Satyabrata Sinha, J.@mdashThis appeal is directed against a judgment and order dated September 8, 1995 passed in C.O. No. 1272 (W) of
1988 whereby and whereunder a learned single Judge of this Court allowed the writ petition filed by the writ Petitioners.
2. The writ Petitioners who are 9 in numbers are claiming absorbtion in the post of Junior Assistant Typists and Peons in the University on the
ground that they have worked therein for the following period:
Petitioner No. Total Working
Days.
Petitioner No. 1 101 days
Petitioner No. 2 89 days
Petitioner No. 3 85 days
Petitioner No. 4 86 days
Petitioner No. 5 88 days
Petitioner No. 6 104 days
Petitioner No. 7 85 days
Petitioner No. 8 85 days
Petitioner No. 9 84 days
3. The said Petitioners are said to have been appointed and worked as under:
Petitioner Post Date of Place of Joining.
No. Joining.
Petitioner Peon28.8.87 Controller''s
No. 1 Deptt.
Petitioner Peon26.8.87 Teaching Staff
No. 2 Deptt.
Petitioner Peon3.9.87 Teaching Staff
No. 3 Deptt.
Petitioner Junior24.8.87 Controller''s
No. 4 Asstt. Deptt.
Petitioner Junior24.8.87 Controller''s
No. 5 Asstt. Deptt.
Petitioner Junior24.8.87 Controller''s
No. 6 Asstt. Deptt.
Petitioner Typist27.8.87 Registrar''s Deptt.
No. 7
Petitioner Typist27.8.87 Library Section
No. 8
Petitioner Typist27.8.87 Library Section/
No. 9 Registrar''s Deptt.
4. The fact of the matter lies in a very narrow compass. Admittedly an advertisement was issued by the Appellant-University on February 12,
1987 for the posts of Typist, Peons, Sweepers etc. It appears that the appointing authority for the said posts having not been constituted and
owing to certain technical difficulties, a decision was taken by the University for filling up some of the vacant posts on an ad hoc basis. Although for
that purpose the vacancies were not required to be notified to the Employment Exchange in terms of Employment Exchange (Compulsory
Notification of Vacancies) Act, 1959, such intimation had been given, pursuant whereto the names of the Petitioners along with about 200 others
were sponsored.
5. The Petitioners were not selected by the Selection Committee. As the appointments thus were to be for a period of less than 3 months, they
were merely asked to see the Registrar or the Deputy Registrar either on the dates specified or on any date after receipt of the said letter, pursuant
whereto they were allegedly interviewed and asked to join. Admittedly no appointment letter was issued. It is also admitted that they were asked
to discontinue work from January 13, 1988. A representation was made by the Petitioners and allegedly they were allowed to work for a few days
more. There appears to be a controversy as regard the last date of their working inasmuch as according to the Petitioners, they have worked upto
January 27, 1988, whereas according to the University, they have worked after January 13, 1988 only on January 19, 1988 to January 21, 1988
and January 25, 1988.
6. Before the learned trial Judge it was inter alia contended that in absence of the constitution of the statutory authorities, empowered to select and
make appointments viz. establishment committee and administrative Council, such posts could be created by the Vice-Chancellor of the Appellant-
University First Act (hereinafter referred to as the said Act). It was further contended that as in the proposed budget the amount of salaries paid to
all the employees were stated, they would be deemed to have been permanently appointed.
7. The learned trial Judge by reason of the impugned judgment, inter alia, held that when names of the writ Petitioners were forwarded by the
Employment Exchange, without intimating them that they were being interviewed for a temporary post, they should have been allowed to continue
in their services. In any event, according to the learned trial Judge, such termination of service could not have been made without issuing any formal
letter of termination and without payment of one month''s salary in terms of the provisions of the Act. The learned trial Judge in support of his
aforementioned contention relied upon a decision of this Court in Professor Kalipada Banerjee v. State of West Bengal 1984 (1) C.L.J. 445 and
Marathwada University Vs. Seshrao Balwant Rao Chavan,
8. Ms. Debjani Sengupta, the learned Counsel appearing on behalf of the Appellant, inter alia, submitted that keeping in view the provisions of the
Act and Ordinances, the impugned order could not have been passed. The learned Counsel contended that all the posts pursuant to the
advertisement have been filled up in a regular manner and thus the impugned judgment must be held to have been illegal in law.
