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2016 DIGILAW 914 (CAL)

Alok Kumar Ghosh v. University of Kalyani

2016-11-23

DEBANGSU BASAK

body2016
JUDGMENT : Debangsu Basak, J. The petitioner has assailed an Order dated June 17, 2016 passed by the Registrar of the University of Kalyani. By such order the Registrar has informed the petitioner of the decision of the Executive Council of the University dated June 17, 2016 to the effect that it seeks to keep in abeyance the absorption of the petitioner from the post of Research Associate to the post of Lecturer (Assistant Professor) and the subsequent promotions granted to him under the Career Advancement Scheme. 2. Learned Senior Advocate for the petitioner has submitted that, the petitioner was initially appointed as a Research Associate in the Department of History. The petitioner had sought the status of a Lecturer from the date of his appointment to the post of Research Associate. He had filed a writ petition for such purpose. Such writ petition was dismissed by the Trial Court. On appeal, the Hon’ble Division Bench by a judgment and order dated January 12, 1993 had allowed the writ petition of the petitioner. The Hon’ble Division Bench had directed the authority to treat the petitioner as a teacher as defined in Section 2(19) and Section 2(20) of the Kalyani University Act, 1981 with effect from the date when he was imparting instructions to the students of the University. He has also submitted that, the State had carried a Special Leave Petition to the Hon’ble Supreme Court of India. The same was disposed of on March 20, 2002 by directing the State of West Bengal and the University of Kalyani to comply with the directions of the High Court dated January 12, 1993 if not yet done within a period of six months. He has referred to an Order dated April 5, 2013 issued by the Deputy Secretary directing the University to fix the status of the petitioner and his salary as a Lecturer with effect from April 1, 1987 with the consequential benefits including Career Advancement Scheme as per the rules and order prevailing at the corresponding time. He has also referred to the writing dated January 14, 2013 issued by the University of Kalyani informing the parties concerned of the decision of the Executive Council of Kalyani University to accept the order of the Higher Education Department dated June 19, 2012. 3. He has also referred to the writing dated January 14, 2013 issued by the University of Kalyani informing the parties concerned of the decision of the Executive Council of Kalyani University to accept the order of the Higher Education Department dated June 19, 2012. 3. Referring to a writing dated December 6, 1968 disclosed in the affidavit-in-reply learned Senior Advocate for the petitioner has submitted that, the University Grants Commission (UGC) had directed that, the post of a Research Associate may be considered as equivalent to the post of Lecturer at the University. He has referred to the Division Bench judgment and order dated January 12, 1993 and has submitted that, the petitioner was directed to be considered as a teacher as defined in Section 2(19) and Section 2(20) of the Kalyani University Act, 1981. The Order dated January 12, 1993 read with the University Grants Commission writing of 1968 permits the Higher Education Department to direct the University authorities to treat the petitioner as a Lecturer. 4. Learned Additional Advocate General appearing for the State has submitted that, the post of Lecturer is not the minimum teaching post of a teacher at the University. He has submitted that, although the petitioner had asked for the status of a teacher the same was not granted by the Court in the earlier writ petition. He has referred to the judgment and order dated January 12, 1993. He has submitted that, a Lecturer is appointed by a process laid down by the University Grants Commission. In such process a Lecturer cannot be appointed by way of promotion. He has relied upon 2001 5 SCC 327 (Anil Ratan Sarkar & Ors. v. State of W.B. & Ors.) and has submitted that, a teacher cannot be allowed a pay scale of a non-teaching post. 5. The petitioner cannot be promoted from the post of Research Associate to a Lecturer and, thereafter, given the promotion under the Career Advancement Scheme as was sought to be done by the University. The University authorities having found their mistakes in their actions have sought to correct the same. Therefore, there is no infirmity in the impugned order. He has submitted that, a mistake made by the Executive can be corrected subsequently and has relied upon AIR 1964 SC 521 (The State of Punjab v. Jagdip Singh) in support of such proposition. 6. The University authorities having found their mistakes in their actions have sought to correct the same. Therefore, there is no infirmity in the impugned order. He has submitted that, a mistake made by the Executive can be corrected subsequently and has relied upon AIR 1964 SC 521 (The State of Punjab v. Jagdip Singh) in support of such proposition. 