- (1.)This is an application which was filed on 2nd of March, 1979 on behalf of the University of Calcutta and Inspector of Colleges for reviewing or re-considering the order passed by this Court on 31st of January, 1979 and also for restoring the application which resulted in the said order to be heard on its merits. Now, in order to appreciate this application one has to go back to the background, It appears that the said order dated 31st of January, 1979 which is being asked to be re-considered and recalled was passed in an application under Article 226 of the Constitution filed by one Shyamlal Mistri, Principal, Chittaranjan College, against the University of Calcutta, the Inspector of colleges, University of Calcutta and Chittaranjan College through its secretary. The case of the petitioner was that the petitioner was the founder Principal of the said college and the petitioner is an M. A. of the University of Calcutta in Economics. The petitioner also asserted that he had taken post graduate diploma in Education in the year 1957, and in the year 1959 the petitioner had obtained M. Litt Degree in Education form the Trinity College, Dublin being the 1st class first in position. The petitioner has also motioned certain teaching experience in his original writ petition which is not necessary to be reiterated here. The petitioner asserted that the said Chittaranjan College was managed by a trust under the registered Deed of trust dated 14th September 1968 and the said college was duly affiliated to the University of Calcutta from the Session 1967-68, B.Com Part 1 Examination in 1969 and B.Com Part II Examination in 1970 and not earlier. The college was at first housed at the said school premises of Chittaranjan high School, Kasba, free of all costs and charges with right to use the school's furniture, equipments etc. The petitioner stated that the normal working hours of the school were from 11.00 A.M. to 4.00 P.M. whereas the normal working hours of the college were from 6.00 P.M. The petitioner asserted that as he was the Headmaster of the school he was appointed as principal designated to work for the college with effect from 1st July 1967. On the 4th of July, 1967 it was resolved by the Chittaranjan College that the petitioner should be appointed subject to the consent of the Chittaranjan School authorities as its Principal (Acting) and he be paid an honorarium of Rs. 251/- per month from the date he joined. Thereafter, according to the petitioner, the matter was reported to the Registrar of the University of Calcutta and the University had by certain letter asked for certain particulars regarding the subject in which the petitioner passed the M. A. Examination and such particulars were duly furnished. It was further stated that by the letter dated 26th of September, 1968 the Registrar of the University of Calcutta had written to the Principal regretting that his appointment could not be approved and requested the College to appoint a properly qualified whole time Principal. The Inspector of Colleges on November 6th , 1968 wrote to the Secretary enclosing a copy of such letter. By the letter there was correspondence between the College and the University and according to the petitioner by a letter dated 27th of July, 1971 the petitioner's appointment as Principal was approved by the University of Calcutta and such approval was acted upon and a resolution was passed on the 28th of March, 1974. The petitioner stated that such resolution was necessary as without such resolution the petitioner would not have been entitled to the scale of pay granted by the University Grants commission which is hereinafter referred to as U. G. C. There was certain increment of the petitioner's salary and according to the petitioner in the said writ petition after more than seven years after getting approval on the 25th of August, 1978 the Inspector of Colleges wrote to the Principal to show cause why the approval should not be withdrawn and the Secretary replied by his letter dated 29th of August, 1978. There were certain other points mentioned in the said petition and the petitioner has narrated how because of the efforts made by the petitioner the college had improved. But by a letter dated 22nd of December, 1978 the Inspector of Colleges has purported to withdraw such approval to the appointment of the petitioner as Principal of the College. It was asserted that such withdrawal was illegal and invalid. The grounds of such as assertion have been mentioned in the original writ petition of the petitioner. The petitioner prayed that the respondents should be asked to withdraw the said letter dated 22nd of December, 1978. By the said letter the Secretary of the Chittaranjan College was informed by the Inspector of Colleges that the approval accorded to the appointment of Shyamlal Mistry was hereby withdrawn and appointment stood disapproved from the date of appointment of Sri Mistry. He further informed the Secretary of the College to show cause within a fortnight why the governing body of the college should not be superseded in consideration of the stand adopted by the governing body of the college in respect of the appointment of Sri Mistry.
