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2002 DIGILAW 570 (CAL)

Basudev Hazra v. Jadavpur University

2002-08-27

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J.: In all these writ applications some common questions of law arise for determination and as such these applications were heard together. 2. The petitioners, the hostel/mess staff of three different Universities have prayed for declaration that they are non-teaching employees of the University and are accordingly entitled to get the same scale of pay and other allowances including service benefits admissible to the other employees of the University. 3. The case made out by the petitioners in these applications may be summarized thus:- The petitioners are all working for gain as mess/hostel staff of University. They were appointed under the authority of the University and those appointment letters are annexed to these applications. According to the petitioners, they were appointed by the University, although appointment letters were issued to the petitioners under the signature of an authority who is an officer of the University. It is further alleged that all the activities of the hostel/mess including acquisition of building and its maintenance are financed from the University Fund and even those hostels are under the direct supervision and control of the University. Appointments of the petitioners as hostel employee were made by the order of the Vice-Chancellor through the officers of the Universities and the salaries and allowance of the petitioners are being paid regularly by the University from University Fund and the State Government has already granted sanction to the University for appointment of the petitioners as hostel/mess employee. The petitioners complain that in similar circumstances like the present one, a writ application was moved by the hostel employees of Kalyani University before this Court with a prayer for the regularization and for treating them as non-teaching staff of Kalyani University and for fixing their scale of pay at par with non-teaching staff of the University and a Division Bench of this Court ultimately allowed such prayer. Against such decision passed by the Division Bench, the State Government as well as University preferred two separate special leave applications before the Supreme Court of India and the Apex Court dismissed both the special leave applications. The grievance of the petitioners is that although non-teaching staff and Group-D staff of the University are getting the scale of pay at a higher rate, the petitioners are getting a scale at the rate which is lower than the minimum scale of non-teaching staff of the University. The grievance of the petitioners is that although non-teaching staff and Group-D staff of the University are getting the scale of pay at a higher rate, the petitioners are getting a scale at the rate which is lower than the minimum scale of non-teaching staff of the University. The petitioners thus pray for the reliefs claimed in the application. 4. These applications are opposed by all the three Universities by filing separate affidavits. It is contended in the affidavits that the students of the University get themselves admitted knowing fully well that the University is a non-residential educational institution and neither the University Act and nor the statute or regulation framed thereunder provides for hostel accommodation as integral part of University education. It is further stated that a committee has been formed by the University for management of the hostel and the petitioners are all appointed by the said committee in accordance with a Government circular by virtue of which Government releases funds for paying salaries to the petitioners. According to the respondents, the said committee has drafted independent service rules for the hostel employees. Appointment letters have been issued to the hostel employees by the Secretary of the said committee. The further defense of the Universities is that according to the said Government circular, hostel employees attached to University hostel are not at all employees of the Universities but are the employees of the hostel committee. It is further averred that all appointment letters in respect of teaching or non-teaching staff or officer of the university are issued in accordance with the provisions of the concerned University Act and the executive council has been empowered to create with the approval of the State Government post of officer, teacher and other employees of the University or to recommend to the appropriate authority for creation of post of officer and teacher of University. The appointments of the petitioners, it is alleged, are not in accordance with the procedure sanctioned by the statute. Moreover, under the provision of section 3 of the West Bengal Universities (Control and Expenditure) Act, 1976, the University cannot create any teaching or non-teaching post involving any financial liability. The Universities submit that none of the posts pertaining to hostel staff to which the writ petitioners had been appointed were ever created following the above statutory procedure. Moreover, under the provision of section 3 of the West Bengal Universities (Control and Expenditure) Act, 1976, the University cannot create any teaching or non-teaching post involving any financial liability. The Universities submit that none of the posts pertaining to hostel staff to which the writ petitioners had been appointed were ever created following the above statutory procedure. It is further contended that scale of pay of the petitioners had been fixed and revised from time to time under various Government circulars and as those posts are not posts created under the University Act, the petitioners cannot claim any benefit at par with Group-D staff of the University. 5. Therefore, the following two questions fall for determination in these applications:- 1) Whether the petitioners can be declared to be the employees direct under the University? 