Calcutta High Court (Appellete Side)
Mitali Chakraborti vs The State Of West Bengal & Ors on 11 May, 2022
11.05.2022 MAT 48 of 2022
with
Court : 04 CAN 1 of 2022
Item : 07
Matter : MAT
Status : DISMISSED
Transcriber: nandy
Mitali Chakraborti
Vs.
The State of West Bengal & Ors
Mr. Partha Sarathi Bhattacharya, Senior Advocate
Mr. Kartick Kumar Roy, Advocate
Mr. Anadi Mohan Chakraborty, Advocate
Mr. Raju Bhattacharya, Advocate
Mr. Tanweer J. Mondal, Advocate
......for the Appellant
Mr. Dr. Sutanu Patra, Advocate
Ms. Supriya Dubey, Advocate
......for the WBCSSC
Mr. Bhaskar Prasad Vaisya, Advocate
Mr. Subroto Ghosh, Advocate
Mr. K.N. Nabi, Advocate
......for the State
Admittedly the appellant was appointed in the post
of Assistant Teacher on September 11, 2017, after a long
battle fought successfully. The appellant offered her
candidature and appeared in the Regional Level
Selection Test 1998 held in the year 1999 by the West
Bengal School Service Commission (Southern Region)
and emerged successfully therefrom. She was expecting
recommendation for appointment in any Government
aided school but subsequently such recommendation
was not put in reality, and the appellant realized that she
has been discriminated as the general category
candidate who has obtained lesser marks than her, has
been recommended by the Commission.
Immediately a writ-petition being WP 19441 (W) of
1999 was filed challenging the panel prepared by the
Commission with further direction to publish the panel in
accordance with law. The aforesaid writ-petition was filed
by several aggrieved persons including the appellant
2
herein and at the time of hearing it was found that all the
petitioners have distinct cause of action and, therefore,
cannot be joined in one writ-petition and a direction was
passed upon the petitioners therein including the
appellant to file afresh ventilating their individual
grievances. Pursuant to such liberty, another writ-petition
being WP 10623 (W) of 2003 was filed with a substantive
prayer commanding the respondents to recommend the
name of the appellant for appointment as Assistant
Teacher in Philosophy within the jurisdiction of the
School Service Commission in Southern Region in any
School in terms of Regulation 9(3) of Regulation 1 of the
West Bengal School Service Commission (Procedure for
Selection of Persons for Appointment to the Posts of
Teachers including Headmasters/ Headmistress/
Superintendents of Senior Madrasahs in recognized Non-
Government Aided Schools and Procedure for Conduct
of Business of the Commission) Regulations, 1998
(hereinafter referred as Regulation of 1998). The said
writ-petition was dismissed by the single Bench as the
validity of the said panel had expired. The said order of
the single Bench was carried to a Division Bench in FMA
1270 of 2009. The Division Bench vide order dated June
12, 2017, allowed the said appeal directing the
Chairperson of the Regional Commission to recommend
the name of the appellant for appointment to the post of
Assistant Teacher despite the fact that the life-span of
the panel has expired. It was further observed while
allowing the said appeal in the following: -
22. Since the writ petitioner was entitled to be recommended for
appointment in the year 1999 but for no fault on her part she has not been
able to discharge duty for the last 18 years, consequent whereto she has
also been deprived of financial benefits that could have accrued in her
favour, we would exercise discretion by giving her the benefit of
discharging duty in a school in Kolkata and, therefore, we further direct the
Chairperson of the regional commission to recommend her in an
appropriate vacancy in a school within a radius of 10 kilometers of her
residence.
It is thus apparent from the order of the Division
Bench that the petitioner was found eligible to be
appointed in such post and have been deprived for nearly
18 years in discharging such duties in such capacity. The
Division Bench was of the view that the only solace which
can be extended to the appellant, is to place her in a
School under the control of the said Commission within a
radius of 10 kilometers of her residence.
