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2016 DIGILAW 1081 (CAL)

Bulbul Sircar Ray v. State of W. B.

2016-12-23

MIR DARA SHEKO, RAKESH TIWARI

body2016
JUDGMENT : Mir Dara Sheko, J. 1. Being aggrieved by the order of dismissal dated 29.02.2016 passed by learned Judge in W.P. 26643(w) of 2015 (Dr. Bulbul Sircar Ray Vs. The State of West Bengal & Ors.) the writ petitioner appellant has preferred the appeal being M.A.T. No. 458/2016 along with applications being CAN 2857 of 2016 for stay and CAN 8886 of 2016 for appropriate order. The merit of another W.P. No. 26641(W) of 2015 filed by Dr. Shampa Bhanja against the State of West Bengal & Ors. having also been held by the learned Judge as similarly situated as that of the Writ Petition No. 26643(W) of 2015 (supra), the same also was dismissed on 29.2.2016, and the writ petitioner Dr. Shampa Bhanja being aggrieved by said order of dismissal filed the appeal being M.A.T. No. 530 of 2016 along with applications being CAN No. 3662 of 2016 for stay and CAN 7414 of 2016 for appropriate order. 2. The case of the appellant Dr. Bulbul Sircar Ray was that appointment letter dated 01.02.1994 was issued by the Secretary of Jogesh Chandra Chaudhuri College of Law appointing him as a Part-time Lecturer in lieu of consolidated remuneration of Rs. 300/- per month. 3. There was a little bit deviation in the fact of the case of appellant Dr. Shampa Bhanja, since by issuing appointment letter dated 09.09.1991 she was appointed as a part-time lecturer on probation for a year in said Jogesh Chandra Chaudhuri College of Law at a consolidated remuneration of Rs. 200/- per month. 4. Grievance is that despite rendering services to the college since long, they were discriminated from giving favour of the Government circular dated 11.01.2001 by regularising their services extending pay benefit as well, though all other part time lecturers similarly situated were regularised and allowed pay scales pursuant to said circular. 5. Mr. Bandopadhyay learned Senior Advocate for the appellant Dr. Shampa Bhanja referring to paragraphs 10, 11, 12 and 13 of stay petition being C.A.N. 3662 in connection with M.A.T. no. 5. Mr. Bandopadhyay learned Senior Advocate for the appellant Dr. Shampa Bhanja referring to paragraphs 10, 11, 12 and 13 of stay petition being C.A.N. 3662 in connection with M.A.T. no. 530 of 2016 argued that there should not be any discrimination in case of the appellant in the matter of regularisation and extending pay benefit as per the circular dated January 11, 2001 particularly when, the appellant, after being appointed on 9.9.1991 rendered services to the college for so long a period, and, when the benefit of the circular dated 10th January, 2001 was extended by the authority to all others not only of the subject college but also to many others, who were similarly situated like the appellant. 6. Dr. Chapalesh Bandopadhyay learned Advocate for Dr. Bulbul Sircar Ray, the appellant of M.A.T 458 of 2016, adopting the arguments made by Mr. Bandopadhyay, added that the respondents pursuant to said circular dated 11.01.2001 did not deny regularisation of others discriminating only the appellants, and by such discrimination the state and college authority violated the principles of natural justice for which the writ Court should interfere to allow the appeal. 7. Learned Advocate Mr. Tapan Mukherjee for the State supporting the order under challenge replied that question of discrimination, as was being raised, behind back of a candidate should not be entertained. Further argued that, in view of the circular dated 11.01.2011 either of the appellants was not eligible to get benefit since they did not fulfil the criteria laid down in the circular. Mr. Mukherjee submitted thereby to dismiss the appeals and applications. 8. Learned Advocate Arjun Roy Mukherjee for Jogesh Chandra Chaudhuri Law College adopting the submission of the state added that the appellants are not entitled to claim negative equality, that too in absence of the candidates, who were alleged to have been given benefit of the circular dated 11.01.2011 allegedly in utter discrimination to the appellants. 9. Lis in both the appeals, as we find, was the same and identical i.e. as to whether the appellants being part-time lecturers were entitled to get benefit of circular no. 49-Edn(CS)/ 10M - 27/2000 dated January 11, 2001 of the Government of West Bengal, Higher Education Department. 9. Lis in both the appeals, as we find, was the same and identical i.e. as to whether the appellants being part-time lecturers were entitled to get benefit of circular no. 49-Edn(CS)/ 10M - 27/2000 dated January 11, 2001 of the Government of West Bengal, Higher Education Department. It is stated by the appellants that all other candidates, not only of the subject college, but also of other colleges, in similarly situated circumstances, were allowed benefit of the said circular by making them regularised and also providing them with U.G.C Scales. Hence in doing so, the respondents had made Dr. Shampa Bhanja and Dr. Bulbul Sircar Ray victim of discrimination, though they had been rendering services to the subject college since 1991 and 1994 respectively. 