2) Whether the petitioners can claim their service benefits at par with other Group-D staff of the University'? Point No.1 6. Mr. Banerjee, the learned counsel appearing on behalf of the petitioners of all these writ applications has placed strong reliance upon the decision of a Division Bench of this Court in the case of State of West Bengal vs. Sreedam Sarkar & Ors., reported in 96 CWN page 232 where, according to Mr. Banerjee, under the similar circumstances the employees of the Kalyani University got similar declaration prayed herein. Mr. Banerjee submits that both the State Government and the University preferred special leave application before Supreme Court against such decision but the Supreme Court did not entertain such application. Mr. Banerjee submits that on the basis of the reasons given by the Division Bench in the said decision, his clients are also entitled to the reliefs claimed herein. 7. Mr. Banerjee, apart from the aforesaid decision, has also relied upon the following Supreme Court decisions in support of his contention that there exists relationship of employer and employee between the University and the petitioners:- a) Indian Overseas Bank vs. I. O. B. Staff Canteen Workers' Union & Anr., JT 2000(4) 503; b) VST Industries Ltd. vs. VST Industries Workers' Union & Anr., JT 2001 (1) SC 36; c) Indian Petrochemicals Corporation Limited & Anr. vs. Shramik Sena & Ors., 1999(6) SCC 439 ; d) M. M. R. Khan & Ors. vs. Shramik Sena & Ors., 1999(6) SCC 439 ; d) M. M. R. Khan & Ors. vs. Union of India & Ors., 1990(Suppl) SCC 191; e) Hussainbhai, Calicut vs. The Alath Factory, Thezhilali Union, Kozikode & Ors., 1978(4) SCC 257 ; f) Shiv Nandan vs. Punjab National Bank, AIR 1955 SC 404 ; g) Parimal Ch. Raha vs. L. I. C. & Anr., AIR 1995 SC 1666 . 8. Mr. Bhattacharya, the learned counsel appearing on behalf of the Calcutta University and Rabindra Bharati University has however disputed the aforesaid contention of Mr. Banerjee and has submitted that the decision of the Division Bench of this Court in the case of State of West Bengal vs. Sreedam Sarkar & Ors. (supra) is no longer a good law in view of subsequent decisions of the Supreme Court in the case of G. B. Panth University of Agriculture and Technology vs. State of Uttar Pradesh, reported in AIR 2000 SC page 2695. Mr. Bhattacharya also relies upon subsequent decision in the case of State Bank of India vs. State Bank of India Canteen Employees Union, reported in AIR 2000 SC page 1518. Mr. Bhattacharya contends that in order that the petitioners can claim to be employees of the University, it must be proved that establishment of hostel is compulsory or obligatory under the concerned University Act as was the decision in G.B. Panth University case (supra). Mr. Bhattacharya submits that the Universities concerned here are not residential Universities. Therefore, it was not obligatory on the part of those Universities to maintain or establish hostel. Mr. Bhattacharya further points out that in the University Acts and Statutes framed thereunder, there is specific provision for mode of recruitment and appointment of the employees of the University and the petitioners were not appointed in conformity with such statutes. Mr. Bhattacharya maintains that the petitioners are all employees under a committee and their salaries are paid from the subvention given by the State Government by virtue of its notifications issued from time to time. According to Mr. Bhattacharya, the Universities simply release those fund strictly in accordance with the guidelines given by the Government in that regard and no amount is paid for the mess staff of the hostel from the University Fund. Mr. According to Mr. Bhattacharya, the Universities simply release those fund strictly in accordance with the guidelines given by the Government in that regard and no amount is paid for the mess staff of the hostel from the University Fund. Mr. Bhattacharya further points out that the Government while issuing grants for the purpose of giving salary to the petitioners has made it clear that the petitioners should not be treated as employees of University but they should be appointed by the hostel committee to be formed. Mr. Bhattacharya thus contends that unless it is shown that the appointments of the petitioners are strictly in accordance with the provision of the University Statutes, they cannot claim the status of employee under University. 9. Mr. Hazra, the learned counsel appearing on behalf of the Jadavpur University has adopted the aforesaid contentions of Mr. Bhattacharya and has further contended that no mess-staff of a hostel can be appointed without taking sanction of the Government under the provision of West Bengal University (Control of Expenditure) Act. Mr. Hazra contends that since the petitioners were not appointed after taking sanction from the State Government under the provision of the aforesaid Act, they cannot claim to be employees of the University. Apart from that Mr. Hazra further contended that under the Jadavpur University Act although there is provision for creation, establishment or maintenance of hostels by the University but such hostels are meant only for residence of the students, teachers and employees of the University. The University Act, Mr. Hazra continues, does not permit messing in such hostel. Therefore, according to Mr. Hazra, messing arrangement cannot be said to be part of function of a hostel even if it is assumed for the sake of argument that such hostels are maintained by the University in accordance with University Act. 10. Mr. Moitra, the learned counsel appearing on behalf of the State Government has practically adopted the argument of Mr. Bhattacharya and Mr. Hazra as mentioned above. Although, in the present cases, State Government has not used any affidavit, Mr. Moitra made it clear that while releasing grant for the purpose of mess employees attached to the University hostel, the Government had no intention to treat them as employees of the University. He submits that the object of the grant issued for the salary of the mess employees will appear from the notification itself. Mr. Moitra made it clear that while releasing grant for the purpose of mess employees attached to the University hostel, the Government had no intention to treat them as employees of the University. He submits that the object of the grant issued for the salary of the mess employees will appear from the notification itself. Mr. Moitra thus contends that by virtue of such circular, the petitioners cannot claim master and servant relationship with the University. Mr. Moitra lastly contends that the State Government having taken a policy decision not to treat the staff of the mess/hostel attached to the Universities as employees thereof, such decision is beyond the scope of judicial review. 