JAGABUNDHU ADHIKARI Vs. STATE

JUDGEMENT

(1.) The petitioner is a lecturer as well as a member of the Teacher's Council of Midnapore College under the Vidiyasagar University. He has filed the present writ application stating that on May 1986, a notice was; issued by and/or under the signature of the principal, Midnapore College intimating the whole time teachers, whole time librarian and whole time physical instructor,. that an election is going to be held on July 14, 1986 for the formation of governing body of the Midnapore College. It is also, stated therein that a voters' list for the purpose of holding the election of the governing body of the said college has been prepared by the college authority and names of the laboratory assis tants in the college have been included in the teachers category to enable them to cast their votes in the election for the formation of the said governing body. It Is further stated that the: inclusion of the names of the laboratory assistants is malafide, arbitrary and without jurisdiction and violative of the Vidyasagar University Act, 1981 and the Vidyasagar First Statute 1985. Upon enquiry, the petitioner came to know that as per the Government notification No. 1502-Edn. (CS)5P-2 4/83 dated, Calcutta 10th August 1983 issued by the Education Department (C.S.Branch). ' Government of West Bengal, the inclusion has been made as the designation of the Laboratory assistants has been changed as laboratory instructors and names of the Laboratory assistants have been included in the teachers category. According to the petitioner, there are separate constituencies for non-teaching employees for formation of the governing body of the college as per Statute 10.5 of the Vidyasagar University First Statute, 1985 and the Laboratory instructors may cast their votes from their own category but not as teachers and/or from teachers' category. There is a specific difference between a "Teacher" and a "Non-teaching Staff" of an affiliated college as per definitions laid down in Section 2 of the Vidyasagar University Act of 1981. As per the definitions, there are specific qualifications to become "teachers" and there is a sharp distinction as to the qualification of non-teaching staff and the laboratory assistants cannot claim to be teachers by even changing the designation and/or nomenclature. It is alleged that the principal of Midnapore College in collusion with the Vidyasagar University Authority and for some oblique motive and having political bias, prepared the voters' list by including the names of the laboratory instructors 'in the teachers' category so as to enable them to cast their votes for formation of the governing body in two-fold ways, one from the teachers category and the other from the non-teaching staff category. Stating ail such facts, the petitioner has moved this Court to 'obtain necessary reliefs by commanding the Respondents to exclude the names of the laboratory instructors from the category of teachers from the voters list for the election for formation of, the governing body of Midnapore College, under the Vidyasagar University First Statute, 1 985, and to restrain them from holding the election pending correction of the voters' list in the manner as stated therein.

(2.) The petition was moved on l0th July,, 1986 and by order dated 10th July, 1986, it was directed that the election should take place as per the voters' list and laboratory assistants would also be entitled to vote but the same be noted separately and no further effect be given to the election and/or no' further steps be taken after the election. An application dated 24th July, 1986 was filed for vacating the aforementioned order dated 10th July, 1986. By an order dated 31st July, 1986 Mr. Jagadindranath Maity, a practing Advocate of this Court was appointed as Special Officer for the purpose of carrying out the day to day administration of the Midnapore College. The director of public instruction, West Bengal was directed to, make available necessary funds for the purpose of payment of salary of the teaching and non-teaching ' members of the Midnapore College. The Special Officer was directed not to issue any appointment letter nor to take disciplinary proceeding against any member of the staff. It has been alleged in the application for vacating and/or modifying the interim order passed on 10th July, 1986 that under Statute 105(3), the first governing body of the college including the election of the President under the Statute within one year from the date of which the statute came into force and the term of office and the governing body was constituted for four years from the date of such election. The Vidyasagar University Act came into force on 17th July, 1985, the last date for completion of the constitution of the governing body of the Midnapore College was up to 16th July, 1986. The copy of the writ petition along with letter of the learned advocate dated 11th July 1986 was served in the office of the College on 12th July, i 986 after election of the non-teaching staff was completed on 11th July, 1986. By .order dated 14th July, 1986, this Court modified the order that the order dated 10th July, 1986 will not prevent the election of the governing body but no step/steps be taken pursuant thereto and the election will abide by result of the case. Accordingly, the election of the president has been held on 16th July, 1986 and the governing body has been constituted in terms of Statute 105(III) of Vidyasagar University Act but owing to the interim order as passed on 19th July, 11986 as well as on 15th July, 1986 the governing body cannot function and a deadlock has been created. Unless the new governing body is allowed to function in terms of Statute, there Will be several complications and the interest 'of the respondents will be seriously prejudiced. An affidavit- in- opposition has also been filed on behalf of the Respondent Nos. 25 against the main writ application and there is an affidavit- in- reply. The Special Officer has also filed a report. On consent of all the parties, the entire matter on merit is taken up for final hearing by this Court.

(3.) It is stated . in the said affidavit- in- opposition that the post of. laboratory assistant is a teaching post under Statute 156 the practice and procedure of the University of Calcutta to which the Midnapore College was affiliated shall in so far as to they are not repugnant, the provisions of the Act, Statute, Ordinance and regulations continued to be in force in respect of the University altered, repealed or amended, the post of laboratory assistant is a post of whole time teacher within the meaning of Statute 105(I)(c). The Deputy Inspector for colleges addressed the letter dated 6th June, 1 986 to all Principals Teachers in- charge and administrators of colleges under the University intimating that the governing body must be constitutes within one year from the date of coming into force of the statute i.e. 17th July, 1986 and along with the letter an explanation pursuant to an order of the Vice- Chancellor dated 4th June, 1986 under Statute 157 was annexed referring to Statute 68(I)(c) to the effect that instructors/demonstrators and any other person who are certified by the Head of the Institution concerned as participating in teaching work shall be deemed to be teachers for the purpose of election under the said statute. In view thereof, all the laboratory instructors of the affidavited colleges are entitled to cast their votes in the teachers' category and their names have been included in the voters' list with the designation of the laboratory assistant redesignated as laboratory instructors under Section 2(20) of the Act, Demonstrators, Inspector or any other person holding a teaching post are included in the category of teachers and as such they are entitled to participate; in the election both in the governing body of the affiliated colleges and/or the University authorities and so far as the Midnapore College is concerned, it is apparent from Annexure "A" that there are posts of laboratory assistants in the college and they are also included in the teaching category under the Act and the Statute. That apart the Government Order dated 10th August, 1983, makes the position clear and it is not contrary to the Act and the Statute also. The qualification as prescribed for librarian, Assistant librarian and demonstrators enables them to be included as teachers. The writ petitioner himself participated in the election and on 19th July, 1986 a letter was received intimating the name of the governing body. The method of voting in Statute 105(l)(c) has been amended from a simple majority to proportionate majority and this amendment was made in or about July, 1986. Since the election of the teachers constituency has been held unanimously the question as to whether the laboratory assistant should be included has become academic inasmuch as even if they are excluded from the list of voters, the election of the Governing Body will be valid and the writ application has become infructuous.