Calcutta High Court (Appellete Side)
Prokash Mandal & Anr vs The State Of West Bengal & Ors on 20 June, 2025
Author: Amrita Sinha
Bench: Amrita Sinha
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA 11520 of 2025
Prokash Mandal & Anr.
Vs.
The State of West Bengal & Ors.
With
WPA 12010 of 2025
Sisir Biswas & Ors.
Vs.
The State of West Bengal & Ors.
With
WPA 12011 of 2025
Somenath Mondal & Ors.
Vs.
The State of West Bengal & Ors.
For the writ petitioners :- Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Sudipta Dasgupta, Adv.
Mr. Bikram Banerjee, Adv.
Mr. Baibhav Roy, Adv.
Mr. Arindam Sit. Adv.
(in WPA 11520 of 2025)
Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Firdous Samim, Adv.
Ms. Gopa Biswas, Adv.
Ms. Payel Shome, Adv.
Ms. Swati Dey, Adv.
Mr. Saikat Mallick. Adv.
(in WPA 12010 of 2025 & WPA
12011 of 2025)
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For State :- Mr. Kishore Datta, Ld. AG.
Mr. Somnath Ganguly, AGP.
Ms. Pratiti Das, Adv.
Mr. Debanjan Mondal, Adv.
Mr. Sandip Dasgupta, Adv.
Ms. Mahima Cholera, Adv.
Mr. Deepan Sarkar, Adv.
Ms. Deepti Priya. Adv.
(in WPA 11520 of 2025)
Mr. Kishore Datta, Ld. AG.
Mr. Swapan Banerjee, AGP.
Ms. Sumita Shaw, Adv.
Mr. Diptendu Narayan Banerjee, Adv.
Mr. Debanjan Mondal, Adv.
Mr. Sandip Dasgupta, Adv.
Ms. Mahima Cholera, Adv.
Mr. Soumen Chatterjee. Adv.
(in WPA 12010 of 2025 &
WPA 12011 of 2025)
Heard on :- 09.06.2025 (WPA 11520 of 2025)
13.06.2025 (WPA 12010 of 2025 &
WPA 12011 of 2025)
Judgment on :- 20.06.2025
Amrita Sinha, J.:-
1. West Bengal Livelihood Social Security Interim Scheme, 2025 is
under challenge in all the three writ petitions. The grounds of
challenge and the defence of the State are more or less the same in all
the cases. The petitioners pray for interim order. Their prayer for
interim order is disposed of by this common judgment.
2. Notification being no. Labr-58/2025/(LC-LW/MW) dated 15th
May, 2025 by the Secretary, Government of West Bengal, Department
of Labour lays down the Scheme.
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3. The recitals of the Scheme mention that the same is meant to
provide limited livelihood support and social security on humanitarian
grounds on purely temporary basis to the distressed families of non
teaching staff in Group C and Group D categories recruited through
the 2016 selection process conducted by the West Bengal Central
School Service Commission and who lost their jobs and salaries
consequent to the Court proceedings.
4. The Scheme benefits the distressed family which means the
immediate family of any non teaching staff in Group C or Group D
category recruited through the 2016 selection process conducted by
the West Bengal Central School Service Commission.
5. As per the Scheme an eligible non teaching staff in Group C and
Group D category, belonging to a distressed family, shall be entitled to
receive cash assistance of rupees twenty-five thousand and twenty
thousand per month respectively as livelihood support for the family
due to sudden unemployment and/or on humanitarian grounds with
effect from 1st April, 2025.
6. The Scheme mentions that consequent to the judgment dated
3rd April, 2025 passed by the Hon'ble Supreme Court in Civil Appeal
No. 4800 of 2025 (State of West Bengal vs. Baishakhi Bhattacharya &
Ors.) several thousand persons have been rendered jobless overnight
which has affected their right to life and livelihood.
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7. The notification mentions that the Group C and Group D staff
were employed by the State but terminated under order of Court. The
State considered it to be its duty to take appropriate measures to
ensure that such persons are not deprived of their right to
preservation of life overnight and such persons have a minimal
amount of time to make suitable alternative arrangements to ensure
their livelihood.
8. The Scheme mentions about pendency of the review petitions
filed by the State Government along with the Central School Service
Commission before the Hon'ble Supreme Court seeking review of the
judgment dated 3rd April, 2025 passed in Civil Appeal No. 4800 of
2025.
9. The State formed an opinion to provide support by way of
interim relief until final adjudication of the review petition or
appropriate application filed before the Hon'ble Supreme Court or any
further petitions as may be filed in accordance with law and till the
proceedings attain finality. The Scheme mentions about Constitution
of a Screening Committee for determining the eligibility of the
distressed families under the Scheme.
