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2007 DIGILAW 518 (SC)

Bhagabati Das (SARKAR) v. Calcutta University

2007-04-03

MARKANDEY KATJU, S.B.SINHA

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JUDGMENT : 1. Leave granted. 2. This is an unfortunate case of a candidate who had applied for the post of Lecturer, Geology, in the Calcutta University. Indisputably, three vacancies had occurred in the Department of Geology under the University; being one post of Lecturer and two posts of Reader. Out of the two posts of Reader, one was under Merit-Promotion Scheme and another was to be treated as an open post. Vacancies, admittedly, occurred in the year 1984. A Selection Committee was constituted for the said purpose. Appellant's name recommended for appointment to the post of Lecturer, Geology. Names of two other candidates, namely, Dr. Arun Kumar Mitra and Dr. Tapan Ghosh were also recommended for appointment for the posts of Reader. 3 . Although the recommendations as such were unanimous, one of the members of the Selection Committee. namely, Prof. A.K. Bhattacharyya, who was the Chancellor's nominee, on or about 17.4.1984 informed the University that he was not aware that one of the two vacant posts was meant for open category candidates. Acting on the said purported communication of Prof. Bhattacharayya, recommendations of the Selection Committee in respect of the above 3 candidates were referred back to the Committee. There are materials on records to suggest that the Selection Committee on its part had not taken any action for considering the matter afresh. Pursuant to or in furtherance of the said directions, the University as such also did not take any proper or effective step to see to it that appointments for the posts of Lecturer and Reader are made at an early date. However, in view of the need of the students herein, the Head of the Department of Geology had written several letters to the Registrar of the University to make appointments as early as possible. 4. Although Dr. Arun Kumar Mitra and Dr. Tapan Ghosh were appointed as Readers, relying upon or on the basis of the recommendations made by the Selection Committee afresh on or about 27.4.1984, surprisingly, despite the Selection Committee's recommendation of the name of the appellant again on or about 12.12.1987 for the said post, no action was taken by the University in that behalf. Respondent-University, therefore, for no reason failed to take any action thereupon. 5. On or about 27.4.1988, an advertisement was issued inter alia for appointment to the post of Lecturer in the Department of Geology. Respondent-University, therefore, for no reason failed to take any action thereupon. 5. On or about 27.4.1988, an advertisement was issued inter alia for appointment to the post of Lecturer in the Department of Geology. It was pointed out to the University that no decision had been taken on the recommendations made by the Selection Committee for appointment to the post of Lecturer, where after a corrigendum was issued by the University in May, 1988, deleting the said post of Lecturer, Geology as vacant. Despite the same, no action was even then taken by the University to appoint the appellant. 6. Yet again, another advertisement was issued on 7.7.1990. 7. Questioning the validity of said advertisement Appellant herein filed a writ petition before the High Court. An interim order was passed therein. Unfortunately, however, the writ petition itself came to be disposed of after a long time i.e. on 15.1.2001, by a learned Single Judge of the said Court. Before the learned Single Judge, a contention raised on behalf of the University was that no decision having been taken by the Department within a period 2 years from the date of the receipt of the recommendations of the Selection Committee, no writ of mandamus could be issued by the Court. Attention of the learned Single Judge of the High Court in that behalf was drawn to Section 32 of the Calcutta University Act, 1979. Sub-section (3) thereof reads as under: "If the Syndicate does not accept the recommendation of Selection Committee, it shall refer the recommendation back to the Selection Committee with reasons for reconsideration and if the Syndicate does not accept the reconsidered views of the Selection Committee, the matter shall be referred to the Chancellor with reasons and the decision of the Chancellor shall be final." 8. The said contention, however, was rejected and the writ petition of the appellant was allowed. 9. The learned Single Judge's order also had not been given effect to by the University for a long time and only in October 2002, an intra-Court appeal was preferred by the University in terms of clause 15 of the Letters Patent Appeal of the Calcutta High Court. 