The Director Of Technical ... vs Madan Mohan Sarkar & Ors
2023 Latest Caselaw 1886 Cal

              IN THE HIGH COURT AT CALCUTTA
                  Civil Appellate Jurisdiction
                         Appellate Side

Present :-     Hon'ble Mr. Justice I. P. Mukerji
               Hon'ble Mr. Justice Biswaroop Chowdhury

                             FMA 3477 of 2016
                                  With
                              CAN 7 of 2022

   The Director of Technical Education & Training Govt. Of W.B.
                                          Vs.
                       Madan Mohan Sarkar & Ors.

   For the Appellant/State        :-       Mr. Tapan Kumar Mukherjee,
                                           Mr. Pranab Halder,
                                           Ms. Tuli Sinha, Advs.


   For the Respondents            :-       Mr. Kamalesh Bhattacharya,

Mr. Arunava Banerjee, Sk. Qareeb, Ms. Mamata Dutta, Ms. Sudipa Mandi, Advs.

   Judgment On                    :-       22.03.2023.



   I. P. MUKERJI, J.:-

This matter relates to the non-teaching employees of the hostel/ mess of

Malda Polytechnic, in our state. They filed the instant writ application

asking for an order in the nature of mandamus commanding the Malda

Polytechnic and the respondent authorities to treat them as the

employees of the college and to grant them the scale of pay and other

allowances including service benefits that were being received by the

non-teaching employees.

The learned single judge by his judgment and order dated 21st May, 2010

held the writ petitioners (respondents in this appeal) to be permanent

non-teaching Group- D employees of that college and on that basis were

entitled to salaries and allowances.

In the impugned judgment and order the learned judge has observed and

held the following:-

a) The petitioners were appointed as cooks, assistant cooks, helper in

accordance with the rules and formalities in the hostel and mess of

the college.

b) Their names were sponsored by the employment exchange. They were

so appointed after their names were entered in an approved panel

after undergoing an interview procedure.

c) The appointments were approved by the Director of Technical

Education by a memorandum dated 7th December, 1981.

d) Since 1981 the petitioners have been serving the institution. The

petitioners were declared to be the permanent Group -D employees of

the college being entitled to salary and allowances contained in the

letter of appointment from the respective dates of appointments and

other "admissible benefits". The petitioners are "legally entitled to the

pay scale Rs.2600-4175."

e) It is impossible to comprehend "how in the above circumstances" the

petitioners could be treated as employees of the hostel committee.

f) In an identical situation, a division bench of this court in West

Bengal vs. Sridam Sarkar and Ors. reported in (1996) CWN 237

held the petitioners before it to be permanent employees of the

Kalyani University hostel.

Now, some facts need to be noticed.

By a notification dated 4th December, 1975 issued by the technical

branch of the Education Department of the Government of West Bengal,

it was stated that Malda Polytechnic was being taken over by the

government and "its reorganization and maintenance as a government

polytechnic"......was "with effect from the date of this order."

Another notification was published on 7th December, 1981. It stated that

in every mess and hostel attached to an engineering and technological

college, polytechnic or junior technical school or institution for the

handicapped, there would be a hostel committee of central students

welfare committee to be constituted in the manner prescribed by the

Director of Technical Education, West Bengal. The Committee was

entrusted with the duty of maintaining the "service records of the

employees concerned." The scale of pay was prescribed. It said that these

employees would be entitled to 50% of the dearness allowance sanctioned

by the state government for their employees of comparable scale of pay.

The employees would retire at the age of 60 years and be entitled to the

retirement gratuity of half months' pay for each completed year of service

subject to a maximum of fifteen months.

By a government order dated 7th October, 1996 in modification of the

circular dated 7th December, 1981 the dearness allowance and basic pay

of these employees were increased.

By another government order dated 20th July, 2000 the basic pay of the

employees of the aforesaid institutions was increased with effect from 1st

January, 1996 notionally and actually from 1st January, 2000.

On 5th April, 2002 the revised pay to be fixed notionally was to be from

1st February, 1999.

By a subsequent notification dated 28th October, 2014 the hostel and

mess employees of state aided universities in West Bengal were to be

treated as non-teaching employees of the respective institutions. Their

salaries and allowances including other service benefits would also be

the same as those of other non-teaching employees. These employees

would also be entitled to general provident fund, death or retirement

gratuity or pension including family pension and such other retirement

benefits available to the non-teaching employees of the college.

