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2009 DIGILAW 424 (CAL)

Pradip Kumar Hazra v. STATE OF WEST BENGAL

2009-06-17

SOUMITRA PAL

body2009
Judgment 1. The question which falls for consideration in the writ petition is whether there is any age bar regarding appointment of non-teaching employees in a private college affiliated to the University of Calcutta other than the Government Colleges. 2. Facts in short are that the petitioner had passed Madhyamik and Higher Secondary Examinations and had been working as a part-time employee in Maharaja Srischandra College since 1989. He was appointed as a whole time clerk with effect from 1st March, 1994 for a period of six months. Such appointment has been extended from time to time and at present the petitioner is performing his duties. It has been stated that the Managing Committee of Maharaja Srischandra College, the respondent No.3, invited applications for the post of clerk declaring that an interview for the said post would be held on 21st September, 2008. The notice revealed that the candidates sponsored by the Employment Exchange were eligible for appearing at the interview. According to the petitioner, since he was under a legitimate expectation of being absorbed as a permanent staff, on 22nd August, 2008 he filed a representation before the respondent No.3 praying for an opportunity to appear at the interview but without any effect. Being aggrieved, this writ petition was filed. 3. On 18th September, 2008 the matter was moved upon notice to the University of Calcutta, the respondent No.2 and the Secretary of the Managing Committee, Maharaja Srischandra College and the Principal of the said institution, the respondent Nos. 3 and 4 respectively. Notice was also served on the learned Government Pleader. However, it appears from the records that despite service, on the said date none appeared for the University of Calcutta and the State of West Bengal. On that date directions were issued for filing of affidavits and an interim order was passed directing the respondent Nos. 3 and 4 to allow the petitioner to appear at the interview which was scheduled to be held on 21st September, 2008 or on any subsequent date for the post of clerk in the college in question. Further, it was recorded that in case the petitioner was selected then such selection would abide by the result of the writ petition. 4. Pursuant to the directions, the respondent Nos. 3 and 4 have filed their affidavit. Further, it was recorded that in case the petitioner was selected then such selection would abide by the result of the writ petition. 4. Pursuant to the directions, the respondent Nos. 3 and 4 have filed their affidavit. It appears from the resolution of the college annexed to the affidavit-in-opposition that the petitioner has stood first in the interview for the post of clerk (General Category). It was resolved that it was desirable that appointment should be made as expeditiously as possible and steps should be taken by the Principal of the institution for early disposal of the writ petition. 5. The bone of contention is whether there is any provision regarding the maximum age limit for appointment in a private college under the University of Calcutta in G.O. No. 830-Edn. (CS) dated 31st October, 1995 or in the Calcutta University First Statutes, 1979. From the submissions advanced by the learned Advocates for the parties I find that the G.O. dated 31st October, 1995 was cancelled by Memo dated 9th September, 2008 and the appointing authorities were directed that in addition to obtaining names from Employment Exchanges, there should be wide publicity of the vacancies in the newspapers having wide circulation and vacancies should be displayed on the notice boards to ensure opportunity to the eligible candidates for participating in the recruitment process. Incidentally, the G.O. dated 31st October; 1995 does not mention any upper age limit. Therefore, though the Memo dated 31st October, 1995 was cancelled by the subsequent Memo dated 9th September, 2008, I find there was no stipulation regarding the upper age limit of a candidate for appointment in a non-teaching post in a non-Government college. 6. So far as the Calcutta University First Statutes, 1979 relating to terms of employment and conditions of service of non-teaching employees of colleges affiliated to the University other than Government colleges is concerned, I find there is no provision fixing the maximum age limit for appointment in such a college in Chapter XIII of the said statutes. 7. Now a question arises whether the provisions contained in the West Bengal Services (Raising of Age-limit) Rules, 1981 apply. It appears that those Rules were framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India. Article 309 deals with recruitment and conditions of service of persons serving the Union or a State. Now a question arises whether the provisions contained in the West Bengal Services (Raising of Age-limit) Rules, 1981 apply. It appears that those Rules were framed in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India. Article 309 deals with recruitment and conditions of service of persons serving the Union or a State. The proviso to Article 309 speaks of public services and posts connected with the affairs of the State. Therefore, since the post of clerk which is a non-teaching post in a private college is not under the State, proviso to Article 309 and Rules framed thereunder cannot have any manner of application to such post. Thus, the West Bengal (Raising of Age-limit) Rules, 1981 does not apply in the instant case, nor does its modification by notification dated 19th May, 1998. 8. Therefore, the 1981 Rules and the Rules subsequently modified cannot be said to be Rules under the Statute 5 of Chapter XIII of the Calcutta University First Statues, 1979 governing the employment of non-teaching staff in a private college. Hence the writ petition succeeds and is allowed. The college is at liberty to take steps for publication of the result of the interview and for making the appointment. 9. There will, however, be no order as to costs. 10. Let Photostat plain copies of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Advocates for the parties upon production of receipts of the applications filed for obtaining certified copy of this order on urgent basis. 11. Let urgent Photostat certified copy of this order, if applied for, be furnished to the appearing parties on urgent basis. Writ application allowed with directions.