(2.)Upon these facts as mentioned hereinbefore the petitioner moved this Court and obtained a rule nisi on the 16th of January, 1979. I directed that the orders of superseding the college should not be given effect to but in the meantime the petitioner should not function as Principal. I must also mention that another application was moved in the Original Side of this Court by the Chittaranjan College and others against the University of Calcutta challenging the said letter dated 22nd of December, 1979 and the said application was also moved before me and I issued a rule nisi and granted an ad-in-terim order. Both these applications came up ultimately for hearing before me on the 31st of January, 1979 after affidavits had been filed by the parties for the continuance of the interim order. Without considering the right of the University to cancel or recall the approval granted after lapse of such time I was of the opinion that it was not proper for one person to continue both as whole time Principal of a college at the same time a whole time Headmaster of a high School. It was my opinion that an attitude on behalf of the college which permitted continuance of such an attitude which further encouraged the Principal to do so would be a relevant factor in exercising jurisdiction under Article 226 of the Constitution. It was however pointed out on behalf of the college as well as on behalf of the Principal that he was being denied the benefit of U.G.C. grant by the Government the Principal was prepared to relinquish his position as a Headmaster. It was asserted that the University and the Government were wrongfully withholding the grant of such scale of pay to the petitioner even though the petitioner was entitled to the same under the law. Upon this it was felt that the appropriate order would be that the petitioner Shyamlal Mistry would give an undertaking to the court that the moment Government gave sanction to the University Grants Commission scale of pay to the Principal Chittaranjan College the said Principal would relinquish the post of Headmaster of Chittaranjan School. It was thereupon recorded in the order dated 31st of January, 1979 that Shyamlal Mistri gave such an undertaking. It was further recorded that upon such undertaking being given to this Court learned advocate appearing for the University Mr. De stated that the University withdraw the impugned order dated 22nd of December, 1978 written to the Secretary concerning Shyamlal Mistri. In that view the rule was disposed of on those terms and all interim orders and undertaking apart from those recorded in the said order were vacated, and the rule was disposed of on those terms. In view of the said order passed in C. R. No. 469 (W) of 1979 in the appellate side of this court the writ application moved in the original side by the Chittaranjan College being Matter No. 36 of 1979 was also disposed of by me on that date without passing any order.
(3.)Thereafter certain difficulties arose in implementing the said order it was asserted. Incidentally it may be mentioned that an appeal was filed from my order and an application was moved before the Division Bench of this court and the application was ultimately dismissed. It was asserted that the application was not pressed because the order passed by me was by consent of the parties. It appears that there was some difficulty in implementing the said order and on 26th of April, 1979 the present application filed on 2nd of March, 1979 came up for consideration by me. Now, when the application in the appeal was moved the order of the Division Bench dated 12th of February, 1979 reads as follows :-
"After hearing the learned Advocate for the appearing parties, we are of the view that the Government can give conditional sanction of the University Grants Commission scale of pay to the Principal, Chittaranjan School. In the circumstances, we do not think, we shall be justified in granting an interim order, as prayed for by the petitioner in this application. Moreover, it is doubtful whether an appeal is maintainable against the impugned order which was passed on consent of parties. The application is accordingly dismissed. There will be no order as to costs (later) After recess the matter was mentioned by Mr. Arun Prakash Chatterjee, Advocate for the University of Calcutta. It is stated by him that the has already intimated the learned Advocate on the other side that he would mention the matter before us after the recess. Further it is stated by him that the has instructions not to pass the application and press that the application may be dismissed for non- prosecution. We have already dismissed the application and one of the grounds of such dismissal is that the appeal against the impugned order is not maintainable. Mr. Chatterjee also submits that the appeal is not maintainable. In the circumstances, no further order need be made."