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1999 DIGILAW 416 (CAL)

Biswanath Ghosh v. Bishnupada Sau

1999-08-02

MAHEMMAD HABEEB SHAMS ANSARI, S.B.Sinha

body1999
JUDGMENT : - M.H.S. Ansari, J. : Both the appeals in question are against the same order of a ld. Single Judge dated 7.6.99 in W.P. No. 19928(W) of 1998. 2. In M.A.T. No. 1864/99 the President of the Governing Body is the appellant. 3. MAT. No. 2042 of 1999 is filed by the members of the Governing Body who were not impleaded as respondents in the said writ petition No. 19928(W) of 1998. The appeal was filed alongwith an application for grant of leave of file the appeal. The Governing Body has approved the appointment of the Principal recommended by the College Service Commission upon being duly selected for appointment as the Principal of Sushil Kar College. In our opinion, since the writ petition filed by respondent No.1 herein pertains to the action of the Governing Body of the College in question leave to file the appeal has to be granted and is accordingly granted. 4. The order under appeal in the instant two appeals is dated 7.6.99 passed in W.P. No. 19928(W)/98 disposing of the writ petition filed by respondent No.1 herein whereby and where under the appointment made by the President in favour of respondent No.8 in writ petition as Principal of the College in question was declared invalid and further following directions were issued ; "(1) The Governing Body of the said college shall issue letter of appointment in favour of the respondent No. 8 on the basis of the recommendation of the College Service Commission within fortnight from the date of communication of this order by adopting valid resolution. (2) The writ petitioner shall convene a meeting acting as ex-officio Secretary within seven days from the date of communication of this order, failing which any member of the Governing Body can act as a Secretary and can convene a meeting for the purpose of appointment of the respondent No.8. (3) After such appointment is given the respondent No. 8 shall assume the charge of the office of Principal and the writ petitioner herein is directed to co-operate and/or render all assistance to respondent No.8." 5. The appellants in the appeals, as noticed above, are the President and respondent No.8 and in the other appeal members of the Governing Body, respectively. 6. After having heard ld. The appellants in the appeals, as noticed above, are the President and respondent No.8 and in the other appeal members of the Governing Body, respectively. 6. After having heard ld. Counsel for the respective parties and upon perusing the judgment under appeal as also the various documents relied upon by the respective parties and the subsequent events we are of the considered opinion that only certain relevant facts necessary for disposal of the instant two appeals need to be stated in the view that we propose to take in the matter. 7. One Sri Debi Prasad Mallik who was the Principal of the college is question retired on 31.10.97 on attaining the age of superannuation. Prior thereto, the Governing Body of the college sent requisition to the College Service Commission requesting the authority to recommend the candidate for the post of Principal of the college. As by the date of superannuation of Mr. Mallik on 31.10.97 no such recommendation had been received, Sri Bishnupada Shaw (writ petitioner) was directed to act as teacher-in-charge on ad hoc basis till the appointment of the Principal. 8. On 2.7.98 the College Service Commission duly sent its recommendation to the President of the Governing Body recommending Shri Paritosh Sarkar (Appellant No.2 in M.A.T. No. 1864/99 and respondent No.8 in the writ petition) to be appointed as Principal of the said college. 9. On 16.7.98 the President of the Governing Body issued a letter of appointment to Paritosh Sarkar appointing him as Principal of the college subject to the approval of the Governing Body. In the said letter of appointment Dr. Paritosh Sarkar was requested to join the college by 1.9.98 as the Principal. Dr. Sarkar accepted the appointment and intimated his acceptance to the President through his letter dated 18.7.98. 10. The writ petitioner-Teacher-in-Charge at the relevant time raised an objection to the appointment of appellant No.2 herein and declined to call the meeting of the Governing Body on the ground that he had received a complaint with respect to the said appointment on the basis that reservation rules have been violated with regard to the appointment of the Principal. 11. On 1.9.98 when the appellant No.2 came to the college for purpose of joining, he was not allowed to join. However, on 7.9.98 appellant joined the college and assumed charge of the post of Principal. 12. 11. On 1.9.98 when the appellant No.2 came to the college for purpose of joining, he was not allowed to join. However, on 7.9.98 appellant joined the college and assumed charge of the post of Principal. 12. At a meeting held on 10.9.98 the Governing Body took note of the letter of appointment, acceptance thereof by appellant No.2 and resolved that the President's action regarding the appointment of Dr. Paritosh Sarkar as Principal be approved and the same was confirmed unanimously. In the minutes of the said meeting, notice has been taken of the fact that appellant No.2 was requested to join on 1.9.98 and that he came to join on the said date for taking charge but was physically resisted from entering the college building.' 13. It is this appointment which has been set aside as invalid by the order under appeal and is subject matter of consideration in the instant appeal. 