11. After hearing the learned counsel for the parties and after going through all the decisions placed before this Court I find that in G. B. Panth University case (supra) the Supreme Court had occasion to deal with a case where hostel facility was compulsory. Under such circumstances, the Supreme Court took into consideration the aforesaid fact and ultimately held that the hostel employees of such University should be deemed to be the employees of such University. But the aforesaid decision, in my view, does not lay down a proposition of law that if hostel facility is not compulsory, the employees of such hostel can in no case become the employees of the University. 12. In the case of State Bank of India (supra), the Supreme Court pointed out that over the concerned canteen the bank had only partial control and as such it held that its employee could not claim to be bank employee. In the said case, on the basis of agreement between Bank and the representatives of the Staff Federation local implementation committee was formed at each branch and the canteen employees were appointed by such committee and there was no right of the Bank to supervise and control the work done by the person employed in the committee. Moreover, there was no rules framed by the Bank for appointing canteen employee. In the cases before us, it appears that hostels are established, maintained and recognized under the Act governing the University and although a hostel committee or students welfare committee had been constituted but constitution of such committee is quite in conformity with the provision of the Act. Moreover, there was no rules framed by the Bank for appointing canteen employee. In the cases before us, it appears that hostels are established, maintained and recognized under the Act governing the University and although a hostel committee or students welfare committee had been constituted but constitution of such committee is quite in conformity with the provision of the Act. Once it is provided in the Act that the University shall have full control over management of the hostel and also right of recognition, it necessarily follows that it shall have also right to de-recognize a particular hostel. Therefore, the State Bank of India case (supra) relied upon by the learned counsel for the Universities cannot have any application to the fact of the present case because the Universities herein, if dissatisfied with any decision of the Hostel Committee on the ground that it has not acted "according to the manner prescribed by the University" can immediately de-recognize the concerned hostel. 13. As pointed out by the Supreme Court in the case of M. M. R. Khan (supra) even if a particular canteen is not a statutory one and was not required to be provided compulsorily under the Act but if it appears that a particular canteen is established with the prior approval and recognition of the employer as provided in a Statute (in that case with the approval of Railway Board as per Railway Establishment Manual), even the employees of such canteen will be deemed to be employees of the original employer. 14. In the case of Hussainbhai (supra), it was pointed out by the Supreme Court that the work done by the workmen if found to be integral part of the industry concerned and they worked under the control of the management it should be presumed that the workmen were the employees of the owner. 15. Therefore, the decisive test is whether the particular hostel is established in accordance with the provisions of the statutes governing the concerned University and whether the employees of such hostels are appointed by an authority in accordance with rules approved by the University and whether the University has full control over such authority. 16. Over and above, it should be further established that the object of running such hostel is in furtherance of the aim of the University. 16. Over and above, it should be further established that the object of running such hostel is in furtherance of the aim of the University. The fact that the University statutes authorise the Universities to establish and maintain hostel itself shows that the legislature has conferred such power upon Universities for achieving the object of the Universities. 17. The hostel committee or students welfare committee is nothing but an agent or manager of the University who works completely under the supervision, control and direction of the University as will appear from the fact that the power to de-recognize such hostel at any time is conferred under the Act. The creation of a committee in between University and the petitioners at the instance of University on the advice of State of Government, in my view, is a device adopted by employer and the State to get their need fulfilled without rendering them liable. That being the position, as pointed out by the Supreme Court in the case of Indian Overseas Bank (supra), the Court is to pierce the veil to get at the realities. 18. I now proceed to deal with the other decisions cited by the learned counsel for the Universities. 