Tapas Kumar Sarkar vs The State Of West Bengal & Ors
2021 Latest Caselaw 6305 Cal

    Ct. 05
Item Nos.20-23
  14.12.2021
   (suvendu)


                            WPA 3934 of 2021
                            Tapas Kumar Sarkar
                                  Vs.
                      The State of West Bengal & Ors.

                                  With
                            WPA 3937 of 2021
                           Snigdha Basu Barui
                                   Vs.
                       The State of West Bengal & Ors.

                                 With
                            WPA 6352 of 2017
                          Tapas Kumar Sarkar
                                  Vs.
                    The State of West Bengal & Ors.

                                 With
                            WPA 6359 of 2017
                           Snigdha Basu Barui
                                   Vs.
                       The State of West Bengal & Ors.


                          [Via Video Conference]


                       Mr. Sabyasachi Chatterjee
                       Mr. Akashdeep Mukherjee
                       Mr. Pritam Chatterjee
                                          ............for the petitioners

                       Mr. Joytosh Majumder
                                ..........for the respondent nos. 3 & 4

Ms. Tapati Samanta ......for the respondent nos. 3 & 4 (In WPA 6352/17 & WPA 6359/17) & .............for the State (In WPA 3934/21 & WPA 3937/21)

In Re. WPA 3934 of 2021 & WPA 6352 of 2017

The petitioner seeks setting aside of an

order dated 22nd November, 2016 passed by the

Director of Library Services by which the

petitioner's prayer for being given the benefit of a

Memorandum dated 7th March, 1990 was rejected.

From the submissions of learned counsel

appearing for the petitioner, it is evident that the

petitioner seeks the benefit not only of the

Memorandum 33 -Edn (B) dated 7th March, 1990

but of judgment of the Supreme Court passed in

Sibnath Koley & Ors. Vs. State of West Bengal &

Ors. by which certain benefits were given to

librarians in terms of a revised scale of pay.

Counsel refers to a judgment of a Division Bench

of this Court reported in 2018 (4) CHN 131 (Pradip

Kumar Karak Vs. State of West Bengal). Counsel

submits that although the petitioner was

appointed after the cut off date laid down in the

Division Bench judgment that is 21st July, 1990,

the petitioner enhanced his qualification prior to

the cut off date and would hence be covered by

Pradip Kumar Karak. Counsel also seeks to

withdraw an earlier writ petition, being WPA 6352

of 2017, on the ground that the said writ petition

was filed before the Division Bench judgment of

Pradip Kumar Karak was pronounced.

           Learned       counsel     appearing     for    the

Department       objects    to     both   the   prayers   for

withdrawal as well as the prayer of the writ

petitioner seeking the benefits of Sibnath Koley,

the Memorandum of 7th March, 1990 and Pradip

Kumar Karak. According to the counsel, there is a

material suppression in WP 3934 of 2021 where

the petitioner has failed to disclose the fact of the

earlier writ petition filed and pending before the

Court. Counsel relies on K. Jayaram & Ors. Vs.

Bangalore Development Authority & Ors. reported

in 2021 SCC OnLine SC 1194 in this regard.

On merits, it is submitted that the

petitioner cannot take advantage of Sibnath Koley

since that was not a decision in rem as noticed in

Pradip Kumar Karak and second, that the

petitioner did not fall within the specific clause

which was given the benefit under the

Memorandum of 7th March, 1990.

I have heard learned counsel appearing

for the parties.

First, the question of suppression. It is

clear from the averments made in WPA 3934 of

2021 that the petitioner has not disclosed the fact

of WPA 6352 of 2017 pending before the Court at

the time of filing of the second writ petition.

Whether the suppression is deliberate or was

made for any ulterior purpose is not relevant to be

considered at this point. What is material is that

the petitioner should have brought the existence of

the earlier writ petition to the notice of the Court

and included an appropriate averment in that

respect. The petitioner evidently did not do this.

K. Jayaram & Ors. lays down regarding coming

before the Court with unclean hands. The

underlying necessity is to preserve the purity of

the justice delivery system and to guard against

multiplicity of proceedings. K. Jayaram did not

involve facts which are similar to the case before

this Court namely failure on the part of litigant to

disclose the pending writ petition.

The decisions shown on behalf of the

petitioner namely, Sarguja Transport Service Vs.

State Transport Appellate Tribunal, M.P., Gwalior

& Ors. reported in (1987) 1 SCC 5 and

Visveshwaran Suresh Kumar & Anr. Vs. The State

of West Bengal & Ors., proceed on the principles of

withdrawal of writ petitions under Order XXIII of

The Code of Civil Procedure.

Upon considering these decisions, this

Court is of the view that the scale of powers of a

writ court can persuade the Court to pass an

appropriate order for the larger question of public

policy. In the facts of the present case, the

petitioner fails to disclose the earlier writ petition

and now seeks to have the said writ petition

withdraw. The earlier writ petition admittedly has

lost its force by reason of a subsequent judgment

pronounced by the Division Bench and hence is no

longer required to be considered by the Court. The

petitioner can hence be permitted to withdraw

WPA 6352 (W) of 2017 without any further dilation

of the law on that aspect.

With regard to the merits, on the date

when the petitioner enhanced his qualification, the

petitioner was a "Cycle Peon". Without any

disrespect to the concerned post, it is correct to

state that the petitioner did not belong to the

category of librarians or serving librarians who

were given the benefit of the Memorandum dated

7th March, 1990. This would be evident from

Clause 16(3) of the said Memorandum which

provides that all teachers and librarians of

secondary schools who have improved or will

improve their qualifications or who were appointed

with higher qualification in the relevant subject

shall get higher scale of pay appropriate to their

qualifications with effect from 1st January, 1986 or

the date of improving qualification whichever is

later. The clause makes it clear that the benefit

would only cover those teachers and librarians

who were already in such posts and improved or

were in the process of improving their

qualifications or were appointed with higher

qualification in the relevant subject as on the date

of their appointments. This also finds support

from paragraphs 137 to 139 of Pradip Kumar

Karak which indicates that the cut off date of 21 st

July, 1990 and the benefit of the librarians being

treated at par with the librarians in Sibnath Koley

would only apply to those librarians who have

acquired higher qualifications before the cut off

date. The relevant paragraphs indicate that

persons seeking to take benefit of Sibnath Koley or

the relevant Memorandum must already be in the

position of a librarian before 21st July, 1990.

The petitioner was admittedly appointed

in October, 2009 which is much after the

mentioned cut-off date in Pradip Kumar Karak. A

communication dated 10th June, 2014 from the

Directorate of Library Services to the District

Library Officer also makes it clear that the

judgment of the Supreme Court in Sibnath Koley

cannot be treated as a decision in rem which was

also reiterated in Pradip Kumar Karak.

In view of the above reasons, this Court

finds no merit in the writ petition which is

accordingly dismissed.

WPA 6352 of 2017 is dismissed as

withdrawn as indicated above.

In Re. WPA 3937 of 2021 & WPA 6359 of 2017

WPA 3937 of 2021 is disposed of in terms

of the above and WPA 6359 of 2017 is dismissed

as withdrawn accordingly.

Urgent photostat certified copy of this

order, if applied for, be given to the parties on

usual undertakings.

(Moushumi Bhattacharya, J.)