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The University of North Bengal and anr. Vs. Sisir Kumar Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 802 of 1969 (With cross-objection)
Judge
Reported inAIR1971Cal293
ActsConstitution of India - Article 226; ;North Bengal University Act, 1961 - Sections 20(1), 23 and 23(5)
AppellantThe University of North Bengal and anr.
RespondentSisir Kumar Ghosh and ors.
Appellant AdvocateNani Coomar Chakravarti and ;Harashit Chakravarti, Advs.
Respondent AdvocateSome Nath Chatterjee and ;Hari Narayan Mukherjee, Advs. for Respondent No. 1, ;P.K. Sengupta and ;Wilson De Rouze, Advs.
DispositionAppeal allowed
Cases ReferredPurtabpore Co. Ltd. v. Cane Commr. of Bihar
Excerpt:
- b.c. mitka, j. 1. the respondent no. 1 was an upper division clerk in theoffice of the accountant general, west bengal. he retired from service on may 2, 1965, and was thereafter re-employed by the state government as accounts officer of bengal engineering college on july 16, 1965. while re-employed at the bengal engineering college, in answer to an advertisement inviting applications for the post of finance officer, university of north bengal, (hereinafter referred to as the university) he submitted an application. the selection committee appointed by the executive council of the university selected him for the post of finance officer of the university and he was accordingly appointed such officer, on a purely temporary basis, at a monthly salary of rs. 1,000/- per month in the scale of.....
Judgment:

B.C. Mitka, J.

1. The respondent No. 1 was an upper division clerk in theoffice of the Accountant General, West Bengal. He retired from service on May 2, 1965, and was thereafter re-employed by the State Government as Accounts Officer of Bengal Engineering College on July 16, 1965. While re-employed at the Bengal Engineering College, in answer to an advertisement inviting applications for the post of Finance Officer, University of North Bengal, (hereinafter referred to as the University) he submitted an application. The Selection Committee appointed by the Executive Council of the University selected him for the post of Finance Officer of the University and he was accordingly appointed such officer, on a purely temporary basis, at a monthly salary of Rs. 1,000/- per month in the scale of Rs. 1000-50-1500/-. At a meeting held on September 5, 1966 the University approved of the selection of the respondent No. 1, and the appointment made by the Executive Council, pursuant to such selection. On the date of his appointment the age of respondent No. 1 was 59 years 4 months 3 days. On July 10, 1967 the Vice-Chancellor of the University requested the Chancellor of the University for extension of the service of the respondent No. 1 in the above post, on the basis of the second proviso to Statute 20 of the University Statutes, to which I will refer later in this judgment. This request, however, was turned down by the Chancellor of the University, whose decision was communicated to the Vice-Chancellor by a letter dated July 22, 1967. The Vice-Chancellor forwarded the said letter to the respondent No. 1 with an endorsement dated July 31, 1967, thereon as follows:

'Please do the needful.'

On the same day the respondent No. 1 wrote to the Vice-Chancellor of the University, that in view of the circumstances set out in the letter of the Secretary to the Chancellor, he thought that he should be relieved with effect from August 2, 1967. In that letter the first respondent also requested that he might be granted earned leave for 34 days with effect from August 3, 1967. On the following day viz. August 1, 1967, the Vice-Chancellor made an office order that as the respondent No. 1 would go on leave preparatory to retirement having attained the age of 60, he was relieved from his duties with effect from the afternoon of August 2, 1967. A copy of this order was forwarded to amongst others the respondent No. 1. On August 2, 1967 the Vice-Chancellor granted 35 days privilege leave to the respondent No. 1 preparatory to his retirement, with effect from August 3, 1967. What appears to be curious, however, is that having positively expressed a desire to be relieved and having applied for privilege leave for 34 days on July 31,1967, on the next day that is to say on August 1, 1967 the respondent No. 1 wrote to the Secretary to the Chancellor, for reconsideration of the matter of his employment under the University. His contention in this letter was that no mention was made in his letter of appointment of the period for which he was to hold the office of the Finance Officer, and therefore he was entitled to hold the office so long as he kept fit. His further contention was that the termination of his service on the attainment of the age of 60 in terms of Statute No. 20, was contrary to the provision in Section 20 of the North Bengal University Act, 1961. (hereinafter referred to as the Act). It is evident that once having made up his mind to relinquish the office which he held, and accordingly having applied for privilege leave due to him, he promptly changed his mind on the very next day and raised the contention that his service was terminated wrongfully, that Statute 20 of the Statutes did not apply to his case, and that his appointment as Finance Officer could not be treated to be an appointment for a fixed period and that he was entitled to hold that office as long as he kept fit.

