TARAGATI BHATTACHARYYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Petitioner was appointed the President of the Calcutta Improvement Trust Tribunal for 2 years by the State Government by a notification dated May 24, 1966. After the expiry of the said term the Petitioner was again appointed the President of the Tribunal but the appointment was limited upto November 30, 1968. The second appointment was made on May 25, 1968. After the expiry of the said term Sri P. Basu was appointed the President of the Tribunal. When the application was moved before this Court the Petitioner was holding the office. During the pendency of the application, the term expired and Sri P. Basu was appointed the President of the Tribunal. Thereupon, the Petitioner amended the petition adding Sri P. Basu as a party Respondent and further more asked for a writ of quo -warrant against the said added Respondent. After the Petitioner was so appointed the Petitioner brought to the notice of the authority that it is not possible under Sec. 72(4) of the Calcutta Improvement Act of 1911 to limit the term of the appointment to less than 2 years, and the appointment must be made for a term of 2 years, whereupon the State Government replied that in an ' earlier case of appointment of Sri K. P. Mukherjee the appointment was made for a term less than 2 years and, as such, there is a precedent and the appointment of the Petitioner for 6 months and 7 days is not invalid. The Petitioner again wrote a letter by way of demand of justice and moved this Court on November 12, 1968, and obtained the Rule. Mr. Chowdhury, appearing for the Petitioner, contended that once an appointment is made the appointment must be for a term of 2 years and the re -appointment of any incumbent must be also for a term of 2 years. Therefore, any appointment made for a term less than 2. years the said fixation of term is bad in law and the appointment must be for a term of 2 years.

(2.) Mr. Advocate -General appearing for the Respondent, however, contended firstly that if the order of appointment for less than 6 months is bad, as argued by Mr. Chowdhury, then the order of appointment of the Petitioner itself was null and void and illegal. Mr. Advocate -General further contended that the Petitioner's contention that the appointment of the President of the Tribunal for 6 months and 7 days was illegal then the whole order must be quashed. Mr. Advocate -General further contended that the writ of quo -warranto cannot be issued against the Respondent as he was duly appointed on December 2,1968, and there was no infirmity in regard to that appointment. Thirdly, Mr. Advocate -General contended that the Petitioner accepted the appointment for a term of 6 months and 7 days, took benefit of the same and cannot now challenge the order of appointment. It is argued by Mr. Advocate -General that the Petitioner has waived his right, if any.

(3.) On the question of waiver of the right Mr. Advocate General's contention cannot be accepted. It appears in the facts of this case that the Petitioner was all along making his grievance with the Government and, the Government having turned down his plea, he moved this Court before the term expired. In that view of the matter it cannot be said that the Petitioner has waived his right to challenge the order complained of. Moreover, the Petitioner all along insisted that the appointment was valid but it must be for a term of 2 years. Therefore, he is entitled to continue in the office during the period of 6 months and he only says that the term should be enlarged to the period of 2 years, because the appointment under Sec. 72(4) of the Calcutta Improvement Act of 1911 must be for a term of 2 years. Therefore, it cannot be said that the Petitioner has, waived his right to challenge the order. The next point argued by Mr. Chowdhury is that appointment or re -appointment under Sec. 72(4) of the Calcutta Improvement Act of 1911 must be for 2 years. It is argued by Mr. Advocate -General that if an appointment is made for less than 2 years the whole order of appointment must go. Sec. 72(4) of the Calcutta Improvement Act runs as follows: