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CASE NO.: Appeal (civil)  3415 of 2006

PETITIONER: Anup Kumar Kundu                                         

RESPONDENT: Sudip Charan Chakraborty and Ors.                

DATE OF JUDGMENT: 08/08/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 6655 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by  the Division Bench of the Calcutta High Court holding that the  appellant’s appointment as the Head of the Department was  not legal and further that the appellant was required to satisfy  the authority that he possessed the requisite qualification to  be entitled to continue in the post of Professor on a regular  basis.  

       Background facts in a nutshell are as follows:

       Respondent No.1-Sudip Charan Chakraborty filed an  Original Application before the West Bengal Administrative  Tribunal (hereinafter referred to as the ’Tribunal’). Essentially,  two challenges were made before the Tribunal by him. He  prayed for appointment to the post of Professor and to set  aside the appointment of Dr. Dilip Karmakar (who was  respondent No.9 before the Tribunal). By its judgment and  order dated 18.12.2001 the Tribunal partly allowed the  application setting aside the appointment of aforesaid Dr Dilip  Karmakar, but found that the prayer of the applicant i.e.  respondent No.1 before it in this appeal  for appointment to  the post of Professor is not tenable.  

       A Writ Petition (W.P.S.T.No.675 of 2002) was filed before  the Calcutta High Court questioning correctness of the  Tribunal’s judgment. Dr. Dilip Karmakar had not questioned  the legality of the Tribunal’s judgment, so far as he is  concerned. The High Court affirmed the view of the Tribunal  that prayer of the writ petitioner (respondent No.1 in this  appeal) for appointment to the post of Professor is untenable.   Had the High Court rested there, the present appeal would not  have been necessary to be filed.  But the High Court went on  to examine the correctness of the appointment of the present  appellant who was respondent No.10 before it as the Head of  the Department of Urology and his appointment as a  Professor.  

       Objection was raised by the present appellant and the

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State of West Bengal that the same was not the case before the  Tribunal and, therefore, the said issue should not be  examined. The High Court did not accept the plea and  accepted the plea of present respondent No.1 on the ground  that during the pendency of the original application before the  Tribunal and the writ petition, some events had taken place  which required adjudication of the issue relating to the  present appellant.  Accordingly, the impugned directions were  given and appointment of appellant was held to be illegal.  

       Learned counsel for the appellant submitted that the  High Court ought not to have gone into any issue which did  not form the subject matter of challenge before the Tribunal.  The High Court accepted this position that there was no  challenge before the Tribunal so far as appellant is concerned.  But, it proceeded to examine the issue as if it arose out of the  Tribunal’s order which was impugned before it. The High  Court is clearly wrong in holding that the appellant was  continuing illegally.

       Learned counsel for respondent No.1 on the other hand  submitted that the High Court took into account the overall  position and rightly nullified the appointment of the appellant  as Head of the Department as well as Professor. It is pointed  out that though respondent No.1 had not questioned the  appointment of the appellant as the Head of the Department,  in another matter the Tribunal held that the Government  Circular dated 26.12.2001 had already been quashed. The  order in this regard was upheld by the High Court and,  therefore, there is no scope for interference in this appeal.

       A few dates need to be taken note of. The Original  Application before the Tribunal was filed on 24.5.2001.   Appellant was appointed as a Professor on 22.5.2000. There  was no challenge to the appointment of the appellant in the  Original Application. It is the stand of learned counsel for  respondent No.1, on which emphasis was laid by the High  Court that interim application, was filed where certain orders  were passed by the Tribunal which disposed of the matter on  18.12.2001. On 4.1.2002, appellant was handed over the  charge of the Head of the Department w.e.f. 4.1.2002. In the  meantime, an Original Application had been filed before the  Tribunal by one Dr. Ajoy Kumar Gupta.  The Government  Notification dated 26.12.2001 was quashed by the Tribunal in  his O.A.No.56/2002. The order of the Tribunal was questioned  by the State of West Bengal before the High Court which was  dismissed. The writ petition was filed by respondent No.1 on  17.5.2002 and was disposed of by the impugned judgment  dated 30.10.2003.  

At this juncture, it is to be noted that in Dr. Ajoy Kumar  Gupta’s case the Tribunal quashed the notification by its order  dated 26.6.2002. Though it was contended by learned counsel  for respondent No.1 that the High Court was not justified in  holding that there was no challenge to the appointment of  appellant, we find that the High Court has categorically  accepted the stand of the present appellant and the State  Government to the effect that his appointment was not  challenged by respondent No.1 before the Tribunal. The High  Court has categorically found that there was no challenge  before the Tribunal.  

       It is to be noted that because of the stay order passed by  this Court on 30.7.2004, the appellant is continuing as a Head  of the Department as well as a Professor.

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A bare perusal of the High Court’s order makes the  position clear that there was no dispute about non challenge  to the appointment of the appellant as a Head of the  Department as well as Professor. The grievance made in the  interim application cannot be a substitute for a definite  challenge to the appointment in the writ petition. In any event,  after the disposal of the matter by the Tribunal, the High  Court was not justified in holding that the appellant’s  appointment was illegal. The subject matter of controversy and  the area of dispute were entirely different. Though, learned  counsel for respondent No.1 submitted that in fact challenge  was made to the appointment of the present appellant who  was respondent No.10, but in view of the categorical finding  recorded by the Tribunal, the High Court concluded that there  was no such challenge made before the Tribunal.  The High  Court therefore was not justified in considering a new case  which was not the case of the parties before the Tribunal. The  High Court’s judgment therefore deserves to be set aside,  which we direct.  

However, our setting aside the order of the High Court  shall not be considered to be a bar for any party aggrieved by  the order of the authorities to seek appropriate remedy. We do  not express any opinion about the maintainability of the  grievance on merits. Since the appellant is continuing on the  basis of an interim order it shall be open to him to move the  authorities about justifiability of his continuance. This  direction is given considering the fact that the appellant as  well as the State Government have accepted the position that  the Government’s order which was quashed did not have any  effect, because of certain other earlier orders. We express no  opinion in this regard also. In view of the background facts  noted above, the appeal is allowed in the aforesaid extent.     No costs.