Biswanath Biswas & Ors vs State Of West Bengal & Ors
2023 Latest Caselaw 7142 Cal

06      16.10.2023                    FMA 1856 of 2016
                                                 with
Ct-08                       I.A No. CAN 1 of 2016(Old CAN No. 1139 of 2016)

                                      Biswanath Biswas & Ors.
                                                 Vs.
                                     State of West Bengal & Ors.
ar


                          1.

The appellants are not represented nor any

accommodation is prayed for on behalf of the

appellant.

2. The appeal had appeared in the warning

list of cases on and from 19th September, 2023

with a clear indication that the said matter shall

be transferred to the Regular Bench on

6.10.2023. The appeal was appeared on

6.10.2023 and is again listed today. All the

parties have sufficient notice about the listing of

the matter before the Regular Bench on and from

6th October, 2023.

3. The appeal was filed on 13.01.2016. The

record shows that no attempt has been made to

move this appeal after it was filed. No step has

been taken to serve notice and prepare paper

books. It clearly shows that the appellants are

not interested to proceed with the appeal.

4. The appeal is arising out of an order dated

3rd December, 2015 in which the writ petitioners

had prayed for notional benefits from the date of

commencement of their service on and from 17th

September, 1987 when the learned Single Judge

allowed the writ petition.

5. The contention of the writ petitioners was

that their first writ petition was disposed of by the

judgment and order dated 17th September, 1987

requiring the authorities to give them

appointment. The Nadia District Primary School

Council preferred an appeal and the same was

disposed of by a judgment and order dated 14th

February, 1989. A contempt application was filed,

which was disposed of on 30th June, 1989.

Thereafter the appointment letters were issued on

5th July, 1989. Accordingly, they submitted that

they should be considered to have been appointed

from the date of the judgment of the learned

Single Judge being 17th September, 1987. The

writ petitioners also relied upon an unreported

judgment of the Division Bench passed in FMA

1450 of 2011(Narayan Bhusan Deb & Ors. Vs.

State of West Bengal) dated May 11, 2015 where

the Division Bench in similar circumstance had

allowed notional benefits to the writ petitioners

therein.

6. The Council before the learned Single

Judge contended that there was no delay in

issuing the appointment letters. The appeal Court

directed issuance of the appointment letters on

30th June, 1987. Ultimately, the appointment

Letters were issued on 5th July, 1989 in close

proximity of the Division Bench direction. In any

event, the appointment letters speak that the

appointments were given with effect from 1st July,

1989 in terms of the Division Bench order.

7. Learned Single Judge from the materials

on record found that the authorities were directed

to give the writ petitioners appointment with effect

from July 1, 1989 in accordance with law

complying with the direction contained in the

judgment and order of the Division Bench dated

February 14, 1989. The authorities have issued

appointment letters in close proximity thereto being

on July 5, 1989. More importantly, the authorities

have treated the writ petitioners to be in

employment with effect from July 1, 1989 in terms

of the Division Bench order dated February 14,

1989 and June 30, 1989.

8. Thereafter it was further held that the

parties are governed by the Division Bench order

dated February 14, 1989 and June30, 1989. The

authorities have done so. Therefore, the writ

petitioners are not entitled to seek any date prior to

July 1, 1989 as the date of commencement of

appointment notional or otherwise. Consequently,

the contention on behalf of the writ petitioners

that the date of appointment should be of the

Single Bench judgment and order dated September

17, 1987 cannot be accepted.

As rightly pointed out by the Council

authorities, the facts scenario in Narayan Bhusan

Dev (supra) were different. In Narayan Bhusan

Dev the Court did not specify the commencement of

the service of the writ petitioners therein in the

earlier record of litigation. In such context, the

Division Bench had directed grant of notional

benefits from a particular date. In the present case

the Division Bench has specified commencement of

the date of service of the writ petitioners.

Consequently, the grant of any date other than that

prescribed by the Division Bench is not permissible.

There is one more aspect I need to allude to in

this case. The alleged cause of action of the writ

petitioners, to my mind occurred in July 5, 1989

when they had received the letters of appointments

specifying commencement of their service with

effect from July 1, 1989. The present writ petition

has been filed in 2015. There is no explanation in

the writ petition as to the delay in filing the writ

petition. On this score alone, the writ petition is not

maintainable."

9. In view of the aforesaid, we do not find any

reason to interfere with the order passed by the

learned Single Judge.

10. In view of the above, the appeal is

accordingly dismissed along with the connected

application.

(Uday Kumar,J.)                    (Soumen Sen, J.)