10. The petitioners have averred in the writ petition that they have
the requisite qualification for being appointed in Group C and Group
D post in any non-Government aided/ financed educational
institution in the State. Pursuant to the advertisement published by
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the West Bengal Central School Service Commission for conducting
their regional level selection test for appointment in the post of Group
C and Group D on 8th August, 2016, the petitioners applied for being
appointed and also participated in the recruitment process. They were
placed in the waiting list. Appointment letters were not issued to
them.
11. The 2016 recruitment process was challenged before this Court
and vide judgment dated 22nd April, 2024 the Hon'ble Division Bench
declared the appointments granted in the said selection process null
and void and cancelled the same being violative of Articles 14 and 16
of the Constitution.
12. The order of the Hon'ble Division Bench was carried in appeal
by the State of West Bengal and vide judgment dated 3rd April, 2025
the Hon'ble Supreme Court was pleased to affirm the judgment passed
by the Hon'ble Division Bench of this Court and also upheld the
termination of service of the tainted candidates and further affirmed
the direction of the Hon'ble Division Bench for refund of any
salary/payment received by such candidates.
13. A miscellaneous application being no. 709 of 2025 was filed by
the West Bengal Board of Secondary Education before the Hon'ble
Supreme Court in Civil Appeal No. 4805 of 2025 and vide order dated
17th April, 2025 the Hon'ble Supreme Court was pleased not to accept
the prayer made on behalf of the the non-teaching staff in Group-C
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and Group-D posts seeking permission to go to school and receive
salary.
14. By the impugned notification the State Government seeks to
grant benefit to the non-teaching staff in the Group-C and Group-D
category whose appointment stood terminated by the order of the
Hon'ble Court.
15. Specific case of the petitioners is that the Scheme has been
published with the sole intention to frustrate the order passed by the
Hon'ble Court. Once the Court has passed order terminating the
service of the candidates with further direction to refund all
remunerations and benefits received by them to the State exchequer
along with interest calculated at 12% p.a. from the date of receipt
thereof till deposit, the State ought not to have provided further
financial benefit to such candidates.
16. It has been submitted that the impugned Scheme, in the teeth
of the order passed by the Hon'ble Court, cannot be treated to be a
valid one and is liable to be quashed.
17. It has been argued that the money which will be provided to the
candidates whose service stood terminated, will be paid from the tax
paid by the citizens of the State and public money ought not to be
squandered in such a manner.
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18. It has been submitted that the State ought not to come up with
any scheme which is directly in conflict with the order passed by the
Court.
19. According to the petitioners the Scheme is violative of the
provisions of Articles 14, 16, 21, 144, 162 and 282 of the Constitution
of India. The State ought to act in aid of any order passed by the Court
and not contrary thereto. The Scheme is meant to bypass and
overreach the order passed by the Court. The Scheme is absolutely
contrary to the direction passed by the Court and the same is liable to
be set aside.
20. The petitioners rely on the judgment delivered by the Hon'ble
Supreme Court in the matter of NHPC Limited vs. State of
Himachal Pradesh, Secretary & Ors. reported in (2023) 17 SCC 1
in support of their submission that the legislature cannot directly set
aside a judicial decision.
21. Reference has been made to the order dated 23rd May, 2025
passed by the Hon'ble Supreme Court in Misc. Application Nos.
1002-1004 of 2025 in Civil Appeal Nos. 4818-4820 of 2025 in
the matter of Rupak Chanda & Ors. -vs- Babita Sarkar & ors.
wherein the Court was pleased to dismiss the application purportedly
filed for clarification of the judgment and order dated 3rd April, 2025 in
Civil Appeal No. 4800 of 2025 (State of West Bengal -vs- Baishakhi
Bhattacharya (Chatterjee) & Ors.).
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22. Interim order has been prayed for to restrain the State
respondents from taking any step and/or further step in furtherance
of the impugned Scheme till the writ petition is finally decided by the
Court.
23. Learned Advocate General enters appearance on behalf of the
State respondents and opposes the prayers of the petitioners. Locus
standi of the petitioners in proceeding with the instant writ petition
has been challenged. It has been submitted that the petitioners do not
have any locus to challenge the subject Scheme. The instant writ
petition has not been filed as a Public Interest Litigation but has been
filed with a specific direction for issuance of a writ of Mandamus upon
the respondents. Such a petition ought not to be entertained.
24. The petitioners are wait-listed candidates. Their case was
considered by the Hon’ble Court and no relief was granted in their
favour. At this stage the petitioners do not have any right to question
the validity of the Scheme which has been floated as a welfare
measure to provide life and livelihood to the several thousand persons
who have been rendered jobless overnight by the order of the Court.
