Dr. Achina Kundu vs The State Of West Bengal & Ors
2022 Latest Caselaw 1663 Cal

                       IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE
Present:
The Hon'ble Justice Moushumi Bhattacharya
                              WPA 1597 of 2018
                              Dr. Achina Kundu
                                        Vs.
                        The State of West Bengal & Ors.

For the Petitioner                  :     Mr. Saktinath Mukherjee, Adv.
                                          Mr. Saptangshu Basu, Adv.
                                          Mr. Indranil Nandi, Adv.
                                          Mr. Soumya Majumdar, Adv.
                                          Mr. Sayak Konar, Adv.

For the Respondent Nos. 7 & 8       :     Mr. Vivekananda Bose, Adv.
                                          Ms. Deboleena Ghosh, Adv.

For the University                  :     Mr. Raghunath Chakraborty, Adv.


Last Heard on                       :    10.03.2022.

Judgment on                         :    30.03.2022.



Moushumi Bhattacharya, J.

1. The petitioner prays for a declaration that the petitioner is not bound

by an order passed by the Division Bench of this Court in MAT No. 458 of

2016 and MAT No. 530 of 2016 and that the petitioner cannot be summoned

by the committee constituted on the basis of the said order or be required to

appear before the committee on the grounds which would be apparent in the

following part of this judgment.

2. The order passed by the Division Bench was the result of an appeal

filed by the private respondent nos. 7 and 8 herein from a dismissal of the writ

petition filed by the said respondents by the Single Bench order dated 29th

February, 2016. Two writ petitions filed by the respondent nos. 7 and 8 were

dismissed by orders dated 29th February, 2016. The said respondents

challenged the orders before the Division Bench wherein both the appeals

were dismissed by the judgment and order dated 23rd December, 2016. While

dismissing the appeals, the Division Bench directed constitution of a

committee headed by the Judicial Secretary, Government of West Bengal, to

revisit the allegations of discrimination against the private

respondents/appellants after hearing all concerned parties as indicated in the

body of the judgment.

3. The basis of the writ petitions culminating in the judgment and order

passed by the Division Bench is required to be briefly stated. The private

respondents are part-time teachers of Jogesh Chandra Chaudhuri Law

College and sought to take the benefit of a G.O. dated 11.01.2001 issued by

the Higher Education Department, Government of West Bengal. Under the

said G.O., the Principal, Teachers and Librarian/Asst. Librarian having UGC

prescribed qualifications and drawing UGC scale of pay on the date of the G.O.

as well as non-teaching staff of Jogesh Chandra Chaudhuri Law College were

brought under the purview of the West Bengal Non-Govt. Colleges (Payment of

Salaries) Act, 1978 with effect from 01.4.2000 for payment of salaries on the

terms and conditions stated in the said G.O. The private respondents filed the

writ petitions also on the ground that the private respondents were similarly

situated as other part-time lecturers of the College whose services had been

regularized by the State Government. The private respondents hence alleged

that they had been discriminated against. The learned Single Judge dismissed

the writ petitions on the basis that the private respondents had not been able

to establish that they possessed the requisite qualification for appointment to

the post of lecturer and held that the private respondents cannot take the

benefit of such alleged violation even if the other appointments were in

violation of the relevant statutes.

4. The judgment and order of the Division Bench in the appeals filed by

the private respondents held that the private respondents were not entitled to

get the benefit of the 2001 Circular/G.O. since neither of them fulfilled the

requisite criteria under the said Circular. The Division Bench however noted

that the private respondents had been discriminated against and that other

similarly-situated candidates were favoured with the Circular dated

11.01.2001. The Division Bench considered it fit to direct the Department of

Higher Education of the State and the Governing Body of the College to revisit

the issue of the alleged discrimination after giving an opportunity of hearing to

all the concerned parties after noting that the other similarly-situated persons

had not been made parties to the writ petitions. A committee was thus

constituted to enquire into the issue.