6. Learned Additional Advocate General for the State has commented on the letter dated April 5, 2013 issued by the State authorities. He has submitted that, the letter dated April 5, 2013 could not have been issued by the Higher Education Department and that, as the same entails financial implications, the prior approval of the Finance Department had to be obtained by the Higher Education Department for issuing the same. He has produced the relevant file of the Higher Education Department. He has referred to the various notes in such file and has submitted that, the Finance Department had no point of time granted approval for the financial implications involved in the letter. He has also referred to the Rules of business. He has submitted that, when a decision taken by the Executive is in violation of the Rules of business, such decision does not bind the Executive. In support of such contentions, he has referred to 1973 1 SCC 480 (Fonseca Private Ltd. & Ors. v. L.C. Gupta & Ors.), 1973 3 SCC 889 (Haridwar Singh v. Bagun Sumbrui & Ors.) and 2010 11 SCC 374 (MRF Ltd. v. Manohar Parrikar & Ors.). 7. Learned Additional Advocate General for the State has submitted that, the petitioner does not have the requisite qualification to hold the post of Lecturer in terms of the guidelines issued by the University Grants Commission. 8. Learned Senior Advocate on behalf of the University has submitted that, the Division Bench by the judgment and order dated January 12, 1993 did not appoint the petitioner as a Lecturer. He has referred to the judgment and order dated January 12, 1993 and has submitted that, the relief sought for by the petitioner was not granted by the Division Bench. He has referred to the first paragraph of the judgment and order and has submitted that, the petitioner wanted the right of a teacher. The same was not granted to the petitioner. He has referred to the first paragraph of the judgment and order and has submitted that, the petitioner wanted the right of a teacher. The same was not granted to the petitioner. He has submitted that, a contempt petition was filed by the petitioner where the petitioner did not receive any relief. He has referred to the order passed in such contempt petition dated June 15, 1994. 9. Learned Senior Advocate for the University has emphasized the fact that, the Division Bench judgment and order is dated June 12, 1993 and that the order passed on the contempt petition is dated June 15, 1994. The petitioner had taken the scale of pay granted to him till 2013. The petitioner, therefore, had understood the order of the Division Bench as well as the order passed in the contempt Court to mean that the petitioner was not entitled to be treated as a Lecturer and not entitled to the Career Advancement Scheme subsequent thereto. He has submitted that, the petitioner had acquiesced his rights, if any, in terms of the Division Bench judgment and order dated January 12, 1993 having accepted the scale of pay from 1993 up to 2013. He should not be allowed to contend to the contrary of his accepted position. 10. Learned Senior Advocate for the University has referred to the letter dated October 9, 2013 issued by the petitioner. Such letter speaks of the petitioner joining as a Lecturer with effect from April 1, 1987 being accepted by the University. He has submitted that, a mistake was committed by the University authorities in accepting such joining. Such mistake after its discovery was sought to be corrected by the impugned action of the University. Referring to the letter dated January 14, 2013 issued by the University authorities, learned Senior Advocate for the University has submitted that, by such letter records that the University authorities cannot suo motu change the designation nor change the pay structure and that the University has to await a specific order to such effect from the Higher Education Department. The Higher Education Department not having issued such a direction, the University had acted wrongly in issuing the letter dated October 9, 2013. 11. Learned Senior Advocate University has relied upon 1997 4 SCC 177 (Chandigarh Administration & Ors. The Higher Education Department not having issued such a direction, the University had acted wrongly in issuing the letter dated October 9, 2013. 11. Learned Senior Advocate University has relied upon 1997 4 SCC 177 (Chandigarh Administration & Ors. Naurang Singh & Ors.) in support of the contention that, the petitioner cannot claim any right on the basis of an evident mistake committed by the University or by the Higher Education Department. He has relied upon 2004 2 CHN 606 (Indian Oil Corporation Ltd. & Ors. v. Jharna Sarkar & Ors.) in support of his proposition that, a mistake committed by the University can be corrected on its discovery. 