B.C. Ray, J. - (1.) The petitioner who is the head of the department of Mechanical Engineering of B.P.C. Institute of Technology, Krishnanagar, Nadia has assailed in the instant writ application the legality and validity of the orders dated 9th August, 1983 issued by the Deputy Secretary, Education Department, Government of West Bengal as well as the notification no. 10606-F/dated 25th September, 1978 whereby the system of classification of Government employees has been changed on the grounds inter alia that the impugned order Annexure D purported to have been made by the Governor appointing the respondent no. 3 to act as Officer-in-Charge of the said institute and to discharge the duties of the Principal of the institute until further orders has not been made in accordance with the provisions of Rules framed under Article 166(3) of the Constitution not being authenticated in the name of the Governor as provided in Clause 2 of Article 166 of the Constitution of India and as such the impugned order is invalid and inoperative.
(2.) The brief fact of the case is that the petitioner was appointed as lecturer in mechanical engineering in the said institute on 1st of May, 1958. After his successful completion of the probationary period the petitioner was duly confirmed in the said post. On October 27, 1976 the petitioner became the permanent head of the department of mechanical engineering as will be evident from the letter addressed to the petitioner by the Principal of the Institute of Education, Technology of 27th October, 1976 annexed as annexure A1 of the writ petition. The petitioner, it has been stated, acted as Principal cum Officer-in-Charge of the said institute during the absence of the Principal. This will be evident from various letters issued by the then Principal which has been annexed as Annexure B series to the writ petition. On 19 July, 1982 after transfer of the Principal one Shri P.R. Pal from the said institute the petitioner was appointed to discharge the functions of Principal of the said institute as Officer-in-Charge with effect from 5th July, 1982 and until further orders. It has been also stated in the said order that the Governor was plea,ed to authorise the petitioner to exercise such financial powers as have been delegated to the post of Principal till he acts as the Officer-in- Charge of the Poly Technic. This letter was issued by the Deputy Secretary to the Government of West Bengal. This letter has been annexed as annexure C to the writ petition. There after on 18th August 1983 the Deputy Secretary to the Government of West Bengal, Education Department, issued another order to the effect "that in supersession of the earlier order dated 19th July, 1982 the under-signed is directed to say that the Governor has been pleased to order that Shri Sandip Mazumdar, lecturer in civil engineering, B.P.C. Institute of Technology, Krishnanagar, Nadia, will discharge the function of Principal of B.P.C. Institute of Technology, Krishnanagar of Officer-in-Charge with immediate effect and until further orders". Respondent no. 3 was also authorised to exercise such financial powers as was delegated to the post of Principal so long as he acts as Officer-in-Charge of the Institute. This letter has been annexed as annexure D to the writ application. It has been submitted in the writ petition that this impugned order is not an order of the Governor though purported to be given an appearance as an "order of the Governor". It is in fact not an order of the Governor as it was not duly authenticated as an instrument in the name of the Governor according to the transaction of business rules framed in exercise of powers conferred by Article 166(2) of the Constitution. It has also been stated therein that a copy of the order was not forwarded to the petitioner It was only on 24.8.83 when your petitioner was leaving for office a special messenger from the District Magistrates office delivered a plain copy of the said order to your petitioner. The District Magistrate is, of course, the Chairman of the said institute. The plain copy of the order was not addressed to your petitioner. On opening the envelope and going through the letter the petitioner came to know of the contents of the order. Your petitioner being , unwell was under medical treatment and he was on leave. A letter dated 24th August, 1983 was sent to the petitioner asking him to hand over charge of the office of the Officer-in-Charge of the said institute immediately to the I respondent no. 3. The petitioner apprehending physical assault on his person lodged a diary in the Kotwati Police Station in Krishnanagar. It has also been stated that pursuant to the advertisement published in the Statesman at its issue dated 23rd September, 1983 whereby the Public Service Commission invited applications for the post of Principal in Government Poly Technic the petitioner applied for the said post through the Director of Technical Education, West Bengal, i.e., respondent no. 2. The petitioner further stated that a notification dated 25th September, 1978 of the Finance Department, Audit Branch, Government of West Bengal was published whereby the previous classification made under the Rule 5(4) note 1 of West Bengal Service Rules Part 1 framed under Article 309 of the Constitution by the Governor have been amended by doing away with the said classification of Gazetted and non Gazetted Government servants and introduced in its place the classification of Government servants in Groups A, B, C, and D. This amendment has been challenged as illegal, and without jurisdiction and unwarranted. The petitioner has also challenged that there been no formal handing over or taking over of charge as required under Rule 61 of the West Bengal Financial Rules, Vol. 1 framed under Article 283(2) of the Constitution of India. It has also been submitted that if the impugned order is given effect to forcibly it will affect pre-judicially the petitioner as the petitioner will sustain financial loss to the extent of Rs. 200/- or above per month.
(3.) On these grounds this writ application was moved on 2nd September 1983 and the instant rule was issued and an interim order was made on the following terms : There will be an interim order directing the respondents to maintain status quo as on that date as regards the impugned order mentioned in annexure D and G to the petition until further orders of this Court. An application for contempt has also been filed for violation of the interim order. Both the rules and the application for contempt have come up for hearing.;