2. Thereafter the respondent No. 1 sent other representations to the Secretary to the Chancellor and also to the Chancellor himself, but having failed to obtain any satisfactory response he made an application under Article 226 of the Constitution which was disposed of by an order dated October 10, 1969, whereby the trial court quashed the order or direction contained in the letter dated July 22, 1967, from the Secretary to the Chancellor and directed the appellant and the respondents Nos. 2, 3 and 4 not to give effect to the order dated August 1, 1967, whereby one S. C. Kar, Inspector of Colleges, was directed to take over charge of the Office of the Finance Officer from the respondent No. 1 and also another order dated August 2. 1967, whereby the respondent was granted 35 days privilege leave preparatory to retirement. The Rule was made absolute to the extent that the above orders and directions were quashed and direction was issued not to give effect to the orders mentioned above and a Writ. In the nature of mandamus was directed to be issued. This appeal is directed against this order. I should mention that the respondents 2 and 3 have filed cross-objection against the said order.

3. Before proceeding any further it is necessary to refer to the relevant provision of the Act, and the statutes made thereunder. Section 4 confers various powers on the University. Sub-section (15) of this section gives the University the power to define the powersand duties of the officers of the University other than the Chancellor and the Vice-Chancellor. Sub-section (23) enables the University to do all other acts and things as may be necessary for furthering the objects of the University. Section 16 defines the officers of the University and under this definition the Finance Officer is one of such officers. Section 23 (1) confers upon the University the power to make Statutes, Ordinances. Regulations and Rules for the purpose of carrying out the provision or exercising the powers conferred on it by the Act. Section 23 (5) specifies the matters for which provision may be made by the statutes. One of such matters under clause (d) of Section 23 (5) is the appointment, powers and duties of the officers of the University other than the Chancellor and the Vice-Chancellor. The only other section to which reference is to be made is Sub-section (1) of Section 20 of the Act which provides that the Finance Officer shall be appointed by the University and that he shall be a whole time officer of the University and he shall be paid such salary from the University Fund and hold office for such period as the University may decide.

4. In exercise of the powers under Section 23 (1) the University made various statutes. Statute 20 (previously statute 133) is as follows:--

'Subject to the provisions of the Act and the terms of the contract of service in any particular case, every officer of the University shall ordinarily retire at the completion of 58 years:

Provided that in the Interest of the University, the Executive Council may, by a resolution, allow an officer an extension of service not exceeding one year at a time up to the date on which he completes the age of 60 years:

Provided further that the Chancellor may on the recommendation of the Vice-Chancellor extend the tenure of office of the first incumbent to the following posts up to the completion of 62 years:--

(i) The Registrar,

(ii) The Finance Officer.

(iii) The Controller of Examinations.'

5. From the facts stated earlier in this judgment it will be amply clear, that it is not a case of either termination of service or compulsory retirement. The respondent No. 1 was appointed Finance Officer of the University on a purely temporary basis at a time when he had already crossed the age of 59 years. The respondent No. 1 therefore had no right to hold the post either for a fixed term or until he attained a particular age. No order was passed removing him from service or directing him to resign the office he held or relinquish the same. The Vice-Chancellor only forwarded to hima letter from, the Secretary to the Chancellor dated July 22, 1967 and had appended thereto a note of his own, requesting the respondent No. 1 to do the needful. The respondent No. 1 was not required by the Vice-Chancellor to retire from or resign or relinquish the office which he held. By his letter dated July 31, 1967, the respondent No. 1 asked to be relieved with effect from August 2, 1967, and further asked for grant of the earned leave for 34 days with effect from August 3, 1967. He was not by any means obliged to resign the office or relinquish the same.