12. In reply, learned Senior Advocate for the petitioner has submitted that, none of the respondents have made any submissions with regard to the writing dated December 6, 1968 of the UGC by which UGC has stated that, the post of Research Associate may be treated as equivalent to the post of Lecturer of an University. He has also submitted that, since the Division Bench had directed the authorities to treat the petitioner as a teacher, the question of applicability of the Rules of business by the State in issuing the letter dated April 5, 2013 does not arise. 13. The following issues fall for consideration in the present writ petition:- (i) What right or rights, if any, had accrued to the parties under the judgment and order dated January 12, 1993 passed in FMAT No. 418 of 1992 and the order dated June 15, 1994 passed in the contempt petition? (ii) Is the letter dated April 5, 2013 issued by the State vitiated by reason of breach of Rules of business? (iii) Is the University entitled to revoke the letter dated October 9, 2013 and the benefits given to the petitioner thereunder on the ground of mistake as sought to be done by the impugned letter dated June 17, 2016? (iv) To what relief, if any, is the petitioner entitled to? 14. The petitioner was appointed as a Research Associate by the University on February 1, 1985. 15. (iv) To what relief, if any, is the petitioner entitled to? 14. The petitioner was appointed as a Research Associate by the University on February 1, 1985. 15. The petitioner had filed a writ petition claiming, inter alia, a direction upon the University to confer upon the petitioner the status of a Lecturer from the date of his appointment for the post of Research Associate in the University and a writ commanding the respondents to give the petitioner the pay and allowances as revised by the University Grants Commission as well as all arrears. Such writ petition was dismissed by the learned Trial Judge. An appeal was preferred, being FMAT No. 418 of 1992, by the petitioner. Such appeal was disposed of by a judgment and order dated January 12, 1993. 16. So far as the pay and allowances are concerned, the Hon’ble Division bench was pleased to hold as follows:- “……………………… Be that as it may, after considering the relevant Circulars, we entertain no doubt that the petitioner is entitled to a Writ commanding the University and the other respondents State to give the petitioner the pay and allowances as mentioned in the Circular dated 6th June, 1988. We, accordingly, direct the respondents to give the aforesaid pay and allowances with effect from 1.4.1987 as mentioned in the Circular itself, within a period of six months from date.” 17. So far as the relief with regard to conferring the status of a Lecturer to the petitioner is concerned, the Hon’ble Division Bench was pleased to direct as follows:- “Coming to the other prayer made by the appellant/writ petitioner, we also think that we can allow that prayer but in a slightly different form. It appears from the copy of the minutes of the meeting of the Executive Council of the University dated 28th August, 1985 that the Executive Council has fully accepted the position that the appellant was the holder of a teaching post and actually confirmed the appellant in the said post. From the certificate granted to the appellant by the Head of the Department of the University dated 23rd July, 1987, there should be no doubt that the appellant was imparting instructions to the students of the University. From the certificate granted to the appellant by the Head of the Department of the University dated 23rd July, 1987, there should be no doubt that the appellant was imparting instructions to the students of the University. We, accordingly, fail to understand as to why the appellant shall not be regarded as a teacher as defined in Section 2(19) and Section 2(20) for the Kalyani University Act, 1981. We, accordingly, direct issuance of a Writ commanding the respondents to treat the petitioner as a Teacher of the University with effect from the date he has been imparting instructions to the students of the University.” The petitioner had filed a contempt petition complaining violation of the judgment dated January 12, 1993. Such contempt petition was disposed of by an Order dated June 15, 1994 by directing the respondents to make payment in terms of the judgment and order dated January 12, 1993 within 15 days from the date of such order. The State had preferred an appeal from the judgment and order dated January 12, 1993 before the Hon’ble Supreme Court of India being Civil Appeal No. 9100 of 1994. Such appeal was disposed of by an Order dated March 20, 2002 by directing the State as well as the University to comply with the directions contained in the order of the Hon’ble High court dated January 12, 1993 if not yet done, within a period of six months from March 20, 2002. 18. The parties in the writ petition were allowed to file affidavits by an Order dated July 4, 2016. An interim order was also passed restraining the respondents from giving effect to the impugned order dated June 17, 2016. Such interim order has been extended from time to time. 19. The University authorities have filed an affidavit. The State did not file any affidavit. However, the State has produced the file of the Higher Education Department in this regard. A photo copy of the relevant portion of the file has been made over to the Court. Learned Advocate for the parties has addressed the Court on such file of the Higher Education Department relating to the petitioner. 