Partha Ghosh vs The State Of West Bengal & Ors
2022 Latest Caselaw 7161 Cal

Court No. 22            IN THE HIGH COURT AT CALCUTTA
29.9.2022                Constitutional Writ Jurisdiction
(Item No. 12)
                                Appellate Side

(AB)                          W.P.A. 22027 of 2022

                                 Partha Ghosh
                                      VS
                        The State of West Bengal & Ors.

                        Mr. Tarun Kumar Das
                                      ..... for the petitioner
                        Mr. Swapan Kumar Datta
                        Mr. Tapas Kumar Mandal
                                         ...... for the State
                        Mr. Anil Kumar Gupta
                                   ....for respondent No. 8

Mr. Arunagshu Chakraborty Ms. Geniya Mukherjee Ms. Zeba Rashid ........for University

Affidavit of service filed in Court, is taken on

record.

The petitioner claims to be an Accompanist

Teacher in Dance for playing Pakhwaj in the

Department of Vocal Music under the Faculty of

Fine Arts of Rabindra Bharati University. By virtue

of the amendment of the relevant provisions for

retirement of such Teachers, the petitioner claims

that, the retirement age of the petitioner had been

fixed at 65 years and not 60 years. On May 5, 2022

the respondent No. 6 had served a notice, Annexure

P-17 to the writ petition upon the petitioner asking

him to retire on completion of his age of 60 years. The

petitioner would complete his 60 years on October 31,

2022.

Challenging the said impugned notice of

retirement dated May 5, 2022 the petitioner filed this

writ petition.

Mr. Tarun Kumar Das, learned advocate

appearing for the petitioner submitted that, as to the

applicability of the retirement age whether 60 years or

65 years, the issue was visited by this Hon'ble Court

as well as by the Hon'ble Supreme Court. Drawing

attention of this Court to a judgment and order of the

Division Bench dated December 15, 2020 passed in

MAT 193 of 2019, Annexure P-13 to the writ petition

the learned counsel submitted that, the Hon'ble

Division Bench of this Court had observed, inter alia,

as under:

"There cannot be any doubt that the writ petitioner becomes the teacher of the University as on the date of his appointment and his retirement should be considered on the basis of the status he earned on the date of his appointment.

On such consideration, we do not think any reason to interfere with the order passed by the learned Single Judge.

All service benefits be disbursed considering the writ petitioner/respondent as a teacher in terms of the definition of Clause 22 of Section 2 of the Act, 1981 within a period of eight weeks from date."

The said judgment was delivered by the

Hon'ble Division Bench in an appeal preferred by the

respondent No. 3. The learned counsel thereafter

drew attention of this Court to the orders passed by

the Hon'ble Supreme Court, Annexure P-14 to the

writ petition and submitted that, the Special Leave

Petition preferred by the respondent No. 3 was not

entertained and accordingly dismissed on December

10, 2021. A review was preferred before the Hon'ble

Supreme Court which was also dismissed by an order

dated February 15, 2022.

The learned counsel for the petitioner then

drew attention of this Court to a judgment and order

dated February 3, 2022 passed by a co-ordinate

Bench in W.P.A. 1068 of 2022, when the co-ordinate

Bench had observed as under:

"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."

The learned counsel thereafter submitted that,

from the said order dated February 3, 2022 passed by

the co-ordinate Bench the respondent No. 3 preferred

another appeal being MAT 314 of 2022 (though the

name of the appellant appears wrongly on the order

sheet, as submitted on behalf of the appearing

parties). During the pendency of the said appeal an

interim order dated May 6, 2022 Annexure P-18 to

the writ petition, was passed by the Hon'ble Division

Bench with the following observations:

"The single Bench has held that the said 'Accompanist Teacher' comes under the category of the teaching staff and, therefore, satisfies the definition of a teacher as amended under Section 2(22) of the Rabindra Bharati (Amendment) Act, 1985. The final relief was granted to allow the said respondent no. 1 to remain in service till he attains the age of superannuation, which is 65 years.

At the time of hearing, we have been given to understand that the said respondent no. 1 is at the verge of reaching 60 years of age. The interim order as prayed for, if allowed at this stage, it would virtually tantamount to allow the appeal itself. Therefore, we do not intend to pass any interim order at this stage.

However, we make it clear that continuation of service of the respondent no. 1 beyond the age of 60 years and any benefit attributable to such service shall be subject to the result of the instant appeal."

Mr. Arunagshu Chakraborty, learned advocate

appearing for the respondent No. 3, University

submitted that, when the first Division Bench

judgment dated December 15, 2020 was passed the

correct proposition of law was not considered. The

then existing law of another previous Division Bench

of this Hon'ble Court was also not considered. More

so, the nature of order of dismissal of the Special

Leave Petition dated December 10, 2021 being a

simplister dismissal, would not have any binding force

on this Court. The learned counsel for the respondent

No. 3 University submitted that, the amendment on

the basis where of the petitioner had sought for

extension of his retirement was also not a valid

amendment and being contrary to law, no claim under

such amendment would have a legal force. He

submitted that, the petitioner is not at all eligible to

seek the relief as was sought for in the writ petition.

Mr. Swapan Kumar Datta, learned senior State

counsel and the Additional Government Pleader

appearing for the State respondents adopted the

submission made on behalf of the respondent No. 3

University and submitted that, in any event the

petitioner cannot claim any benefit or equity in terms

of the said order of the Division Bench dated May 6,

2022, Annexure P-18 to the writ petition.

Mr. Datta further submitted that, the adopted

submissions of Mr. Chakraborty, learned counsel

appearing for the respondent No. 3 to the extent it is

not contrary to the interest of the State.

Considering the rival submissions made on

behalf of the appearing parties and considering the

materials on record, this Court is of the opinion that,

today at this stage of the writ petition this Court will

only look into whether any interim protection can be

granted to the petitioner. This writ petition in any

way cannot be decided without calling for affidavits.

In so far as, the interim order is concerned, firstly the

issue already decided by the Division Bench in the

said judgment and order dated December 15, 2020,

Annexure P-13 to the writ petition and the

observations made there under are binding on this

Court. Secondly the identical issue arising out of

second writ petition is now pending for consideration

before another Hon'ble Division Bench in which the

interim order was passed on May 6, 2022, Annexure

P-18 to the writ petition.

Considering the above, this Court is of the firm

view that, there is no reason to take a prima facie view

in this writ petition considering the balance of

convenience and inconvenience involved in this matter

and more so considering the fact that, the petitioner

shall complete his 60 years on October 31, 2022,

which is the retirement age according to the

University, is an issue involved in this writ petition,

other than the nature of the interim order passed by

the Hon'ble Division Bench on May 6, 2022.

In the premises, the petitioner shall continue

with his employment beyond the age of 60 years as an

interim arrangement and any benefit attributable to

such service shall be subject to the result of the

instant writ petition. In as much as, this order shall

not create any equity in favour of the petitioner in any

manner.

The respondents are directed to file their

respective affidavits on or before November 20, 2022.

Reply, if any thereto, be filed by the petitioner on or

before December 14, 2022.

The writ petition shall appear under the

heading "Motion" in the monthly list of January

2023.

Urgent certified photo copy of this order, if

applied for, be supplied to the parties expeditiously on

compliance of usual legal formalities.

(Aniruddha Roy, J.)