6. Mr. N. C. Chakraborty appearing for the appellant contended that the first respondent was appointed the Finance Officer purely temporarily, and that as a Finance Officer he was controlled so far as the age limit was concerned by Statute 20. He further argued that even assuming that the University could appoint, in exercise of its power under Section 20 (1) of the Act, a person as a Finance Officer who had crossed the limit of 58 years of age, in this case the University made no such appointment and did not fix the tenure of office of the first respondent. On the other hand, the Executive Council at its meeting held on July 2, 1966, approved the recommendation of the Selection Committee to appoint the first respondent on a purely temporary basis. The University at its meeting on September 5, 1966, approved of the action of the Executive Council, and therefore the University did not appoint the first respondent for a term or a fixed tenure. That being so, Mr. Chakravartl contended, that the first respondent was bound by the age limit which was fixed by Statute 20, and he could not claim to continue in office, since admittedly he had crossed the age of 58 and there was no recommendation of the Executive Council, by a resolution, for extension of the service of the first respondent upto 60 years. He further argued that even if there was such recommendation, the first respondent crossed the age of 60 on May 2, 1987, and could not therefore remain in service as a Finance Officer beyond that date.

7. In the alternative, Mr. Chakravarti argued, Statute 20 had no application to the appointment of the first respondent at all, because he was appointed at a time when he had crossed the age of 58 and under that Statute an officer of the University had to retire at the age of 58, though an extension could be granted up to the age of 60. In this case it was argued there was no question of extension, but the initial appointment itself was made beyond the limit prescribed by the Statute, and therefore the appointment itself was irregular, and contrary to the provisions in the Statute, The firstrespondent was appointed temporarily to the post of the Finance Officer and Mr. Chakravarty said that he had relinquished that office. He further said that there was no question of termination of the service of the first respondent or of his removal from such service. No order, Mr. Chakravarty, argued, was made by any Authority directing the first respondent to resign or to retire or removing him from the office. He further argued that the first respondent applied to be relieved of his duties, and also for privilege leave due to him. Such leave was granted to him and he enjoyed the leave, but on the materials there was nothing to show that he considered himself still to be in service. He did not report for duty as he should have done, if he thought he had only applied for and obtained privilege leave which was due to him, and was still in service as Finance Officer.

8. Mr. Chakravarty contended that the petition should have been dismissed on the ground of delay alone. It was argued that the order granting leave to the respondent No. 1 was made on August 2, 1967, and the writ petition was not moved until May 21, 1968. There was thus a delay of more than 9 months in moving the Writ petition, and this, it was submitted, was fatal to the application. In support of this contention reliance was placed by Mr. Chakravarty on a decision of this Court : AIR1953Cal223 . Mr. Chakravarty also sought to contend that the first respondent had acquiesced in the order relieving him of Ills duty and granting him leave inasmuch as he enjoyed the leave so granted. We cannot, however, allow thei points of delay and acquiescence to be raised by the appellant at this stage. These points were not taken in the affidavit-in-opposition filed on behalf of the appellant, nor were they argued in the court below. They have been included for the first time in a supplementary additional grounds of appeal, no leave to file which was obtained by the appellant. It cannot be overlooked that both delay and acquiescence are mixed questions of law and fact and cannot be allowed to be raised for the first tune in appeal, when the first respondent did not have the opportunity of meeting the case in the affidavit-in-reply filed by him nor were these questions argued in the court below.

9. In support of his contentions Mr. Chakravarty relied on a decision of the Supreme Court in : (1970)ILLJ32SC , for the proposition that a contract of personal service would not be enforced by an order for specific performance nor would it be open to a servant to refuse to accept the repudiation of a contract of service and that the remedy of an employee was aclaim for damages for wrongful dismissal or breach of contract. But in that case it was also held that when a statutory status was Riven to an employee and there had been a violation of the provision of the statute while terminating the service of such an employee, the letter would get the relief of a declaration that the order was null and void. This decision, to my mind, is of no assistance to the appellant because the first respondent in this case claims to have acquired a statutory status as a Finance Officer of the University. Mr. Chakravarty also relied upon another decision of the Supreme Court Raj Kumar v. Union of India : (1970)ILLJ13SC , for the proposition that where a member of the Indian Administrative Service wanted to be relieved from the service in writing, and the Government accepted it but before communication of the order of acceptance reached the officer he withdrew his offer, the offer of resignation could not be withdrawn after it was accepted. To my mind, this decision is of no assistance to the appellant because this is not a case of resignation at all, and therefore there was no question of acceptance of resignation nor is it a case where a resignation have been withdrawn. Mr. Chakravarty also relied on a decision : AIR1970Ori130 . That decision, to my mind, also is of no assistance to the appellant because in that case a Government servant exercised his option to retire and asked for leave preparatory to retirement, and leave was granted to him permitting him to retire on the expiry of his leave, but before the passing of the final order accepting the offer to retire, the employee sought to revoke his offer to retire and requested the Government to treat the leave granted as a leave on private affairs. It was held that the employee could not be allowed to do this. The facts in this case are entirely different from the facts in this appeal.

10. Mr. P. K. Sengupta appearing for the respondent Nos. 2 and 3 supported the appellant and contended that the first respondent was not entitled to any relief in this application as he was appointed purely temporarily and had relinquished the office on his own volition. He submitted that the cross-objection filed by his client ought to be allowed on the grounds urged by the appellant.

11. Mr. Somenath Chatterjee appearing for the respondent No. 1 firstly contended that Statute 20 was ultra vires Section 20 (1) of the Act. Under that section, it was argued, it was for the University to decide for what period the Finance Officer was to hold the office. In exercise of the powers under this section it was submitted, the University could appoint a person tohold the office of Finance Officer even if such a person had crossed the age of 60. But under Statute 20 a Finance Officer is required ordinarily to retire at 58 years, and under the first proviso to that Statute the Executive Council by a resolution could allow the Finance Officer an extension of service up to 60 years but such extension was to be made for one year at a time. It was submitted by Mr. Chatterjee that the provision in the Statute 20, and the first proviso mentioned above, was entirely inconsistent with the unrestricted power of the University under Section 20 (1) of the Act to decide for what period a Finance Officer should hold office. It was argued that in so far as Statute 20 and its proviso sought to curtail the powers of the University under Section 20 (1) of the Act, it must be held to be inconsistent with the Act itself, and must be struck down on the ground that it is ultra vires the Act. This argument though attractive cannot be accepted. It is true that Section 20 (1) of the Act confers upon the University the power to decide the period for which a Finance Officer should hold office, but it cannot be overlooked that Section 23 (1) of the Act confers upon the University the power to make Statutes and in exercise of this power the University has made Statute 20 which prescribes the age limit of Officers of the University. By framing Statute 20 (1) the University took a decision that its officers shall ordinarily retire at the age of 58, and on certain conditions being fulfilled they will be entitled to extension not exceeding one year at a time, up to the age of 60. Under the doctrine of harmonious construction these two sections of the Act must be read together. In construing the provisions in any enactment effort has to be made to give effect to the intention of the legislature, if it can be done by giving a reasonable interpretation to the language used in the Statute. To us it seems that while Section 20 (1) of the Act gives the University the power to take a decision as to the period for which a Finance Officer would hold office. Section 23 (1) gives the University the power to frame statute and in exercise of the power under the latter section the University has framed a statute prescribing the age limit of its officers. Mr. Chatterjee, however, contended that a statute framed by the University may be amended or altered by the Chancellor under Section 23 (3) of the Act and therefore a statute cannot be regarded as an expression of the will of the University. We cannot uphold this contention of counsel for the first respondent. Although under Section 23 (3) of the Act a statute may be modified and amended by the Chancellor, it will still be a statute of the University, It was open to the University not to frame a statute regarding the age limit of its officer, and when it framed the Statute 20, it did so knowing that it may be amended by the Chancellor. It cannot therefore be said that a Statute framed by the University under the Act ceases to be a statute framed by the University, merely because the Act confers upon the Chancellor the power to suggest modifications or amendments of a statute.

