Akg vs Ct. 238 The State Of West Bengal & ...
2022 Latest Caselaw 6606 Cal

        15-09-2022                           WPA 7984 of 2020
54&55                                Dr. Kamal Bhattacharya & Anr.
         AKG
                                                    Vs.
        Ct. 238                      The State of West Bengal & Ors.

                                                    With

                                              WPA 1844 of 2019
                                     Dr. Kamal Bhattacharya & Anr.
                                                    Vs.
                                     The State of West Bengal & Ors.



                           Mr. Jayanta Mitra
                                                        ...for the Petitioners
                           Mr. Achintya Kumar Banerjee,
                           Mr. Mahaboob Ahmed,
                           Mr. Raghunath Chakraborty
                                                         ...for the University
                           Mr. Swapan Kr. Dutta,
                           Ms. Smita Das De
                                        ...for the State in WPA 7984 of 2020
                           Mr. Swapan Kr. Dutta,
                           Mr. Pradyot Kr. Das
                                        ...for the State in WPA 1844 of 2019

                           Mr. A. K. Gupta
                                                               ...for the U.G.C.


                           In view of interrelated issues and facts involved,

                     these two writ petitions are taken up for hearing together

                     and disposed of by this common judgment and order.

                           The petitioners have filed WPA 1844 of 2019

                     claiming the benefit of a circular dated January 27, 2017,

                     issued by the Department of Higher Education, Govt. of

                     West Bengal.

                           By the said circular, the State directed that the age

                     of retirement of full-time regular teachers and Principals,

                     holding a substantive post and enjoying Government

                     approved regular scale of pay, including Librarians and

                     Graduate   Laboratory    Instructors   (enjoying   teaching
             2




status and equivalent scale of pay) in all State-aided

Universities and Government-aided colleges, who were in

service on January 1, 2017, and scheduled to retire on

or after January 31, 2017, should be enhanced from sixty

(60) years to sixty two (62) years with immediate effect.

        During the pendency of the said writ petition,

petitioner no. 1 retired on December 31, 2017, and

petitioner no. 2 namely, Akshay Chakraborty also retired

on January 31, 2017, attaining the age of 60 years.

        Thereafter by another circular dated January 24,

2019,    the     Department      of   Higher   Education     again

enhanced the retirement age of the aforementioned

employees, who were in service on January 1, 2019 and

scheduled to retire on or after January 31, 2019, from

sixty two (62) years to sixty five (65) years.

        By filing the second writ petition WPA 7984 of

2020, the petitioners have sought benefit of the said

circular also.

        Petitioner no. 1 was appointed as Senior Technical

Assistant and petitioner no. 2 was appointed as Junior

Technical       Assistant   at    Burdwan      University.   They

approached the Court in the year 1989, along with some

other similarly circumstanced petitioners with a prayer

that they should be treated as the teaching staff of the

said University. The said writ petition was disposed of by

a judgment and order dated April 4, 1996, passed by a

Co-ordinate Bench of this Court. The operative part of the
           3




said judgment is quoted below :-

              "The very nature of the work performed
       by them bring them within the definition of
       "teacher" and/or "teacher or the University"
       under sub-sections (21) and (22) of section 2 of
       the Burdwan University Act, 1981.
              In that view of the matter, and having
       particular regard to the decision in Harendra
       Nath Bhowmick's case and the view expressed
       therein by the Hon'ble Supreme Court, the
       writ petition must succeed and is allowed. The
       respondents are directed to treat the writ

petitioners, and those similarly placed, as "Teachers" within the meaning of sub-sections (21) and (22) of section 2 of the Burdwan University Act, 1981, and to grant them all consequential benefits from date.

The writ application is thus disposed of. There will be no order as to costs.

Having regard to the view taken by me, prayer for stay of this judgment is considered and refused. "

Mr. Jayanta Mitra, learned advocate appearing for

the petitioners argues that the status of the petitioners as

teaching staff of the University was declared by this

Court in no uncertain terms. Therefore, the petitioners

were entitled to get the benefit of the circular dated

January 27, 2017, at the first instance and also the

benefit of the subsequent circular dated January 24,

2019, and by the cumulative effect of the two circulars,

they should have retired only after attaining the age of 65

years. They satisfied the conditions of the said two

circulars dated January 27, 2017, and January 24, 2019.