The appellant has raised the following points on appeal:-

The decision of the Supreme Court in L. Chandra Kumar vs. Union of

India and Ors. reported in (1997) 3 SCC 261 made it explicit that any

dispute between the state and its employees was to be decided by the

State Administrative Tribunal under Section 28 of the Administrative

Tribunal Act, 1985. The writ court could not be directly approached. A

party aggrieved by a decision of the Administrative Tribunal could

approach the writ court but not directly.

The Supreme Court deprecated direct approach to the High Court also in

Rajeev Kumar and Anr. vs. Hemraj Singh Chauhan and Ors. reported

in (2010) 4 SCC 554. A division bench judgment of this court to the

same effect was Smt. Anjali Mukherjee vs. The Commissioner of

Police, Lal Bazar & Ors. reported in (2007) 3 Cal LT 456.

In approaching the writ court directly, the respondent writ petitioners

had acted in derogation of the said judgment of the Supreme Court.

The impugned judgment and order is a nullity. This court had no

jurisdiction over the subject matter. It suffered from inherent lack of

jurisdiction. Therefore, the impugned judgment and order was non est in

the eye of law, according to the ratio laid down in Kiran Singh and Ors.

vs. Chaman Paswan and Ors. reported in AIR 1954 SC 340.

For this reason, the writ application should be dismissed and the appeal

allowed.

It was also argued on behalf of the appellant that to claim to be an

employee of the state or a civil post there ought to be a relationship of

master and servant as held in State of Assam and Ors. vs. Shri Kanak

Chandra Dutta reported in AIR 1967 SC 884. There must be a statutory

requirement of maintaining a hostel in a government polytechnic as held

in The State of West Bengal vs. Prabir Chakraborty reported in (2007)

3 Cal LT 545. A pillar of the argument of Mr. Tapan Mukherjee, was the

case of The State of West Bengal vs. Prabir Chakraborty reported in

(2007) 3 Cal LT 545, a division bench pronouncement of this court. A

writ application was filed claiming that the non-teaching employees of

the Raiganj Polytechnic be paid on the same scale of pay and allowances

including service benefits as paid to the employees of the state in non-

teaching posts in polytechnic colleges. The court held that the cooks and

helpers in the hostel of Raiganj Polytechnic, who had been appointed by

the mess committee of the college and claiming to be treated as Group-D

employees of the college, could not be considered as such.

Mr. Mukherjee contended that the decision of a subsequent division

bench of this court in the Director of Technical Education and

Training, Government of West Bengal vs. Chunilal Chakraborty and Ors.

was delivered without considering the ratio in the case of The State of

West Bengal vs. Prabir Chakraborty reported in (2007) 3 Cal LT 545.

DISCUSSION

The point that this court in the exercise of its writ jurisdiction should not

entertain this matter and that it should have been filed before the State

Administrative Tribunal was not raised at all till the stage of final hearing

of the appeal.

It is now fairly well settled that this kind of jurisdictional question

relating to exercise of writ jurisdiction should be raised at the earliest

possible opportunity. If not raised, the respondent should be prevented

from raising it. It is quite true that a question of law can be raised at any

stage of the proceedings, even at the appellate stage. If the proceedings

were undertaken in a court without jurisdiction, and hence a nullity, the

court would not refrain from declaring it as such at any stage. In the

case of L. Chandra Kumar vs. Union of India and Ors. reported in

(1997) 3 SCC 261, followed in Rajeev Kumar and Anr. vs. Hemraj

Singh Chauhan and Ors. reported in (2010) 4 SCC 554, the Supreme

Court held that the High Court could not be approached before the

tribunal in matters relating to the Administrative Tribunals Act, 1985.

They key findings in the L. Chandra Kumar case on this point are as

follows:-

"91...........Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.

92............no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.

93..............The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set-up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the High Court concerned may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts. We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the

particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."