9. Mr. Amjad Ali, the learned Counsel appearing on behalf of the Respondents on the other hand, submitted that the very fact that statutory bodies
were not constituted for the purpose of making regular appoints, it must be a case where the Vice-Chancellor had exercised his power u/s 10(6) of
the Act for the purpose of creation of post pursuant whereto the writ Petitioners were appointed. According to the learned Counsel, the Appellant-
university has committed an illegality in not issuing the appointment letters as also the letters of termination inasmuch as any appointment or
termination made by the statutory authority must be done in terms of the statute. The learned Counsel submitted that appointments having been
made in consonance with the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 and upon holding
interviews, the Petitioners could not have been directed not to continue with their services.
10. The basic fact of the matter is not in dispute. The advertisement was issued in the year 1986 inviting applications in various posts mentioned
therein. The Petitioners admittedly did not apply pursuant thereto.
11. It also stands admitted that appointments are required to be made in terms of the provisions of the said Act and the First Ordinance issued by
the University. The relevant provisions for the purpose of disposal of the instant appeal may be noticed.
12. Section 3(1) of Vidyasagar University Act, 1981 provides for the constitution of Vidyasagar University. Section 4 provides for the power of
the University. Sub-section (22) of Section 4 empowers the University to create and make appointment to such administrative, clerical and other
posts as it may deem fit. Section 10 envisages that the Vice-Chancellor shall be the principal executive and academic officer of the University. He
in terms of Sub-section (4) of Section 10 is also empowered to exercise general control and supervision of all the officers and further in terms of
Sub-section (5) he is entitled to exercise such power and discharge such other duties as may be delegated.
Section 10(6) of the Act reads as follows:
The Vice-Chancellor may take on behalf of the University such action as he may deem expedient in any matter which, in his opinion is either urgent
or of an emergent nature and shall report the same for confirmation of the next meeting of the Authority or body which, in the ordinary course,
would have dealt with the matter.
Provided that if the action taken by the Vice-Chancellor is not approved by the Authority or body concerned, or if there is no such Authority or
body constituted under this Act, the matter shall immediately be referred to the Chancellor whose decision thereon shall be final.
13. The duties of the Registrar have been enumerated in Section 11 of the Act. Section 21 of the Act provides for the power and the functions of
the executive council which includes the power to create with the approval of the State Govt., post of officers, teachers and other employees of the
university and to appoint them as also to fix their emoluments.
14. Section 32(1) provides that every teacher, every officer and every employee shall be provided with the letter of appointment. Section 44 puts
an obligation on the University to prepare budget wherein the receipt and expenditure for a financial year shall be submitted for approval of the
State Govt. at least 4 months prior to commencement of the financial year. The State Govt. admittedly is to release the fund from time to time on
the basis thereof. Section 44(3) prohibits the University from incurring any expenditure except with the prior approval of the State Govt.
15. Vidyasagar University First Ordinance, was issued in the year 1985. Under Ordinance No. 10 executive Council is the appointing authority
which is to be done on the basis of the recommendations of the Establishment Committee.
Ordinance No. 10(b) reads thus:
Junior Assistants and permanent posts of lower subordinate staff of any category by the Establishment Committee, subject to delegation of such
powers by the Executive Council and reported to the Executive Council for record. Explanation in this Ordinance ''Assistants'' included a technical
assistant, a stenographer, a typist, ''mechanic, and a skilled labour, whether in the University press or elsewhere''.
16. Ordinance No. 27 specifies the functions of the Establishment Committee. Ordinance No. 28 provides that the Establishment Committee may
also obtain names from the Employment Exchanges of District of Midnapore for consideration for appointment in the posts of Junior Assistants and
those of lower subordinate staff of any category.
17. The said Ordinance defines as to who would be the assistants and the subordinate staff. The note appended to Ordinance No. 8 of 1988
provides for daily rated employees and other similar staff who are paid from contingency bill. Note 2 appended to the aforementioned Ordinance
No. 8 provides that in case of any doubt the matter shall be referred to the Executive Council and its decision shall be final.