5. A few of the persons who were not parties to the earlier writ petition

filed a Special Leave Petition before the Supreme Court challenging the order

of the Division Bench. The Special Leave Petition was dismissed by an order

dated 31.07.2017 directing the petitioners, who were not parties before the

High Court, to move the High Court for appropriate relief. The applicants

(petitioners before the Supreme Court) thereafter filed for a review of the

judgment and order passed by the Division Bench being R.V.W. 246 of 2017

which was delisted by an order of another Division Bench dated 14th May,

2018 on the ground of the application being barred by considerable delay. The

review petitioners were given liberty to file an application for condonation of

such delay. There is no record of any further orders or proceedings filed in

relation to the Division Bench order which is now the subject matter before

this Court.

6. The crux of the dispute in the present writ petition is whether the

committee, constituted pursuant to the order of the Division Bench, had the

power to bring the writ petitioner within the fold of the enquiry as directed by

the Division Bench.

7. According to learned Senior Counsel appearing for the writ petitioner,

the committee cannot bring the writ petitioner within the enquiry since the

petitioner had been appointed as a full time lecturer in the College with effect

from 1st September, 1998. Counsel submits that since the private

respondents (writ petitioners in the earlier proceedings) are part-time

teachers of the College, there cannot be any similarity in the respective

positions of the writ petitioner and the private respondents. It is submitted

that the order of the Division Bench does not disclose any basis for

constituting a committee to enquire into the alleged discrimination,

particularly when the appeals filed by the private respondents were found to

be without merit and dismissed on that basis. Counsel submits that the

expression "similarly-situated" can only mean part time-teachers who seek

regularization with UGC pay benefit and hence would not include the writ

petitioner who was admittedly appointed as a whole time lecturer of the

College with a pay scale on probation and was subsequently confirmed.

Counsel further submits that the petitioner cannot be subjected to the

enquiry at the instance of the private respondents whose writ petitions were

dismissed and that whether the petitioner was similarly situated or not is not

within the limited scope of the enquiry being undertaken by the committee.

8. Jogesh Chandra Chaudhuri Law College and the State have not

contested the present Writ Petition.

9. Learned counsel appearing for the private respondents submits that

although the writ petitioner was not a party to the earlier proceedings,

however, the name of the writ petitioner as well as names of some other

candidates were disclosed in paragraphs 10-13 of the stay petition filed by the

respondent no. 7 in the appeal. Counsel submits that the writ petitioner,

among others, was favoured with the benefit of the G.O. dated 11.01.2001

despite the petitioner not fulfilling the criteria mentioned in the said G.O.

Counsel submits that this formed the basis of the discrimination alleged by

the private respondents in the earlier proceedings which was taken note of by

the Division Bench in its judgment. Counsel submits that the committee was

directed to be constituted by the Division Bench upon accepting the

contentions of the private respondents and the fact that other similarly

situated persons, including the writ petitioner, had been extended the benefit

of the G.O. It is also submitted that having the UGC prescribed qualifications,

the writ petitioner was appointed as a Lecturer and was also given the benefit

of the G.O. of 2001. It is further submitted that the writ petitioner was a

member of the Governing Body of the College at the relevant point of time and

recommended herself for the benefits despite being aware that the writ

petitioner does not qualify for the same.

10. The issue which falls for consideration is whether the writ petitioner is

a person "similarly-situated" to the private respondents. If yes, the writ

petitioner would come within the purview of the enquiry undertaken by the

committee constituted pursuant to the order of the Division Bench. If no, then,

as the writ petitioner urges; the enquiry would be limited only to those who

are on same plane as the private respondents, namely, part-time teachers of

Jogesh Chandra Chaudhuri Law College, i.e. those who were denied the

benefit of the G.O. dated 11.01.2001.