14. The other relevant fact to be noticed is that the writ petitioner Mr. Bishnupada Shaw has retired on attaining the age of superannuation even by the date of the judgment under appeal. The question, as to whether the writ petitioner who since attained the age of superannuation and retired from service can act as ex-officio Secretary for the purpose of convening the meeting of the Governing Body, in our opinion, does not arise and directions in that behalf have accordingly be set aside. 15. The only question, therefore, that remains for consideration is whether the appointment of appellant No.2-respondent No.8 was lawfully made by the President and whether the adjudication of the same as illegal by the order under appeal can be sustained. 16. In coming to the conclusion that the appointment letter issued by the President is invalid, the ld. Single Judge based his conclusion on the ground that the Governing Body is the appointing authority. 17. The Governing Body was not made a party respondent in the writ application and the grievance of the appellants in M.A.T. No. 1864 of 1999 is that certain relevant documents could not be placed before the ld. Judge more particularly with respect to the meeting of the Governing Body held on 10.9.98 whereby the action of the President had been ratified and appointment confirmed. Judge more particularly with respect to the meeting of the Governing Body held on 10.9.98 whereby the action of the President had been ratified and appointment confirmed. That being the correct legal position, the appointment made by the President and subsequently confirmed by the Governing Body ratifying his action, no legal infirmity can be found with respect to the appointment of appellant No.2 as Principal of the college in question. We, accordingly, have no hesitation in setting aside that part of the order whereby the appointment of the appellant No.2 was declared invalid. 18. The other controversies raised in the writ application on behalf of the respondent are not material for the purpose of the instant appeals, in the view that we have taken as' above. More so, when the ld. Trial Judge has in the light of the provisions of the West Bengal College Service Commission Act, 1978 observed that the provisions contained in section 9 thereof have overriding effect and the college authority has no other option but to accept the recommendation of the appointment of respondent No. 8 as Principal of the college. The ld. Single Judge has categorically held that respondent No. 8 cannot be deprived of having the benefit of the statutory recommendation and he must get the appointment. 19. In the circumstances, the two writ appeals are accordingly allowed setting aside the judgment and order dated 7.6.99. C.A.N. No. 5421/99 20. The application (C.A.:N. No. 5421/99) is filed by the applicants two in number for being impleaded as parties to the Appeal (M.A.T. No. 1864/99) on the ground that consequent upon retirement of the writ petitioner, the applicants had been in the panel of Teacher- in-Charge and one of them was so appointed according to seniority and, therefore, they are necessary parties to be impleaded in the writ petition. In our view the question of Teacher-in-Charge no longer survives for consideration in view of the appointment of the Principal. Having been upheld as above and, therefore, the said application (C.A.N. No. 5421/99) is liable to be dismissed and is accordingly dismissed. All the applications are accordingly disposed of. S.B.Sinha, A.C.J.: 21. Although I agree with the order proposed to be passed by my ld. Brother, I would like to add a few words. 22. The College Service Commission being a statutory body can only act within the four corners thereof. All the applications are accordingly disposed of. S.B.Sinha, A.C.J.: 21. Although I agree with the order proposed to be passed by my ld. Brother, I would like to add a few words. 22. The College Service Commission being a statutory body can only act within the four corners thereof. It can only make recommendation. It can not issue any direction to the effect that the recommended must be appointed within a particular time frame. It's suggestions to that effect is only for the benefit of the appointee as in case he is not appointed in a particular college, he may be recommended for appointment in the other. In the instant case, the Commission had asked the President of the Board to appoint the appellant which was duly complied with. Such an action was duly ratified by the Governing Body. The appellant could not join the post for no fault of his. He admittedly assumed charge after a week wherefore the time of his joining was duly extended. The writ petitioner-respondent had no legal right to continue to hold the post of Teacher-in-Charge as he was holding as Officiating Post. He was not promoted to the Post of Principal which was a Higher Post. He even did not apply for the said post. 23. It may be true that the appellant had not produced a few documents which were in the custody of the Governing Body. But as the Governing Body was not impleaded as a party in the writ petition, the appellant cannot suffer therefore. This Court while issuing a writ of mandamus, has the discretion to take into consideration undisputed documents although the same were not before the ld. Trial Judge. Such an order can be passed in the interest of justice which should be paramount in the mind of the Court. In any event the judgment impugned in the appeal is self contradictory. The Court validated the appointment of the appellant, yet upheld the purported right of the writ petitioner to act as Teacher-in-Charge. The purpose for which the writ petitioner filed the writ petition had been achieved as he continued in the post of Teacher-in-Charge till he attained the age of superannuation although he had no legal right to hold the said post. 24. The' impugned order is therefore, liable to be set aside and the appeal be allowed. All the writ applications are disposed of.