12. The next point urged by counsel for the first respondent on the question that the statute was ultra vires the Act, was that under Section 20 (1) of the Act it was for the University to deride the period for which a Finance Officer was to hold office. But under the first proviso to Statute 20 the Executive Council has been given the power to allow extension of service to an officer. Therefore it was contended that in so far as Statute 20 and its proviso purports to take away from the University the power conferred upon it by Section 20 (1) of the Act, it must be held to be ultra vires the Act, This contention also cannot be accepted because Statute 20 starts with the opening words:

'Subject to the provision of the Act and the terms of the contract of service in any particular case;'

and therefore it is clear that the Executive Council in exercise of the powers under Statute 20 could extend the service of the Finance Officer only it there was no decision by the University as to the tenure of his office. If there was such a decision by the University itself, there would be no scope for the Executive Council to pass a resolution extending the service of an officer who has crossed the age of 58 years. In this case there is no decision by the University, and no resolution either by the Executive Council, extending the service of the respondent No. 1. Therefore this contention of the counsel for the first respondent must fail.

13. The next contention of counsel for the first respondent was that even assuming that the Statute was not ultra vires the Act, the order granting leave to the respondent No. 1 and relieving him of his duties, since he attained the age of 60, was bad because when appointed, the respondent No. 1 had already crossed the age limit of 58 years, prescribed by Statute 20; and therefore it could not be said that he was bound by the age limit prescribed by the first proviso to Statute 20. This contention appears to us to be equally without merit. While it is true that the respondent No. 1 was appointed at a time when he had crossed the age of 59, it cannot be overlooked that his appointment was temporary in nature, and that being so, if it was to be terminated, all that wouldhave been needed was to give him notice of such termination. In this case, however, there was no order terminating his service, nor was any order made removing him from the office of Finance Officer, The respondent No. 1 himself wanted to be relieved and applied for earned leave preparatory to retirement. A temporary employee of the University cannot claim the benefits which are clearly meant for permanent employee.

14. The next contention of counselfor the respondent No. 1 was that Statute 20 had no application to the case of the Finance Officer. It was argued that Section 16 of the Act specified the various office-holders who were officers to the University under the Act. The first four of such office-holders are the Chancellor, the Vice-Chancellor, the Finance Officer and the Registrar. The Statute, it was argued, did not and could not apply to the case of the Chancellor and the Vice-Chancellor. So far as the Finance Officer was concerned, it was submitted that Section 20 (1) made specific provision for his appointment and tenure of office. Similarly Section 22 (1) of the Act provided for the appointment of the Registrar and his tenure of office. Therefore it was argued the statute could not apply either to the Registrar or to the Finance Officer, for both of whom the Act itself had made provision for appointment and tenure of office. The statute, it was next submitted, applied only to the various classes of officers who have been defined as such under the Statute in exercise of the power under Section 16 (v) of the Act.

15. This contention of Mr. Chatterjee would have had a good deal of force, but for the fact that the second proviso to Statute 20 makes it quite clear that the Statute is intended to apply to the Registrar, the Finance Officer and the Controller of Examinations. The second proviso to Statute 20 unequivocally indicates that the Statute governs the case of these officers and in view of this clear provision, it is not open to the respondent No. 1 to contend that the Statute does not apply to the Finance Officer.