20. However, the State has produced the file of the Higher Education Department in this regard. A photo copy of the relevant portion of the file has been made over to the Court. Learned Advocate for the parties has addressed the Court on such file of the Higher Education Department relating to the petitioner. 20. The judgment and order dated January 12, 1993 passed by the Hon’ble Division Bench directed that, the petitioner should be regarded as a teacher as defined in Section 2(19) and Section 2(20) of the Kalyani University Act, 1981 with effect from the date that the petitioner is imparting instructions to the students of the University. Section 2(19) and Section 2(20) of the Kalyani University Act, 1981 are as follows:- “2(19). “Teacher” means a Principal, Professor, Assistant Professor, Reader, Lecturer, Demonstrator, Tutor, Instructor or any other person, appointed or recognized as such by the University, either whole-time or part-time, for the purpose of imparting instruction or conducting research in the University or in any affiliated college or institution. 2(20). “Teacher of the University” means a Professor, Reader, Lecturer or any other person, appointed or recognized as such by the University, either whole-time or part-time for the purpose of imparting instruction or conducting research in the University.” “Research Associate” by itself does not find place in the definition of a teacher given in Section 2(19) and Section 2(20) of the Kalyani University Act, 1981. It would come within the meaning of “any other person” of such two sub-sections of Section 2. The UGC by the notification dated December 6, 1968 has stated that, for the purpose of revision of salary scales and other conditions of service, etc., the post of Research Associate may be considered as equivalent to the post of Lecturer in the University. Therefore, reading the judgment and order dated January 12, 1993 passed by the Hon’ble Division Bench along with the definition of a teacher as obtaining in the Kalyani University Act, 1981 along with the notification dated December 6, 1968 of the UGC, it can be inferred that, a Research Associate is a teacher within the meaning of Section 2(19) and Section 2(20) of the Kalyani University Act, 1981. 21. Anil Ratan Sarkar & Ors. (supra) has considered the fixation of pay scale of non-teaching post for Laboratory Attendant, the Non-Government Colleges in West Bengal after granting them the status of a teacher. 21. Anil Ratan Sarkar & Ors. (supra) has considered the fixation of pay scale of non-teaching post for Laboratory Attendant, the Non-Government Colleges in West Bengal after granting them the status of a teacher. It has been held that, a teacher cannot be allowed a pay scale of a non-teaching post. The same is a contradiction in terms. In the present case, the petitioner was directed to be considered as a teacher by the Hon’ble Division Bench in the judgment and order dated January 12, 1993. The petitioner is, therefore, entitled to the pay scale of a teacher. The lowest rung of a teacher of Kalyani University is a Lecturer. 22. A teacher of an University is entitled to Career Advancement as formulated by the UGC. The petitioner holding the post of Research Associate being a teacher of the Kalyani University is, therefore, entitled to the benefits of the Career Advancement Scheme as formulated by the UGC from time to time. 23. The first issue is answered accordingly. 24. The second, third and the fourth issue are taken up together for consideration as they are interconnected. 25. In Fonseca Private Ltd. & Ors. (supra) and Haridwar Singh (supra) the actions of the Executive was found to be ultra vires in absence of powers. In both of those two cases, the Executive was not acting pursuant to an order of the Court governing the field. 26. MRF Ltd. (supra) has considered the proprietary of notification issued by the Government of Goa in respect of the grant of rebate to Industrial Consumers of Electricity as a policy. Notification issued by the State in such a case was an Executive action without the intervention of the Court. 27. In the present case, the authorities are governed by the judgment and order dated January 12, 1993 passed by the Hon’ble Division Bench, the Order dated June 15, 1994 passed in the contempt petition as well as the order of the Hon’ble Supreme Court dated March 20, 2002. In such situation, where the authorities are duty bound to act in terms of the orders of the Court, in my view it would not lie in the mouth of such authorities after taking a decision in terms of an order of Court to contend that, the action taken in terms of the order of Court stands vitiated due to absence of power. 28. 