Calcutta High Court (Appellete Side)
State Of West Bengal & Ors vs Rafik Sekh on 4 January, 2017
Author: Dipankar Datta
Bench: Dipankar Datta
1
04.01.2017
Item No.71
SB
CAN 7780 of 2016
With
CAN 7877 of 2016
In
MAT 1406 of 2016
State of West Bengal & Ors.
Vs.
Rafik Sekh
Mr. Tapan Kumar Mukherjee,
Mr. Somnath Naskar.................for the appellants.
Mr. Tarun Kr. Das,
Mr. Dilip Kumar Shyamal................. for the respondent.
Re: CAN 7780 of 2016 This is an application for condonation of delay in presentation of MAT 1406 of 2016. Considering the averments, we are of the view that sufficient cause has been shown for condonation of delay. The delay in presentation of MAT 1406 of 2016 is condoned. CAN 7780 of 2016 stands allowed. The appeal may be registered, if it is otherwise in form.
Re: MAT 1406 of 2016 This appeal is directed against a judgment and order dated 06.06.2016 passed by a learned Judge of this Court while disposing of W.P. 9065 (W) of 2016. W.P. 9065 (W) of 2016 was presented by the sole respondent in this appeal questioning the correctness of an order dated 19.08.2015 passed by the Director of Library Services negating his claim for higher scale of pay on attaining higher qualification. 2 It appears that the respondent had moved an earlier writ petition [W.P.6475 (W) of 2015]. Such writ petition was considered by Honble Sanjib Banerjee, J. along with other writ petitions. By a common judgment and order dated 09.06.2015, the entire batch of writ petitions were disposed of, inter alia, with the following observations:
"The State's contention that the Supreme Court judgment did not take several matters into account cannot be considered at all. Apart from the fact that Article 141 of the Constitution recognises the law as declared by the Supreme Court to be binding, there is an order of the Supreme Court which is conclusive on the matters in issue. In any event, in the acceptance of the Supreme Court's order by the State and issuance of the memorandum of June 10, 2014, the State is now completely precluded from urging any ground that could have been urged before the Supreme Court or may not have been noticed in the judgment of March 6, 2014. Though the endeavour by the State to urge certain grounds apparently not noticed in the judgment is for the purpose of ultimately carrying these grounds to the Supreme Court, it may not be open to the State to do so since the State has unequivocally accepted the judgment and has implemented the same by issuing the memorandum of June 10, 2014. Since the petitioners are undoubtedly rural librarians who have obtained higher qualifications than may have been necessary for appointment to the post and the petitioners are covered by the judgment of the Supreme Court of March 6, 2014 and the memorandum issued by the State on June 10, 2014, it is necessary that the petitioners' cases be considered in accordance with law by the respondent authorities as expeditiously as possible.
W.P.7150 (W) of 2015, W.P. 7151 (W) of 2015, W.P. 7153 (W) of 2015, W.P. 6476 (W) of 2015, W.P. 6475 (W) of 2015, W.P. 4535 (W) of 2015 and W.P. 4536 (W) of 2015 are disposed of by directing the Director of Library Services to consider the individual cases of the petitioners in the light of the Supreme Court judgment of March 14, 2014 and the memorandum issued by the State on June 10, 2014 and communicate a reasoned decision to the individual petitioners within ten weeks of the petitioners forwarding copies of this order to such official. In the unlikely event of the benefits being declined to any of the petitioners, cogent reasons should be furnished."
In purported compliance with the said order the director proceeded to pass an order, which was impugned in W.P. 9065 (W) of 2016. The 3 claim of the respondent was negated on the ground that his claim was found to be similar with the claims of twenty two other librarians who were unsuccessful before an Hon'ble Division Bench of this Court, their claims having stood rejected on 30.10.2014, and that a special leave petition moved thereagainst before the Hon'ble Supreme Court is pending.
The learned judge, as is evident from the impugned judgment and order dated 06.06.2016, was of the view that the director had not proceeded to comply with the judgment and order of Honble Sanjib Banerjee, J. dated 09.06.2015 in letter and spirit. His Lordship noticed that the claim of the respondent had been held by Hon'ble Sanjib Banerjee, J. to have been covered by the judgement of the Hon'ble Supreme Court dated 06.03.2014 and the memorandum of the State dated 10.06.2014 and in such circumstances, it was not open to the director to assign a ground for rejection of the claim of the respondent which was not relevant to the issue in question. His Lordship was also of the view that the judgment and order dated 09.06.2015 having attained finality between the parties in W.P.6475 (W) of 2015, the impugned order dated 19.08.2015 was unsustainable in law. A direction was made requiring the director to act strictly in terms of the order dated 09.06.2015 passed in W.P. 6475 (W) 2015.
We have heard Mr. Mukherjee, learned Additional Government Pleader appearing in support of the application for stay. Having regard to the issue arising for decision and that keeping the appeal pending 4 would serve no useful purpose, we have considered the appeal too on merits, treating it as on day's list.
It is not disputed at the bar that the judgment and order dated 09.06.2015 has not been carried in appeal by the State. The finding recorded in such judgment and order to the effect that the claim of the respondent 'covered by the judgment of the Supreme Court of March 6, 2014 and the memorandum issued by the State on June 6, 2014' had attained finality inter-partes and the further direction requiring the director to consider the claim of the respondent in the light of such judgment and memorandum left no scope for the director to travel beyond the same to negate the claim of the respondent on the specious ground that claims of similar other librarians have not been upheld by an Hon'ble Division Bench of this Court. If indeed that were so, it was the duty of the State to either place the said decision before Hon'ble Sanjib Banerjee, J. or to question His Lordship's judgment and order in appeal. Not having done either, it was not open to the director to bypass His Lordship's ultimate decision and reject the claim of the respondent. We are of the considered view that the learned judge in proceeding to pass the impugned judgment and order requiring the director to act strictly in terms of the order dated 09.06.2015 passed in W.P. 7475 (W) of 2015, did not commit any illegality warranting interference. The appeal, as well as the application, stands dismissed. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
5(DIPANKAR DATTA, J.) (SAHIDULLAH MUNSHI, J.)