16. All the three appeals are disposed of with the aforementioned directions. 17. Let a plain copy of the operative part of this judgment duly countersigned by the Assistant Registrar (Court) be given to the learned counsel for the parties for communication. Ronojit Kumar Mitra, J.: I agree. Appeals disposed of with directions. Rule in contempt matter discharged.