SASHI BHUSAN RAY Vs. PRAMATHNATH BANERJEE

JUDGEMENT

(1.) THIS is an application under article 226 of the constitution of India. The main purpose of this application is to challenge the extension of the period of service of the Respondent No. 1 as Principal of the University Law College after he had attained 65 years of age on the 1st january, 1960. it appears that on the 5th January 1960, the Council of the university College of Law invited the respondent No. 1 to serve the Law college as Principal for two years from february 1, 1960 to January 13, 1962. Again, on the 10th January 1962, a similar invitation was extended to him to serve for a further period of two years from the 1st February 1962 to the 31st January 1964. The third extension came on the 3rd January 1964 when he was invited to serve for another period of two years from the 1st February 1964. On the 16th August 1965, the present application was made. The Respondent no. 1 has, we are told, now retired upon the expiry of the third term of extension. Apart from the Respondent no. 1, the University of Calcutta, its senate, its Syndicate, its Academic council, its Chancellor, its Vice-Chancellor, its treasurer, its Finance Committee, and its Dean of the Faculty of law have been made parties to this application. The Council of the University college of Law, the State of west Bengal and the Accountant-General of West Bengal are also parties. The petitioner prays for Writs to the nature of Quo Warranto and Mandamus as well as other orders or directions. The petitioner is a medical practitioner and is a registered graduate of the University. His grievances have been set out in paragraph 21 of the petition. He says, (a) that the University College of Law is a university College within the meaning of sec. 2 (o) of the Calcutta University Act, 1951, and not an affiliated college ; (b) the Principal of the Law College appointed in terms of clause 24 (a) of the First Statutes framed under the said Act is a teacher of the University or a University Teacher under s. 2 (m) and a University Professor under secs. 2 (q) and 16 (i) (vi) of the Act, and as such, subject to retirement at the age of 65 under provisions of clause 49 of the First Statutes ; (c)the acconuts of the Law College are part of the University's accounts and are liable to be audited under section 23 of the said Act by the Accountant-General of West Bengal ; (d) the Respondent No. 1 after his attainment of the age of 65 years became incompetent to act as Principal of the University Law college or as a member of the appropriate bodies or Committees of the College and the university ; (e) the Respondents Nos. 2 to 11 (that is the University and its different authorities mentioned above and the Council of the university Law College) have acted in excess of their powers and jurisdictions in permitting the Respondent No. 1 to hold the office of the Principal cf the law College and the other offices mentioned in the petition or to receive or realise emoluments out of the University fund after attaining the age of 65 years ; (f) the Respondents Nos. 1 to 11 have exceeded their powers and jurisdictions by obstructing the Respondents Nos. 12 and 13 (that is, the State of West Bengal and the Accountant-General of West Bengal)in the auditing of the accounts of the Law college as part of the University's accounts ; and (g) the Respondents Nos. 12 and 13 have failed to exercise their powers by omitting to audit the said accounts.

(2.) IN this application learned counsel appearing for various respondents, have raised certain preliminary objections. It is submitted that, (i)the application is vitiated by inordinate delay on the part of the petitioner ; (ii)a writ in the nature of Quo Warranto cannot be issued as the proceeding involves decisions on disputed questions of fact ; (iii) the petitioner is not a competent reiator to apply for a writ in the nature of Quo Warranto ; (iv) the proceeding for a writ in the nature of Quo warranto has abated on account of the retirement of the Respondent No. 1 by efflux of time ; and (v) no writ in the nature of mandamus can be issued against the Respondent No. 1 for the refund of remuneration or emoluments he had received as Principal of the Law college during the extended periods of service beyond the permissible age limit.

(3.) WE have to decide these preliminary questions first before we proceed to discuss the status of the University Law College under the relevant statues. Learned Counsel for the Respondent no. 1 and for the University law College, state that the first extension was granted on the 5th January 1960, after the Respondent No. 1 had attained the age of 65. The present application was made on the 16th August 1965, and this delay of more than five years has not been explained by the petitioner. The Learned Trial Judge has upheld this contention.