Dilip Mukherjee vs State Of West Bengal& Ors
2022 Latest Caselaw 280 Cal

03.02.2022 sayandeep

WPA 1068 of 2022

Dilip Mukherjee

-Versus-

State of West Bengal& Ors.

Mr. Piush Chaturvedi Mr. Tarun Kumar Das ...... for the petitioner

Mr. Supriyo Chattopadhyay Mr. Biswarup Biswas .... for the State

The petitioner has challenged a reasoned

order dated 10th February, 2020 passed by the Registrar

of Rabindra Bharati University and a communication of

the said University dated 2nd August, 2021. By the

reasoned order, the Registrar has recorded that

Accompanists cannot be re-designated as Teachers of

Rabindra Bharati University. The communication dated

2nd August, 2021 requires the petitioner to retire on 31st

January, 2022.

The petitioner was appointed to the post of

"Accompanist Teacher" in the Department of

Instrumental Music, Rabindra Bharati University. The

petitioner joined the post on 8th August, 2008 and the

petitioner's service was confirmed by a Memo Dated 27th

November, 2009 which was given effect from 8th August,

2008. In the present writ petition, the petitioner

contends that the petitioner cannot be subjected to a

forced retirement on 31st January, 2022 since the

petitioner is entitled to serve the University as an

Accompanist Teacher till the petitioner attains the age

of 65 years. The petitioner has completed 60 years on

31st January, 2022.

The petitioner relies on a Notification dated 24th

January, 2019 of the Finance Department, Govt. of

West Bengal, under which the retirement age of all full-

time regular teachers who were in service as on 1st

January, 2019 was enhanced from 62 years to 65 years

with immediate effect. The retirement age of full-time

regular teachers had been enhanced from 60 to 62

years by an earlier Notification dated 27th January,

2017.

Learned counsel appearing for the petitioner

relies on three decisions of a Co-ordinate Bench and

Division Benches of this Court on an identical issue,

namely, whether an Accompanist Teacher would be

regarded as a teaching or a non-teaching staff under

the relevant provisions of The Rabindra Bharati Act,

1981 and the notifications/regulations issued by the

University and the Government. According to counsel,

the petitioner should have the benefit of the judgments

and orders passed by several learned judges of this

Court since the petitioner stands on a similar footing

with the petitioners in those cases. The petitioner was

in fact a party before the Division Bench in M.A.T. 193

of 2019 (The Rabindra Bharati University and Ors. vs Sri

Ashish Mukherjee) from which a challenge was

unsuccessfully carried by Rabindra Bharati University

to the Supreme Court and the special leave petition was

dismissed.

Learned counsel appearing for the University cites

several judgments to show that the University cannot

frame any rules contrary to The University Grants

Commission Act, 1956 or the Regulations framed

thereunder. Counsel submits that the petitioner does

not have the necessary qualification for being

designated as a Teacher under the Rules framed by the

UGC. It is further submitted that the Supreme Court

did not go into the merits of the case while dismissing

the Special Leave Petition from the appeal in Sri Ashish

Mukherjee. Counsel submits that the Division Bench

order in Sri Ashish Mukherjee did not take into account

the relevant UGC Notifications.

Learned counsel appearing for the State relies on

the decisions of the Single and Division Benches of this

Court in support of the arguments made on behalf of

the petitioner.

From the submissions of learned counsel

appearing for the parties, it is evident that the petitioner

in the present writ petition stands on a similar, if not

identical, footing as that of the petitioners in Ashish

Mukherjee vs The State of West Bengal & Ors. in W.P

1747(W) of 2019; Biswajit Ghosh vs Dhimadhab Kirtania

& Ors. in M.A.T 427 of 2018 and The Rabinadra Bharati

University vs Sri Ashish Mukherjee in M.A.T. 193 of

2019. In all the three matters, the petitioners before the

court had challenged Resolutions/ Notifications of the

University by which the petitioners were categorised as

non-teaching staff. The petitioners were successful in

all the three proceedings before the two Division

Benches and a learned Single Judge of this Court. In

effect the Court held that the Resolutions and

Notifications re-designating the petitioners as non-

teaching staff could not be sustained and the

petitioners should have the benefit of the Notification

which governs the petitioner's appointment to the

University as on the date of joining. As stated above, the

petitioner herein was a party before the Division Bench

in Sri Ashish Mukherjee and can hence rightfully claim

the benefit of the order passed by the Division Bench.

The decisions passed by the three benches of this

Court are required to be briefly stated. In Biswajit

Ghosh vs. Dhimadhab Kirtania/ Dhimadhav Kirtania vs

State of West Bengal MAT 427 of 2018 & MAT 683 of

2018 the Division Bench considered the prayer of the

Accompanist Teachers of Rabindra Bharati University

for retiral benefits on the amended definition of

"Teacher of the University" under Section 2 (22) of The

Rabindra Bharati Act, 1981. The Division Bench set

aside the Resolutions as well as a Notification of the

University on the ground of procedural infirmity and

held that both the Resolution as well as the Notification

of June and August, 2016, respectively, by which the

status of Accompanist Teachers was altered, could not

be sustained. The Single Bench in W.P 1747 of 2019

(Ashish Mukherjee) considered a matter identical to the

present writ petition, namely, a communication of

August, 2018 by which the petitioner before the Court

was asked to retire on completing 60 years of age as on

31st January, 2019. The learned Single Judge relied on

the provisions of The Rabindra Bharati Act, 1981, and

directed the University to allow the petitioner to

continue to serve until the petitioner reaches the age of

retirement as provided in the Notification dated 27th

January, 2017. Notably, the Notification dated 27th

January, 2017 enhanced the age of retirement from 60

years to 62 years for full-time regular teachers. The

subsequent Notification of 24th January, 2019 further

extends the retirement age to 65 years. The petitioner

relies on this Notification.

