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Judgment
Mr. Maitra, learned senior advocate appears on behalf of petitioner and submits, this Court upon hearing arguments advanced on behalf of parties had
dictated judgment in open Court on 8th August, 2018. Submissions made till that point of time found record in dictated judgment, not signed.
Maintainability point had not been urged either initially or at the time arguments were heard and judgment dictated. However, by order dated 16th
August, 2018 Court put parties on notice regarding three judgments of Supreme Court mentioned in said order. He submits, this point regarding
maintainability cannot be taken by the College or any other respondent, as not taken till conclusion of hearing and judgment dictated. Said dictated
judgment should be signed and made judgment of Court.
He relies on judgement of Supreme Court in Hriday Narain versus ITO reported in AIR 1971 SC 33 where said Court said High Court upon
entertaining writ petition and thereafter dismissing same as not maintainable was not justified in so doing. He submits, this writ petition was admitted
and interim order made by Co-ordinate Bench. Maintainability point was not taken by respondents then nor when writ petition was heard and judgment
dictated as aforesaid. Court’s academic pursuit should not be followed but instead judgment should be signed as dictated on argument advanced
by parties. In this context he relies on another judgment of Supreme Court in State of Punjab and others vs. Gurdev Singh reported in AIR 1991
Supreme Court 2219, inter alia, paragraph 8, as also on passages in administrative law 6th Edition by Professor Wade, referred in said judgment.
Without prejudice to above contention he relies on following other judgments of Supreme Court preceded by reliance on West Bengal College
Teachers (Security of Service) Act, 1975. He submits, security of service is a statutory right which stands violated and as such, writ petition is
maintainable. The judgments are:-
(i) Smt. Kiran Bedi and Jinder Singh versus The Committee of Inquiry and another reported in AIR 1989 Supreme Court 714, paragraphs 21 to 24 for
right of personal security being a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation.
(ii) Deepak Bajaj versus State of Maharashtra and another reported in (2008) 16 Supreme Court Cases 14, paragraph 7 in which was relied earlier
judgment of Supreme Court in Bharat Petroleum Corpn. Ltd. versus N. R. Vairamani reported in (2004) 8 SCC 579, paragraph 9 (in relied upon
judgment).
(iii) State of West Bengal and Ors. vs. Committee for Protection of Democratic Rights, West Bengal and Ors. reported in AIR 2010 Supreme Court
1476, paragraph 29 for the Constitution being declared to be a living and organic document, in context of interpretation and exercise of power by Court
under Article 226.
(iv) K. Krishnamacharyulu and others vs. Sri Venkateswara Hindu College of Engineering and another reported in AIR 1998 Supreme Court 295,
paragraphs 3 and 4 in which Supreme Court considering case of Laboratory Assistants in private college said, they cannot be denied the same benefit
of moving Court under Article 226 which is available to others.
In commenting on three judgments mentioned in order dated 16th August, 2018 Mr. Maitra submits, it is apparent from paragraph 13 in Dipak Kumar
Biswas (supra), I.P. Gupta v. Inter College an earlier judgment of Supreme Court reported in AIR 1984 SC 1110, was relied upon by appellant therein
and said to be distinguishable on facts since relied upon case pertains to termination of service by way of disciplinary action where prescribed
procedure by regulations were virtually same as those provided by Article 311(2) of the Constitution. He submits, here disciplinary action stands
statutorily prescribed by 1975 Act. Hence, Dipak Kumar Biswas (supra) does not militate against his client getting relief.
On Satimbla Sharma (supra) Mr. Maitra points out, said judgment referred to K. Krishnamacharyulu (supra). Said earlier judgment was distinguished
on finding of fact that in the case being considered there were no executive instructions issued by Government requiring private schools to pay similar
salary and allowance to their teachers as was sought by appellant. Lastly, on K. K. Saksena (supra) he relies on paragraph 38 to submit, again K.
Krishnamacharyulu was considered and in paragraph 40 Supreme Court relied on its earlier judgment in Federal Bank Ltd. vs. Sagar Thomas reported
in (2003) 10 SCC 733, paragraph 18 for eight instances where writ petition would be maintainable. He concludes his submissions. List on 19th
November, 2018 at 2 P.M. for respondents to be heard.