Calcutta High Court (Appellete Side)
Development Directorate & Anr vs Subhasish Das & Ors on 2 July, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble Justice PARTHA SARATHI SEN
RVW 8 of 2025
The Deputy Secretary, Backward Classes Welfare and Tribal
Development Directorate & Anr.
Vs.
Subhasish Das & Ors.
With
CPAN 1192 of 2024
In
W.P.A. 11914 of 2021
Subhasish Das & Ors.
Vs.
Aswini Kumar Yadav, Commissioner of Backward Classes Welfare and
Tribal Development & Ors
For the Petitioners: Mr. Amar Nath Sen, Adv.,
Mr. Malay Dhar, Adv.,
Mr. Madhusudan Saha Roy, Adv.,
Mr. Shouvik Naskar, Adv.
For the State: Mr. Sirsanya Bandopadhyay, Adv.,
Mr. Debangshu Dinda, Adv.
For the Alleged Contemnor: Mr. Himadri Sekhar Chakraborty, Adv.,
No.2. Ms. Debdooti Dutta Adv.
Hearing concluded on: 26.06.2025.
Judgment on: 02.07.2025.
PARTHA SARATHI SEN, J. : -
1. The subject matter of the instant review petition is the judgement
dated 08.02.2024 as passed by this Court in WPA 11914 of 2021.
2. By the said judgement this Court while allowing the said writ
petition directed the respondent no.4 in concurrence with the
respondent no.3 to implement the benefit of the two notifications
dated 25.02.2016 and 08.02.2019 in respect of the writ petitioners to
the said writ petition from the date of publication of the
aforementioned two notifications and/or from the dates of their
engagement whichever is later within three months from the date of
communication of the said judgement. By the said judgement the
respondent no.4 in concurrence with respondent no.3 was further
directed to pay arrears of salary and/or emolument of the said writ
petitioners within a period of six months from the date of
communication of the said judgement.
3. In course of his argument Mr. Bandyopadhyay, learned Senior
Standing Council appearing on behalf of the review petitioners/State
and its functionaries at the very outset draws attention of this Court
to page nos. 50,57 and 59 of the paper book being copies of the three
notifications dated 16.09.2011, 25.02.2016 and 08.02.2019
respectively.
4. It is submitted by Mr. Bandyopadhyay that while passing the
judgement under review this Court though considered the
aforementioned three notifications however, for some reason or other
the relevant portion of the notification dated 16.09.2011 was not
brought to the notice of this Court at the time of hearing of the said
writ petition as a result whereof an error occurred while passing the
said judgement and thus the present review petitioners had
approached this Court for review of judgement as aforesaid.
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5. Mr. Bandyopadhyay submits that Clause (V) of the notification
dated 16.09.2011 clearly indicates that casual/ daily rated /
contractual workers who would complete the tenure of service on first
July every year would come under the purview of the said notification
dated 16.09.2011 provided however no such worker if engaged after
01.04.2010 would come under the purview of the said notification
dated 16.09.2011.
6. It is further submitted by Mr. Bandyopadhyay that while passing
the judgement under review this Court had come to a finding that on
account of issuance of subsequent two notifications dated 25.02.2016
and 08.02.2019 the review petitioners/State Authorities had given go-
by to the notification dated 16.09.2011 and that the said notification
dated 16.09.2011 had practically lost its significance in respect of
those contractual/daily rated/ casual workers who have worked for
less than 10 years. It is further submitted by Mr. Bandyopadhyay that
in the event Clause (V) of the said notification dated 16.09.2011 was
placed in an appropriate manner at the time of hearing of the
aforementioned writ petition, this Court might have taken a contrary
view considering the significance of the proviso clause of the said
Clause (V) of the notification dated 16.09.2011 and for the
aforementioned reason an error occurred while passing the judgement
under review which is apparent on the face of the record and the same
is required to be rectified in disposing the instant review petition.
7. It is further submitted by Mr. Bandyopadhyay that on careful
perusal of the notification dated 16.09.2011 it would reveal that it has
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been categorically stated therein that the worker who was engaged
after 01.04.2010 would not come under the purview of the said
notification dated 16.09.2011. It is further submitted by Mr.
Bandyopadhyay that on perusal of the notification dated 25.02.2016
and 08.02.2019 it would reveal that the subsequent two notifications
were published in continuation of the earlier notification dated
16.09.2011.
