Calcutta High Court (Appellete Side)
Debabrata Mallick vs Sukomal Pandit & Anr on 29 March, 2023
29.03.2023
Court No.12
S/L. No. 4 to 6
Suvayan/
Sourav
CPAN 154 of 2022
in
WPST 178 of 2019
Debabrata Mallick
Vs.
Sukomal Pandit & Anr.
With
RVW 215 of 2022
With
CAN 1 of 2022
With
CAN 2 of 2022
State of West Bengal & Ors.
Vs.
Debabrata Mallick & Anr.
Mr. Debabrata Saha Roy
Mr. Indranath Mitra
Mr. Neil Basu
Mr. Sankha Biswas
...for the applicant in
CPAN 154 of 2022 &
For the opposite parties in
RVW 214 of 2019.
Mr. Sirsanya Bandopadhyay
Mr. Arka Kumar Nag
...for the State.
In re: CAN 1 of 2022
Heard learned Counsel for the parties.
Taking into consideration the facts and
submissions, the delay in preferring the review is
condoned.
Accordingly, CAN 1 of 2022 is disposed of.
In re: RVW 215 of 2022
Heard Mr. Sirsanya Bandopadhyay, learned
Counsel for the review petitioners and Mr. Debabrata
Saha Roy, learned Counsel for the opposite parties.
2
The order passed by this Court in WPST 178 of
2019 on 04.03.2021 is under review on the ground
that in course of hearing Rule 12 of West Bengal
Services (Revision of Pay and Allowance) Rules, 2009
(in short ROPA 2009) was not brought to the notice of
the Court and if that provision would have been
brought to the notice of the Court, the directions in
paragraph 16 of the judgment to the effect that the
writ petitioners (present opposite parties) would not
have been held to be entitled to subsistence allowance
for the period of his suspension which is prior to the
effectiveness of revised basic pay. The writ petitioners
(present opposite parties) were suspended on
19.08.2006 till 10.11.2010. The revised scale of pay
came into effect on 01.01.2006.
Rule 12(1) of the ROPA 2009 provides thus:
"12. Payment of arrears:-
(1) Notwithstanding anything
contained elsewhere in these rules,
or in any other rules for the time
being in force, no arrears of pay to
which a Government employee may
be entitled in respect of the period
from the 1st day of January, 2006 to
the 31st day of March, 2008, shall be
paid to the Government employee.
(2) (a) The arrears of pay to
which the Government employee may
be entitled to in respect of the period
from the 1st day of April, 2008 to the
31st day of March, 2009, shall be
paid in three consecutive equal
3
yearly installments in cash from the
year 2009-2010.
(b) A Government employee, who
retired on any date between the 1st
day of January, 2006 to the 31st day
of March, 2008, shall not be entitled
to any arrears of pay for the period
up to the 31st day of March, 2008"
The State of West Bengal in Ground X of the
memorandum of review has averred thus:
"For that the judgment and
Order under review is liable to be
reviewed in view of the fact that had
the provisions of Rule 12(1) of the
West bengal Services (Revision of Pay
and Allowances) Rules, 2009 would
have been placed before the Hon'ble
Division Bench during the hearing of
the Writ Petition, the direction
enshrined in the Judgment and
Order under Review would not have
been made. There could not be more
than own possible view that in light
of the mandate of Rule 12(1) of the
West Bengal Services (Revision and
Pay and Allowances) Rules, 2009 the
Respondent is entitled to his
subsistence allowance commensurate
with the Respondent's revised basic
pay of Rs.36,670/- (Rupees Thirty-Six
Thousand Six Hundred Seventy Only)
only from a period of 1st April, 2008
to 11th November, 2010 and not for
the entire period of his suspension."
Vide Annexure-C of the CPAN 154 of 2022 the
sanctioned order by the appropriate government has
been issued which is in tune with the aforesaid
Ground X of the review petition.
Inasmuch as the appearing parties before us
today, through their respective Counsel submitted that
if the order under review stands corrected to the extent
mentioned in Ground X quoted above the relief
claimed in the review application would be sub-served.
Though review does not lie for failure on the part
of the counsel to bring some facts before the Court but
taking into consideration the peculiarity of the fact
that the relevant Rule was not brought to the notice of
the Court when the order under review was passed, we
allow the review petition and direct that the opposite
parties (writ petitioners) be paid the arrear in terms of
the sanctioned order vide Annexure-C to the contempt
application within a period of 15 days hence.
Accordingly the review petition being RVW 215
of 2015 and CAN 2 of 2022 are disposed of.
Consequently, the contempt application being
CPAN 154 of 2022 is disposed of as withdrawn.
(Chitta Ranjan Dash, J.)
(Aniruddha Roy, J.)