In the Rajeev Kumar case the Supreme Court said:

"14. The grievances of the appellants in this appeal are that they were not made parties in proceedings before the Tribunal. But in the impleadment application filed before the High Court it was not averred by them that they were not aware of the pendency of the proceedings before the Tribunal. Rather from the averments made in the impleadment petition it appears that they were aware of the pendency of the proceedings before the Tribunal. It was therefore, open for them to approach the Tribunal with their grievances. Not having done so, they cannot, in view of the clear law laid down by the Constitution Bench of this Court in L. Chandra Kumar, approach the High Court and treat it as the court of first instance in respect of their grievances by "overlooking the jurisdiction of the Tribunal". CAT also has the jurisdiction of review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987. So, it cannot be said that the appellants were without any remedy.

15. As the appellants cannot approach the High Court by treating it as a court of first instance, their special leave petition before this Court is also incompetent and not maintainable."

The argument of the state was incongruous. If the argument was that the

respondent writ petitioners ought to have moved the State Administrative

Tribunal, was it their argument that they were employees of the state,

not paid in the scale of pay of state employees and claiming to be paid in

that scale? Or, as Mr. Mukherjee, learned Advocate for the state

contended that the respondent writ petitioners were contractual

employees, appointed by the Committee looking after the hostel/mess of

the Malda Polytechnic, working at the direction of the Committee and

subject to the terms and conditions imposed by it. In that case, a

corresponding argument ought to have been made that if a dispute was

whether a worker was an employee of the state or not, even that was to

be decided by the tribunal. That argument was not made. Or in other

words, if one of the issues in the writ was whether a worker was an

employee of the state or not and involved service matters, the application

was to be tried and heard by the tribunal. Thus, the argument that this

court had no jurisdiction to hear the writ application was required to be

backed by sufficient facts but was not so done.

Most fundamentally, the ground that this court inherently lacked

jurisdiction to entertain the writ application was not taken when the writ

was moved. It is quite well settled that the point that the writ petitioner

should be relegated to an alternative remedy should be taken at the first

instance. Otherwise, the court usually does not entertain it. In this case

this point was not even urged in the affidavit-in-opposition or at the time

of hearing of the writ application. It was taken for the first time at the

time of hearing of the appeal.

Let us assume that the subject matter of the writ application could only

be decided by the tribunal.

There is a difference between erroneous exercise of jurisdiction and total

lack or inherent lack of jurisdiction. In the first case, the order is not a

nullity. Either it may be set aside or rectified on appeal or review. But

when a court exercises a purported jurisdiction which it does not possess

in reality, the whole proceedings are void ab initio, the order passed a

nullity. This point regarding absence of a court's jurisdiction cannot be

waived by any party or ignored or overlooked by a court. Any party may

take this point of jurisdiction at any point of time including at a late

appellate stage.

The High Court in the exercise of its jurisdiction under Article 226 of the

Constitution of India has extraordinary powers to issue writs, orders or

directions to any government or any authority to enforce the

fundamental rights, the provisions of the Constitution and the laws and

as a matter of fact, for any other purpose. The powers are so wide. The

Supreme Court and the High Courts from time to time have restrained

the use of this jurisdiction by the Supreme Court and the High Courts,

by various judgments so that this jurisdiction is exercised in

extraordinary circumstances when there is absence of any other legal

remedy, so that this jurisdiction is not used as a matter of course by

litigants by avoiding the ordinary courts and tribunals of the land.

In L. Chandra Kumar vs. Union of India and Ors. reported in (1997) 3

SCC 261, the Supreme Court has said:

"79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."

Even applying the legal principles in Kiran Singh and Ors. vs. Chaman

Paswan and Ors. reported in AIR 1954 SC 340, L. Chandra Kumar vs.

Union of India and Ors. reported in AIR 1997 SC 1125 and Rajeev

Kumar and Anr. vs. Hemraj Singh Chauhan and Ors. reported in

(2010) 4 SCC 554, it could not be said that the impugned judgment and

order was a nullity.

If this court had entertained the writ application, it was at best erroneous

exercise of jurisdiction which may have been corrected on appeal, and

not a purported exercise of jurisdiction which it inherently lacked.

In a case involving canteen employees and hostels and mess employees

of state aided educational institutions, a Special Bench of this court

comprising of three learned judges recorded that the respondents/writ

petitioners therein were satisfied with the notification dated 28th October,

2014 and that the reference was answered accordingly. In fact, on 21st

November, 2014 by a note, the Director of Technical Education and

Training, Government of West Bengal had said that a proposal had been

forwarded to the government to implement a policy of granting Group-D

status to the hostel /mess employees and to treat them as Group-D

employees.

