ARINDAM SINHA,J. - (1.) Petitioner has sought, inter alia, Mandamus commanding respondents to forthwith cancel, rescind, revoke letters both dated 26th December, 2017, copies of which appear at pages 77 and 78 of the writ petition.
(2.) Letter dated 26th December, 2017 appearing at page 78 was issued by Government of West Bengal, Judicial Department, requesting the addressees being Government functionaries to attend meeting of the Committee to be held on 27th January, 2018, to review the allegation of discrimination regarding regularization of services of part time teachers of Jogesh Chandra Chaudhuri College of Law in terms of circular dated 11th January, 2001. The said letter says that it had been held to call, inter alia, petitioner in the hearing. The other letter dated 26th December, 2017 is also a letter issued by the State Government to, inter alia, petitioner enclosing copy of the aforesaid letter of date and requesting her to attend meeting of the Committee.
(3.) Mr. Mukherjee, learned senior advocate appearing on behalf of petitioner submits, undisputed fact is that his client was appointed as a full time lecturer in the said college. She has by now put in thirty-three years of service having since been appointed as reader. According to him, the enquiry sought to be undertaken is purportedly in compliance with directions in judgment dated 23rd December, 2006 made in two appeals being MAT no. 458 of 2016 (Bulbul Sircar Ray v. the State of West Bengal and Ors.) and MAT no. 530 of 2016 (Shampa Bhanja v. the State of West Bengal and Ors.). He refers to a part in the judgment by which the appellate court found that the learned Trial Judge rightly declined petitioners' prayer as sought for in the writ petitions, the writ petitioners being appellants therein. The relevant part is extracted below: "Therefore the learned Trial Judge rightly declined their prayer as sought for in the writ petitions, which does suffer from legal infirmity. Therefore, it requires no interference in appeal." He submits, the appellate court thereafter went on to make certain directions as would appear from paragraphs 17 to 20 of the judgment. According to him, writ petitioners/appellants therein were part time teachers seeking regularization. They had alleged that other similarly situated persons had got regularization while they had been deprived. Their cases were rejected by both the trial and appellate courts. The directions made by the appellate court in that context were as would appear from the part of the said judgment extracted below: "......we find it fit to direct them to ensure revisiting the situation upon giving opportunity of hearing to all concerned as to whether any candidate, in the similarly situated circumstance like the appellants, despite non-fulfilment of two conditions together, as mentioned in the circular dated 11th January, 2001 (supra) was favoured by extending benefit of said circular during the period from 1st April, 2001 to 31.03.2015. We make it clear that nonetheless of fulfilment of those two conditions together as laid down in the circular, had there been any order extending benefit of U.G.C. scale of pay the authority concerned upon conclusion of enquiry and hearing may be at liberty to take all necessary steps permissible under law or rules, only in respect of the candidate(s) in default, but also the erring officer(s) in person if acted in the name of authority(s) in violation of the circular dated 11.01.2001 (supra)." Referring to impugned letter appearing at page 78 he submits, the enquiry to be made was reviewing of allegations of discrimination regarding regularization of services of part time teachers of the said college. He reiterates that there is no dispute that his client was appointed as a full time teacher. He relies on several judgments: i) State of Punjab (now Haryana) and others v. Amar Singh and another reported in AIR 1974 SC 994. Paragraph 29 of the said judgment is extracted below: "29. An order like Annexure 'A' ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is a party to it. Therefore, it cannot bind the State proprio vigore. It was argued by Shri Dhingra that the State could have moved by way of appeal for review and got the order set aside if there was ground and that having done so it was bound by the order. As a matter of fact, the State, which is a party to the proceedings, does have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. Under such circumstances a person who is a party may prefer an appeal with the leave of the appellate court "if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata under Explanation 6 to Section 11" (see Mulla Civil Procedure Code 18th edn. Vol. 1, p.421). Section 82 of the Pubjab/Tenancy Act, 1887, which may perhaps be invoked by a party even under the Act, also speaks of applications by any party interested. Thus, no right of review or of appeal under Section 18 can be availed of by the state as of right." ii) Bhanu Kumar Jain v. Archana Kumar and another reported in AIR 2005 SC 626 is for the declaration of law regarding availability of alternate remedies and circumstances in which they may be available simultaneously. iii) Shri Surendra Kumar Ray Chowdhury v. The Collector of Calcutta and Ors. reported in 1985 (1) CLJ 332 by which a learned Singe Judge of this Court in paragraph 12 of the judgment said as follows: "12. Thus, the petitioner his father and his mother entered with the Governor of Bengal into a contract to save the latter from loss that might be caused by the conduct of the petitioner (vide section 124 of the Indian Contract Act). Mr. Mukherjee, learned advocate for the petitioner, has submitted that the aforesaid bond does confer upon the Government any power to arbitrate or adjudicate whether loss had been actually caused by any act or omission on the part of the petitioner. Only after it is determined in any judicial proceeding that the petitioner is liable to indemnify, the Government would have right to sell the aforesaid Government securities. In the instant case there had been no such medical determination. Therefore, the respondents were entitled to sell the Government securities." He submits, there must be conferment of the power to adjudicate upon a person failing which the person has to resort to availing remedy from court. Directions in the judgment of the appellate court were regarding enquiry to be made of persons similarly situated with petitioners/appellants before the said court. Petitioner being similarly situated could be subjected to an enquiry being conducted pursuant to such directions. Thus the committee did have the power to inquire against her. iv) Union of India v. Raman Iron Foundry reported in AIR 1974 SC 1265, in paragraph 9 of which Supreme Court while affirming view taken by Bombay High Court, extracted therein, stated as follows: "Chagla, C.J. in the last mentioned case (AIR 1954 Bom 423), stated the law in these terms: "In my opinion it would be true to say that a person who commits a breach of the contract incurs any pecuniary liability, nor would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party. As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant." This statement in our view represents the correct legal position and has our full concurrence. A claim for damages for breach of contract is, therefore, a claim for a sum presently due and payable and the purchaser is entitled, in exercise of the right conferred upon it under clause 18, to recover the amount of such claim by appropriating other sums due to the contractor. On this view, it is necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contract or, in case of dispute, adjudicated upon by a Court or other adjudicatory authority." He submits, there be an interim order protecting petitioner from any consequence of presenting herself to participate in the enquiry pending disposal of this writ petition.;