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Judgment
Tapabrata Chakraborty, J
The first writ petition, being W. P. no.13998(W) of 2019 has been preferred by the petitioner, namely, Dr. Sanjoy Kumar Bandopadhyay (in short, Dr. Bandopadhyay) challenging the inaction on the part of the respondents towards disbursement of his dues pertaining to the re-employment period from 1st September, 2009 to 28th February, 2011. The second writ petition, being W. P. no.16448(W) of 2019 has been preferred by the Bidhan Chandra Krishi Viswavidyalaya (in short, BCKV) challenging inter alia an order dated 31st August, 2018 passed by the Secretary, Government of West Bengal, Department of Agriculture by which BCKV had been directed to pay from its own fund the remuneration of Dr. Bandopadhyay pertaining to the period of his re-employment from 1st September, 2009 to 28th February, 2011.
Mr. Sanyal, learned advocate appearing for BCKV submits that the remuneration of Dr. Bandopadhyay towards re-employment for the period from 1st September, 2009 to 28th February, 2011 is payable by the State Government. Dr. Bandopadhyay was re-employed for a period of five years on and from 1st March, 2006 to 28th February, 2011. The remuneration, pertaining to the first three years of re-employment was disbursed in favour of the petitioner after such fund was provided by the State Government. Thereafter, the Government has taken a stand that the remuneration pertaining to the remaining two years needs to be paid by the BCKV from its own fund on a purported plea that no prior approval was obtained by BCKV in terms of Section 33A of the Bidhan Chandra Krishi (Viswavidyalaya) Act, 1974 (in short, the said Act). Drawing the attention of this Court to the said Section, Mr. Sanyal submits that for re-employment, no prior approval is required from the State. Such approval is always post facto and the said Section also does not provide for any prior permission from the State towards re-employment. Administrative approval in case of re-employment is granted by the State post facto as would be explicit from the document annexed at page 23 of the writ petition, being W. P. no. 16448(W) of 2019. A different yardstick cannot be applied by the State in the instant case.
He argues that the procedure towards re-employment has been prescribed by the Government through issuance of various Government orders, the last of which was issued on 18th May, 2009. A perusal of the same would reveal that there is no pre-condition that prior approval needs to be obtained from the State for re-employment. The remuneration due to Dr. Bandopadhyay is a substantial amount and disbursement of the same from the funds of BCKV would affect the functioning of various projects.
Mr. Sen, learned advocate appearing for the State respondents submits that having not obtained prior approval from the State, BCKV cannot demand remuneration to be paid to Dr. Bandopadhyay towards re-employment for the period from 1st September, 2009 to 28th February, 2011 from the State. The said amount is required to be paid by BCKV from its own fund and there is no infirmity order dated 31st August, 2018 passed by the Secretary, Government of West Bengal, Department of Agriculture.
Drawing the attention of this Court to the proviso to Section 33A of the said Act, Mr. Sen submits that BCKV ought to have obtained prior approval from State for re-employment of Dr. Bandopadhyay and having failed to do so, the State cannot be saddled with the burden to sanction grant in favour of BCKV towards disbursement of remuneration for re-employment of Dr. Bandopadhyay. As in the writ petition being W.P. no.16448 (W) of 2019 facts involved are disputed, he prays for leave to use an affidavit.
Mr. Majumder, learned advocate appearing for Dr. Bandopadhyay submits that a perusal of the order dated 31st August, 2017 passed by the Secretary to the Government of West Bengal, Department of Agriculture would reveal that re-employment of Dr. Bandopadhyay pertaining to the concerned period was approved by the Executive Council of BCKV. There is no dispute that Dr. Bandopadhyay had rendered service during period of re-employment and as such, after obtaining such service the respondents cannot deny payment of remuneration to him.
Drawing the attention of this Court to the documents annexed to the writ petition being W. P. no.13998(W) of 2019 at pages 37, 39 and 41 of the writ petition, being W. P. no. 13998(W) of 2019, Mr. Majumder submits that BCKV was directed to make necessary arrangement towards remuneration of persons re-employed and similarly situated with Dr. Bandopadhyay.
It appears that in the writ petition preferred by BCKV certain facts are disputed and as such, opportunity needs to be granted to the State respondents to deal with the said facts by filing an affidavit.
It is nobody's case that Dr. Bandopadhyay had not worked for the period from 1st September, 2009 to 28th February, 2011. Such service was rendered and approved by the Executive Council of BCKV. For the dispute between BCKV and State, Dr. Bandopadhyay cannot suffer. As the service of Dr. Bandopadhyay has been approved by BCKV, it is under an obligation to disburse his remuneration for the period from 1st September, 2009 to 28th February, 2011.
Mr. Sanyal submits that in the conspectus of facts appropriate directions should be issued upon the State respondents to disburse the amount claimed by of Dr. Bandopadhyay. The own funds of BCKV cannot be expended for such purpose.
The interim order, as prayed for by Mr. Sanyal, for stay of operation of the order dated 31st August, 2017 would have the effect of denying the benefits to a person who had rendered service and had been deprived of his remuneration for a long period of eight years. In view thereof, the interim order, as prayed for by Mr. Sanyal, is refused.
BCKV shall disburse in favour of Dr. Bandopadhyay, his remuneration towards re-employment for the period from 1st September, 2009 to 28th February, 2011, within a period of four weeks from the date of communication of this order.
Needless to observe, in the event BCKV succeeds in the writ petition being W. P. no.16448 (W) of 2019, the State would refund to BCKV the amount paid to Dr. Bandopadhyay by BCKV in terms of this order.
The writ petition, being W. P. no.13998 (W) of 2019 is, accordingly, disposed of. In the writ petition, being W. P. no.16448 (W) of 2019, the respondents are directed to file their affidavit-in-opposition within two weeks after the Puja Vacation.
Reply thereto, if any, be filed within a week thereafter.
The parties would be at liberty to mention the matter for final hearing after expiry of the period, as fixed above, towards exchange of affidavits.
It is also made clear that disbursement of remuneration in favour of Dr. Bandopadhyay by BCKV, as directed would be without prejudice to its rights and contention in the writ petition, being W. P. no.16448 (W) of 2019.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.