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Judgment
This writ petition has been listed under heading 'to be mentioned' at instance of petitioner.
Petitioner is aggrieved by communication dated 1st August, 2018 by which he was told he is to retire on completing 60 years of age as on 31st January, 2019.
Mr. Saha Roy, learned advocate appears on behalf of petitioner and draws attention to notification dated 27th January, 2017 which says, inter alia, as follows:
"In exercise of the powers conferred by section 4 of the West Bengal Universities (Control of Expenditure) Act, 1976 (West Ben. Act XVII of 1976) as amended by the Ordinance No. 1 of 2017 {The West Bengal Universities (Control of Expenditure) (Amendment) Ordinance, 2017}, the Governor is hereby pleased to direct 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 status and equivalent scale of pay) in all State-aided Universities and Government-aided colleges, who are in service on 1st January, 2017 and scheduled to retire on or after 31st January, 2017, shall be enhanced from sixty (60) years to sixty two (62) years, with immediate effect."
He relies on West Bengal Act XXXVI of 1981 (Rabindra Bharati Act), to amended clause (22) in section 2 which reads as follows:
"22. "Teacher of the University" means a Professor, Reader, Lecturer, Accompanist or any other person, appointed or recognized as such by the University, either whole-time or part-time, for the purpose of imparting instruction or conducting research or assisting in the teaching of music or dance by providing instrumental or vocal accompaniment, in the University;"
He submits, there was a writ petition decided regarding status of 'Accompanist'. The decision is now subject matter of appeal MAT 427 of 2018 (Biswajit Ghosh Vs. Dhimadhab Kritania & Ors.). Interim order dated 28th September, 2018 was made which contained following direction subsequently extended and continuing.
"We, therefore, feel that the portion of the order by which the Single Bench held that the status of the appellant got changed because of the amendment in Clause 22 of Section 2 of the University Act, 2012 is concerned, the same should not be given effect to, nor any decision shall be founded thereupon, if any taken, till the end of December, 2018 or until further order, whichever is earlier."
He seeks interference.
Mr. Chakraborty, learned advocate appears on behalf of the University. He submits, University Grants Commission (UGC) ought to have been made party. Moreover, West Bengal University Laws (Amendment) Act, 2012 omits 'Accompanist' as included in definition section 2 of Rabindra Bharati Act, 1981. He relies on clause (b) under sub-section (1) in section 11 of the Act, which is reproduced below:"11. In the Rabindra Bharati Act, 1981,-
(1) in section 2,-
(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 who-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;'"
He submits, there thus has been substitution of meaning of 'teacher of University' by competent legislation, deliberately omitting 'Accompanist'. As such petitioner is not covered by notification dated 27th January, 2017 to claim retirement at age of 62 years.
Mr. Chakraborty also submits, petitioner could not have been appointed as a University teacher per UGC Regulations. He relies on judgment of Supreme Court in University Grants Commission Vs. Sadhana Chaudhary reported in (1996)10 Supreme Court Cases 536 to submit, UGC Act, being a Central Act pursuant to which the Regulations were made by the Commission, has primacy over State Act. In paragraph 3 of the judgement, Supreme Court referred to University Grants Commission (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it) Regulations, 1982. Per these Regulations petitioner is not qualified to be called teacher of the University.
Mr. Saha Roy in reply submits, clause (14) in section 2 of Rabindra Bharati Act, 1981 was not correspondingly amended to include 'Accompanist' in definition of non-teaching staff. Thus intention of legislature is clear for 'Accompanist' to be included in substituted amended clause (22) in section 2, to be any other person appointed whole time, assisting in teaching. On query from Court parties submit, this is the controversy awaiting adjudication in the appeal.
There is substance in submissions made by Mr. Saha Roy regarding his client, if not to be termed as teacher, thus is an employee of the University but not covered by its Act. Clause (14) in section 2 of Rabindra Bharati Act, 1981 is reproduced below:
"14. "non-teaching staff" in relation to the University or a college, institution or centre affiliated to the University means the non-teaching staff, not holding any teaching post (including part-time teaching post), appointed or recognized as such by the University, and includes technical staff but does not include a Librarian or an officer."
For purpose of this writ petition this Bench has a view. It has been ascertained that petitioner accompanies a teacher in assisting in the teaching of music and dance by providing instrumental or vocal accompaniment. This function does not appear to be included in meaning technical staff given in clause (14) of section 2 in Act of 1981. Controversy in this writ petition is regarding retirement age of petitioner who was duly appointed. His appointment is not a matter of consideration for adjudication on whether he his qualifications conform to UGC Regulations for being appointed as a teacher or otherwise. It is a question of the notification applying to his service as already appointed to the post. Since the Legislature has amended clause (22) in section 2 to omit word 'Accompanist' but corresponding amendment not made to clause (14) in section 2, as existing before substitution by amending Act XXX of 2012, Court is inclined to interfere in favour of petitioner.
No other provision in Rabindra Bharati Act, 1981 was brought to notice of Court. Court on query made, ascertained from Mr. Chakraborty that a teacher within the meaning of para 159 in Rabindra Bharati First Statutes (supplement) now has period of service extended to 62 years per said notification dated 27th January, 2017. The University is directed to allow petitioner to continue to serve until he reaches age of retirement as provided in said notification dated 27th January, 2017.
Writ petition is disposed of.