A division bench of this court in the Director of Technical Education and

Training, Government of West Bengal vs. Chunilal Chakraborty and Ors.

on 20th February, 2019 opined that the canteens operated by the

technical department and other departments were identical in the type

and quality of service rendered to the students. They were permanent

employees rendering continuous service which was of the same type as

other canteen employees under universities or government aided colleges

as to the one dealt with by the special bench.

Under those circumstances, the appeal was dismissed. Against this

appeal, a special leave petition was filed by the government which was

also dismissed by the Supreme Court. In my opinion, the facts of the

instant case are similar to the division bench appeal in the case of

Chunilal Chakraborty and Ors.

In fact, it was brought to our notice that the order of Chunilal

Chakraborty and Ors. has been complied with by the government.

It is different from the facts in The State of West Bengal vs. Prabir

Chakraborty [(2007) 3 Cal LT 545] where it was held that the canteen

employees were strictly contractual workers engaged by the committee,

their services were under the committee, the terms and conditions of

service regulated by the committee and the university or college had

nothing to do with it. The division bench relied on State of Gujarat and

Anr. vs. Raman Lal Keshav Lal Soni and Ors. reported in (1983) 2 SCC

33. In that judgment, several factors were indicated, the presence of

which would determine the relationship of master and servant, namely

the right to select, or the right to appoint, the right to terminate the

employment, the right to take disciplinary action, the right to prescribe

the conditions of service, the nature of the duties performed by the

employees, the right of the employer to control the manner and method

of work of the employees, the source of fund from which the wages or

salaries was paid. The division bench opined that on a consideration of

these conditions and factors, it could not be said that there was a master

servant relationship between the writ petitioners and the

university. Secondly, it held that the hostel committee had appointed the

petitioners on a temporary basis privately, there having been no

statutory obligation on the part of the university to maintain a staffed

canteen. Its employees could not be termed as employees of the

university.

A special leave petition from that decision was dismissed by the Supreme

Court.

In this appeal, the appellant has not been able to disprove the facts

found by the learned first court. The facts stand uncontroverted.

On these facts, no other conclusion is possible save and except the

respondents have to be treated and regularized as permanent employees

of the Malda Polytechnic with a right to claim salary as an employee of

the state.

For the reasons given above, the ground taken on appeal that the writ

court ought not to have entertained the writ application is overruled.

On merits, again for the reasons advanced above, we find no reason to

interfere with the impugned judgment and order. We affirm the same.

The appeal is hereby dismissed.

No order as to costs.

(I. P. MUKERJI, J.)

BISWAROOP CHOWDHURY, J.

I have perused the Judgement proposed to be delivered by my learned

brother and agreed with the same. However, I intend to add the following

views.

At the very outset, I refer to the arguments made by learned counsel for

the State, Mr. Mukherjee. He submits that the writ petition is not

maintainable as the writ petitioners have claimed themselves to be State

government employees and in view of the provisions contained in West

Bengal Administrative Tribunal Act 1995 and the decision of the Hon'ble

Supreme Court in the case of L. Chandra Kumar, the State

Administrative Tribunal has the jurisdiction. According to Mr. Mukherjee

the writ court cannot be the court of first instance in case of the disputes

of State Government employees as they are to exhaust their remedy first

before the State Administrative Tribunal. It is further submitted that

although the point of jurisdiction was not taken before the learned trial

court, there is no bar in raising the said plea at the hearing of the appeal.

It is undoubtedly a well settled principle of law that the point of inherent

lack of jurisdiction can be taken at any stage of the proceedings, as an

order without jurisdiction is a nullity.