16. Turning now to the contention of counsel for the respondent No. 1 that Statute 20 is in conflict with or is repugnant to Section 20 (1) of the Act it will be seen that the Act provides for the tenure of office of the Finance Officer, while the second proviso to Statute 20 is dealing with the question of extension of the tenure of office of the first incumbent to several posts. Secondly, it is to be noticed that the provision in Statute 20 has been expressly made subject to the provision of the Act, and therefore if the University in exercise of its powers under Section 20 (1) of the Act has fixedthe tenure of Office of a Finance Officer, Statute 20 in such a case will have no application. Thirdly while the University has been given the power under Section 20 (1) to fix the tenure of office of the Finance Officer, the University in exercise of its power under Section 23 (1) has framed Statute 20 requiring its officers to ordinarily retire at the age of 58 years. For these reasons it cannot be said that Statute 20 is in any way in conflict with or repugnant to Section 20 (1) of the Act. If the University desires to appoint a Finance Officer who has crossed the age limit prescribed by Statute 20, it is open to amend and alter Statute 20 so as to relax the age limit in the case of a Finance Officer, but there is no repugnancy or inconsistency or conflict between the provisions in the Statute and the Act.

17. The next contention of Mr. Chatterjee was that inasmuch as his client was appointed at a time when he had crossed the age of 59 years, it was clear that the Statute was not intended to govern his appointment, inasmuch as the statute required all officers ordinarily to retire at 58. This argument also cannot be accepted by us. Section 23 (5) (d) of the Act confers upon the University the power to make a statute regarding the appointment, powers and duties of officers of the University other than the Chancellor and the Vice-Chancellor. The Chancellor and the Vice-Chancellor are the only two officers who have been excluded from the scope of statutes to be framed by the University. All other Officers of the University, including the Finance Officer, are covered and controlled by the statutes to be framed by the University; and therefore Statute 20 must be construed to govern and control the Finance Officer, who is an officer of the University. That being so the age limit fixed by the Statute must apply to a Finance Officer, unless the University has otherwise fixed the tenure of his office. In this case the University has not fixed the tenure of office of the Finance Officer in exorcise of its powers under Section 20 (1) of the Act. But the question in this case is whether Statute 20 at all applies to the respondent No. 1, who admittedly was appointed temporarily, and admittedly again, at an age which was beyond the limits proscribed by Statute 20. Though the appointment of the first respondent is not in issue in this appeal, the question of retirement age become relevant because of the letter dated July 22, 1967 (Annexure 'D').

18. The next contention of Mr. Chatterjee was based on 'the Rules relating to leave for the University employees.' It was argued that by his letter dated July 31, 1967, the first respondent only wanted to be relieved with effectfrom August 2, 1967. This, it was submitted, indicated that he wanted only to be relieved of his duties. In this connection reliance was placed on the definition of 'Duty' in Rule 32 (iii) of the said Rules. According to this definition 'Duty' means what an employee is bound or required to do by the terms of his appointment. Reliance was also placed on the definition of 'leave' in Rule 32 (vii) of the said Rules according to which leave moans the privilege allowed to an employee of being absent from duty. Reference was also made to Rule 34 (xiii) of the Rules for the meaning of the word 'service'. That sub-rule prescribed that unless the Executive Council otherwise decides, an employee shall be deemed to have ceased to be in the service of the University after he has been continuously absent from duty for a period of 5 years. On the basis of these Rules Mr. Chatterjee contended that there is a difference between duty and service, and his client by the letter of July 31, 1967, did not want to be relieved of the service or resign the office of Finance Officer, but only wanted to be relieved of the duties of the Finance Officer.

19. This contention of counsel for the respondent No. 1 cannot be accepted for more than one reason. In the first place in the letter of July 31. 1967, he said:

'In view of the circumstances set-forth in the letter of Dr. Dutta and of your endorsement thereon I think that I should be relieved with effect from 2nd August. 1967, P. M.'