10. Therefore, as also consented to by the parties to hear the appeals finally along with the applications, we find no legal impediment to dispose of both the appeals and its connected applications by the same judgment. 11. Since the circular dated 11th January 2001 was made basis of claim of regularisation with scale benefit as per U.G.C. scales, relevant portions of said circular are set out:- “From : Shri R.K. Chakraborti, Dy. Secretary to the Govt. of West Bengal. To : The Director or Public Instruction, West Bengal. Sub:-Jogesh Chandra Choudhury Law College-Payment of salaries of teaching and non-teaching staff under the West Bengal Non-Govt. Colleges (Payment of salaries) Act, 1978. The undersigned is directed to say that the question of extending the benefit of the West Bengal Non-Govt. Colleges (Payment of Salaries) Act, 1978 to the teaching and non-teaching staff, Jogesh Chandra Choudhury Law College, Kolkata, was under consideration of the Department for some time past. The Governor, after careful consideration has been pleased to decide that the Principal, Teachers and Librarian/Asstt. Librarian having U.G.C. prescribed qualifications and drawing U.G.C. scales of pay on the date of this order and the non-teaching staff of Jogesh Chandra Choudhury Law College as mentioned in the Schedule below be brought under the purview of the above mentioned Act w.e.f. 1.4.2000 for payment of salaries applicable to the Teaching and non-Teaching staff on the following terms & conditions...........................................” 12. It is evident from record that despite the circular dated 11.01.2001 (supra), the Governing Body of Jogesh Chandra Chaudhuri Law College by its resolution dated 03.03.2008 benefit of remuneration to both the writ petitioners/appellants along with 16 others listed candidates were extended consolidatedly and not in accordance with U.G.C. scales. The extract of resolution dated 03.03.2008 is set out:- “EXTRACTS OF THE RESOLUTION OF THE GOVERNING BODY OF JOGESH CHANDRA CHAUDHURI LAW COLLEGE OF ITS MEETING HELD ON 03.03.2008 Item No.4 Resolved that the following as Part-time Teachers will continue until further order at the rate of Rs. 4,000/- per month. They will take 6(six) lecture periods per week they will get Rs. 150/- per lecturer for extra classes if allotted to them. 01. Smt. Shampa Banja 02. Smt. Bulbul Sircar Roy...........................” 13. So it can be inferred well that the appellants along with others pursuant to such resolution, had enjoyed benefit of such extended monthly remuneration in lieu of rendering services as part-time lecturers in the college. From letter no. 227-Edn(CS) dated 01.03.2011 issued by the Government of West Bengal it appears that in view of the circular no. 751-Edn(CS)-5P-46/99 dated 21st September, 2010 engagement of these two appellants along with monthly remuneration @ Rs. 13, 500/- (in the perspective of period of service rendered by them till then) along with six others (with their respective remunerations) as part time teacher in Jogesh Chandra Chaudhuri College of Law was approved by the Governor of the State. It is redundant to say that these appellants thus in one way had kept on continuing their services as part-time teachers of the college in lieu of such remuneration as approved on 01.03.2011, therefore, in other way filing of the writ petitions suddenly in the year of 2015 claiming benefit of the circular dated 11.01.2001, they have eclipsed their right to claim due to passage of time elapsed in between. 14. As we find that the appellants of the respective appeal were appointed as part time teacher in the subject college and thereby not selected by college service commission at any subsequent stage following any regular selection process. Rather both of them had accepted their respective monthly remuneration as Part-time teacher in the college as was approved by the Government Circular dated 1st March, 2011 (supra). So the appellants cannot approbate and reprobate at the same time. 15. Rather both of them had accepted their respective monthly remuneration as Part-time teacher in the college as was approved by the Government Circular dated 1st March, 2011 (supra). So the appellants cannot approbate and reprobate at the same time. 15. Now on scrutiny of the Circular dated 11th January, 2001 (supra) we find that the benefit of the West Bengal Non-Government Colleges (Payment of Salaries) Act, 1978 was extended to the principal, teachers and librarian etc., who on the date of that order (i.e. on 11th January, 2001) was having U.G.C. prescribed qualifications and (emphasis supplied to the word ‘and’) drawing U.G.C. scales of pay. Therefore, the