Calcutta High Court (Appellete Side)
Dr. Pranab Kumar Bandopadhyay vs The State Of West Bengal & Ors on 4 February, 2020
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 04.02.2020
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Item no. 62.
Court No. 14ap W.P. No. 6101 (W) of 2017 Dr. Pranab Kumar Bandopadhyay Versus The State of West Bengal & Ors.
Mr. Ranajit Chatterjee.
..For the petitioner.
Mr. Amal Kumar Sen, ld. A.G.P. ...For the State.
The writ petitioner superannuated from service of Bidhan Chandra Krishi Viswavidyalaya as a Professor on 31st July, 2010.
Fifteen days prior to his retirement, he was granted re- employment for two years by the Executive Council on and from 1st August, 2010. He received payment for a salary of two years and was further re-employed by the Executive Council for a third year and two years thereafter.
He claims to have been paid remuneration by the University for the first two years and the last year. He claims to have rendered services but has not been paid.
The University has chosen to remain absent despite a notice. Counsel for the State was asked to file a report by a Co- ordinate Bench of this Court.
2In the report, the State has relied upon a Circular dated 3rd January, 2012 specifically marked to the Registrar of the University to the effect that prior permission/sanction of the State would be necessary for any re-employment post superannuation of any of the employees of the University.
Admittedly, the University is funded/aided by the State. The State also relies upon the principal Circular dated 18th May, 2009 which came to replace an earlier Memorandum dated 3rd March, 1984 issued under Rule 26 of the Statutes of the University. The said Circular of 2009 provided for re-employment.
Rule 26 of the Statute itself stipulated that re-employment can be made by the University but strictly in accordance with the provisions of the Rules of the Government of West Bengal.
Rule 26 is set out hereunder:
"26. Unless otherwise provided in the terms of appointment in any particular case, every teacher shall retire on completion of the age of 60 years, provided that the Executive Council may grant re-employment to a teacher in accordance with the provisions enunciated in Government of West Bengal in the Agriculture Department's letter No.3276-Edn./9M (U)-40 / 83, dated the 3rd March, 1984."
Counsel for the petitioner would also place reliance of Section 33A of the Bidhan Chandra Krishi Viswavidyalaya Act of 1974 as amended upto 1996. He submits that the appointment of the 3 petitioner, either pursuant to the Circular dated 18th May, 2009 and its earlier versions is not hit by the mischief in Section 33A. He further submits that the restriction on creation of posts or appointments under 33A is limited to non-sanctioned posts. Since the petitioner was re-employed in a sanctioned post, he is not hit by the mischief or restriction or bar under Section 33A of the 1974 Act.
Section 33A of the Bidhan Chandra Krishi Viswavidyalaya Act, 1974 is set out hereinbelow:
"33A. No post to be created or appointment made without State Government's approval: Notwithstanding anything contained in any law for the time being in force or in any contract, custom or usage to the contrary, the University or any college shall not after the commencement of the Bidhan Chandra Krishi Viswavidyalaya (Amendment) Ordinance, 1977, --
(i) create any teaching or non-teaching post involving any financial liability,
(ii) increase the pay or allowances attached to any post or sanction any new allowances;
Provided that the State Government may, by an order, revise the scale of pay attached to such post or sanction any new allowance.
(iii) incur, except as provided in the rules prescribed for the purpose, any expenditure on any development scheme, or
(iv) appoint any person to any whole-time or part-time post or any post on the basis of daily wage, which has not been sanctioned in accordance with the provisions of this Act, without the prior sanction of the State Government:
Provided that no sanction of the State Government shall be necessary for filling up any sanctioned post of a teacher for a period not exceeding six months by a candidate who possesses the prescribed qualifications."
In so far as the proviso to Section 33A, he submits that a proviso is not an independent piece of legislation. A proviso, according to him, can at best restrict or put in perspective the main 4 Section and hence, the limitation of six months period under the proviso for re-employment even in sanctioned post is not applicable to the main Section.