In the letter of 13. Dutta dated July 22, 19C7, addressed to the Vice-Chancellor (Annexure D to the petition) the continued appointment of the Finance Officer was discussed and the letter ended with these words:

'His appointment should be terminated without delay and a new F. O. should be appointed in his place. The period of his irregular appointment since May 2, 1967, may be regularised by a resolution of the University.'

Undoubtedly it is this observation which the first respondent had in mind when he said in his letter that in view of the circumstances set forth in the letter of Dr. Dutta he should be relieved with effect from August 2, 1967. Keeping in view the context it can by no means be said that the respondent No. 1 did not want to be relieved of the service but only of his duties as a Finance Officer for the duration of the leave. In the second place it if. to be noted that an office order was issued on August 1, 1967, (Annexure F) by the Vice-Chancellor in which it was stated that the first respondent would go on leave preparatory to retirement having attained the age of 60 andis therefore relieved from his duties with effect from the afternoon of August 2, 1967. A copy of this order was sent to the respondent No. 1. Another office order was issued on the same day whereby S. C. Kar Inspector of Colleges, was directed to take over charge of the office of Finance Officer, A third office order was issued on August 2, 1967, (Annexure F) whereby the first respondent was granted 35 days' privilege leave preparatory to his retirement with effect from August 3, 1967. Copies of all these letters were sent to the respondent No. 1. But in his letter of August 1, 1967, (Annexure G) there is no suggestion that ho did not want to be relieved of his service, but only of his duties during the term of the leave. It is plain from his letter that he understood that office orders to effectuate his own intention to be relieved of his service and not merely suspension of his duties. If there was any substance in the contention now advanced on his behalf, that he wanted only to be relieved of his duties, he would certainly have strongly protested against the orders which granted him leave preparatory to retirement. The same observation apply to his letter of August 6, 1967, (Annexure H) in which again there is no protest from him that there was no question of retirement from service, because all that he wanted was to be relieved of his duties during the term, of leave. On the other hand it is evident from both of his letter of August 1, 1967, and August 6, 1967 that he plainly understood that the Vice-Chancellor had construed his letter to mean that he wished to relinquish the office of Finance Officer.

20. Thirdly what is still more significant is that assuming that he merely wanted to be relieved of his duties, and not of his service, he should have reported for duty on termination of the leave which he enjoyed. He did not report for duty, nor is there any protest from him that the Authorities have denied him the opportunity to continue in service. For all these reasons the contention of Mr. Chatterjee that his client wanted only to be relieved of his duties as Finance Officer and not of his service as such cannot be accepted.

21. In support of the contentionthat By-Law may be ultra vires the Act and that such-By-Laws should not be repugnant to the Statute under which they were made, reliance was placed by Mr. Chatterjee on Craies on Statute Law 6th Ed. pp. 323, 324. As I have dealt with the question whether Statute 20 is ultra vires the Act on the ground that it is repugnant to Section 20 it is not necessary for me to say anything more on this contention.

22. In support of the contention that the order of termination should have been made by the University and not the Vice-Chancellor reliance was placed by Mr. Chatterjee on a decision of the Supreme Court, The State of Punjab v. Hari Kishan Sharma : [1966]2SCR982 , for the proposition that where a statute has given powers to a particular authority, that authority alone should exercise the powers. This decision is of no assistance to the first respondent because there is no order terminating his service by any authority. He relinquished the office to which he was temporarily appointed. There is therefore no question of power being- exercised by any authority for the purpose of terminating his service.

23. The next case relied on by Mr. Chatterjee was also a decision of the Supreme Court, Purtabpore Co. Ltd. v. Cane Commr. of Bihar : [1969]2SCR807 . In that case also it was held that where the statute conferred a power on a particular authority, the power must be exercised by that authority alone. For the reasons mentioned above this decision is also of no assistance to the first respondent.