19. In the case of Employers in relation to the management of Reserve Bank of India vs. Workmen, reported in 1996(3) SCC 267 , Reserve Bank of India had been providing canteen facilities to its employees of Classes III and IV. There was however no obligation either under any statute or otherwise, for the Bank to run canteens. It did so only as a welfare measures and bore by way of subsidy to the extent of 95% of the costs incurred by the canteens for payment of salary, provident fund contribution, gratuity, uniform etc. and also provided premises, fixtures, utensils, furniture, electricity, water etc. free of charge. These canteens were run either by Implementation Committee or Co-operatives Societies or Contractors. Out of 12 representatives in the Implementation Committee, 3 were from Bank. Certain employees, who were in the Committee, were permitted by the Bank for the full day or half day to supervise the day-to-day works of the canteens. Committee could not increase the strength of the canteen employees nor could it revise the wages without the permission of the Bank. Certain employees, who were in the Committee, were permitted by the Bank for the full day or half day to supervise the day-to-day works of the canteens. Committee could not increase the strength of the canteen employees nor could it revise the wages without the permission of the Bank. In such a fact, the tribunal by applying the principles laid down in M. M. R. Khan case (supra) held that the employees of the canteen should be treated as those of Bank. The Supreme Court however reversed such decision by pointing out that the only role played by the Bank in the running of the canteens was the nomination of three members to the Committee. The recruitment of the workers of the canteens was made by the Committee and the attendance record as well as sanctioning of leave to the workers were done by the Committee at its discretion. The Supreme Court thus held that in the absence of any obligation, statutory or otherwise, regarding the running of the canteens by Bank and details thereto similar to Factories Act or the Railway Establishment Manual and in the absence of any effective or direct control of the Bank to supervise or control the activities of the various persons concerning the canteens, the workers in the canteens run by the Implementation Committee could not come within the ratio of M. M. R. Khan case. In the cases before us, all the hostels are run by virtue of the power conferred upon the Universities under the Universities Acts and the statutes framed thereunder although the establishment of hostel is not obligatory. But once any hostel is established and maintained or recognised by University, those must run in accordance with such statutes. There are rules for running of those hostels and those Rules are approved by the Universities. The hostel committee cannot appoint workers or sanction leave to the workers according to its whim but those must be done in accordance with Rules and subject to the approval of Universities. If the committee refuses to follow the Rules, the Universities are conferred right under the Statutes not to recognize the hostels any further. Thus, the Universities have full control over the committees which run the hostels. Therefore, the aforesaid decision cannot have any application to the facts of our cases. 20. In the case of Union of India (Railway Board) & Ors. Thus, the Universities have full control over the committees which run the hostels. Therefore, the aforesaid decision cannot have any application to the facts of our cases. 20. In the case of Union of India (Railway Board) & Ors. vs. J. V. Subhaiah & Ors., reported in AIR 1996 SC 2890 , the Supreme Court was considering whether the employees of Railway Co-operative Stores could be said to be the employees of Railways. The Apex Court answered the question in negative on the ground that the power to appoint officers, employees and servants of the society was given to the President or the Committee in accordance with the bylaws, rules and the Co-operative Society Act and were subject to approval of the Registrar of Societies and the Railway Establishment Code was not applicable to those employees. Thus, in the absence of any control by Railway, the Supreme Court turned down the claim of the employees. The facts of the said case are also totally different from those of the cases before us and as such the said decision can be of no avail to the Universities. 21. The case of Hari Shanher Sharma & Ors. vs. Artificial Limbs Manufacturing Corporation & Ors., reported in 2002(1) SCC page 337, is one where the respondent No. 1/company set up a canteen for its employees. From time to time agreements were entered into between the respondent No.1 and different contractors for preparation and service of food stuff and other refreshments at the canteen. According to the appellants, they were employed by several of the contractors and had been serving at the relevant point when there was an agreement of the employer with respondent No.2, as contractor. The dispute was referred to Labour Court .Before Labour Court, the contractor stated in cross-examination that he used to supervise and control the appellants and pay their salaries. Even the witness for the appellants stated that their salaries were paid by contractors. The witness for the appellants also admitted that the respondent No.2 brought raw materials. The witness for the respondent No.1 said that the respondent No.1 had no hand in the selection of the employees of the canteen. The respondent No.1 did not record their attendance nor paid them their salaries. The witness for the appellants also admitted that the respondent No.2 brought raw materials. The witness for the respondent No.1 said that the respondent No.1 had no hand in the selection of the employees of the canteen. The respondent No.1 did not record their attendance nor paid them their salaries. The Labour Court also noted that the appellants' witnesses were unable to identify or name any officer of the respondent No.1 who they claimed supervise their work. The Labour Court further found that the appellants failed to prove that the respondent No.1 exercised any control or supervision over the employees of the contractor. Under such a situation, the Supreme Court observed, the findings of the Labour Court holding that there existed no relationship of master and servants between the respondent No.1 and appellants were rightly not interfered with by the High Court and the Supreme Court also proposed not to interfere with such findings under Article 136 of the Constitution. In my opinion, the said decision cannot have any application to the facts of our cases where the University has ultimate control over the activities of the petitioners through its agent. 