25. It has been submitted that mere framing or floating of the
Scheme does not give rise to any cause of action for which the instant
writ petition could have been filed. The Scheme is a mere temporary
arrangement and the same is subject to the final order to be passed by
the Hon’ble Supreme Court in the review petitions filed in connection
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with Civil Appeal No. 4800 of 2025 (State of West Bengal -vs-
Baishakhi Bhattacharya & Ors.).
26. It has been submitted that the Scheme may be discontinued
upon occurrence of any of the events mentioned in the said Scheme.
27. It has been argued that none of the beneficiaries who may be
put into a disadvantageous position if the Scheme is interfered with by
the Court, has been impleaded as party respondent in the instant writ
petition. If the petitioners contend that the order of the Court has been
violated, then the petitioners ought to approach the Supreme Court in
the contempt jurisdiction. Writ petition challenging the validity of the
Scheme ought not to be the subject matter of challenge in the writ
petition.
28. It has been submitted that the State has the legislative
competence to frame the Scheme and the State has rightly done so
only to protect the livelihood of several thousand of persons. According
to the State, as review petitions filed by the State and the Commission
are still pending consideration before the Supreme Court, the lis has
to be treated as sub-judice. Fresh writ petition challenging any action
of the State during the pendency of the review application, ought not
to be entertained.
29. In support of the submission that the matter before the Hon’ble
Supreme Court is still pending adjudication in review and the
Supreme Court is in seisin of the matter, the learned Advocate
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General refers to the judgment dated 7th May, 2025 passed by the
Hon’ble Division Bench of this Court in special jurisdiction in a
contempt matter being CPAN 261 of 2025 (Baishakhi
Bhattacharya (Chatterjee) & Ors. -vs- Vinod Kumar, the Principal
Secretary, Department of School Education & Ors.) wherein the
Hon’ble Court was pleased to infer that in view of the direction
contained in the order dated 17th April, 2025 where some of the
parties to the Civil Appeals were directed to file affidavits by 31st May,
2025, the Hon’ble Supreme Court is still in seisin of non-compliance
of the directions, if there be any.
30. The State respondents rely on the judgment delivered by the
Hon’ble Supreme Court in the matter of Union of India -vs- Jaiswal
Coal Co. Ltd. & Ors. reported in (1999) 5 SCC 773 wherein the
Hon’ble Supreme Court observed that judicial discipline required the
High Court not to entertain any petition in connection with a dispute
which was pending before the Hon’ble Supreme Court in respect of the
subject matter. The parties should have been asked to approach the
Supreme Court, if so advised. The High Court had no jurisdiction to
entertain the writ petition in the said facts.
31. Reference has also been made to the judgment delivered by the
Hon’ble Supreme Court in the matter of Ms. Mayawati -vs- Union of
India & Ors. reported in (2012) 8 SCC 106 wherein the Court
concluded that in the absence of any specific direction from the
Supreme Court, it was improper for the CBI to lodge complaint.
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32. Prayer has been made not to entertain the writ petition and to
dismiss the same as being not maintainable. Interim relief prayer has
also been opposed. Prayer has been made not to interfere with the
Scheme.
33. The Court has heard and considered the submissions made on
behalf of both the parties. The writ petition is at a very preliminary
stage. Validity of the Scheme has to be decided upon affording the
respondents an opportunity of hearing after filing affidavit. The writ
petition is considered only for the purpose of issuance of interim
order.
34. As the respondents have raised an issue of maintainability of
the writ petition at the instance of the petitioners, the Court intends to
decide the said issue first.
35. It appears that the petitioners participated in the subject
recruitment process and their names were included in the list of the
wait-listed candidates. No appointment letter was issued in their
favour. The candidates for whose benefit the Scheme has been floated,
also participated in the same recruitment process and on being found
successful, appointment letter was issued in their favour.
Subsequently their appointment stood terminated by the order passed
by the Court with a direction to refund all remunerations and benefits
received by them in the State exchequer within a stipulated time
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period. On termination of the service of the appointed candidates they
have been rendered jobless.
36. At present there are two sets of candidates; one is the appointed
candidates since terminated and the other is the wait-listed
candidates. Right now, both sets qualify as unemployed jobless
candidates. By virtue of the Scheme the State intends to provide
succour to the tainted terminated candidates.
37. Whether it is proper for the State to create a class of favoured
candidates out of a bigger class of unemployed jobless candidates, is a
matter to be decided after hearing both the parties. Whether such
novel indigenous Scheme for welfare of a particular group of persons
described as tainted and whose job stood terminated because of
cheating and fraudulent activity can be adopted by the State, has to
be scrutinized by the Court.
38. Locus standi of the petitioners in challenging the Scheme by
way of a writ petition has been questioned. Giving out financial benefit
to a particular set of jobless persons depriving the other, appears to be
discriminatory. The State certainly has the legislative competency and
can always formulate welfare measures but the same has to be applied
equally without adopting a pick and choose method. When both sets
of persons are hungry, the State cannot provide food to only a
particular set and let the others starve. In such a case, can it be
argued that the deprived lot cannot approach the writ Court for relief,
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especially when all the parties participated in the same recruitment
process?
