Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Subha Prasad Nandi Majumdar & Ors on 13 December, 2023
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Uday Kumar
MAT 1762 of 2023
CAN 1 of 2023
CAN 2 of 2023
The State of West Bengal & Ors.
Vs.
Subha Prasad Nandi Majumdar & Ors.
with
MAT 1705 of 2023
CAN 1 of 2023
The University of Burdwan
Through the Registrar & Ors.
Versus
Subha Prasad Nandi Majumdar & Ors.
For the University of Burdwan : Mr. Sirsanya Bandopadhyay, Adv.,
Mr. Arka Kumar Nag, Adv.,
Ms. Deboleena Ghosh, Adv.
For the Respondent no. 1 : Mr. Saptansu Basu, Sr. Adv.
Mr. Anindya Halder, Adv.
For the State : Mr. Anirban Ray, Ld. GP
Mr. Biswabrata Basu Mallick, Ld. AGP
Ms. Parna Roy Choudhury, Adv.
Hearing concluded on : 11th December, 2023
Judgment on : 13th December, 2023
1. Soumen Sen, J.:- Both the appeals involving similar question
of law and fact, are taken up together and disposed of by this common
judgment.
2. The respondents in the writ petition have filed separate
appeals arising out of the order dated 28th August, 2023.
3. The question involved in the writ petition is with regard to the
extension of the age of retirement of the petitioner in terms of a notification
dated 24th February, 2021.
4. Subha Prasad Nandi Majumdar, the writ petitioner in WPA
16596 of 2023 hereinafter referred to as the "writ petitioner" was appointed
as a teaching staff at Cachar College Silchar which was subsequently
converted into a Government College by a statutory notification.
5. He served the said college for about 16 years. He was selected
for the post of the Secretary, Faculty Council for post-Graduate Studies in
Science at Burdwan University on 5th November, 2007. He was promoted to
the post of Senior Secretary, Faculty Council for Post-Graduate Studies in
Science with effect from 26th January, 2012.
6. The Registrar of Burdwan University by the impugned notice
dated 28th June, 2003 informed the petitioner that he would retire from the
service of the University on 31st August, 2023 on completion of 60 years of
age.
7. The writ petitioner challenged the impugned notice dated 28th
June, 2003 on the ground that in terms of the notification dated 24th
February, 2021 the retirement age for the relevant post was enhanced to 65
years.
8. The learned Single Judge accepted the contention of the writ
petitioner and allowed the writ petition. This order has been challenged by
the State and the Burdwan University.
9. Mr. Arka Kumar Nag, learned Senior Counsel appearing on
behalf of the University/appellant has submitted that the writ petitioner is
not entitled the benefit of the notification dated 24th February, 2021 as he
lacks teaching experience in a State-aided University or College in West
Bengal. The past Service rendered by the writ petitioner at Cachar College
is irrelevant and not covered by the notification dated 24th February, 2021.
The service rendered at Cachar was not a criteria for appointment of the
writ petitioner to the post of Secretary, Faculty Council for Post Graduate
Studies in Science under the University.
10. Mr. Nag has referred to a notification dated 13th June, 2003
issued by the assistant Secretary of the department of Higher Education in
which the State has clarified that a State-aided University or College
teacher who joined the University Service from the other State would not
come within the purview of the notification dated 24th February, 2021 since
the expression "State-aided University or College" contained therein applies
only to any University/College aided by the Government of West Bengal.
This qualification has not been properly considered by the learned Single
Judge while interpreting the government Order dated 24th February, 2021.
11. Mr. Biswabrata Basu Mallick, the learned Counsel appearing
for the State has referred to the affidavit-in-opposition filed by the State.
Mr. Mallick has principally supported the interpretation of the expression
State-aided University or College put forth by Mr. Nag.
12. Mr. Mallick has referred to paragraph 4 sub paragraphs 7, 8
and 9 of the affidavit-in-opposition to show that various States in India
have different ages to superannuation of teaching staff in University and
Colleges.
13. Mr. Mallick wants the court to read the expression "any State-
aided University or College" mentioned in the Memorandum dated 24th
February, 2021 in the light of the aforesaid fact.
14. Mr. Mallick submits that the aforesaid expression shall mean
and can only mean colleges and universities in the State of West Bengal.
