B.C.Mitka, J. -
(1.) The respondent No. 1 was an upper division clerk in the office of the Accountant General, West Bengal. He retired from service on May 2, 1965, and was thereafter re-employed by the State Government as Accounts Officer of Bengal Engineering College on July 16, 1965. While re-employed at the Bengal Engineering College, in answer to an advertisement inviting applications for the post of Finance Officer, University of North Bengal, (hereinafter referred to as the University) he submitted an application. The Selection Committee appointed by the Executive Council of the University selected him for the post of Finance Officer of the University and he was accordingly appointed such officer, on a purely temporary basis, at a monthly salary of Rs. 1,000/- per month in the scale of Rs. 1000-50-1500/-. At a meeting held on September 5, 1966 the University approved of the selection of the respondent No. 1, and the appointment made by the Executive Council, pursuant to such selection. On the date of his appointment the age of respondent No. 1 was 59 years 4 months 3 days. On July 10, 1967 the Vice-Chancellor of the University requested the Chancellor of the University for extension of the service of the respondent No. 1 in the above post, on the basis of the second proviso to Statute 20 of the University Statutes, to which I will refer later in this judgment. This request, however, was turned down by the Chancellor of the University, whose decision was communicated to the Vice-Chancellor by a letter dated July 22, 1967. The Vice-Chancellor forwarded the said letter to the respondent No. 1 with an endorsement dated July 31, 1967, thereon as follows: "Please do the needful." On the same day the respondent No. 1 wrote to the Vice-Chancellor of the University, that in view of the circumstances set out in the letter of the Secretary to the Chancellor, he thought that he should be relieved with effect from August 2, 1967. In that letter the first respondent also requested that he might be granted earned leave for 34 days with effect from August 3, 1967. On the following day viz. August 1, 1967, the Vice-Chancellor made an office order that as the respondent No. 1 would go on leave preparatory to retirement having attained the age of 60, he was relieved from his duties with effect from the afternoon of August 2, 1967. A copy of this order was forwarded to amongst others the respondent No. 1. On August 2, 1967 the Vice-Chancellor granted 35 days privilege leave to the respondent No. 1 preparatory to his retirement, with effect from August 3, 1967. What appears to be curious, however, is that having positively expressed a desire to be relieved and having applied for privilege leave for 34 days on July 31, 1967, on the next day that is to say on August 1, 1967 the respondent No. 1 wrote to the Secretary to the Chancellor, for reconsideration of the matter of his employment under the University. His contention in this letter was that no mention was made in his letter of appointment of the period for which he was to hold the office of the Finance Officer, and therefore he was entitled to hold the office so long as he kept fit. His further contention was that the termination of his service on the attainment of the age of 60 in terms of Statute No. 20, was contrary to the provision in Section 20 of the North Bengal University Act, 1961. (hereinafter referred to as the Act). It is evident that once having made up his mind to relinquish the office which he held, and accordingly having applied for privilege leave due to him, he promptly changed his mind on the very next day and raised the contention that his service was terminated wrongfully, that Statute 20 of the Statutes did not apply to his case, and that his appointment as Finance Officer could not be treated to be an appointment for a fixed period and that he was entitled to hold that office as long as he kept fit.
(2.) Thereafter the respondent No. 1 sent other representations to the Secretary to the Chancellor and also to the Chancellor himself, but having failed to obtain any satisfactory response he made an application under Article 226 of the Constitution which was disposed of by an order dated October 10, 1969, whereby the trial court quashed the order or direction contained in the letter dated July 22, 1967, from the Secretary to the Chancellor and directed the appellant and the respondents Nos. 2, 3 and 4 not to give effect to the order dated August 1, 1967, whereby one S. C. Kar, Inspector of Colleges, was directed to take over charge of the Office of the Finance Officer from the respondent No. 1 and also another order dated August 2. 1967, whereby the respondent was granted 35 days privilege leave preparatory to retirement. The Rule was made absolute to the extent that the above orders and directions were quashed and direction was issued not to give effect to the orders mentioned above and a Writ. In the nature of mandamus was directed to be issued. This appeal is directed against this order. I should mention that the respondents 2 and 3 have filed cross-objection against the said order.
(3.) Before proceeding any further it is necessary to refer to the relevant provision of the Act, and the statutes made thereunder. Section 4 confers various powers on the University. Sub-section (15) of this section gives the University the power to define the powers and duties of the officers of the University other than the Chancellor and the Vice-Chancellor. Sub-section (23) enables the University to do all other acts and things as may be necessary for furthering the objects of the University. Section 16 defines the officers of the University and under this definition the Finance Officer is one of such officers. Section 23 (1) confers upon the University the power to make Statutes, Ordinances. Regulations and Rules for the purpose of carrying out the provision or exercising the powers conferred on it by the Act. Section 23 (5) specifies the matters for which provision may be made by the statutes. One of such matters under clause (d) of Section 23 (5) is the appointment, powers and duties of the officers of the University other than the Chancellor and the Vice-Chancellor. The only other section to which reference is to be made is Sub-section (1) of Section 20 of the Act which provides that the Finance Officer shall be appointed by the University and that he shall be a whole time officer of the University and he shall be paid such salary from the University Fund and hold office for such period as the University may decide.;