Now the question is whether the plea that entertainment of the writ

petition and passing an orders adjudicating the same, was a nullity can

be taken at this stage, when the plea of jurisdiction was not raised at the

first instance. The answer is definitely no. It is now well settled that

existence of an alternative remedy is not an absolute bar to entertaining

a writ application. When there is existence of an alternative remedy the

writ Court may exercise some self imposed restraint in entertaining a

writ application, or may entertain the same in the interest of justice. The

position is slightly different in case of Administrative Tribunals, which

are constituted to adjudicate the disputes with regard to recruitment

promotion, transfer, service condition and retirement benefits of

Government employees whether state or central. Where Administrative

Tribunals are already constituted government employees are to exhaust

their remedy before the Tribunal at the first instance. Only in a very rare

case can the High Court entertain a writ application in service matters

where an Administrative Tribunal is constituted. For example, when a

Tribunal is not functioning for a long period and a State Government

employee has an extremely urgent matter a High Court can exercise its

inherent powers under Article 226 of the Constitution of India. It is to be

remembered that when a suit is barred under a particular provision of a

statute civil court has no jurisdiction to entertain the same, but when a

statute provides an alternative remedy for redressal of disputes it cannot

be argued that Writ Petition is not maintainable. It is only when the

respondents against whom writ is sought to be issued is not a 'State'

within the meaning Article 12 of the Constitution of India the plea of

non-maintainability of writ petition can be taken. In the instant matter it

is not the case of the respondent authority that the said authority is not

State under Article 12 of the Constitution of India. It appears from

decisions relied upon by the learned advocate for the State respondent

that in the said writ petitions regarding hostel employees of Government

polytechnic Institution the plea of non-maintainability was not taken

before the Hon'ble Division Bench of this Court, and the Hon'ble Division

Bench was pleased to adjudicate the matter and laid down a proposition

of law. Thus when a proposition of law is laid down by Hon'ble division

bench of High Court as well as Hon'ble Special Bench on reference it

would be reasonable to decide the issue on the proposition of law laid

down by the Hon'ble Special Bench upon considering the facts of the

present case, without referring the matter before Tribunal after a period

of 8 years from the date of disposal of the writ petition. Thus I am of the

view that this Bench should dispose of the issue involved in the writ

petition by deciding this appeal.

On the argument of Mr. Mukherjee Learned Advocate for State of West

Bengal that the Trial Court in this case and the Hon'ble Division Bench

of this Court in the case of Director of Technical Education and

Training Government of West Bengal Vs. Chunilal Chakraborty came

to a findings without considering the ratio in the case of the State of

West Bengal Vs. Prabir Chakrabarty reported in (2007) 3 CAL LT-545

it is necessary to consider as to how far the decision in the case of (The

State of West Bengal Vs. Prabir Chakraborty) is applicable to the facts

of the case.

The Hon'ble Division Bench of this Court in the case of State of West

Bengal Vs. Prabir Chakraborty (supra) held that cooks and helpers in

the hostel of Raiganj Polytechnic could not be considered as Group-D

employees of the college. However, as the Hon'ble Division Bench hearing

FMA-2680 of 2007, FMA 2681 of 2007 and MAT-2903 of 2005, (State

of West Bengal Vs. Gobardhan Dalui and Ors.) did not agree with the

decision of the Hon'ble Division Bench in the matter of State of West

Bengal Vs. Prabir Chakraborty the matter was referred to the Hon'ble

Special Bench.

Upon considering the decision of the Hon'ble Special Bench the State

Government adopted a policy of granting Group-'D' status to the hostel

mess employees and to treat them as group D-employees of polytechnic

colleges. The Hon'ble Division of which my learned brother was a

member in the Chunilal Chakraborty case upon considering a note sheet

dated 21st November, 2014 signed by the Director of Technical Education

and Training, Government of West Bengal for implementing the policy of

granting Group-D status to the hostel mess employees and to treat them

as group-D employees, upheld the decision of the learned single judge

where the learned single Judge opined that since the employees/writ

petitioners were doing the same type of work as the canteen employees of

the State the writ petition should be allowed. The Special Leave Petition

filed against the Order passed in the case of Chunilal Lal Chakraborty

also stood dismissed. The State Government has complied with the Order

of the Division Bench by granting the Status of group D employees of

polytechnic college. Thus there is difference in circumstances between

the Prabir Chakraborty and Chunilal case. Hence the decision in the

matter of Prabir Chakraborty (supra) is not applicable.

In the facts and circumstances, I am of the view that there is no merit in

the appeal and the same should be dismissed. Pending connected

application, if any, is also disposed of.

Certified photocopy of this order, if applied for, be supplied to the parties

upon compliance with all requisite formalities.

(BISWAROOP CHOWDHURY, J.)