15. Per contra Mr. Saptansu Basu learned Senior Counsel
appearing on behalf of the writ petitioner has submitted that he was
appointed to the said post after taking into account his past service as a
teaching staff at Cachar College and therefore the writ petitioner should be
entitled to the benefit of the circular dated 24th February, 2021. It is
submitted that it would be extremely unfair if his service in Cachar College
is not taken into consideration in extending his age of retirement
particularly having regard to the fact that for all other purposes such past
service was being considered and suitable benefits have been extended to
the writ petitioner.
16. Mr. Basu submits that in order to become eligible for
extension of the retirement of age to 65 of the persons mentioned in the
notification dated 24th February, 2021 should have "continuous teaching
background experience of minimum 10 years" in any State-aided
University or College.
17. Mr. Basu submits that since Cachar College was a
Government College and he had served the said institution for about 16
years prior to his engagement in the Burdwan University he is duly
qualified for extension of his age of retirement up to 65 years.
18. Mr. Basu has laid much emphasis on the expression State-
aided University or College and the adverb "any" prefixed to the said
expression to show that it covers any University or College if it is a State-
aided University or College irrespective of its geographical location and
placed the interpretation offered by the learned Single Judge in the
judgment accepting such interpretation in ultimately granting relief to the
writ petitioner. It is submitted that any other interpretation would be unfair
and in violation of Article 14 of the Constitution of India and would create a
class within a class. There is no rational basis for creating two classes of
persons for the benefit. It was not even contemplated in the memorandum.
19. In order to decide the issue raised it would be convenient to
refer to the definition of government-aided University or College, State
Government and State-aided University defined in the West Bengal
Universities (Control and Expenditure) Act, 1976 since amended in 2017.
Section 2(a) of the Amended definition defines Government-aided College. It
reads:
2(a). "Government-aided college" means a college
receiving periodical pay packet from the State Government on
account of salary and allowances of the teachers and other
academic staff including the non- teaching employees of the
college".
20. Clause 2(c) of Section 2 defines State Government. The said
Section after amendment reads as follows:
"2(c). "State Government" means the Government of West
Bengal in the Higher Education Science and Technology and
Biotechnology Department;"
21. Clause 2(e) of Section 2 after amendment defines State-aided
University in the manner following:
"2(e). "State-aided University" means a University
constituted and incorporated by a State Act and receiving regular
grants from the State Government;"
22. For Section 4 of the principal Act, the following Section has
been substituted which refers to the retirement of teachers. The Section 4
reads:
"4. Every Full-time regular teacher, Principal and such other
regular employees, who are in receipt of the State Government's
notified scale of pay and holding a substantive post in any State-
aided University or Government-aided college shall retire from
service on attaining such age as may be determined and notified in
the official Gazette by the State Government, from time to time".
(emphasis supplied)
23. The West Bengal Universities (Control of Expenditure Act,
1976) was amended by the West Bengal Universities (Control of
Expenditure (Amendment) Act, 2017 and duly notified on 17th March,
2017.
24. Thereafter, on 24th February, 2021 the State issued the
Memorandum, the interpretation of which is presently under consideration.
The said Memorandum is reproduced below:
"Consequent upon enhancement of the retirement age of the
State-aided University teachers and Govt./Govt. aided College
teachers up to 65 years, the matter regarding enhancement of the
retirement age of the State-aided University Registrars, Controller
of Examinations, Inspector of Colleges and Dean of Student's
Welfare, Deputy Registrar, Deputy Controller of Examinations,
Deputy Inspector of Colleges and Secretary, Council of PG & UG
Studies and College Council of the State aided Universities with
teaching background / experience in any State aided University or
College, was under consideration of the State Govt. from sometime
past. After careful consideration of the matter, Governor is pleased
to enhance the retirement age of the Registrar, Controller of
Examinations, Inspector of Colleges and Dean of Student's Welfare,
Deputy Registrar, Deputy Controller of Examinations, Deputy
Inspector of Colleges and Secretary, Council of PG & UG Studies
and College Council of the State aided Universities having
continuous teaching background / experience of minimum 10 years
in any State-aided University or College, up to Sixty five (65) years
with effect from the date of issuance of this notification, for smooth
running of the academic activities, in terms of Section 4 of the West
Bengal Universities (Control of Expenditure) Act. 1976 as amended
from time to time. This Order is issued in concurrence with the
Finance Department, vide their U.O. No. Group P1/2020-
2021/0363 dated 11.02.2021 and approval of the Cabinet vide
their U.O. No. CAB (D) - 1841, dated 22.02.2021." (emphasis
supplied)
25. The learned Single Judge accepted the contention of Mr. Kar,
the Senior Advocate who had argued the matter on behalf of the University
that the said notification intends to extend the age of superannuation of
certain employees, who have had 10 years of teaching experience, yet have
transitioned from teaching posts to administrative roles under a University
or College and thereafter proceeded to consider the issue in question.