22. Finally, as regards the question of judicial review of policy decision of the State raised by Mr. Moitra, the law on that point is now well settled. As pointed out by the Supreme Court in the case of Ugar Sagar Works Ltd. vs. Delhi Administration & Ors., reported in 2001 (3) SCC page 635, it is not within the province of the judiciary to test the correctness of a policy or lay down whether such policy ought to be changed or should remain static unless the policy is shown to be tainted by mala fides, arbitrariness, irrationality, perversity, unfairness or unreasonableness. It appears from the circular dated October 19, 1981 that the Government has taken a policy decision to introduce uniform service conditions for the workers/employees of hostels/messes attached to Universities and Colleges in this State by fixing staff pattern, scale of pay, retirement age and other conditions of service and to undertake the financial burden to the extent indicated in such circular. By the said circular, the concerned University or the College, as the case may be, is given responsibility to supervise such policy decision through hostel committee/students welfare committee according to the manner prescribed by the University and it is the responsibility of the University or the College concerned to issue utilization certificate in respect of the Government grant released in this regard at the end of each financial year. However, it has been specifically mentioned that those employees should be treated as employees of the hostel committee/students welfare committee. The object behind such policy decision is apparent. The Government felt the exigency of protecting those employees, the sweated labours, from uncertainty and oppression and decided to confer recognition of their services in aid of advancement of education at the College/University level. After placing their services under the full control of the College/University concerned there was no necessity of placing a screen in the name of hostel committee/ students welfare committee in between the employees and the University/College when such committee has been asked to function "according to manner prescribed by the University." Thus, creation of such a committee is nothing but a crafty maneuver designed to camouflage the real employer and these cases come within the exceptions pointed out by the Apex Court in the case of Ugar Sagar Works Ltd. (supra). I thus find no substance in the aforesaid contention of Mr. Moitra. 23. Thus, after hearing the learned counsel for the parties and after going through the authorities cited by them I find that for the purpose of ascertaining whether there exists real relationship of master and servant in this type of a case, the court should follow the ensuing guidelines :–– a) If the statutes governing the Constitution and other matters incidental to and connected with the concerned University make it obligatory to provide and maintain hostels for the use of its students or employees, such hostels become part of the University and therefore the employees attached to such hostels become the employees of the University. b) If those statutes do not enjoin compulsory establishment of hostels but nevertheless authorize the University to establish, recognize or maintain a hostel and to control the management for running of such hostel and in conformity with such provisions of the statutes a Hostel is being run, the employees of such hostel appointed in accordance with such provisions shall become employees of the University. c) If the statutes by which the concerned University is governed do not provide for establishment, maintenance or recognition of any hostel but hostel facilities are provided to the students or employees with the consent of the University as a "students welfare" or "employees welfare" measures, the employees of such hostels cannot claim to be employees of the University notwithstanding the fact that the management of the University is virtually controlling the management of the hostel and is even releasing grants for providing such facilities. 24. I now proceed to examine the respective cases of the three Universities separately by applying the aforesaid tests. CALCUTTA UNIVERSITY:–– 25. At the very outset it will be profitable to refer to the following provisions of the Calcutta University Act, 1979 and 1st Ordinance promulgated thereunder:–– '2(11) "hall" means a unit of residence of students maintained by the University. 2(12) "hostel" means a unit of residence for students, not maintained by University but recognized under this Act as hostel. 2(15) "non-teaching staff" means–– a) in relation to University, the non-teaching staff, not holding any teaching post (including part-time teaching post) appointed or recognized as such by the University. b) in relation to an affiliated college, the non-teaching staff, not holding any teaching post (including part-time teaching post) appointed or recognized by the University or appointed by such college, but does 'not include a Librarian. (Emphasis given) 17. The following shall be the authorities of the University: 1) the Senate; 2) the Syndicate; 3) the faculty of Council of Post-graduate Studies; 4) the Council of Undergraduate Studies; 5) the Board of Studies; 6) the Finance Committee; 7) the Tripura Council; 8) such other authorities as may be established under the statutes. 22. Subject to the provisions of this Act, the Syndicate shall exercise the following powers and perform the following duties:- iv) to establish, maintain and manage halls and to recognize hostels. 