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2013 DIGILAW 63 (CAL)

Tapan Kumar Palmal v. STATE OF WEST BENGAL

2013-02-05

PRASENJIT MANDAL

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JUDGMENT PRASENJIT MANDAL, J. This application is at the instance of a Lecturer in Mechanical Engineering of K.G. Engineering Institute, Bishnupur, Dist. Bankura praying for writ in the nature of mandamus commanding the respondents to allow him study leave to continue his studies in the Post Graduate Course in M.Tech. for the session 2012-13 till completion of the said Course and other consequential reliefs. The petitioner has contended that he has been serving the said Institute since July 2, 2001 as Lecturer on ad hoc basis and his appointment was extended/renewed from time to time. Thereafter, the ad hoc appointment was converted to contract appointment in the year 2002, and then, he was appointed to the post of Lecturer through the Public Service Commission, West Bengal. He requested the Authority for granting him permission to sit for the GATE Examination. In 2009, the petitioner performed well in the GATE Examination and his rank, on all India basis, was 527, but, he was not allowed to join the said Course. In 2010, he again appeared in the said Test and his rank, on all India basis, was 471. He took admission to the said Course, but, since he did not seek any permission prior to admission, he was repatriated from IIT, Kharagpur. In 2011, he also again appeared in the said GATE Examination and his rank, on all India basis, was 177. In that year too, he was not permitted to get admission to the said M.Tech. Course and his rank was passed over for the next year, i.e., for 2012. He sent a representation to the concerned Authority for granting him study leave. The IIT, Kharagpur again offered to the petitioner to take admission to the said Course. The petitioner filed a representation to the Authority for granting him study leave, but no effect. So, this writ petition has been preferred. Now, the question is whether the petitioner can get the relief as sought for. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that the facts as recorded above are correct. So, this writ petition has been preferred. Now, the question is whether the petitioner can get the relief as sought for. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that the facts as recorded above are correct. The petitioner was appointed to the post of Lecturer in Mechanical Engineering of Government Polytechnic in the West Bengal General Service in the scale of pay of Rs.8,000-13,500/- and a letter of appointment was issued to him accordingly on June 26, 2007 indicating that the appointment was temporary likely to be permanent. Prior to that appointment, the petitioner was appointed on ad hoc basis and then on contractual basis. The petitioner has been serving in such capacity in the said college. The materials on record show that the petitioner got a very good rank in the GATE Examination, on all India basis, in 2009, then in 2010 and then in 2011 too. So far as consideration for the said Course is concerned, Mr. Srijan Nayek, learned Advocate for the petitioner, has contended that as per terms for persuading M.Tech. Course in Polytechnic Education System, according to Item no.4 appearing in Annexure P-3 at page no.33, no substitute either on part-time or contract basis will be provided for the candidate prosecuting the M. Tech Course. Existing faculty members shall have to share the assigned workload of the candidate recommended. He has also contended that the petitioner has fulfilled the conditions as laid down in Item no.5. The petitioner is eligible as he has rendered less than five years’ service under the Government and this is the last chance for the petitioner to make higher studies and if the petitioner pursues his studies, the Institute will be benefited. So, the prayer for relief’s as made in the writ application should be allowed. On the other hand, Mr. Malay Chakraborty, learned Advocate appearing for the respondent no.3, has contended that this application is not maintainable in view of the provision of Section 2 of the Administrative Tribunals Act, 1985 and the petitioner should be treated as an employee of the Government and as such, since the matter is related to service, if the petitioner has any grievance, he is to ventilate his grievance before the State Administrative Tribunal and not by filing a writ petition. So, the writ petition is not maintainable. Mr. So, the writ petition is not maintainable. Mr. Chakraborty has also contended that the petitioner did not give enough opportunity to the respondents to consider his case. The permission was sought for on July 18, 2012 and the writ petition was filed on August 6, 2012. Under the circumstances, this Court has no jurisdiction to entertain this application. Mr. S. Biswas, learned Advocate appearing for the State, has endorsed the submission adversed by Mr. Chakraborty. In reply, Mr. Nayek has contended that the matter involved in the writ application is not at all a service matter and it is related to admission to a college and as such, the petitioner is entitled to file the writ application under Article 226 of the Constitution of India. In support of his contention, Mr. Nayek has relied on the decision of Dr. Rabindra Nath Saren v. The State of West Bengal & ors. reported in 2012(1) CLJ(Cal) 583 particularly the