The Division Bench in Sri Ashish Mukherjee, on

an appeal carried by the Rabindra Bharati University,

declined to interfere with the order of the Single Bench

and directed the University to disburse all service

benefits to the writ petitioner as a "Teacher" under the

relevant provisions of the 1981 Act.

There is no doubt that the three decisions cover

the controversy in the present case. The petitioner

herein is also aggrieved by a reasoned order dated 10th

February, 2020 passed by the University divesting the

petitioner of the status of an Accompanist Teacher and

a consequent communication dated 2nd August, 2021

asking the petitioner to retire on 31st January, 2022.

Learned counsel appearing for the University has not

been able to show any decision of this Court which can

assist the University in opposing the prayer of the

petitioner. The University cannot set up a contra case

unless it can show that the decisions of the three

Benches of this Court were interfered with or set aside

by Co-ordinate Benches or by the Supreme Court. There

is also no significant subsequent event which would

persuade this Court to take a different view of the

dispute in this matter.

The argument that the relevant UGC Regulations

could not be placed before the Division Bench in Ashish

Mukherjee is completely misplaced and contrary to the

records. The order of the learned Single Judge as well

as the Division Bench in Sri Ashish Mukherjee refer to

the UGC Act and Regulations. In any event, the issue

here is whether the petitioner can be re-designated as a

non-teaching staff and not whether the petitioner was

appointed in contravention of the UGC Regulations.

Section 2 (22) of The Rabindra Bharati Act, 1981

as amended in 1985 defines "Teacher of the University"

to include "Accompanist". Even if one takes into

account the 2012 Amendment to the definition of

"Teacher of the University" (Section 2 (22) of the 1981

Act) the term "Accompanist" was not included in section

2 (14) of the Act which defines "non-teaching staff".

Under the said definition, "non- teaching staff" means

non-teaching staff, not holding any teaching post and

appointed and recognised as such by the University and

includes technical staff but does not include a Librarian

or an Officer. This point was considered by the Single

Bench as well as by the Division Bench in Sri Ashish

Mukherjee and decided in favour of the petitioner.

Indisputably, the petitioner was appointed to the

post of an Accompanist Teacher in the Department of

Instrumental Music in Rabindra Bharati University on

8th August, 2008 and confirmed one year later. The

amended definition of "Teacher of the University"

including "Accompanist" was the prevailing statutory

position as on the date of the petitioner's appointment.

The further amendment to the definition of Teacher of

the University in 2012 was subsequent to the

petitioner's appointment to the University and cannot

have retrospective effect to bring the petitioner within

its fold. The petitioner therefore has to be given the

benefit of The Rabindra Bharati (Amendment) Act, 1985

which amended section 2 (22) to include Accompanist

in the definition of "Teacher of the University". The

petitioner must be governed by the rules and

regulations of the University as on the date of his

appointment and his retirement must also be

considered on the basis of the status in which the

petitioner was appointed to the University in 2008. The

petitioner cannot, on the eve of his retirement, suddenly

be re-designated as a non-teaching staff and be forced

to retire on such re-designation at the age of 60 years.

The petitioner must be given the benefit of the

Notification dated 24th January, 2019 under which the

retirement age of the regular teachers has been

extended to 65 years.

It is also important to note that the UGC has

recognised the distinctive position of Rabindra Bharati

University as a university positioned to teach subjects

in music and the fine-arts and has accordingly framed

the qualifications of teachers. In that sense, an

"Accompanist" would fulfil the eligibility criteria of a

teacher, once brought into the purview of a "Teacher of

the University" under the amended provisions of The

Rabindra Bharati Act, 1981.

Having held that the amended definition of a

teacher or any resolution taken pursuant thereto will

not apply to the petitioner, the provisions of the

University Grants Commission Act, 1956 or any

connected notification would be of little relevance to the

present matter. Most of the decisions cited by learned

counsel for the University are on the premise that the

State cannot pass a law in a field which is already

occupied by the UGC Act; (ref: (2005) 5 SCC 420, 1994

Supp (3) SCC 516, (1987) 4 SCC 671). The other

decisions are on the meaning of the expression 'Per

Incuriam': (2020) 4 SCC 1, (2014) 7 SCC 340. These

cases have been cited in support of the contention that

the Division Bench decision in Sri Ashish Mukherjee did

not consider the relevant UGC Regulations. Since this

point has already been discussed in the earlier

paragraphs, these decisions do not assist the University

save and except as a general proposition of law. (2011)

14 SCC 770 has been cited on the doctrine of res

judicata in support of the contention that the Division

Bench decision in Sri Ashish Mukherjee cannot be a

binding precedent. Since learned counsel for the

University has not been able to show any decision

expressing a different view to Sri Ashish Mukherjee or

Biswajit Ghosh vs Dhimadhab Kirtania & Ors., this

argument is also rejected.

In view of the above reasons, this Court finds

merit in the case made out by the writ petitioner and

WPA 1068 of 2022 is accordingly allowed in terms of

prayers (b) and (c). The reasoned order of the University

dated 10th February, 2020 as well as the

communication dated 2nd August, 2021 are quashed

and set aside. The University is directed to allow the

petitioner to remain in service till the petitioner attains

the age of superannuation i.e. 65 years of age as per the

relevant notifications.

WPA 1068 of 2022 is disposed of accordingly.

Urgent photostat certified copy of this order, if

applied for, be given to the parties on usual

undertakings.

(Moushumi Bhattacharya, J.)