B.C. Ray, J. - (1.) The petitioners 1 to 5 who are teachers of non-Government Colleges, that is, Maharaja Mahindra Chandra Collage and Jogesh Chandra Choudhury College have challenged the validity of the order under Office Memo No. 177 C/Pen dated 28th of May, 1981 issued by the Deputy Director of Public Instruction (Pay Packet Scheme), West Bengal, respondent No. 6, wherein it was slated that in accordance with proviso to Statute 104 of the Calcutta University First Statute, 1966 the extension of the whole-time teachers after 65 years of age are not in conformity with the said statute.
(2.) The petitioner no. 1(a) is the Principal of Maharaja Mahindra Chandra College and he completed the age of 65 years on 30th of September, 1981. The petitioner no. 2 similarly completed the 65 years of ago on 31.3 81 as Principal of Jogesh Chandra Choudhury College and his service was duly extended upto the end of the academic session, that is up to 31st of May, 1981 by a resolution of the Governing Body of that said College. He retired from service on and from 1st June, 1981. But his salary for the months of April and May, 1981 have not yet been paid by the Director of Public Instruction (Pay Packet Scheme), West Bengal. The petitioner no. 3 is a professor in Maharaja Manindra Chandra Collage and he completed 65 years of age on 31st October, 1981. The petitioner no. 4 is also a professor of the same College who will complete his 65 years of age on January 31, 1982. The petitioner no. 5 is a professor of Maharaja Mahindra Chandra College and he completed 65 years of age on 31.10.81. These petitioners have submitted that though they were granted extensions till their attainment of the age of 65 years in accordance with the provisions of Statute 104(i)of the Calcutta University First Statute, 1966 read with the proviso these petitioners who were and are professors and principals of different colleges are entitled to work as such till the end of the academic year in which they attain the age of 65 years. It has been submitted that the extension of their service granted by the Governing Body of the College up to their completion of the age if 65 years cannot permit the college authorities, that is, the respondents, to retire them before the end of the academic year in which they attain the age of 65 years. It has also been stated that an acting Principal of City College, B. Sarkar, since deceased though completed his 65 years of age on July 31, 1978, made an application for extension of service up to the end of the academic year, that is, up to May 31, 1979. But this was not considered in his favour though the Inspector of Colleges issued a letter on 26th of December, 1969 that a full time teacher attaining his age of 65 years in an academic year would be allowed to work up to the end of that academic session This letter has been annexed as annexure 'B' to the petition. It has also been stated that B. Sarkar, since deceased came up before this court with a writ application challenging the validity of the order refusing to continue his service till the end of the academic year in which he attains 65 years of age. This being registered as Matter No. 568 of 1968 which was ultimately decided on March 29, 1979 by T. K. Basu, J. holding that the petitioner was entitled to the benefit of Statute 104(1), that is, he would retire at the end of the academic year in which he would attain 65 years of age. It has been stated by the petitioners that on 28th of May, 1981, the Deputy Director of Public Instruction (Pay Packet Scheme), West Bengal, the respondent no. 6, sent a circular stating as follows : "The Calcutta University has now in their letter No. R(M'/740 dated 22.4.1981 confirmed that the extension of any whole-time teacher after 65 years of age is not in conformity with the statute 104 of the Calcutta University." It has been submitted that this circular issued by the respondent no. 0 is wholly illegal and contrary to the provisions of the Statute 104(1) of the Calcutta University First Statute, 1966 and as such the said circular is liable to be quashed and set aside. It has also been submitted that previously extension was granted up to the end of the academic year in which the teachers attain the age of 65 years of age and a statement to that effect has been shown in annexure 'A' to the petition. It has been thus contended that the refusal to allow the petitioners to work up to the end of the academic year in which they attain or will attain 65 years of age is wholly illegal, arbitrary and discriminatory. On these grounds the instant application has been made and the petitioners prayed for a writ of Mandamus commanding the respondents to work n accordance with law and to direct the respondents to allow them to retire at the end of the academic year in which they complete or will complete 65 years of age. There was a prayer for issuance if a writ of Certiorari for quashing the impugned circular 3. The instant Rule was issued and an interim order for maintaining status qua as on the date of issuance of the Rule as regards the petitioners nos. 1 to 5 were directed to be maintained for a period of 3 weeks with liberty to pray for extension of interim order on notice to the respondents. However, the interim order was subsequently extended till the disposal of the Rule.
(3.) Mr. R. N. Mitra, learned Advocate appearing on behalf of the petitioner, has submitted that previously under the Calcutta University First Ordinances, 1966 the provision for extension of service of a teacher after his attainment of the age of retirement was made in Section 19 of the said Ordinance which specifically provides that a full-time teacher of the University shall ordinarily retire on his attaining 62 years of age. Mr. Mitra, submitted that there was no mention of retirement of the teacher of a University at the end of the academic year after attainment of 62 years of age Statute 104 of the Calcutta University First Statute. 1966 have clearly provided in clause that a full-time teacher of a university shall retire at the end of the academic year in which he attains the age of 62 years. It has been submitted by Mr. Mitra that it was specifically provided in this Statute that a teacher of a college even though he attains 62 years of age before the end of the academic year still he cannot be retired but has to be allowed to continue to work as such till the end of the academic year in which he attains the age of 62. Proviso to Statute 104 empowers the Governing Body to extend the term of service of a teacher in exceptional cases as provided therein up to his completion of the age of 65 years. Such extension, of course, shall not be for more than two years at a time. Mr. Mitra has submitted that even in the case of extension of service of a teacher up to 65 years the teacher will retire and cease to work alter the end of the academic year in which he reaches the age of 65 Mr. Mitra has submitted that this has been provided specifically in statute 104(1) because if a teacher is retired in the midst of an academic session it will create much difficulty to the students. Mr. Mitra therefore submitted that the observation, made by T. K. Basu, J. while considering Statute 104(1) is correct and this should be accepted.;