DR. AULIE BANERJEE Vs. MAULANA ABUL KALAM AZAD UNIVERSITY

LAWS(CAL)-2019-12-33

HIGH COURT OF CALCUTTA

Decided on December 16,2019

Dr. Aulie Banerjee Appellant

VERSUS

Maulana Abul Kalam Azad University Respondents

JUDGEMENT

TAPABRATA CHAKRABORTY,J. - (1.) The present writ petition has been preferred primarily praying for the following relief: "a) A Writ in the nature of Mandamus commanding the respondents to confirm your petitioner on permanent basis in the post of Project Officer (Faculty) in the Department of Bioinformatics of the respondent no.1 with all consequential service benefits including promotional post as per entitlement of your petitioner and the benefit of equal pay for equal work as per declaration of law made by the Apex Court in the Judgment reported in AIR 2016 SC 5176 forthwith". Mr. Basu, learned senior advocate appearing for the petitioner submits that responding to an advertisement inviting applications from eligible candidates for appointment to the post of Project Officer in the Department of Bioinformatics in West Bengal University of Technology, which is presently named as Maulana Abul Kalam Azad University, West Bengal (in short, the said University), the petitioner applied. Upon emerging to be successful in the selection process, she was appointed to the said post by a letter dated 12th January, 2006 issued by the respondent no. 2. After she rendered continuous service for a period of about twelve years, she was asked to report to the Director (Actg), EKTA, Incubation Centre by a memo dated 17th May, 2018 issued by the respondent no. 3. As the EKTA, Incubation Centre was not a part of the said University, she submitted a representation for cancellation of the said memo and to ensure her posting as Project Officer of the said University with the responsibility of teaching in the Department of Bioinformatics. The monthly salary of the petitioner was thereafter withheld on and from the month of May, 2018. Mr. Basu contends that there is no dispute that the petitioner had rendered continuous service since the year 2006. The petitioner was appointed to the said post after she emerged to be successful in a regular selection process. It is not a case that the authorities of the said University had allowed the petitioner to continue in service on the basis of any interim protection granted by the Court. In view thereof, the petitioner falls within the exception to the general principle carved out in the judgment delivered in the case of Secretary, State of Karnataka and Ors. - vs- Umadevi and Ors., reported in AIR 2006 SC 1806. As a one-time measure the service of the petitioner, who has worked for more than ten years continuously and not under any cover of any order of the Court, should be regularized and continued in service on permanent basis. In support of such contention reliance has been placed upon the judgment delivered in the case of State of Karnataka and others -vs- M. L. Keshari and others reported in AIR 2010 SC 2587 and an unreported judgment delivered in the case of State of West Bengal and Others-vs- Tapas Chakraborty &Others. Reliance has also been placed upon the judgments delivered in the cases of Amarendra Kumar Mohapatra and Ors. -vs- State of Orissa and Ors., reported in (2014) 4 SCC 583 and the State of Jharkhand and Ors.-vs- Kamal Prasad and Ors., reported in (2014) 7 SCC 223 in which the exception of Umadevi (Supra) was applied in the respective fact situations and with the common ground that persons who had rendered long continuous service without intervention of the Court should be regularized. Drawing the attention of this Court to the document annexed at page 53 of the writ petition, Mr. Basu submits that the Head, Department of Bioinformatics has stated that the petitioner's services had been utilized since the year 2006 and she is discharging the duties and responsibilities of a regular teacher and her presence is necessary in future. In view thereof, the authorities ought to have issued necessary direction towards regularization of the petitioner's service. Mr. Basu argues that the post of Project Officer is a teaching post and the petitioner is rendering service of a regular teacher and had been assigned the responsibilities attached to the post of a regular teacher and applying the principles of 'equal pay for equal work', she should be granted the benefits of a regular scale of a permanent teacher on and from the date of her engagement in the year 2006. In support of such contention, reliance has been placed upon the judgment delivered in the case of State of Punjab and Ors. -vs- Jagjit Singh and Ors., reported in AIR 2016 SC 5176. Per contra Mr.Dasgupta, learned advocate appearing for the said University categorically denies that the petitioner was engaged in a permanent post and submits that from the documents annexed to the writ petition it would be explicit that the petitioner was initially appointed on temporary basis and such temporary engagement had been extended from time to time. The authorities did not take any decision to disengage the petitioner. In fact, by the memo dated 17th May, 2018, the respondent no.3 intimated that the tenure of service of the petitioner had been extended for a period of one year with effect from 6th April, 2018 and that she would have to report to the Director (Actg), EKTA, Incubation Centre. The said Centre is also under the Department of Bioinformatics under the said University. Mr. Dasgupta submits that no legal right of the petitioner has been infringed. Her engagement was temporary in nature. It is true that such temporary engagement has been extended from time to time and agreeing to the terms of such temporary engagement she did continue to serve till the date of issuance of the memo dated 17th May, 2018. Having accepted terms of such temporary engagement, the petitioner cannot now claim regularization. Upon instruction, he submits that the petitioner had received monthly payment till the month of January, 2019. It is well settled that the party raising the issues must plead and prove the same by evidence which must appear from the writ petition and if the facts are not pleaded or evidence of such facts is not annexed to the writ petition, the Court will not entertain the points. The issues of equal pay for equal work and regularization, as argued by the petitioner, are required to be substantiated by facts. There is no proper pleading in the writ petition that the petitioner had been appointed in accordance with the prevalent recruitment rules against any sanctioned post and that she had rendered service till date as a regular teacher. Appropriate material has not been placed before the Court to show that there is no difference in nature of duty being performed by the petitioner engaged and a regular teacher. On examining the pleadings I do not find that the petitioner has been able to discharge the burden of establishing equivalence between the work rendered by her and her regular counterparts in terms of qualification, mode of recruitment, discharge of duties and degree of responsibility which entitles her to invoke the doctrine of equal pay for equal work. As such, the judgment delivered in the case of State of Punjab and Ors.(Supra), is not applicable to the facts of this case. In view thereof, this Court is unable to grant the pay of a regular teacher to the petitioner or to direct her to be regularized in service. Accordingly, the writ petition is dismissed. It is, however, made clear that dismissal of the writ petition will not preclude the petitioner to approach the authorities of the said University for engagement on temporary basis. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities. ;

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