Anibash Barman & Anr vs State Of West Bengal & Ors
2021 Latest Caselaw 5941 Cal

    26
30.11.2021
 Ct. No.23
     pg.


                       IN THE HIGH COURT AT CALCUTTA
                      CONSTITUTIONAL WRIT JURISDICTION
                               APPELLATE SIDE

                                WPA 17911 of 2021

                              Anibash Barman & Anr.
                                        Vs.
                            State of West Bengal & Ors.


                     Mr. Samim Ahammed
                     Mr. Arka Maiti
                     Ms. Gulsanwara Pervin
                                ... For the petitioners

                     Mr. Amitesh Banerjee
                     Mr. Soumitra Mukherjee
                     Mr. Sayan Ganguly
                                ... For the State

                     Two persons have joined as petitioners in the

             instant writ petition espousing their individual cause,

             however, arising out of common set of facts and claiming

             relief against the common set of respondents. The Court

fees paid is in respect of only one petitioner.

The petitioners are directed to pay the deficit court

fees by 7th December, 2021, failing which the writ petition

shall be treated to have been filed only by the petitioner

no.1.

The petitioners say that they are all Ex-Servicemen.

The petitioners have been engaged as Constables in

Kolkata Police on contractual basis. The petitioners are

claiming regularisation of their services as also equal pay

for equal work.

The respondents say that this Court lacks

jurisdiction to receive, try and determine the writ petition

inasmuch as the remedy of the petitioners lie before the

West Bengal Administrative Tribunal constituted under the

Administrative Tribunals Act, 1985. The respondents also

say that petitioners are also not entitled to claim the reliefs

as prayed for in the instant writ petition.

In reply to the stand taken by the respondents that

this Court lacks jurisdiction to receive, try and determine

the instant writ petition, the petitioners have relied upon a

Full Bench judgment of this Court in Tanmay Ghosh v.

State of West Bengal, reported in (2015) 2 CHN 461 (FB).

Relying upon the said judgment, it is submitted by the

petitioners that the petitioner being in contractual

appointment cannot be relegated to pursue their remedy

before the West Bengal Administrative Tribunal.

After considering the materials on record, the

submissions made by the parties and the ratio laid down

in the judgment of Tanmay Ghosh (supra), it appears that

the core issue which needs to be answered is whether the

petitioners engaged as Constables in Kolkata Police on

contractual basis hold a civil post or not. If the answer is

in the affirmative, then the petitioners will have to ventilate

their grievances before the West Bengal Administrative

Tribunal. On the other hand, if the answer is negative, the

petitioners being in contractual appointment will be able to

maintain a writ petition before this Court. The other issues

which remain to be considered are whether the petitioners

are entitled to the reliefs claimed in the instant writ

petition and whether the writ petition is barred under the

principle analogous to the provisions of constructive res

judicata. These issues are required to be gone into only

after affording the respondents an opportunity to file their

affidavits.

Let affidavit-in-opposition be filed within six weeks

from date. Reply, if any thereto, may be filed within two

weeks thereafter.

Liberty to mention for inclusion in the list under

the heading "Hearing" after expiry of ten weeks.

It is made clear that the issues as to the

jurisdiction of this Court as also the maintainability of the

claims made by the petitioners are left open to be decided

at the final hearing.

(Arindam Mukherjee, J.)