52. 22. Subject to the provisions of this Act, the Syndicate shall exercise the following powers and perform the following duties:- iv) to establish, maintain and manage halls and to recognize hostels. 52. Subject to the provisions of this Act and the Statutes, Ordinances may be made to provide for all or any of the following matters:- f) rules for establishment, maintenance and management of University Libraries, University Museums, Halls and other University, Institution for Study, research and residence; g) rules for the recognition of libraries, laboratories, museums, hostels, institution for study, research and residence, other than those established, maintained and managed by the University.' 26. The Act and Ordinance governing the University therefore provide for two types of unit of residence of students; one, maintained by the University itself, and is referred to as 'hall' and the other although not maintained but recognized under the Act and those units are described as 'hostel' .It has been admitted in the affidavit filed on behalf of the University that there are Rules approved by Syndicate in accordance with the Act and Ordinance for guidance and management for the University Halls of Residence for Post-graduate and under graduate students which have come into force from July 1, 2000 after repealing the earlier Rules. Rule 1 of such rules specifically declares that all the hostels meant for Post-graduate students are directly under the control of the University, through its Board of Residence and only three under graduate halls fall in this category. The said Rule has specified those three hostels and as also 14 other University Post-graduate Halls in such Rule 1. 27. Rule 38 of Part I of such Rules deals with messing arrangement of such hostels. Although the said rule asserts that student's messing shall not be treated as integral part of the hall, nevertheless it lays down a detailed procedure guiding messing arrangements and specifically mandates that there will be one mess in a hall and all the boarders of the hall shall be the members of the mess. Thus, messing is compulsory for a boarder of the hall as will appear from sub-rule (9) which provides that a mess caution deposit fixed by the mess committee/superintendent should be paid by every boarder at the time of admission. The superintendent of the hall will deposit the collected money to the University cash counter as "Mess Caution Money". Thus, messing is compulsory for a boarder of the hall as will appear from sub-rule (9) which provides that a mess caution deposit fixed by the mess committee/superintendent should be paid by every boarder at the time of admission. The superintendent of the hall will deposit the collected money to the University cash counter as "Mess Caution Money". The sum, the sub-rule provides, will be refunded or adjusted when the boarder finally leaves hall on production of original caution money receipt signed by the University cashier together with a clearance certificate from the superintendent showing that all dues have been paid. These deposited accounts should be duly audited by the internal Audit, Calcutta University, the said sub-rule enjoins. 28. Therefore, it is clear that a boarder is not permitted to "independent messing" from outside and for the purpose of gaining admission in the hostel must conform to the aforesaid Rule. Moreover, Rule 16 of Part I precludes a boarder examine from getting admit card if the superintendent does not issue a clearance certificate in respect of charges payable including messing charge. 29. Therefore, the present case is one where the University is not a residential one but it maintains hostels by virtue of the power vested in the Act governing the University. By dint of such authority, the University has approved Rules for running of such specified hostels which compels the boarder to make arrangement of messing within such hostel strictly in accordance with such Rules and non-compliance of such messing Rule shall debar a boarder from appearing at the examination of the University. The money received from boarder is deposited in the University and is audited by the Internal Audit of the University. Rule 5 of Part II provides that utensil fees realized from boarders shall be spent on purchase or repairs of utensils required for cooking purpose. Therefore, messing is very much part and parcel of the halls/hostels. The object of maintaining the hostels is to make arrangement for food and lodging of the students who come of a distant place. Thus, the running of the hostels though not compulsory, is aimed at the advancement of education of the students staying in remote places and the mess employees are rendering their services for achieving such goal of the University under its full control. 30. Thus, the running of the hostels though not compulsory, is aimed at the advancement of education of the students staying in remote places and the mess employees are rendering their services for achieving such goal of the University under its full control. 30. The fact that the Government has proceeded to introduce uniform service conditions for the employees of the hostel/messes attached to the Universities and College itself shows that they are discharging their duties for the advancement of education in the State; otherwise the Government would not have come forward to bear such burden. It appears from annexure "P3" that the State Government has entrusted the Universities to formulate the service conditions of those employees in accordance with the guidelines given by the Government and has been regularly releasing funds for such payment through University. The University concerned has also undertaken such responsibility and has full control over those employees through the committee formed in accordance with the Act and Ordinance. 