26. The only issue that requires to be decided is whether the
service rendered by the petitioner as a teaching staff at Cachar College in
Assam should be considered for the benefit conferred under the said
memorandum dated February 24, 2021.
27. The learned Single Judge was of the view that "the
memorandum dated February 24, 2021, makes no distinction between a
teacher with ten years of teaching experience in a State aided University or
College located either outside West Bengal or within West Bengal.
28. The word "any" as employed in the second paragraph of the
notification dated February 24, 2021 is wide enough to encompass aided
universities and colleges beyond the geographical confines of West Bengal
within the scope of the said notification.
29. The scope of the notification dated February 24, 2021 cannot
be unduly constricted by adding the words "in West Bengal" after the
phrase "in any State aided University or College."
30. Such supplementation would cause a violence to the said
memorandum resulting in an unintended classification."
31. In our view in interpreting the said expression the word "any"
as mentioned in the 2nd paragraph of the notification dated 24th February,
2021 will have a restrictive meaning as it cannot travel beyond the
geographical limits of the State by reason of the definition of State-aided
University and Government-aided College in Section 2(e) and Section 2(a) of
the West Bengal University (Controller of Expenditure) Act, 1976 since
amended. The Act 1976 is only confined to the State. It is an act made by
the State Legislation. The Memoranda is issued in terms of Section 4 of the
amending Act.
32. The word "any" has to be construed contextually. Generally
"any" is the word which excludes limitation or qualification and at times is
given interpretation "as wide as possible" but its generality may be
restricted by the subject matter or the context. (See. Stroud's Judicial
Dictionary of Words and Phrases, 10th Edn.)
33. In Black's Law Dictionary it is explained thus, "word 'any' has
a diversity of meaning and may be employed to indicate 'all' or 'every' as
well as 'some' or 'one' and its meaning in a given statute depends upon the
context and the subject matter of the statute". (See Lucknow Development
Authority v. M.K. Gupta, 1994 (1) SCC 243; AIR 1994 SC 787, Union of
India v. A.B. Shah and Ors., AIR 1996 SC 3281;1996(8) SCC 540 :
Dilip Kaushal and Anr. v. State of M.P. and Ors. AIR 2008 MP 324
(FB)).
34. The word 'any' may have one of the several meanings as
indicated above but it is well settled that its interpretation would depend
upon the context of each case.
35. The word "any" has to be read in conjunction and in relation
to the State-aided University or college and government-aided college as
defined in Section 2(e) and 2(a) respectively. This would also be clear from
the fact that different states have their different criteria for determination of
retirement age and preferences given to the persons who have been in
continuous teaching background experience of minimum 10 years in State
Universities. The Act and Memorandum are state centric and State specific
and cannot be applied to a State-aided University or College outside the
State of West Bengal. This will be clear from a conjoint reading of 2(a), 2(c)
and 2(e) of the 1976 Act since amended of 2020. The Government aided
College in terms of Section 2(a) would mean "a college receiving aid from
the State Government". The State Government is defined in Section 2(c) to
mean Government of West Bengal. Section 2(e) in defining State aided
University clearly states that the University should be receiving regular
grant from the State Government which means Government of West
Bengal. The Memorandum cannot be construed de hors the Act. It can
only supplement the Act and cannot supplant it. The Act has a territorial
dimension. The benefit of the said legislation is only applicable to such
teachers and/or employees who are having continuous teaching
background experience of minimum 10 years in a College or University
receiving the aid from the State of West Bengal.
36. Hence we are of the view that the writ petitioner is not
entitled to the benefit of the notification dated 24th February, 2021.
37. Both the appeals succeed.
38. The order impugned is set aside. However, there shall be no
order as to costs.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