9. The learned Single Judge's order also had not been given effect to by the University for a long time and only in October 2002, an intra-Court appeal was preferred by the University in terms of clause 15 of the Letters Patent Appeal of the Calcutta High Court. A Division Bench of the High Court by reason of the impugned judgment dated 4.9.2003, while refusing to interference with the judgment and order passed by the learned Single Judge opined : "This Court makes it clear in the facts and circumstances of the case indicated above and having regard to the fact that the petitioner should get the benefit of her success in the writ petition, we are of the view that the petitioner should be given the benefit of pay scale which she received as a Lecturer in the matter of calculation of her retirement benefits. The University is directed to release the pensionary and other benefits due to the petitioner on the above basis as early as possible, preferably within two months from the date of service of a copy of this order and the petitioner should co-operate with the University in the matter by submitting necessary forms and applications. The appeal is thus dismissed. There will be no order as to costs." 10. Appellant is before us being aggrieved by and dissatisfied with that portion of the observations made by the Division Bench of the Calcutta High Court whereby relief granted in favour of the appellant by the learned Single Judge was kept confined only to the retrial benefits. The Division Bench of the High Court did not specify from which date the appellant would be deemed to have been appointed in service. Having regard to the directions made by the learned Single Judge, the Division Bench furthermore did not consider the backdrop of events which we have noticed hereinbefore. 11. The Division Bench of the High Court appears to have taken into consideration only the fact that the appellant had already superannuated, but failed to notice the other directions contained in the judgment and order of the learned Single Judge. 12. The Division Bench of the High Court although refused to interfere with the order passed by the learned Single Judge, it made certain observations as a result whereof the benefits derived by the appellant were, for all intent and purport taken away. 12. The Division Bench of the High Court although refused to interfere with the order passed by the learned Single Judge, it made certain observations as a result whereof the benefits derived by the appellant were, for all intent and purport taken away. In the aforementioned situation the only question which arises for our consideration is as to why and in what manner, the order passed by the learned Single Judge can be directed to be implemented. 13. Ordinarily, we would not have taken recourse to such an unusual procedure but having heard Mr. Amit Shanna, learned counsel appearing on behalf of the appellant, and Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of the University at some length, we are of the view that the appellant has suffered a great deal of injustice at the hands of the University. We, therefore, are of the opinion that as in terms of the learned Single Judge's order, the appellant should have been appointed in the post of Lecturer, Geology, within a reasonable time; in terns of the second recommendations made by the Selection Committee, in the fitness of things, she should be deemed to have been appointed on and from 1.4.1988 in the post of Lecturer. The amount to which the appellant would be entitled by way of back-wages and/or the retiral benefits should be directed to be computed on that basis. 14. Appellant has superannuated on 31.3.2003. She is entitled to retiral benefits. Mr. Ghosh draws our attention to the following details of the retiral benefits to which, according to the University, the appellant would have been entitled to : (i) Provident Fund Rs. 5,38,128/-; (ii) Gratuity Rs. 1,00,000/-; and (iii) Leave Salary Rs. 1,33,351/- 15. As in view of our foregoing conclusion, she should be treated to have been appointed with effect from 1.4.1988, computation of retiral benefits requires to be done afresh. 16. Retiral benefits as also the back-wages would, thus, be payable to the appellant in terms of this order which should be re-calculated and necessary payments be made in her favour within a period of three months from the date of receipt of a copy of this order. Any amount drawn by the appellant, it goes without saying, shall be adjusted. 17. Any amount drawn by the appellant, it goes without saying, shall be adjusted. 17. Re-calculation of the amount payable to the appellant in terms of this order shall be supplied to her within a period of four weeks by the University; whereafter she may file appropriate application for grant of retiral benefits in the prescribed form. 18. We have passed this order in exercise of our jurisdiction under Article 142 of the Constitution of India to do complete justice to the parties. We make it clear that although before us Mr. Sharma submitted that the University should be directed to re-appoint the appellant for a period of 5 years as per the prevailing practice, we decline to do so. The appeal is allowed with the aforementioned directions. 19. Respondents shall pay the costs of the appellant which is quantified at Rs. 1 lakh.