If the petitioners are entitled to get the benefit of the first

circular, automatically they will get the benefit of the

second circular as well.

It is the further case of the petitioner that after the

judgment passed in C.O. 893 (W) of 1989 (Dr. Amal

Kumar Samanta v. The State of West Bengal), the

University has all along treated them as the teaching staff

of the University and therefore, the benefit of the said two

circulars dated January 27, 2017, and January 24, 2019,

cannot be denied to them.

Mr. Swapan Kr. Datta, learned senior advocate

appearing on behalf of the State opposes the prayer of the

petitioner. Mr. Datta refers to the definition of the

teaching staff as embodied under Section 2 (22) of The

Burdwan University Act, 1981 which provides as follows:-

"Teacher of the University" means a Professor, Reader, Lecturer or any other person appointed or recognised as such by the University, either whole-time or part-time, for the purpose of imparting instruction or conducting research in the University;"

Mr. Datta places a notification dated November 29,

2012, issued by the State namely, the West Bengal

University Laws (Amendment) Act, 2012. Section 4 of the

said Act provides as follows :-

"4. In the Burdwan University Act, 1981,- (1) in section 2,-

(a) for clause (21), the following clause shall

be substituted:-

'(21) "Teacher of college" means a Professor or an Associate Professor or an Assistant Professor or a Reader holding a whole-time substantive teaching post and appointed in a permanent vacancy in a college or recognized as such by the State Government;';

(b) for clause (22), the following clause shall be substituted :-

'(22) "Teacher of University" means a Professor or an Associate Professor or an Assistant Professor or any other person, holding a whole-time substantive teaching post and appointed in a permanent vacancy in a University or recognized as such by the University with prior approval of the State Government;';"

By referring to the said Act, Mr. Datta argues that

the said amendment has substantially contracted the

definition of "Teacher of University" within the meaning of

Section 2 (22) of the Burdwan University Act, 1981. The

amendment has taken the petitioners out of the purview

of the definition of teacher of University.

Mr. Datta further argues that the notifications

dated January 27, 2017, and January 24, 2019, came

into being after the said Act of 2012 was made operative.

Therefore, in order to receive the benefit of the said two

notifications, an employee needs to come within the

definition of "Teacher of University" under the said Act of

2012. Mr. Datta submits that the said amendment makes

it clear that technical assistants are not "Teacher of

University" and therefore, the petitioners cannot claim

the benefit conferred under the said two notifications.

Mr. Achintya Kumar Banerjee, learned advocate

appearing for the University, on the other hand, submits

that in order to extend the benefit of the judgment dated

April 4, 1996, a committee was set up by the University.

The said committee, inter alia, decided that the senior

technical assistants of the University might be designated

as a 'teacher' and their scale of pay will be in the pay

head of Rs. 15,000/- with applicable academic grade pay.

With regard to the retirement age, it was decided that the

retirement age would be 60 years with the provision of re-

employment.

Mr. Banerjee submits that following the said

decisions taken by the University, all financial benefits

were given to the petitioners. They have even accepted

their date of retirement as sixty years by receiving all

retiral dues including pension. At this stage, the

petitioners, therefore, have waived their right to contend

that they would retire at the age of 65 years.

Mr. Banerjee further submits that after the West

Bengal University Laws (Amendment) Act, 2012, the

petitioners cannot be treated as teaching staff by giving a

retrospective effect of the said amendment, which came

into being on and from November 29, 2012.

It is the further case of Mr. Banerjee that on an

earlier round of litigation (MAT No. 642 of 2016 (Akshay

Chakraborty Vs. State of West Bengal), contention of the

petitioners that they would retire at the age of 62 years

was negated. Therefore, in these writ petitions, they

cannot raise the same issues again.

Mr. Banerjee further places reliance upon the

decision reported at (2018) 8 SCC 129 (P. Sushila Vs.

University Grant Commission). It has been suggested

that the petitioners cannot claim the benefits that have

been extended to the Professor, Associate Professor and

Assistant Professor of the University who are qualified in

terms of extant U.G.C. Regulations. Admittedly, the

petitioners do not have the "NET" qualification. Therefore,

the benefit that has been extended to those teaching staff

cannot be extended to the petitioners.