8. At this juncture Mr. Bandyopadhyay took me to page no.33 of the
paper book being a copy of the appointment letter dated 19.06.2018
as was given to the respondents/ writ petitioners of the instant review
petition. It is submitted by Mr. Bandyopadhyay that the said
appointment letter was issued on 19.06.2018 and therefore by no
stretch of imagination and in view of proviso of Clause (V) of the
notification dated 16.09.2011 the respondents /review petitioners can
claim any benefits upon such notification. It is submitted further that
since the subsequent two notifications dated 25.02.2016 and
08.02.2016 were issued in continuation of the earlier notification
dated 16.09.2011, it also cannot be held that the effect of Clause (V) of
the earlier notification dated 16.09.2011 was given a go-by as has
been held in the judgement under review.
9. It is thus submitted by Mr. Bandyopadhayay that for not placing
Clause (V) of the said notification dated 16.09.2011 at the time of
hearing on the part of the State and its functionaries in an
appropriate manner, this Court cannot consider the true implication
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of the said Clause (V) and thus a favourable judgement was passed in
favour of the writ petitioners.
10. It is further submitted by Mr. Bandyopadhyay that from the copy
of the appointment letter dated 19.06.2018 as has been issued in
favour of the respondents/writ petitioners herein it would reveal that
in such appointment letter(s) the remunerations of the writ petitioner
have been categorically mentioned and in the self same appointment
letters, it has also been indicated by the review petitioners/State and
its functionaries that no other financial benefit would be given to the
respondents/writ petitioners herein except the amount of
remuneration as mentioned therein.
11. It is further argued by Mr. Bandyopdhyay that since the
respondents/writ petitioners of the instant review petition have been
appointed under a specific memo dated 19.06.2018 the terms and
conditions of the respondent /writ petitioners would be governed
under the said memo dated 19.06.2018 and thus they are not entitled
to get any benefit of the notifications dated 16.09.2011, 25.02.2016
and 08.02.2019.
12. It is thus submitted by Mr. Bandyopadhyay that it is a fit case for
reviewing the judgement dated 08.02.2024 as passed in WPA 11914 of
2021.
13. Per contra, in course of his submission, Mr. Dhar learned
advocate appearing for the respondents/writ petitioners at the very
outset submits before this Court that the instant review petition is not
maintainable. Attention of this Court is drawn to Section 114 of the
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Code of Civil Procedure. It is submitted by Mr. Dhar that from page
no.120 of the instant writ petition it would reveal that challenging the
judgement under review the review petitioners had approached a
division bench of this Court by filing MAT 952 of 2024. It is further
submitted by Mr. Dhar that from page no.120 of the paper book being
a copy of the order dated 02.01.2025 as passed in the said appeal it
would reveal that the said appeal was dismissed as withdrawn.
14. It is submitted by Mr. Dhar that in the event the said order dated
02.01.2025 as passed by the Hon’ble Division Bench of this Court is
viewed in terms of the provisions of Section 114 of the Code of Civil
Procedure it would reveal that since impugning the judgement under
review, the review petitioner has preferred an appeal, the instant
review petition is not maintainable. In support of his contention Mr.
Dhar places his reliance upon the following three reported decisions:-
I. Behari Lal And Anr. vs. M.M Gobardhan Lal and Ors.
reported in AIR (35) 1948 Allahabad 353
II. The judgement and order dated 29.01.2018 as passed in
Writ Appeal no.1163/2017 (Rafiq Riwani vs. M.P State Waqf
Board and Ors.) by the High Court of Madhya Pradhesh;
III. S. Tirupathi Rao vs. M. Lingamaiah and Ors. reported in
2024 INSC 544: 2024 SCC Online 1764.
15. It is submitted by Mr. Dhar that in the reported decision of Behari
Lal (Supra) a Full Bench of Allahabad High Court expressly held that
one of the conditions laid down for application of review is that it must
be filed before an appeal has been preferred. It is further submitted by
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Mr. Dhar that in the case of Rafiq Riwani (supra) the same view wastaken by the Hon’ble Division Bench of the High Court of Madhya
Pradesh.
16. Mr. Dhar, learned advocate appearing on behalf of the
respondents/ writ petitioners also draws attention of this Court to the
aforementioned three notifications. It is argued by Mr. Dhar that
undisputedly the aforementioned three notifications are
interconnected since the subsequent two notifications dated
25.02.2016 and 08.02.2019 were issued in continuation of the initial
notification dated 16.09.2011.
17. It is further argued by Mr. Dhar that in the event the subsequent
two notifications dated 25.02.2016 and 08.02.2019 are considered in
their proper perspective it would reveal that by publication of the said
two subsequent notifications the review petitioners had consciously
given a go-by to the earlier notification dated 16.09.2011.
