ASHUTOSH GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Petitioner obtained a scholarship. He was granted extraordinary leave for higher studies in terms of the Rule 175(2)(iii). He had also executed a bond in terms of Sub -rule (3)(a). After the scholarship, he came back and joined the government college. However, before completing three years after return, he got a better opportunity in the University of Calcutta. Ten months after his return, he resigned and joined Calcutta University. In consideration of his resignation, he had deposited a sum of Rs. 60,000.00 (Rupees sixty thousand only) in terms of the Bond executed by him. Now the Petitioner had challenged the very execution of the Bond and forfeiture of the said sum of Rs. 60,000.00 on various grounds.

(2.) Learned Counsel for the Petitioner contends that Rule 175 Sub -rule 3(a) is ultra vires to the Constitution since it affects his fundamental right to carry on his profession. Inasmuch as, it provides a compulsion on a candidate, though the society in general would benefit. He then contends that such compulsion is, in fact, under duress without which he would not have been allowed to opt for scholarship and, therefore, the same would not bind him. He then contends that even if Sub -rule 3(a) is applied, it is only the amount of expenditure incurred that can be recovered from the Petitioner. Pointing out from a certificate, he submits that the Petitioner did not draw anything during the period of leave. As such, no amount of expenditure was incurred during such leave by the Government or any agency, as the case may be. Therefore, no amount could be recovered from the Petitioner. Thus, the execution of the Bond is illegal and the forfeiture of the said sum of Rs. 60,000.00 cannot be sustained and the Petitioner is entitled to refund thereof.

(3.) Mr. S. Dasgupta, learned Counsel for the Respondents, on the other hand, contends that the Petitioner was a government servant when he got the scholarship and he was granted extraordinary leave as the government servant and came back and joined as government servant and continued to be so till he had resigned. The deposit of the sum of Rs. 60,000.00 was a condition to release him. Therefore, it was a prelude to the resignation, which remains within the scope and ambit of the conditions of service in the employment of the government. Therefore, this will be governed by the State Administrative Tribunals Act, under which it is the Tribunal constituted thereunder, has the exclusive jurisdiction in respect of the subject matter and this Court ceased to have any jurisdiction with respect thereto. Therefore, the writ petition is not maintainable. He had, however, contended that the actual amount of expense incurred by the Government during such leave has not been qualified. Therefore, in case any person is engaged to carry on the job during the period when the Petitioner was on leave also an expenditure incurred which comes within the expression used in Sub -rule 3(a). He further contends that the Petitioner had himself executed the Bond. Once a bond is executed, the same cannot be challenged subsequently, particularly, after having reaped the benefit of the entire process and enriching himself. The Petitioner having executed the bond and acted upon the same, and having refunded the amount, it is no more open to him to turn round and question the validity thereof. He, however, contends that there is nothing, which can hit Sub -rule 3(a) so as to make it ultra vires to Article 14 of otherwise or any other provision or Article 19(1)(g) of the Constitution of India. Therefore, this writ petition should be dismissed.