11. Admittedly, the writ petitioner was not a party in the two writ petitions

filed by the private respondents where the claim of the private respondents

was negated. Since, the writ petitioner is a full-time Lecturer of the College,

the obvious conclusion would be that there is no similarity of status or

entitlements between the writ petitioner and the private respondents. This

would be the straight forward assumption. This assumption must however be

tested against the factual conspectus in which the words "similarly-situated"

were used by the Division Bench.

12. As stated above, the Division Bench was considering the case of the

private respondents (writ petitioners and appellants before the Division Bench)

of whether the private respondents were entitled to the benefit of the G.O. of

2001. The Division Bench disagreed with the claim of the private respondents

on this score. The second factual aspect which the Division Bench considered

was whether other persons who were in the same position as the private

respondents had been given the benefit of the G.O. The name of the writ

petitioner along with few other teachers was mentioned in the stay petition

filed before the Division Bench. The issue whether the private respondents

have been discriminated against would hence fall under the second factual

scrutiny and cover the other part-time and whole time teachers, including the

writ petitioner, who had been given the benefit of the G.O. despite being

similarly circumstanced to the private respondents.

13. The question of who would be included within the bracket of

"similarly-situated" cannot be limited only to part time teachers since the

private respondents had urged that other teachers who had been given the

benefit of the G.O. did not have the requisite qualification. This contention

would be buttressed from the statements in the writ petition itself. The G.O. of

11.01.2001 entails, inter alia, teachers having UGC prescribed qualifications

and drawing UGC scale of pay to be brought under the purview of the

Payment of Salaries Act, 1978. Under the relevant UGC Rules and

Regulations as stated in paragraph 14 of the writ petition, a Lecturer in a

substantive post can only be appointed if he/she has a Masters degree in law

with a minimum of 55% marks and has qualified the NET Examination.

Paragraph 13 of the writ petition states that the writ petitioner obtained an

LL.M. degree from the University of Calcutta in 1996 having secured the first

position in both Parts with 51% marks. The writ petitioner has other

post-graduate qualifications and a Ph.D. from the University of Calcutta. By

her own statement therefore the petitioner did not have the requisite

qualification under the relevant UGC Rules and Regulations for being

appointed as a Lecturer in a substantive post. It is hence arguable whether

the petitioner could have drawn the benefit of the G.O. dated 11.01.2001.

14. The decision of the Division Bench to constitute a committee for

enquiring into whether unqualified persons have been given the benefit of the

G.O. would hence cover all those who had got such benefit despite having

similar qualifications as the private respondents. The words

"similarly-situated" would bring within its fold, all those who have got the

benefit of the G.O. but did not have the requisite qualifications. This would

hence stretch to the petitioner who, by her own statement, did not have the

prescribed UGC qualifications for a substantive post.

15. The expanded scope of "similarly-situated" persons would be evident,

most of all, from the judgment and order of the Division Bench. In paragraph

15 of the order, the Division Bench notes the fact that the salary benefit as per

the G.O./circular would be available to those candidates who fulfil the

prescribed UGC qualifications. In paragraph 17, the Division Bench accepts

that there had been discrimination against the private respondents since

other similarly situated candidates, as the private respondents, had been

given such benefit without fulfilling the prescribed qualifications. The order

records that "some names of the candidates were disclosed" in paragraphs 10,

11, 12 and 13 of the stay application in connection with the writ petition filed

by the private respondent no. 7 and that the State authorities could not

explain the aforesaid issue. Paragraph 18 contains the direction on the

Director of Public Instructions, and the President and Principal of the

Governing Body of the College to revisit the issue as to whether any candidate,

similarly circumstanced as the private respondents, was favoured with the

benefit of the G.O. despite non-fulfilment of the prescribed conditions. The

Division Bench made it clear that the committee would be at liberty of taking

necessary steps in respect of any person who had been unfairly given the

benefit of the G.O. without having the requisite qualification. The committee

was given the power to take steps against the candidates in default as well as

the erring officers who acted in violation of the G.O. dated 11.01.2001.