31. Mr. Bhattacharya, the learned counsel appearing on behalf of the University however resisted this application mainly on twofold grounds; first, the petitioners having been appointed not by the University itself, they cannot claim relationship of master and servant and secondly, Calcutta University not being a residential University, the petitioners cannot rely upon the principles laid down by the Apex Court in the case of G.B. Panth University (supra). 32. In my opinion, both the aforesaid points are devoid of any substance. I have already pointed out that according to the definition of non-teaching staff as mentioned in section 2(15) of the Act, such person may be either appointed or recognized by the University. Therefore, the fact that the University has recognized the appointment of the petitioners and has been releasing salary etc. as per Government direction and has overall control over the employment itself manifests that University recognizes the services of the petitioners. Therefore, even if actual appointment letter is not issued by the University, such fact matters a little. Over and above, I am of the view that apart from the aforesaid definition, it is not necessary that appointment should be given by the master himself in order to establish a relationship of master and servant as held by the Supreme Court in various cases. 33. Over and above, I am of the view that apart from the aforesaid definition, it is not necessary that appointment should be given by the master himself in order to establish a relationship of master and servant as held by the Supreme Court in various cases. 33. Secondly, even if the University is not a residential one, which was not the case in G.B. Panth University case, if it appears that a master employs a servant and authorizes him to employ a number of persons to a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. (See Shiv Nandan vs. Punjab National Bank, AIR 1955 SC 404 ). The Committee which appointed the petitioners was itself appointed in accordance with the Act and such committee is under the full control of the University and the purpose of such employments' is also for proper running of hostel in accordance with the Act for facilitating education, the object of the University. 34. Therefore, the case of Calcutta University squarely comes within the clause (b) above where although the statutes do not enjoin compulsory establishment of hostels but nevertheless authorize the University to establish, maintain, recognize and control the hostel and the hostel is being run in conformity with the provisions of the statute and the employees are also appointed in accordance with the rules approved by the University. Thus, the petitioners should be treated to be employees of the University. JADAVPUR UNIVERSITY :- 35. Jadavpur University Act and the first Statute framed under such Act contain provisions similar to those contained in Calcutta University Act and the Statute. According to section 2(7), hall and hostel means a unit of residence for students, teachers, officers or non-teaching staff recognized by the University. 36. Section 2(12) of the Act similarly says that non-teaching staff means persons not holding any teaching post (including part-time teaching post) appointed or recognized as such by the University but does not include an Officer or a Librarian. (Emphasis given) 37. Section 19 recognizes Executive Council as an authority of the University and section 20 enumerates its power and functions which includes the power to establish, maintain, manage and recognize hall and hostels. 38. (Emphasis given) 37. Section 19 recognizes Executive Council as an authority of the University and section 20 enumerates its power and functions which includes the power to establish, maintain, manage and recognize hall and hostels. 38. By virtue of such power, Jadavpur University Hostel Employees Administration and Welfare Committee Rules have been framed. There is no dispute that the petitioners are appointed in accordance with the aforesaid Rules. 39. Mr. Hazra, the learned counsel appearing on behalf of the University, adopted the arguments of Mr. Bhattacharya and in addition to those raised two further points. His first point was that the Act provides for establishing and maintaining only unit of residence but not any provision for board and thus mess employees are not appointed in accordance with the Act but according to the Government instruction. Secondly, he contends that without taking approval of Government under West Bengal Universities (Control of Expenditure) Act, no post can be created and the posts of mess employees have not at all been created. Thus, Mr. Hazra continues, the mess employees cannot claim to be the employees of the University. I am however not impressed by any of the aforesaid points raised by Mr. Hazra. 40. So far the first point is concerned, it is not the case of the University that prior to issue of the notification dated October 19, 1981 by the Government there was no messing facility available in the hostel. If such was the position, the University would not accept the grant of the Government and would return the subvention informing that there was no messing facilities available in the hostel and that the University Act did not permit messing facilities in the hostel. The University having all along received Government grant for the last 21 years now cannot contend that the Act does not authorize to run a mess in the hostel. The Act having authorized the University to maintain, establish and recognize halls and hostels and those having been defined as "a unit of residence" for students, teachers, officers and non-teaching staff of the University, it necessarily follows that such unit must have a complete unit of residence including kitchen. If the intention was to exclude messing, such intention would reflect from the definition by specifically excluding messing arrangement. If the intention was to exclude messing, such intention would reflect from the definition by specifically excluding messing arrangement. According to Oxford Advanced Learner's Dictionary of Current English, fourth edition by A. S. Hornby, hostel means "building in which (Usu cheap) food and lodging are provided for students, certain groups of worker the homeless, travellers etc.". Even according to the Oxford Dictionary of Difficult Words edited by Archie Hobson, 2001 edition, hostel means than establishment that provides cheap food and lodging for specific group of people, such as students, workers, or travellers, esp. those on foot or bicycle." 