I am of the view that there cannot be any

justification to deny the benefit of the said two circulars

dated January 27, 2017, and January 24, 2019, to the

petitioners.

Indisputably, the order dated April 4, 1996, has

been acted upon by the University by treating the

petitioners as a teacher of the University. The petitioners,

however, cannot claim parity in pay with regard to the

other "Teachers of the University" as a matter of right.

There are different categories of teachers under the

University who are entitled to enjoy pay scale and other

benefits according to their qualifications, experiences,

and status. Admittedly, the University has provided a

specific pay scale to the petitioners in terms of the order

dated April 4, 1996, by setting up a Committee. This does

not mean that the petitioners are not entitled to the

common benefits given to the category of teachers.

The committee also decided that the retirement age

of the petitioners as sixty years with the provisions of re-

employment. When the State itself has decided to

enhance the age of the teaching staff of a University,

there cannot be any reason to deprive the petitioner of

the same benefit.

A bare reading of Section 4 (22) of the Act of 2012,

makes it clear that Technical Assistants are not included

in the definition of "Teacher of University". At the same

time, it cannot be said that the petitioners have been

excluded in the notifications dated January 27, 2017,

and January 24, 2019. The said notification applies to

other employees also who are not included in the

definition of "Teachers of University" within the meaning

of Section 4 of the said amendment Act of 2012.

Therefore, the rights of the petitioners have to be

read in light of the said two notifications only. The said

notifications apply to "full-time regular teachers and

Principals, holding a substantive post and enjoying

Government approved regular scale of pay, including

Librarians and Graduate Laboratory Instructors (enjoying

teaching status and equivalent scale of pay) in all State-

aided Universities and Government-aided colleges."

In my view, the petitioners being "teachers" are not

excluded from the purview of the said two notifications as

suggested by the State.

I also do not find any substance in the argument of

the University that the petitioners have waived their right

to contend that they are entitled to the benefits of retiring

at the age of 65 years since they have accepted the notice

of retirement indicating their age of retirement as sixty

years and received all the retiral dues.

The relevant notifications have been issued in the

exercise of power under Section 4 of the West Bengal

Universities (Control of Expenditures) Act, 1976. Such

notification may not be termed as a statute, but its

statutory force cannot be ignored. Therefore, it cannot be

said that the petitioners can be deprived of the benefit of

the said statutory notifications simply because they

retired at the age of sixty years and received all retiral

dues. It has also to be appreciated that at the time of

retirement, the employees tend to avoid disputes which

may impede or defer their retiral dues. In such cases, the

mere acceptance of retiral dues should not be treated as

a waiver of their rights.

I also do not find any force in the argument of the

University that the petitioners cannot raise the question

as to their dates of retirement without raising the same in

MAT No.642 of 2016 (Akshay Chakraborty v. State of

West Bengal) for the simple reason that the said appeal

was not related to the issue of application of notifications

dated January 27, 2017, and January 24, 2019, to the

petitioners.

I have already indicated that the petitioners'

entitlement has to be decided in the light of the aforesaid

two notifications only and therefore, the submission of

the University that since the petitioners are not qualified

like Assistant Professor, Associate Professor or Principal,

the petitioners are not "Teachers" cannot be accepted.

Petitioner no.1 retired from service on December

31, 2017, and the petitioner no. 2 had also retired on

January 31, 2017 on attaining sixty years of age.

In that view of the matter, the writ petitions are

allowed with a direction upon the respondents to

notionally treat petitioner no. 2 to be retired on January

31, 2022, and released all his retiral dues including

pension accordingly.

The respondents are further directed to reinstate

petitioner no.1 in service within two weeks from date. He

will be allowed to retire on December 31, 2022, attaining

the age of 65 years. All his retiral dues will be cleared

accordingly.

I make it clear that there will be no claim on

account of arrear salaries for both the petitioners.

Petitioner no.2 will get arrear pension.

Accordingly, WPA 7984 of 2020 and WPA 1844 of

2019 are disposed of.

Let urgent photostat certified copy of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Kausik Chanda, J.)

Later

After delivering the judgment, Mr. Banerjee,

learned advocate appearing for the University prays for a

stay of the order. Such prayer is considered and rejected.

(Kausik Chanda, J.)