16. This Court is not inclined to enter into the controversy of the petitioner

recommending herself for the benefit of the G.O. of 2001 while on the

Governing Body of the College as that would amount to pre-judging the issue

before the enquiry is completed.

17. The contention of the writ petitioner that the present writ petition is

not in the nature of an adversarial proceeding between the writ petitioner and

the private respondents cannot be accepted for the following reason. Although

the writ petitions filed by the private respondents were dismissed both by the

Single as well as the Division Bench, the case of discrimination made out by

the private respondents was accepted by the latter. The committee was hence

set up to enquire into the aspect of the private respondents (writ petitioners in

the earlier proceedings) being unfairly excluded from the benefit of the G.O. of

2001 while others in the same factual circumstances were favoured with the

said G.O. The enquiry was perceived to be in aid of unravelling the truth (or

falsity) of the allegation of discrimination. The fact that the focus has now

shifted from the ineligibility of the private respondents to the issue of the

alleged discrimination which was brought to the notice of the Division Bench

has been reinforced from the filing of the present writ petition. For these

reasons, it cannot be said that the private respondents do not have any

interest in the outcome of the enquiry particularly when the writ petitioner

was named as one of the persons who had derived benefit from the G.O.

without having the requisite qualification.

18. The prayer of the petitioner for a declaration that the petitioner is not

bound by the order of the Division Bench or cannot be summoned by the

committee is not only untenable in the above facts but also premature since

the committee has not arrived at any finding against the petitioner. The

committee, at best, is a fact-finding committee which has been constituted to

unearth the facts, if any, with regard to misuse of the effects of the G.O.

19. Moreover, the petitioner should have no cause for worry or be

disturbed by the ongoing enquiry if the petitioner was entitled to the benefit of

the G.O. Even if it is assumed that the committee may arrive at factual

findings which are inimical to the petitioner's rights, the petitioner can always

approach the Court for redress at the relevant point of time. The evidence

before the Court indicates that there is no immediate cause warranting

intervention by the Court. There is presently no basis, least of all any urgent

reason, which would persuade the Court to foreclose the enquiry with regard

to the petitioner or stop the fact-finding exercise undertaken by the committee

pursuant to the order of the Division Bench. The petitioner has not

established any factual basis for the declaration as prayed for. To repeat, the

expression "similarly-situated" used by the Division Bench must encompass

all those who had derived benefit of the G.O. and not be restricted only to part

time teachers of the College.

20. Arun Kumar vs Union of India; (2007) 1 SCC 732, defined a

"jurisdictional fact" as a fact which must exist for the Court to assume

jurisdiction over a particular matter. The Supreme Court was of the view that

the Court cannot act on a matter where the jurisdictional fact does not exist.

In the present case, the jurisdictional fact was the fact of discrimination

which the private respondents had suffered by reason of their exclusion from

the benefit of the G.O. In Union of India vs Kunisetty Satyanarayana; (2006)

12 SCC 28, the Supreme Court advised against entertaining a writ petition

challenging a show-cause notice or a charge-sheet. The Supreme Court

opined that a mere charge-sheet or show-cause notice does not give rise to

any cause of action because it does not amount to an adverse order which

affects the rights of any party unless the same has been issued without

jurisdiction. This decision is relevant to the present facts since the petitioner

has not been able to show any decision taken by the committee which would

have an adverse effect on the petitioner. Devendra Kumar vs State of

Uttaranchal; (2013) 9 SCC 363, has been cited for the proposition that a

person having done wrong cannot take advantage of his own wrong and

frustrate the lawful trial by a competent court. This Court is however not

inclined to come to any factual conclusions which may have a bearing on the

ongoing enquiry against the teachers of the College.

21. In view of the above, this Court finds no reason, either in fact or in law,

to grant the prayer in the writ petition for a declaration that the petitioner

cannot be summoned by the committee or cancel the letters issued by the

committee requesting the petitioner to attend the meetings of the committee.

22. WPA 1597 of 2018 is accordingly dismissed without any order as to

costs.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)