18. Ordinance 91(1) reads thus:
Wherever a permanent vacancy occurs in the posts of Lower Subordinate staff the appointing authority shall issue notifications in the University
Notice Boards requiring the candidates to register their names in the manner to be prescribed, for being considered for appointment to any such
post. Appointment shall be made on the basis of a Test and/or an interview by the appointing authority.
Part-IV of Ordinance No. 5 provides for pay and allowances. Vidyasagar University First Statute, 1985, inter alia, specifies the duties of the
Finance Committee.
19. A bare perusal of the aforementioned provisions clearly go to show that it is only the executive council who can give an appointment in the
manner laid down under the statute. There cannot be any doubt whatsoever that the Vice-Chancellor in exercise of its power conferred upon it u/s
10(6) of the Act may pass such orders in emergency but there is nothing to show that such an order had been passed. Only because certain steps
had been taken pursuant to the direction of the Vice-Chancellor or otherwise (although there is nothing on record to show that any specific order
was passed by the Vice-Chancellor), that Vice-Chancellor had exercised any such power. In absence of any such order the court cannot presume
that the Vice-Chancellor satisfied himself about the existence of an emergency so as to enable him to create post. Even the other conditions of the
said provision were not complied with.
20. It is true that in terms of the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 it was not necessary
for the University to intimate the Employment Exchange, but a bare perusal of the notification forms which have been filed by the Petitioners
themselves with their supplementary affidavit clearly show that the Employment Exchange was clearly intimated that all temporary posts were for
less than 3 months except in case of two posts of Typists. The said fact would appear from pages 61 to 68 of the supplementary paper book.
21. The Petitioners, as indicated hereinbefore, were asked to appear before the interview by the Registrar or Joint Registrar (although the latter has
no power whatsoever under the said Ordinance) to appear on a specified or unspecified date. In fact, some of the Petitioners who did not appear
earlier were asked to appear on the day they reported although no prior date therefore was fixed. No letter of appointment was issued. The
Petitioners did not raise any question at that point of time. They were continued to be paid on the basis of no work no pay and on daily wages.
They were asked not to work with effect from January 13, 1988 i.e. on the expiry of 90 days. However, they worked for few days more. This in
this situation did not create any right in favour of the writ Petitioners.
22. As indicated hereinbefore, there is nothing to show that the Vice-Chancellor has exercised his power u/s 10(6). Admittedly the writ Petitioners
did not file any writ application for their appointment in terms of the said advertisement. The Petitioners, in our considered view, cannot be said to
have derived any right only because their names had been sponsored by the Employment Exchange. The provisions of the Employment Exchange
(Compulsory Notification of Vacancies) Act, 1959 may or may not have any application. But for the purpose of maintaining a writ of mandamus
they must show existence of a legal right meaning thereby a right to continue in a post when an appointment had been made in terms of the statute
by an authority empowered therefor. No appointment had been made by the executive council. In fact, the executive council was not constituted at
the relevant time warranting such an ad hoc measure to be adopted by the University.
23. It has not been disputed that all the permanent posts had since been filled up from amongst the candidates who had applied pursuant to the
aforementioned advertisement. We have, thus, no doubt in our mind that the Petitioners were appointed as a stopgap measure only for a period of
less than three months so as to enable the university to constitute the executive council and make proper appointments by it in terms of the Act and
the Ordinance.
24. We, having given our anxious consideration to the matter are unable to agree with the learned trial Judge that only because the writ Petitioners
allegedly have worked for a period of 4 months or more they have derived any right to continue in the said post and for that purpose, the court has
jurisdiction to direct creation of post. The decision of the Apex Court in Marathwada University Supra has no application in the instant case. In
that case a question arose as to whether the Vice-Chancellor has the jurisdiction. The Apex Court held that in view of the provision of the
University Act, Vice-Chancellor has no such power. Such a question does not arise in the instant case. The Petitioners were to continue in service
for a limited period. They ceased to have any right after cessation thereof. The writ petition was, therefore, not maintainable as in absence of any
legal right no writ of mandamus could be issued by this Court.
25. For the reasons aforementioned the impugned judgment and order cannot be sustained which is accordingly set aside and the appeal is
allowed. In the facts and circumstances of this case there will be no order as to costs.
D.B. Dutta, J.
26. I agree.