paragraph nos. 7 & 8 and thus, he has submitted that in that decision, a learned Single Judge of this Court has held that when the matter is related to admission, the writ application under Article 226 of the Constitution lies. On due consideration of the materials on record, I find that though the petitioner has been serving in the said Institution as Lecturer in Mechanical Engineering, his initial appointment was on ad hoc basis and then on temporary basis and it is only in the year 2007 he was appointed as temporary (likely to be permanent) in the post of Lecturer in Mechanical Engineering of Government Polytechnic in the scale of pay of Rs.8,000-13,500/- vide letter of appointment appeared at page no.27. The petitioner has fulfilled the eligibility criteria for pursuing the M.Tech. Course as recorded in Item No.5 of Annexure P-3 at page no.33 but a condition has been imposed and the Clause (i) lays down the guidelines that the candidate willing to pursue M.Tech. Course on regular basis will also get priority. If the petitioner completes the M.Tech. Course as prayed for certainly the Institution, i.e., the respondents are likely to be benefited by his studies and I find that on three consecutive years the petitioner succeeded in the GATE Examination and he has improved his rank in all the three examinations. Course on regular basis will also get priority. If the petitioner completes the M.Tech. Course as prayed for certainly the Institution, i.e., the respondents are likely to be benefited by his studies and I find that on three consecutive years the petitioner succeeded in the GATE Examination and he has improved his rank in all the three examinations. The year of 2012 is the last year for consideration of the result of GATE Examination held in 2011 and the concerned IIT, Kharagpur has also indicated so. It is pertinent to mention that as recorded above, in 2010 the petitioner took admission in the prestigious Institute at IIT, Kharagpur, but he was repatriated as per desire of the respondent authority inasmuch as the admission had not been done following the service rules. Anyway, I find that by the letter dated March 7, 2012 appearing as Annexure P-6 at page no.36, the petitioner expressed his anxieties and requested the respondent authority to grant him study leave with full pay so that he can pursue his Post Graduate studies in the said Institute. He also renewed his prayer by the letter dated June 1, 2012 appearing in Annexure P-6 at page no.37 expressing his anxieties for getting admission as the result of GATE 2011 would remain valid for two successive years and this was the last opportunity to have a learning experience of the said prestigious Institute. As per page no.38, the petitioner has intimated by the letter dated July 18, 2012 that the date of admission has been scheduled on July 23, 2012. So, he requested again to take all necessary steps for granting him permission as early as possible. In spite of that the respondent authority did not issue any permission letter. Having considered the above facts and circumstances, I find that the petitioner has taken all the necessary steps for improving his academic qualifications and he succeeded in doing so. Therefore, if the petitioner gets a Master degree from a prestigious Institute, certainly his quality is likely to be improved. The concerned Institute vis-à-vis the students will be benefited from his studies in Master degree. Under the circumstances, the respondent authorities should have considered his case sympathetically and to dispose of the same at earlier point of time. Therefore, if the petitioner gets a Master degree from a prestigious Institute, certainly his quality is likely to be improved. The concerned Institute vis-à-vis the students will be benefited from his studies in Master degree. Under the circumstances, the respondent authorities should have considered his case sympathetically and to dispose of the same at earlier point of time. Since the matter relates to admission to an Institution for increase of the academic qualification, such a step is nothing but a matter related to admission for higher studies and I am, therefore, of the view that according to the decision of Dr. Rabindra Nath Saren (supra), such a writ application is quite maintainable before this Hon’ble Court instead of taking recourses under the provisions of Administrative Tribunals Act, 1985. The said Act of 1985 deals with disputes and complaints with respect to recruitment, conditions of service of persons appointed to public services and posts and the matter involved in the writ petition is purely a matter that the Constitutional Writ Jurisdiction of this Court can be invoked straight away for decision over the matter. Accordingly, I am of the view that the respondent authorities should be directed to dispose of the representations submitted by the petitioner to the respondent authority within a short time. Accordingly, the respondents are, particularly the respondent no.3 is directed to consider the representations of the writ petitioner appearing at page no.s 36, 37 & 38 within a period of four weeks from the date of communication of this order by passing a reasoned order thereon and then to communicate the decision taken thereon to the writ petitioner within two weeks from the date of taking of the decision without fail. The application is disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.