Undisputedly, the petitioner was issued an
appointment letter on September 9, 2017, and joined the
said post on September 11, 2017. Such appointment
was subsequently approved on April 27, 2018. It appears
from the record that the writ-petitioner though joined on
September 11, 2017, was not paid the remuneration and/
or salary on and from 11.09.2017 till 30.04.2018. A
grievance was raised in this regard before the District
Inspector of Schools (SE), Kolkata on August 7, 2019.
Subsequently, the appellant realized that her
qualifying service would not meet the requirement to
make her eligible to pension under the relevant Rules;
so, a further writ-petition was filed for issuance of a
mandamus upon the respondent authorities to
compensate her for the loss suffered because of the
lapses and negligence of the authority and also to extend
full benefits including the pensionary benefits, gratuity
and leave salary as admissible to the Assistant Teacher
of the Government aided Schools. Since such grievance
was not addressed by the said District Inspector of
Schools pertaining to non-payment of the salary for the
service rendered by the appellant between the period
from the date of her joining till the approval, further prayer
was made for release the same thereof. Such being the
primary relief claimed in the writ-petition, the single
Bench disposed of the writ-petition directing the District
Inspector of Schools to take immediate steps and look
into the matter so that the appellant can get the salary for
such period and if the appellant is found to be entitled the
payment should be made within sixty days from the date
of communication of the order.
However, the other prayer relating to the payment
of full salary and all other benefits attached to the said
post of Assistant Teacher, the Court after noticing the
observations made by the Division Bench, declined to
grant such relief.
Mr. Partha Sarathi Bhattacharya, learned Senior
Advocate, appearing for the appellant fervently submitted
before us that the order of the Division Bench cannot act
as a deterrent to the relief claimed in the instant writ-
petition, which is independent, distinct and separate from
the cause of action pleaded in the earlier writ-petition. It
is further submitted that since the Division Bench noticed
the lapses and negligence on the part of the authorities in
not recommending the name of the appellant which
deprived her of the considerable period of service, the
writ-petitioner cannot be further deprived in not treating
the said appointment from a date when the last candidate
was appointed on the basis of the said examination. In
other words, it is submitted that there is no impediment
on the part of the Court to grant such relief claimed in the
writ-petition as such relief was not available in the earlier
round of litigation and, therefore, the single Bench have
overlooked the specific observation of the Division Bench
as quoted above.
It is submitted that the provisions contained in
Order II Rule 2 of the Code of Civil Procedure is not
applicable to a writ proceeding and has a restricted
applicability to the suit and, therefore, the prayer made in
the instant writ-petition cannot be denied on such ground
and placed reliance upon the judgments of the Supreme
Court in case of 1) Devendra Pratap Narain Rai
Sharma Vs. State of Uttar Pradesh & Ors. reported in
AIR 1962 SC 1334 2) Gulabchand Chhotalal Parikh
Vs. State of Gujarat reported in AIR 1965 SC 1153 and
3) Raju Jhurani Vs. Germinda Private Limited reported
in (2012) 8 SCC 563.
On the other hand, Mr. Vaisya, learned Advocate
appearing for the State submitted that the prayer of the
earlier writ-petition would evince that the relief claimed by
petitioner was refused and if the Court has denied the
same and the order attained finality, it cannot be
reopened. It is further submitted that the grievance was
restricted to non-payment of salary between the period
from the date of joining and the approval and the
appellant cannot claim something beyond the
circumference thereof and, therefore, the single Bench
rightly rejected such claim.
On the conspectus of the aforesaid submission
advanced before us, the point which in our considered
opinion falls for consideration is whether the relief as
couched in the said writ-petition, can be granted in view
of the categorical observations of the Division Bench in
the earlier writ-petition.
Though Order II Rule 2 of the Code incidentally
arose as a hurdle to the appellant in granting the relief as
claimed in the writ-petition, it may not be required to deal
with the same as such point becomes academic on
disclosure of the materials from the record of the earlier
writ-petition.