28. The three orders of the Court had received the consideration of the Higher Education Department at diverse levels through different personnel, as would appear from the photo copy of the file made over to Court. The Higher Education Department at different levels and through different personnel had expressed the view that, the petitioner was entitled to reliefs as sought to be granted by the writing dated April 5, 2013. The Higher Education Department after elaborate discussions, as would appear from the file, had issued the letter dated April 5, 2013. None from the Higher Education Department as also the Finance Department of the State, has come forward by way of an affidavit stating that, the contents of the letter dated April 5, 2013 issued by the Higher Education Department was a mistake. The State had been afforded adequate opportunity to file affidavits. The State had chosen not to file an affidavit. In absence of a stand of the State being taken in writing, on an affidavit, it would be improper to label the letter dated April 5, 2013 as a mistake. 29. There is another ground which prompts the Court to find the letter dated April 5, 2013 not to be a mistake. The University authorities initially had acted on the basis of the letter dated April 5, 2013 and had proceeded to grant the petitioner diverse benefits. The benefits were given over a considerable period of time. A period in excess of two and half years had elapsed since the letter dated April 5, 2013 and the grant of benefits of the University to the petitioner in terms therein. The University had also granted the benefits to the petitioner in terms of the letter dated April 5, 2013 after consideration of the same at different levels and through different personnel. Therefore, such conduct on behalf of the University authorities does not prompt the Court to hold that, the entire action of the University authorities prior to the impugned letter was a mistake. 30. In Jagdip Singh (supra) on considering the facts of that case, it was found that the creation of supernumerary post was an afterthought and was of no avail as a means of validity of the original order of confirmation. Having found the original order to be a mistake, it had held that, the authorities had the rights to correct the mistake. 31. Having found the original order to be a mistake, it had held that, the authorities had the rights to correct the mistake. 31. Naurang Singh & Ors. (supra) again on appreciation of the facts of the case has found that, there was an evidence mistake while granting a pay to a particular class. 32. Jharna Sarkar & Ors. (supra) had also found on the facts of the case that, a benefit given to a dealer who did not have the right to enjoy the same, can be withdrawn as the initial grant was a mistake. 33. In the facts of the present case, I am not in a position to hold that, the letter dated April 5, 2013 is a mistake. The stand taken and the view expressed therein are plausible in the facts of this case. 34. It has been contended on behalf of the University that, the petitioner had applied under the Contempt of Courts Act, 1971 complaining of violation of the Order dated January 12, 1993. Such contempt petition was disposed of without directing the University to promote the petitioner as a Lecturer. The petitioner had accepted the enhanced pay scale and had allowed such a position to continue from 2004 to 2013. The petitioner should not be allowed to take advantage of a mistake in the letter dated April 5, 2013. 35. The records made available to the Court demonstrate that, the petitioner has been canvassing for his rights for a considerable period of time. On the basis of a letter dated December 27, 2011 the Higher Education Department had initiated the file made over to Court. The Higher Education Department has taken a consistent view supporting the claims of the petitioner. The Finance Department also had occasion to consider the file. No noting of Finance Department, contrary to the stand of the Education Department has been brought to notice of the Court. It cannot be said that, the petitioner had accepted the position prevailing prior to the issuance of the letter dated April 5, 2013 and is, therefore, not entitled to any relief in the present writ petition. 36. In view of the discussions above, the second issue is answered in the negative and against the respondents. The letter dated April 5, 2013 does not stand vitiated as it was issued in terms of orders of Court. 37. 36. In view of the discussions above, the second issue is answered in the negative and against the respondents. The letter dated April 5, 2013 does not stand vitiated as it was issued in terms of orders of Court. 37. The third issue is answered in the negative and against the respondents. The authorities having granted the benefits to the petitioner is not entitled to revoke the same sought to be done by the impugned letter dated June 17, 2016. 38. The fourth issue is answered by quashing the letter dated June 17, 2016 issued by the University authorities. Any step taken pursuant to or in terms therewith is also set aside. 39. W.P. No. 11320 (W) of 2016 is disposed of. No order as to costs.