Calcutta High Court (Appellete Side)
Jaganmoy Bhattacherjee & Ors vs State Of W.B. & Ors on 9 June, 2015
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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9.6.2015 W.P.7150 (W) of 2015
With
W.P.7151(W) of 2015
With
W.P.7153(W) of 2015
With
W.P.6476(W) of 2015
With
W.P.6475(W) of 2015
With
W.P.4535(W) of 2015
With
W.P.4536(W) of 2015
38-44
ks
Jaganmoy Bhattacherjee & Ors.
-Vs-
State of W.B. & Ors.
Mr. Pratik Dhar, Sr. Adv.,
Mr. Tarun Kumar Pal,
Mr. Dilip Kumar Sanyal,
Mr. Samir Halder
... for the Petitioners.
Mr. Ashok Banerjee, Sr. Adv.
Mr. Amit Prakash Lahari,
Mr. Aniruddhan Sen
... for the State in W.P.6476(W) of 2015.
Mr. Ashok Banerjee, Sr. Adv.,
Mr. Supriya Chattopadhyay,
Mr. Lal Mohan Basu
... for the State in W.P.6475(W) of 2015.
Mr. Tapan Kumar Mukherjee,
Mr. Nilotpal Chatterjee
... for the State in W.P.4535(W) of 2015
Mr. M.P. Gupta
... for the State in W.P.7153(W) of 2015
The questions are common in all the matters.
The petitioner in each case is a rural librarian. The
petitioners have all obtained higher qualifications than the
essential qualifications required to be employed as a rural
librarian. Pursuant to a Government memorandum of March 7,
1990, which was made applicable to all teachers and librarians
of secondary schools who had improved their qualifications, the
petitioners claimed higher pay. Each of the petitioners had
instituted previous petitions in this court, whether individually
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or together with others, and such petitions have been dismissed
for want of prosecution in the year 2002. None of the
petitioners has attempted to revive the previous petitions, but
claim that they are entitled to the benefits of higher pay in view
of a recent memorandum of June 10, 2014 issued by the
Directorate of Library Services of the State Government.
It is submitted on behalf of the State that the petitions
should not be entertained at all since the previous petitions
seeking the same reliefs have been dismissed for default in the
year 2002 and neither have the petitioners attempted to revive
such petitions nor is there any explanation as to why the
previous petitions were not diligently prosecuted or they were
not attempted to be revived for such a long period.
There were several petitions filed in this court in the
1990s by similarly placed persons as the present petitioners,
complaining of the March 7, 1990 notification not being
implemented by the State in respect of rural librarians in
particular. It appears that by a subsequent memorandum of
July 26, 1994, the benefits conferred by the memorandum of
March 7, 1990 were sought to be retracted or withdrawn and
the stand taken by the State was, at least as far as rural
librarians were concerned, that there was no question of
pecuniary benefits being made available merely upon the
enhancement of the educational qualifications of the
incumbents.
In one of the matters pertaining to rural librarians, or a
clutch of matters, a Single Bench of this Court took the view
that the State remained bound by the memorandum of March 7,
1990 and the concerned petitioning rural librarians were
entitled to the pecuniary benefits upon obtaining higher
qualifications than required for appointment to the post. The
appeal from the relevant order was dismissed by a judgment
and order of June 8, 2007.
The State challenged the Division Bench judgment by way
of a special leave petition and, in the resultant appeals, the
Supreme Court upheld the Division Bench view. The Supreme
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Court's order of March 6, 2014 in Civil Appeal No.6967-6970 of
2009 observed that since a benefit had been conferred by the
March 7, 2000 memorandum, it was "rather too late in the day"
for it to be undone by the subsequent memorandum of July 26,
1994. Not much else by way of reasons appears from the
judgment and the State now says that several aspects that
ought to have been taken into consideration by the Supreme
Court were not considered and it is still open to the State to
urge such grounds in the present proceedings. The State says,
on the strength of Article 39(d) of the Constitution, that since
the work required to be undertaken by a rural librarian remains
the same whether he possesses enhanced educational
qualifications or not, it would be impermissible for persons
discharging the same nature of work to be paid differently
merely on the basis of enhanced qualifications. In support of
such contention, the State has referred to the judgments
reported at (1990) Supp. SCC 296 and (1982) 1 SCC 618.
The preliminary point is of significance as it cannot be
said that merely because the previous petitions filed by these
petitioners have not been assessed on merits, the petitioners are
permitted to institute a fresh action without seeking to revive
the previous petitions or without an explanation as to why no
attempt was made for more than a decade to have the original
petitions restored. However, it is evident that the petitioners'
cause of action in the present round is different from what may
have been originally canvassed. The present petitions are
founded on the memorandum of June 10, 2014 issued pursuant
to the Supreme Court judgment. The memorandum reads as
follows: -
"With reference to above and in compliance to the order of
the Hon'ble Supreme Court of India, as well as according
to the observation of the Finance Department in this
regard vide U.O. No.606 (Gr. P x Pay) dated 27.05.2014
(copy enclosed) the undersigned is to request him her to
fix the pay of each employee separately out of the said
employees to be benefited in his/her district accordingly
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and submit the same to this Directorate for onward
approval of the same by the respective branch of Finance
Department. For proper verification he /she is requested
to enclose the authenticated copy of the service book of
each employees to this end. As the mater is very urgent
and requires time bound schedule. So he/she is
requested to submit this report positively by 25th June,
2014.
Your are requested to comply this within the stipulated
period as mentioned."
It is evident from the memorandum of June 10, 2014 that
in view of the Supreme Court judgment, the State Government
has extended the benefit of higher pay for better qualifications to
all rural librarians. It is such memorandum that the petitioners
are entitled to take advantage of notwithstanding their previous
petitions having been dismissed for default.
Ordinarily, even in this extraordinary jurisdiction under
Article 226 of the Constitution, a petitioner will not be permitted
to agitate a matter that had been urged previously but had not
been pursued. However, if the subsequent petition is founded
on a separate cause of action - irrespective of whether the reliefs
claimed are the same - the dismissal of the previous petition will
not stand in the way. After all, when a petition is dismissed for
default, even under the Code of Civil Procedure, 1908, the suitor
may not pursue the same cause but the issues that had or
could have arisen in the original proceedings may still be
adjudicated upon as the doctrine of issue estoppel does not
apply when a matter is dismissed for want of prosecution.
It was open to the State to confer the benefits pursuant to
the Supreme Court's order to the eo nomine petitioners therein;
but once the State understood the Supreme Court judgment to
imply that the benefits had to be conferred on all persons
similarly placed as the writ petitioners in the matters before the
Supreme Court and the State Government issued the
memorandum of June 10, 2014 covering all rural librarians, it
was open to the petitioners herein to take up the offer or seek
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the benefits thereunder and institute the present proceedings
notwithstanding the dismissal for default of their previous
petitions.
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 judgement 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) 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 6 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.
There will be no order as to costs.
Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
( Sanjib Banerjee, J.)