In the case of Devendra Pratap Narain Rai
Sharma (supra), the Tehsildar who was on probation,
was suspended and the enquiry commenced on certain
charges of misdemeanor. Ultimately, the said Tehsildar
was reverted to the post of Naib Tehsildar but the
disciplinary authority recommended dismissal from
service and forwarded the papers to the State
Government who accepted such recommendation and
dismissed the said employee from service. The
dismissed employee filed a suit challenging the legality of
the order of dismissal principally on the ground that he
was not afforded an opportunity to defend himself. The
said suit was dismissed but the decree was reversed by
the High Court basically on the principle that the
dismissed employee must have been afforded an
opportunity to defend before any penalty is inflicted.
While setting aside the decree, the High Court granted a
declaration that the order of the State Government in
dismissing the service was void and inoperative and,
therefore, such dismissed employee should be treated to
have continued in service. Pursuant to the said order the
dismissed employee was reinstated in the original post of
Tehsildar and, thereafter, applied for payment of the
arrears and salary and allowances due to him. The
Accountant General raised an objection to such claim
and did not accede to the prayer. To his misfortune the
Tehsildar was further suspended by the Board of
Revenue and direction was passed to hand over the
charge to the Naib Tehsildar. A writ-petition was filed
before the High Court challenging the order directing
enquiry into the allegation regarding his work and
conduct as Tehsildar and for setting aside the order of
suspension issued by the authority. The High Court held
that the second enquiry by the Board of Revenue was not
barred by virtue of the previous decision and the said
employee cannot be deemed to have been confirmed
with effect from April 1983. A plea was taken, since the
declaration was made in a civil suit, the order passed in
the writ-petition and the subsequent action of the
authority would be barred by the Order II Rule 2 of the
Code. In the backdrop of the aforesaid facts emanates
from the said report, the Apex Court held that the scope
in an earlier round of litigation was restricted to a
procedure adopted for imposing penalty which was found
by the High Court to be irregular which cannot prevent
the State to take a decision for another enquiry in respect
of the same subject matter. In such backdrop, it is held
that the provision contained in Order II Rule 2 of the
Code is fundamentally applicable to a civil suit and the
bar under the aforesaid provision may not apply to a
petition of high prerogative writ under Article 226 of the
Constitution.
In the case of Gulabchand Chhotalal Parikh
(supra) the Apex Court held that the applicability of the
said provision is restricted to a suit which is primarily filed
for enforcement of the personal rights whereas the writ
proceedings are intended to compel the performance by
a public servant of his duty of a public nature and,
therefore, the declaration of a personal right is not an
essential characteristic in the issue of a writ of
mandamus. However, the Apex Court held that such
difference would be immaterial if the issue which is
directly and substantially an issue in an earlier
proceeding and determined finally, is reagitated in the
subsequent proceedings. It would be profitable to quote
the relevant observations rendered in paragraph 29 of
the said report which runs thus: -
29. it is further submitted for the appellant that a writ of
mandamus, according to its nature, is to be issued mainly to compel the
performance by a public servant of his duty of a public nature, while in a
suit the plaintiff prays for the enforcement of his personal rights. The
declaration of a personal right is not an essential characteristic in the issue
of a writ of mandamus. The difference in the nature of the two proceedings
is immaterial if the matter is decided inter parties in one proceeding is the
same which is to be determined in the subsequent proceedings and the
parties to the suit were also parties to the writ-petition. (emphasis supplied)
In the case of Raju Jhurani (supra) the question
was whether Order II Rule 2 of the Code has any manner
of applicability to a proceeding of winding-up under the
Companies Act. It is thus held that the nature and the
concept of winding-up proceeding is completely different
than the scope in the suit for enforcement of the personal
right and, therefore, Order II Rule 2 of the Code shall
have no manner of applicability.
