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2017 DIGILAW 446 (CAL)

Sudipta Sarkar v. State of West Bengal

2017-05-04

SUBRATA TALUKDAR

body2017
JUDGMENT : 1. Mr. N. C. Bihani, Learned Counsel appears for the writ petitioner and prays for parity of treatment as earlier granted to similarly circumstanced petitioners by order of this Court dated 24th April, 2017 disposing of W.P.13056 (W) of 2016 and W.P. 13057 (W) of 2016. 2. The order dated 24th April, 2017 of this Court (supra) follows an earlier adjudication by a Hon’ble Coordinate Bench dated 1st March, 2016 also disposing of seven writ analogous petitions and, reads as follows: “Mr. N. C. Bihani, Learned Counsel appears for the writ petitioner. Mr. Bihani submits that in view of the two-fold prayers in both the writ petitions namely, a prayer for being recognised to the appropriate post after completion of the requisite years of service and second, for granting permission to the petitioner to appear for interview to the post of Principal, an Hon’ble Single Bench vide its order dated 7th of November, 2016 in W.P. 13056 (W) of 2016, was pleased to grant opportunity to the parties to exchange affidavits. 3. By another order dated 21st of July, 2016 in W.P. 13057 (W) of 2016, the petitioner was permitted to participate in the selection procedure for the post of Principal of the Respondent/College in issue with the rider that the Respondent/College in issue shall not publish the results of the selection without the leave of the Court. 4. Mr. Bihani today submits that in both the writ petitions the petitioners do not press the second of the two-fold prayers, i.e. for being allowed to participate in the selection procedure for the post of Principal. 5. However, in respect of the first prayer, which is for treating the petitioners as Associate Professors with effect from the date of completion of three years of service from their appointment as a Readers, Mr. Bihani submits that the final order of the Hon’ble Coordinate Bench dated 1st of March, 2016 in connected analogous matters has attained finality and also covers the first prayer of the present petitioners. Accordingly, Mr. Bihani prays for a parity of treatment. 6. The operative portion of the final order dated 1st of March, 2016, inter alia, reads as follows:- “This interpretation allows the hardship Clause to remain in harmony with all other Clauses of the U.G.C. Regulation, 2000. Accordingly, Mr. Bihani prays for a parity of treatment. 6. The operative portion of the final order dated 1st of March, 2016, inter alia, reads as follows:- “This interpretation allows the hardship Clause to remain in harmony with all other Clauses of the U.G.C. Regulation, 2000. The clarification that the State Government had obtained from U.G.C. from time to time speaks uniformly that the U.G.C. Regulations 2000 have a hardship Clause. One has to take into account the hardship Clause while considering an individual case. The impugned memo dated March 31, 2015 has not taken into consideration the hardship Clause at all. The interpretation and the U.G.C. Regulation 2000 given in the impugned memo are contrary to the U.G.C. Regulation 2000. The same therefore cannot be sustained. The impugned memo dated March 31, 2015 is set aside. In Mamata Mahanti (supra), the Hon’ble Supreme Court has held that a person cannot enforce negative equality. In the present case of the petitioners before me are not enforcing any negative equality. Their rights flow out of the U.G.C. Regulation 2000. On a proper construction the U.G.C. Regulation, 2000 impugned memo dated March 31, 2015 cannot be upheld. Consequent to the setting aside of the impugned memo dated March 31, 2015, the authorities will consider the individual cases of the petitioners before me in accordance with law. In such circumstances, seven writ petitions being W.P. 21949 (W) of 2015, W.P. 17856 (W) of 2015, W.P. 21950 (W) of 2015, W.P. 21951 (W) of 2015, W.P. 21939 (W) of 2015, W.P. 21940 (W) 2015 and W.P. 21941 (W) of 2015 are allowed without any order as to costs.” “On Behalf of the Respondent/West Bengal College Service Commission, Mr. Pulak Ranjan Mondal, Learned Counsel appears. For the Respondent/University Grants Commission, Mr. Anil Kumar Gupta, Learned Counsel appears. The State-respondents are represented by Mr. Tapan Kumar Mukherjee, Learned Additional Government Pleader with Mr. Rabindra Narayan Dutta, Learned Advocate. Having heard the parties and considering the fact that the order dated 1st of March, 2016 stands already complied with by the Director of Public Instruction, West Bengal in respect of similarly circumstanced persons, vide his Memo No. 561-UGC/4P-54UGC/09 (Pt), this Court is of the view that the present writ petitions need not be kept pending further. Having heard the parties and considering the fact that the order dated 1st of March, 2016 stands already complied with by the Director of Public Instruction, West Bengal in respect of similarly circumstanced persons, vide his Memo No. 561-UGC/4P-54UGC/09 (Pt), this Court is of the view that the present writ petitions need not be kept pending further. Accordingly, the present petitioners shall stand covered by the directions of the Hon’ble Co-ordinate Bench dated 1st of March, 2016 (supra) and, the competent State authorities shall be entitled to take steps in the light of the said directions. In view of the prayer made by Mr. Bihani, as recorded above, that the second prayer of the participation in the selection to the post of Principal stands not pressed and, taking notice of the first prayer of the petitioners as also recorded above, the College Service Commission shall be now free to proceed in accordance with law. This Court further records that the prayers of the petitioners to participate in the selection process in the post of Principal stands not pressed. W.P. 13056 (W) of 2016 and W.P. 13057 (W) 2016 stand accordingly disposed of without inviting further affidavits.” 7. Mr. Bihani accordingly submits that the present petitioner is identically circumstanced except that there is no second relief sought for being allowed to participate in the selection to the post of Principal. 8. None appears for the State-respondents. Noticing the presence of Mr. Priyabrata Batabyal, Learned Counsel who normally appears for the State-respondents, let notice of this writ petition be served on Mr. Batabyal to the brief. The appointment of Mr. Batabyal to this brief be regularised. 9. Mr. Batabyal submits that he has instructions now to file an affidavit-in-opposition to the present writ petition. 10. Mr. Anil Kumar Gupta, Learned Counsel, appears for the University Grants Commission (for short UGC). 11. None, however, represents the West Bengal College Service Commission (for short the Commission) today. 12. Having considered the submissions of the parties and the materials placed, this Court is of the view that the order dated 24th April, 2017 (supra) recognises the finality of the terms of the solemn order of the Hon’ble Coordinate Bench dated 1st March, 2016 which has been already implemented by the competent State Authority. 12. Having considered the submissions of the parties and the materials placed, this Court is of the view that the order dated 24th April, 2017 (supra) recognises the finality of the terms of the solemn order of the Hon’ble Coordinate Bench dated 1st March, 2016 which has been already implemented by the competent State Authority. This Court accordingly grants parity of treatment to the petitioner on the same terms as directed by the order dated 1st March, 2016 (supra) and, respectfully approved by the order of this Court dated 24th April, 2016. 13. This Court also records that the petitioner is not claiming any other relief of being allowed to participate for selection to the post of Principal, as submitted by Learned Counsel, Mr. Bihani. 14. WP No. 12988 (W) of 2017 stands accordingly disposed of without pushing the matter to affidavits.