effect of salary benefit as per the circular would have been available to those candidates who would qualify those two conditions (i.e. prescribed qualifications and enjoying prescribed scales on the date of the order) w.e.f. 1st April, 2000 subject to the terms and conditions as also laid down thereunder, otherwise not. 16. Admittedly on 11th of January, 2001 one of the appellants Dr. Shampa Bhanja had qualification of M.A. in History along with L.L.B. degree, but had not been enjoying U.G.C. scales of pay on that day, rather, was being paid consolidated remuneration per month as part-time teacher. Similarly the other appellant Dr. Bulbul Sircar Ray was having M.A. degree in Political Science on 11th January, 2001 but was not drawing U.G.C. scales of pay on that date. Therefore either of them is not entitled to get benefit of such circular since either of them did not fulfil two requisite criterias together to be qualified for enjoying the benefit as per the circular. Moreover, the circular did not indicate about its applicability to any part timer having consolidated remuneration which was far less than U.G.C. scales of pay. Therefore the Learned Trial Judge rightly declined their prayer as sought for in the writ petitions, which does not suffer from legal infirmity. Therefore, it requires no interference in appeal. 17. It is obvious that had there been any alleged discrimination in respect of other candidate allegedly similarly situated like the appellants, either of those candidates having not been made parties by either of the appellants in their respective writ petition, we cannot pass any order against them in their absence on record by taking any cognizance of the alleged discrimination, complained of. However in the stay petition being CAN 3662 of 2016 in connection with M.A.T. No. 530 of 2016, filed by Dr. Shampa Bhanja since in paragraphs 10, 11, 12 & 13 some names of the candidates were disclosed, who despite non-fulfilment of the criterias, were allegedly favoured with the aforesaid circular dated 11th January, 2001 (supra), and since, the respondent Nos. 4 to 6 including the State authority could not submit proper answer as to whether there was any other discrimination in the alleged similarly situated circumstances, then the Writ Court, that too of appellate jurisdiction, cannot keep its eyes shut down but to direct the authority for revisiting upon hearing to see that the principle of equality before law was not violated in giving effect of the circular dated 11.01.2001 (supra). 18. In our view, when the State of West Bengal including its Finance Department, the Director of Public Instructions Department of Higher Education Government of West Bengal and the Governing Body of the subject College including its President and Principal are parties to the proceedings, we find it fit to direct them to ensure revisiting the situation upon giving opportunity of hearing to all concerned as to whether any candidate, in the similarly situated circumstance like the appellants, despite non-fulfilment of two conditions together, as mentioned in the circular dated 11th January, 2001(supra), was favoured by extending benefit of said circular during the period from 1st April, 2001 to 31.03.2015. We make it clear that nonetheless of not fulfilment of those two conditions together as laid down in the circular, had there been any order extending benefit of U.G.C scale of pay the authority concerned upon conclusion of enquiry and hearing may be at liberty to take all necessary steps permissible under law or rules, not only in respect of the candidates in default, but also the erring officers in person if acted in the name of authoritys in violation of the circular dated 11.01.2001(supra). 19. For all the aforesaid reasons, both the appeals being No. M.A.T. 458 of 2016 and M.A.T. 530 of 2016 are dismissed and as a consequence thereof the application Nos. CAN 2857 of 2016 with CAN 8886 of 2016 connected with MAT 458 of 2016 and application Nos. CAN 3662 of 2016 with CAN 7414 of 2016 connected with M.A.T. 530 of 2016 are rejected. 20. CAN 2857 of 2016 with CAN 8886 of 2016 connected with MAT 458 of 2016 and application Nos. CAN 3662 of 2016 with CAN 7414 of 2016 connected with M.A.T. 530 of 2016 are rejected. 20. Before departing from the matter, since on the point of discrimination, as urged by the appellants, we have provided certain directions upon the State of West Bengal & Ors., learned Registrar General, High Court, Calcutta is directed to communicate a copy of this judgment to the Chief Secretary to the Government of West Bengal to make all arrangements for taking adequate steps as required to be done through one committee consisting of members not exceeding five, to revisit the allegations of discrimination upon hearing all concerned, as indicated in the body of the judgment, which shall be headed by the Judicial Secretary, Government of West Bengal. No order as to costs.