41. At any rate, the University itself having approved Jadavpur University Hostel Employees Administration and Welfare Committee Rules recognizing mess facility, now cannot contend that the Act does not sanction setting up of mess. The Government Circular of 1981 did not compel the University to create messing arrangement even if the University Act did not permit. That circular was made for existing mess employees attached to the hostels. 42. Mr. Hazra in this connection tried to impress upon this court that although the Rules concerning hostel and its employees were approved in exercise of 'power' conferred upon the University by the Act but it was not "obligatory" to establish any hostel and thus the petitioners could not be treated as employees of the University. I am quite alive to the position of law that while a 'power' is an ability on the part of a person to produce a change in a given legal relation by doing or not doing a given act, the 'obligation' is a legal or moral duty to do or not to do something. Therefore, notwithstanding the fact that establishment of hostel was not mandatory under the Act, but once such hostels have been established, maintained and recognized and Rules have been approved for smooth running of the hostels recognizing mess facility, it should be presumed that the University thought it expedient to exercise such power only for attaining the object of the University Act and the persons appointed in accordance with such Rules render their services for the benefit of University. 43. As regards the second point, the Government itself having formulated the staff pattern limiting the number of employees of mess, no question of taking further approval under West Bengal University (Control of Expenditure) Act arises. 43. As regards the second point, the Government itself having formulated the staff pattern limiting the number of employees of mess, no question of taking further approval under West Bengal University (Control of Expenditure) Act arises. In the present case the University has accepted the proposal of the Government to appoint the petitioners through committee over which the University has full control and the object of such appointment is for the benefit of students, teachers and the employees of the University in fulfilling the object of the University .Therefore, for the same reasons indicated in Calcutta University cases, mentioned above, the mess employees of this University should be treated as employees of Jadavpur University. RABINDRA BHARATI UNIVERSITY :- 44. The definition of hostel and non-teaching staff appearing in the Rabindra Bharati University Act are similar to those contained in the Act relating to Calcutta and Jadavpur University and section 4(22) of the Act authorizes the University to establish, maintain, manage or recognize halls and hostels, as contained in the other two Acts. A copy of the Rules relating to the conditions of residence and maintenance of discipline of the residence in hostels has been placed before the Court which shows all boarders ipso facto become members of the common mess and it will be obligatory for a boarder to take daily meals and pay charges thereof. Therefore, messing is an integral part of hostel. This case is similar to the cases relating to Calcutta University and Mr. Bhattacharya appearing for University did not make any additional submissions than those made in Calcutta University cases. Therefore, the mess employees of this University are also entitled to be treated as University employee for the same reasons indicated in Calcutta University cases. Conclusion––I thus answer Point No. (1) mentioned above in favour of the petitioners declaring that they are employees of the University concerned. Point No. (2) 45. It appears from records that the petitioners were appointed in either of the following posts :–– a) Cook, b) Assistant Cook, c) Kitchen attendant/helper, d) Helper/Assistant. 46. Conclusion––I thus answer Point No. (1) mentioned above in favour of the petitioners declaring that they are employees of the University concerned. Point No. (2) 45. It appears from records that the petitioners were appointed in either of the following posts :–– a) Cook, b) Assistant Cook, c) Kitchen attendant/helper, d) Helper/Assistant. 46. No material has been produced before this Court indicating that there are similar posts occupied by any of the employees appointed by the Universities other than the petitioners; nor is there any document showing that any such employee appointed by the Universities is doing similar type of work done by the petitioners and those employees are enjoying better scale of pay. It is thus clear that the petitioners are doing a peculiar type of job relating to cooking and management of mess service. Therefore, the scales of pay of the petitioners have been fixed after considering the nature of duties, work load, experience and responsibilities attached to such posts and there is no post in the University where the employees holding such post is doing similar nature of job. Moreover, the petitioners knowing fully well the scale of pay, applied for the job and had been doing their duties. Thus, I find no substance in the contention of the petitioners that they are entitled to the scale of pay enjoyed by Group-D staff of the University. I thus answer this question in negative against the petitioners. 47. These writ applications are therefore allowed in part. It is hereby declared that the petitioners are all employees of the concerned University and not of the committee which formally appointed them. The prayer for same scale of pay enjoyed by Group-D employees of the University is however dismissed. No costs. Writ applications partly allowed.