ANUP KUMAR KUNDU versus SUDIP CHARAN CHAKRABORTY AND ORS.

Citation: [2006] SUPP. 4 S.C.R. 431 · Decided: 08-08-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

ANUP KUMAR KUNDU 
A 
v. 
SUDIP CHARAN CHAKRABORTY AND ORS. 
AUGUST 8, 2006 
[ARIJIT PASAYAT ANDS.H. KAPADIA, JJ.] 
B 
Service Law: 
Appointment of Professor-Applicant filed an application before the 
State Administrative Tribunal praying for appointment to the post of Professor C 
and to set aside the appointment of another Professor-The Tribunal set 
aside the appointment of that Professor but found the prayer of the applicant 
for appointment to the post of Professor untenable-However, the High Court, 
having found that that the prayer of the applicant untenable, went on to 
examine the correctness of the appointment of an incumbent Professor which D 
was not raised before the Tribunal and held the appointment of the said 
incumbent Professor to be illegal-Correctness of-Held: There was no dispute 
about non-challenge to the appointment of the incumbent Professor-After 
the disposal of the matter by the Tribunal, the High Court was not justified 
in holding that the ~ncumbent Professor's appointment was illegal-The 
High Court, therefore, was not justified in considering a new case which was E 
not the case of the parties before the Tribunal-High Court's judgment set 
aside-Practice and Procedure. 
Respondent No. 1 filed an application before the State Administrative 
Tribunal praying for appointment to the post of Professor and to set aside the F 
appointment of respondent No. 9. The Tribunal partly allowed the application 
setting aside the appointment of respondent No. 9, but found that the prayer 
of respondent No. 1 for appointment to the post of Professor was not tenable. 
A writ petition was filed before the High Court questioning the 
correctness of the Tribunal's judgment The High Court found that the prayer G 
of respondent No. 1 for appointment to the post of Professor was untenable. 
However, the High Court went on to examine the correctness of the 
appointment of the appellant which was not raised before the Tribunal and 
held the appointment of the appellant to be illegal. Hence the appeal. 
431 
H 
432 
SUPREME COURT REPORTS 12006] SUPP. 4 S.C.R. 
A 
Allowing the appeal, the Court 
HELD: 1. 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 Professor. The grievance made in the interim application cannot 
be a substitute for a definite challenge to the appointment in the writ petition. 
B 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 respondent No.1 submitted that in fact challenge was made to the 
appointment of the appellant, but in view of the categorical finding recorded 
C 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. 
1434-G-H; 435-A-BI 
D 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3415 of2006. 
From the Judgment and Order dated 30.10.2003 of the High Court of 
Calcutta in W.P.S.T. No. 675/2002. 
Pradip K. Ghosh, Anindita Gupta, Rameshwar Pd. Goyal and Ujjawal 
E Banerjee for the Appellant. 
F 
Maninder Singh, Pratibha M. Singh, Gaurav Sharma, Rahul Ajatshatru, 
Tejveer S. Bhatia, Avijit Bhattacharjee, Saumya Kundu, P.K. Dey, K.K. Joshi, 
Kaushik Dey, Santanu Ghosh and Abha R. Sharma for the Respondents. 
The Judgment of the Court was delivered by 
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 
G 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: 
H 
Respondent No. 1-Sudip Charan Chakraborty filed an Original Application 
ANUPKUMARKUNDUv.SUDIPCHARANCHAKRABORTY[PASA YAT,J.] 
433 
before the West Bengal Administrative Tribunal (hereinafter referred to as the A 
'Tribunal'). Essentially, two challenges were made before the Tribunal by him. 
He prayed for appointment to the post of Professor a

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