A K AUGUSTINE Vs. UNIVERSITY OF CALCUTTA

JUDGEMENT

(1.) The petitioner Mrs. A. K. Augustine has in this application, under Article 226 of the Constitution of India prayed for issue of a Writ in the nature of Quo Warranto commanding the respondent No.3 Dr. Amit Sen to produce document to show by what authority he is continuing to hold the public office as Head of the Department of Law for Post Graduate Studies in Law, University of Calcutta and to quit the said office. The petitioner was temporarily appointed as a Lecturer against a substantive post in the Department of Law for Post Graduate Studies in Law in the University of Calcutta with effect from January 3, 1983 and such temporary appointment was renewed from year to year till June 1, 1989. Being selected by the Selection Committee for the Post of Reader in the said Department, the petitioner joined as Reader in the said post on June 2, 1989. On completion of the probationary period she was due to be confirmed to the said post of Reader with effect from June 1, 1990. The respondent No.3 who was then holding the post of a Reader in the said Department of Law was appointed as the Head of the Department of Law, University of Calcutta by the Vice-Chancellor on and from May 22, 1986 in terms of Ordinance 35 of the Calcutta University First Ordinance 1979 (hereinafter referred to as the First Ordinance). According to the provision of Ordinance 35(2) of the first Ordinance, the Head of the Department can hold office for a term of two years from the date of his appointment and accordingly the term of Office of Dr. Sen expired on May 21, 1988. But Dr. Sen in violation of the provision of Ordinance 35 of the first Ordinance is still continuing to hold the Office as Head of the Department of Law. The petitioner who is holding the Post of a Reader and is now the senior most Reader in the said department is eligible to be appointed as the Head of the Department on the basis of rotation system as contemplated in Ordinance 35 of the first Ordinance. She made representations verbally before the Vice-Chancellor as also before the Registrar, University of Calcutta, but no action was taken by them to remove Dr. Sen from the Office as Head of the Department of Law. The Head of the Department of Law is a public office. The University cannot allow Dr. Sen to continue to hold such office in violation of the provisions of Ordinance 35(2) of the first Ordinance nor is Dr. Sen entitled to continue to hold the said office. On these allegations the petitioner has made this application for the relief indicated above.

(2.) In their affidavit-in-opposition the respondent Nos. 1 & 2 have contended that the petitioner has not yet been confirmed in her post as Reader in the Department of Law and therefore she has no right to claim to be considered for being appointed as Head of the Department of Law. Further case of the respondents is that Dr. Sen submitted a letter of resignation from the office as Head of the Department of Law. But in a meeting of the Departmental Committee held on November 23, 1990 the members including the petitioner unanimously expressed their full confidence in the continuation of Dr. Sen as Head of the Department and requested Dr. Sen to withdraw his letter of resignation. Pursuant to such request Dr. Sen withdrew his letter of resignation and continued to act as the Head of the Department. The petitioner after consenting to the continuation of Dr. Sen as Head of the Department of Law is now estopped from challenging the continuation of Dr. Sen as Head of the Department. The respondents have further contended that after Dr. I.G. Ahmed was confirmed to the Post of Reader in the Department of Law, Dr. Sen by a letter requested the Vice-Chancellor to appoint Dr. Ahmed as Head of the Department in his place. But Dr. Ahmed due to his vehicle physical disability did not accept the said post. Consequently, the University had no option but to ask Dr. Sen to hold the Office as Head of the Department. It has been alleged by the respondents that the present application by the petitioner is harassing, vexatious and malafide.

(3.) In addition to what has been stated by the respondent Nos. 1 & 2. Dr. Sen the respondent No.3 has in his affidavit-in-opposition contended that he held the Office of the Head of the Department of Law till May 1989 and thereafter he was appointed as Professor. Therefore, he had a right to continue as Head of the Department for a term of another two years, since a Professor is always deemed to be senior to the Readers. However, when one of the two Readers on probation in the Department of Law was confirmed, he sent a note to the Vice-Chancellor expressing his desire to discontinue as Head of the Department. But in a meeting of the Departmental Committee the members including the petitioner adopted a resolution requesting him to continue as Head of the Department. Various other allegations regarding the performance of the petitioner as a Reader of the Department of Law have been made in the affidavit-in-opposition.