24. Upon a careful consideration' of the rival contentions it seems to us that Mr. Chakravarty's contentions are well-founded. If the contention of the respondent No. 1 was, as it now appears to be that he was entitled to hold the office so long as he was fit or until the University terminated his service, he should not have asked to be relieved of his duty. It was a matter of choice with him, and if he of his own volition chose to relinquish the office, he cannot now be heard to say that there was no relinquish-ment of the office on his part, but a termination of his service. Having chosen to relinquish the office of the Finance Officer, in our view, it is not open to him to come to Court for a discretionary relief under Article 226 of the Constitution. It cannot be overlooked that his appointment was a temporary appointment, and by his own letter he unequivocally communicated his desire to relinquish that office. It cannot also be overlooked that he has not withdrawn his letter of July 31 1967, addressed to the Vice-Chancellor To allow that letter to remain on the record, and yet claim a statutory right to continue in the office, manifests such an inconsistency in his conduct as to disentitle him to the extraordinary relief In writ proceedings.

25. The broad features of this case are that the first respondent was temporarily appointed the Finance Officer of the University. The appointment itself was In violation of Statute 20 which had prescribed the age limit. Even assuming that the University by approving of the action of the Executive Council had made theappointment in exercise of its powers under Section 20 (1) of the Act, it cannot be overlooked that the University appointed the first respondent temporarily and did not fix a tenure. But the question of legality of the appointment is not an issue in this appeal. The first respondent relinquished the office and asked for leave. The leave was granted to him and he duly enjoyed the same. He treated the grant of leave preparatory to retirement as termination of his service and he now wants to challenge the order, whereby he was relieved of his duties, pursuant to his own request, and also for orders directing the respondent not to interfere with the discharge of duties by him as Finance Officer of the University and also for various incidental reliefs. He contends that he did not wish to relinquish the office but wanted to be relieved of his duties as a Finance Officer temporarily, during the term of leave. This contention cannot be accepted, for the reasons mentioned earlier in the judgment. Quite clearly he wanted to relinquish the office, and at his request he was relieved of his duties and acting appointment was made. He did not report for duty on the expiry of his leave, nor did he contend in any of the several letters he addressed to the Chancellor, the Vice-Chancellor and other Authorities that he did not relinquish the office of Finance Officer but merely applied for sanction for privilege leave. He proceeded on the footing that his services had been terminated and contended that such termination was contrary to the provisions of the Act and the Statute. As ho himself relinquished the office of Finance Officer, it is not open to him to come to this Court for a discretionary relief under Article 226 of the Constitution. As I have noticed previously he has not withdrawn the letter by which ho relinquished the office, nor has he said anywhere that that letter was written by him under misapprehension. The letter relinquishing the office of Finance Officer is therefore still on record, and that being so, it is not open to him to contend that ho is still the Finance Officer of the University. This Court in exercise of its Writ jurisdiction cannot give any relief to a petitioner, who having voluntarily relinquished the office, wish to contend that the orders made by the Authorities pursuant to his request to be relieved was an order of termination of his service and such termination should therefore be struck down.

26. In our view the trial courtfailed to appreciate the limitations inherent in the position of the first respondent as a temporary officer of the University. There was a similar failure to appreciate the effect of the first respondent's letter of July 31, 1967, and moreparticularly the context in which that letter was written. There is one other matter to be noticed. The impugned order has directed the respondent not to give effect to the orders contained in letters dated 1-8-67 and 2-8-67. As for the order dated August 2, 1967, the trial court could not and should not have made the order directing the respondent's not to give effect to the same because that order had been acted upon and the first respondent availed himself of the leave.

27. For the reasons mentioned above the appeal and the cross-objection are allowed. The judgment and order of the Court below are set aside and the Rule is discharged. Each party to pay its own costs. Stay of operation of this order is granted till a week after the long vacation.

S.K. Mukherjea, J.

28. I agree.


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