18. Drawing attention to two tabular sheets as appended with the
notification dated 25.02.2016 it is argued by Mr. Dhar that in the
event the arguments of Mr. Bandyopadhyay is accepted that is to say
that the said notification dated 16.09.2011 clearly indicates that a
worker if engaged after 01.04.2010 would not get benefit of the said
notification dated 16.09.2011 then there was no necessity on the part
of the review petitioners to keep the two rows in the said tabular
statement at the top with the captions ‘less than 5 years’ and ‘5-10
years.’
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19. It is further submitted by Mr. Dhar that from the notification
dated 25.02.2016 it would reveal that the said notification was
directed to take effect from 01.03.2016. It is further argued by Mr.
Dhar that in the event it was the further intention of the review
petitioners that they would not provide the benefit of the said
notification dated 25.02.2016 to the workers who was/were engaged
after 01.04.2010 there was no necessity to keep those rows in the said
tabular statement since simple arithmetical calculation goes to show
that if a worker is employed after 01.04.2010 i.e. even on 02.04.2010
his service tenure as on 01.03.2016 is 5 years 10 months 29 days.
20. It is thus submitted by Mr. Dhar that same thing took place while
issuing the subsequent notification dated 08.02.2019. It is thus
submitted by Mr. Dhar that there is hardly any scope to review the
judgement as sought for inasmuch as this court has rightly held that
on account of publication of the subsequent two notifications dated
25.02.2016 and 08.02.2019 the review petitioners/State and its
functionaries had given a go-bye to the earlier notification dated
16.09.2011.
21. It is further submitted by Mr. Dhar that in absence of an error
apparent on the face of record the instant review petition may be
dismissed.
22. Mr. Dhar thus submits that it is a fit case for dismissal of the
instant review petition.
23. In reply Mr. Bandyopadhyay, learned Senior Standing Council
appearing on behalf of the review petitioners places his reliance upon
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the reported decision of Bakshi Dev Raj (2) and Anr. vs. SudheerKumar reported in (2011) 8 SCC 679.
24. It is submitted by Mr. Bandyopadhyay that in the reported
decision of Bakshi Dev Raj (supra) the Hon’ble Apex Court came to a
finding that a review petition can be preferred in the High Court before
special leave is granted and not after its grant.
25. It is further submitted by Mr. Bandyopadhyay that from page no.
120 of the paper book being a copy of the order dated 02.02.2025 it
would reveal that the said appeal was withdrawn prior to its
admission. It is thus submitted by Mr. Bandyopadhyay drawing the
same analogy of the reported decision of Bakshi Dev Raj (supra)
there cannot be any justification to hold that the instant review
petition is not maintainable.
26. This Court has meticulously gone through the entire materials as
placed before this Court. This Court has given its anxious
consideration over the submissions of the learned advocates for the
contending parties.
27. Before entering into the factual aspects of this case this Court at
the very outset proposes to look to the provisions of Section 114 of
CPC and the same is quoted hereinbefore in verbatim:-
“Section 114. Review:- Subject as aforesaid, any person
considering himself aggrieved–
(a) By a decree or order from which an appeal is allowed by this
Code, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this
Code, or9
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed
the decree or made the order, and the Court may make such
order thereon as it thinks fit.”
28. At this juncture I propose to look to the reported decision of
Behari Lal (supra) wherein the Full Bench of the Allahabad High
Court while dealing with the subject of review expressed the following
view:-
“When the Court grants a review it is open to it to either re-hear
the whole case or confine the hearing only to the particular point
on which the review was allowed. It will be noticed that one of
the conditions laid down for an application for review is that it
must be filed before an appeal has been preferred. On the
question as to what is meant by the words “an appeal has been
preferred,” I may refer to a case J.H. Reyfield v. Raj Narain 41
C.W.N. 129 in which a decree was passed by the High Court of
Calcutta in its ordinary original civil jurisdiction on 4th March
1986. The memorandum of review was filed on 20th May 1936.
Five days later, i.e., on 25th May 1936 a memorandum of appeal
was filed against the decree of 4th March 1936. The question
was whether the review application was filed at a time when no
appeal had been preferred. The view of the Court was that the
review application had been filed before the appeal was preferred.
Pankridge J. held that the review had been filed before the
appeal was preferred and that the Court could not be said to
have been deprived of the jurisdiction to entertain the application
for review on the ground that when the application came on to be
dealt with an appeal was pending. The crucial date, therefore, is
the filing of the application for review. If on that date the
appellate Court has no appeal pending before it, the review
application is under the Code, as it stands, competent. The power
to entertain the review remains in existence till such period as the10
appeal is not heard and disposed of. After the appeal has been
heard and a decree passed by the appellate Court, it is not open
to the Court before whom the application for review was
presented to proceed with its hearing.”