The argument of the petitioner to say the least is rather adventurous. Reference is made to a decision of the Hon'ble Supreme Court of India in the case of Haryana State Cooperative Land Development Bank Limited - Vs. - Haryana State Cooperative Land Development Banks Employees Union & Another reported in (2004) 1 Supreme Court Cases 574. At paragraph 9 of the said judgment the Hon'ble Supreme Court has held as follows:
"9. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins - Vs. - Treasurer of Surrey (referred to in Shah Phojraj Kuverji Oil Mills and Ginning Factory - Vs. - Subhash Chandra Yograj Sinha and Calcutta Tramways Co. Ltd. - Vs. - Corpn. of Calcutta), when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject-matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the proceeding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso," said Lord Watson in West Derby Union - Vs. - Metropolitan Life Assurance Co. Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. [See A.N. Sehgal - Vs.
- Raje Ram Sheoran, Tribhovandas Haribhai Tamboli - Vs. - Gujarat 5 Revenue Tribunal and Kerala State Housing Board - Vs. - Ramapriya Hotels (P) Ltd.] "This word (proviso) hath diverse operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant." (Coke upon Littleton, 18th Edn. P. 146) "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails...... But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in Forbes - Vs. - Git).
A statutory proviso "is something engrafted on a preceding enactment" (R. V. Tauntons, St. James, ER p. 311) "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Barker)"
It, therefore, follows in no uncertain terms that to read a Section de hors the proviso would render the Section to the vagaries of interpretation outside its main scope and object.
This Court is of the view that the object and purpose of Section 33A of the 1974 Act is to prevent the University in question from making appointments at its whims and fancies or even in a given situation for a perceived necessity and saddling a liability on the State to fork out sums of money.
It is public knowledge that every Government Department has an annual budget. Budgets makes provisions for contingencies. But even contingent expenditure is required to be made on the basis of norms.
Given the aforesaid object of Section 33A of the 1974 Act, this Court has no doubt in its mind that a conjoint reading of Sub- 6 Clauses (i), (ii), (iii) and (iv) of Section 33 A along with the Proviso, had clearly placed a restriction on the University from making any re-employment even in sanctioned posts beyond the period of six months.
The Section must be interpreted purposively in the context of the case at hand.
In this context, let us take the second limb of argument of the petitioner that since the parent Circular i.e. 18th May, 2009 itself does not contemplate prior sanction of the State, the University was justified in re-employing the petitioner, without such sanction.
In this context, one cannot but make refer to Rule 26 of the Statutes of the University that must be read conjointly with Section 33A of the 1974 Act. If one reads the Circular dated 18th May, 2009 as having been issued under Section 33A of the 1974 Act and Rule 26 of the Statutes of the University which is subordinate legislation, the power of the State to issue the said Circular dated 3rd January, 2012, cannot be questioned.
If this be the position, the Circular dated 3rd January, 2012 must be read as part and parcel of the validly issued Rule 26 of the Statutes of the University read with Section 33A of the 1974 Act.
The said Circular had clearly imposed a restriction on the University from making any re-employment without the prior sanction of the State Government. The legitimacy of the petitioner's 7 appointment can at the most be stretched to a period of six months, which could enforced against the State in terms of proviso to Section 33A of the 1947 Act.
The petitioner's claim is however not that. Admittedly, the petitioner has been paid remuneration for 36 months out of the five years that he claims to have been unemployed by the University. The petitioner can thus have absolutely no cause of action against the State for any reimbursement or payment.
The petitioner, partly, relies upon a communication by the State dated 7th September, 2015, made to the University in the context of another employee similarly situated as the petitioner i.e. one Dr. Ashok Kumar Bera. The State had said that Dr. Bera's claim may be settled by the University in a sense that the said re- employed persons' cause of action, if any, was against the University and could not lie against the State.
Since the University has not chosen to appear despite general and specific notices, it is assumed that they have no defence to the claim of the petitioner. As already discussed hereinabove, the State cannot be compelled to pay any sums of money for his engagement.
Bidhan Chandra Krishi Viswavidyalaya shall consider payment to the petitioner towards any period of any lawful engagement that the petitioner claims to have not been paid. It is expected that the University shall pass suitable orders within a 8 period of four months from the date of communication of a copy of this order.
With the aforesaid observations, the instant writ petition shall stand disposed of.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)