It is no doubt true that Order II Rule 2 has its
applicability to a suit, which is evident, and apparent from
the language employed therein. The said provision
creates an embargo on the litigant to file a suit claiming a
relief depended upon the cause of action for which the
earlier suit was filed for the other reliefs and if such
omission is apparent the subsequent claim cannot be
entertained by the Court. In other words, the said
provision mandates that the person must claim all reliefs
available on the principal cause of action in a suit and if
he omits to claim any one or more reliefs, he shall be
precluded from claiming such relief subsequently.
The reliefs pertaining to Article 226 of the
Constitution framed by this Court makes it abundantly
clear that the procedure provided in the Code of Civil
Procedure shall apply mutatis mutandis to the writ
proceeding. Though the rigor of the provisions may not
apply yet the principles governing the procedural law may
be applicable depending upon the nature of the claim and
the reliefs claimed in two proceedings.
Even in case of Gulabchand Chhotalal Parikh
(supra), the Apex Court has indicated that the
fundamental difference in the nature of the two
proceedings is immaterial if the matter has been decided
inter parties in one proceeding is the same which is to be
determined in the subsequent proceedings and the
parties to the suit were also parties to the writ-petition.
The said rule is based on a public policy and does not
encourage the litigations between the parties for one
relief when such relief can be conveniently claimed and
granted in an earlier round of litigation.
As indicated above, the subsequent facts having
discerned from the record of the earlier writ-petition,
virtually makes the aforesaid point more academic yet we
intend to make certain observations because of the
arguments having advanced in this regard.
In an earlier writ-petition namely WP 10623 (W) of
2003, the petitioner was seeking a relief in the form of
mandamus to be appointed as Assistant Teacher in
Philosophy after complying Regulation 9(3) of Regulation
1 and the preparation of fresh panel in terms thereof.
Amidst pendency of the writ-petition, an application for
amendment being CAN 6408 of 2004 was taken out by
the appellant amending the prayer and/or reliefs claimed
in the writ-petition to the effect that while passing the
order recommending the name of the petitioner for
appointment as an Assistant Teacher in Philosophy upon
recasting the panel, the effect should be given from
02.11.1999. The said application for amendment was
allowed by the single Bench on 22.09.2004 directing the
appellant to file an amended copy of the writ-petition.
What is discerned from the aforesaid fact that
though the principal relief was relatable to the
recommendation for appointment to the post of Assistant
Teacher, but such appointment should be given notional
and retrospective effect from 02.11.1999. The appellant
was quite alive of the fact that the unamended relief
granted in the said writ-petition may not be adequate as it
would have some impact on the benefits which is
admissible to such post and precisely for such reason the
appointment was sought from a retrospective date.
Initially the said writ-petition was dismissed but the
Division Bench allowed the said application directing the
authorities to recommend and appoint the petitioner to
such post but did not grant any substantial relief that
such appointment to take effect from a retrospective
date. The observations made in paragraph 22 of the said
judgment as quoted hereinabove exposes the clear
intention that though the Division Bench found that the
petitioner have been deprived for nearly 18 years in
discharging the solemn duty which has resultantly
impacted upon the financial benefit, yet the Division
Bench directed the Commission to place the appellant in
any School within 10 KMs radius of her residence.
It is beyond cavil of doubt if several reliefs are
claimed in a proceeding and the Court has passed an
order granting some of the reliefs, it is implied that the
other reliefs have been denied. The Division Bench was
conscious of the situation that the appointment which
could have been done in the year 1999 have been
illegally postponed and/or willfully delayed yet did not
pass an order that such appointment shall take effect
notionally from an anterior date. If the relief has been
denied such relief cannot be granted in a subsequent
proceeding.
In view of the above, we do not find that it is a fit
case where the appellant is entitled to such relief and,
therefore, we do not find any illegality and/or infirmity in
the order of the trial Court.
The appeal being MAT 48 of 2022 and the
connected application being CAN 1 of 2022 are
dismissed. No order as to costs.
(Harish Tandon, J.)
(Rabindranath Samanta, J.)