29. Keeping in mind the aforementioned legislative provision and the
propositions of law as enunciated in the reported decision of Behari
Lal (supra) if I look to the factual aspects of this case it appears to
this Court that prior to filing of the instant review petition the review
petitioners preferred an appeal before the Division Bench being MAT
952 of 2024 which was dismissed as withdrawn on 02.01.2025. In
view of such, the moot question arises for consideration is on account
of filing of the said appeal the instant review petition is at all
maintainable or not.
30. At this juncture if I again look to the provisions of Section 114 of
CPC it appears that it is clear legislative mandate that an aggrieved
person can sought for a review from a decree or order which is
appealable but from which no appeal is preferred. It is pertinent to
mention herein that the legislatures consciously used the words ‘from
which no appeal has been preferred’ instead of using the words ‘an
appeal has been preferred but not admitted.’ Though Mr.
Bandyopadhyay in course of his argument places much reliance upon
the reported decision of Bakshi Dev Raj (supra) but in considered
view of this Court the said reported decision is distinguishable from
the facts and circumstances of the instant review petition in view of
the fact that in the said judgement the Hon’ble Supreme Court only
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considered the scope of filing review where special leave was not
granted.
31. It is trite law that a judgement is the authority for the proposition
of which it decides and not what can logically be deduced therefrom.
The observation of the Court must be read in the context in which
they appeared to have been stated. Judgments of the courts are not to
be considered as statutes. Such view was taken by the Hon’ble
Supreme Court in the case of Devinder Singh and Ors. Vs. State of
Punjab reported in (2010) 13 SCC 88.
32. In view of the discussion made hereinabove this Court thus holds
that the instant writ petition is not maintainable.
33. For the sake of argument, even if it is accepted that the instant
review petition is otherwise maintainable, it appears to this Court that
the instant review petition is devoid of any merit for the reason
discussed hereinbelow.
34. Though it has been argued by Mr. Bandyopadhyay that at the time
of hearing of the writ petition, the real implication of Clause (V) of the
notification dated 16.09.2011 was not properly placed on behalf of the
respondent of the said petition but on consideration of the entire
materials as placed before this Court it once again appears to this
Court that by virtue of the publication of the subsequent two
notifications dated 25.02.2016 and 08.02.2019 the earlier notification
dated 16.09.2011 have lost its significance.
35. As rightly argued by Mr. Dhar it appears to this Court that the
notification dated 25.02.2016 was brought into effect on and from
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01.03.2016. The said notification dated 25.02.2016 bears a tabular
statement indicating emolument and proposed emolument of Group C
and Group D staff according to their period of engagement.
36. At this juncture if I look to the earlier notification dated
16.09.2011, more specifically Clause (V) thereof it reveals that the
said Clause (V) specifically indicates that the benefit of the said
notification dated 16.09.2011 would not be extended to such workers
who were engaged after 01.04.2010 that is to say the workers who
were engaged on and from 02.04.2010 would not come under the
purview of the said notification dated 16.09.2011.
37. It is undisputed fact that the subsequent two notifications dated
25.02.2016 and 08.02.2016 were issued in continuation of the earlier
notification dated 16.09.2011.
38. At this juncture if I again look to the tabular statements as
available in the notification dated 25.02.2016 which was brought into
effect on and from 01.03.2016 it reveals that the review petitioners i.e.
the State and its functionaries proposed for enhancement of
emoluments of those category of contractual staff who worked less
than five years as well as for a period of 5-10 years also.
39. If I accept the argument of Mr. Bandyopadhyay that clause (V) of
the notification dated 16.05.2011 was never given a go-bye by the
publication of the subsequent two notifications, it appears to this
Court that the tabular chart showing increased rate of emoluments in
respect of category of staff worked ‘less than five years’ and ‘5-10
years’ would become a fallacy.
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40. On the contrary it appears to this Court that simple arithmetical
calculation goes to show that for the sake of argument if a worker is
appointed on 02.04.2010, his tenure of service as on 01.03.2016 i.e.
the date of effect of notification dated 25.02.2016 comes to 5 years 10
months 29 days i.e. within the category of ‘5 -10 years.’
41. It thus appears to this Court that the review petitioners have
miserably failed to establish any error which is apparent on the face of
the record in the judgement dated 08.02.2024 as passed in WPA
11914 of 2021.
42. It thus appears to this Court that the review petitioners have
miserably failed to canvass any of the grounds for review under Order
XLVII Rule I CPC.
43. With the aforementioned observation the instant review petition is
thus dismissed.
44. There shall be however no order as to costs.
45. Urgent photostat certified copy of this judgement, if applied for, be
given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)
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