39. Any public spirited person may file Public Interest Litigation
challenging the Scheme as the money for the Scheme will be paid from
the State exchequer, but the same will surely not take away the right
of an individual to approach the writ Court if he has genuine reasons
to feel aggrieved by the Scheme.
40. While formulating the Scheme the State relied upon Article 21 of
the Constitution relating to fundamental right to life and Article 41 of
the Constitution being the directive principle of State policy relating to
right to work, to education and to public assistance. The aforesaid
provisions apply equally to all. For securing life and livelihood to one
group, the State cannot and ought not to ignore the other.
41. The State contends that the petitioners and the beneficiaries of
the Scheme do not lie on the same footing. Whether the petitioners
and the targeted beneficiaries are on the same plane or they belong to
two separate and distinct sets, is also an issue to be decided.
42. Prima facie, it appears that the State has sought to provide
financial support to candidates who failed to retain their job in view of
the order passed by the Hon’ble Court. Specific observation of the
Hon’ble Supreme Court in the judgment dated 3rd April, 2025 is that
the service of the tainted candidates be terminated and they should
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refund any salary/payment received since their appointments were
the result of fraud, which amounts to cheating.
43. Once the highest Court of the land has decided the issue of
illegal appointment conclusively and opined that the appointments
were result of fraud, no person who was the beneficiary of a
fraudulent act of the statutory authority ought to be provided any
support, that too, from the public exchequer.
44. For adjudicating as to whether an interim order can be passed
in the matter, the Court has to come to a prima facie finding as to
whether any arguable case has been made out or not. From the
discussions made hereinabove, it is evident that the petitioners have
been able to come up with an arguable case.
45. By virtue of the Scheme certain persons who have been found to
be involved in fraudulent activity by the Hon’ble Court will be provided
rupees twenty-five thousand or twenty thousand per month from the
public exchequer without performing any job, duty or work. If
eventually after hearing all the parties in the writ petition, the Court
opines that the Scheme is in violation of the legal provisions, then
there will hardly be any scope to get refund of the money paid to these
persons.
46. As it is, the money is being provided for financial relief. It is
obvious that these persons are not very financially stable and will not
be in a position to return the money if the Court ultimately declares
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the Scheme as bad in law. The same will amount to unjust enrichment
of certain persons on the strength of the money to be paid from the
coffers of the State. Thus, the balance of convenience and
inconvenience does not stand in favour of the authority to proceed to
make payment in terms of the impugned Scheme.
47. As regards the submission of the State regarding non
impleadment of the alleged beneficiaries in the writ petition, the Court
is of the opinion that none has a vested right, far less fundamental
right, to receive payment from the State exchequer without performing
any duty and/or work. It does not appear that fundamental right of
any of the so-called beneficiaries will be infringed if any order is
passed restraining the State from giving any effect to the subject
Scheme for the time being. Moreover, the beneficiaries have been
found to be tainted by the Hon’ble Court. Payment to such tainted
candidates amounts to giving undue benefit to them.
48. As the petitioners are also jobless and are in need of financial
assistance, as such, the petitioners rightly feel that they have been
deprived of the benefit of the Scheme. Proceeding to provide payment
to the tainted candidates instead of proceeding to obtain refund of the
payment received by them, calls for interference by the Court.
49. The State ought to appreciate the supremacy of the rule of law.
As per Article 144 of the Constitution, all authorities, civil and
judicial, in the territory of India shall act in aid of the Hon’ble
16
Supreme Court. The law laid down by the highest Court of the land is
binding upon all and everybody will be bound to follow the same no
matter how unpalatable it is. The faith and trust of the public in the
judicial system cannot be permitted to be eroded. The act of the State
respondents in formulating the impugned Scheme, prima facie,
appears to overreach the order passed by the High Court affirmed by
the Hon’ble Supreme Court.
50. The State has referred to Article 41 of the Constitution for
formulation of the Scheme. Article 41 of the Constitution mentions
that the State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work,
to education and to public assistance in case of unemployment, old
age, sickness and disablement and any other cases of undeserved
want.
51. By the impugned Scheme the State is not making any provision
for securing work. The Scheme is also not providing any public
assistance to any unemployed candidate. On the contrary it appears
that, the State is providing financial assistance to candidates whose
job stood terminated by the order of the Court as the same was result
of cheating. The State would be obliged to make payment to persons
for rendering their service to the State. Paying persons gratuitously
who are not serving the State but are either sitting at home or engaged
elsewhere, does not appeal to the Court. Permitting the State to
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proceed with the Scheme will tacitly support fraudulent activity,
cheating and corruption.
52. Apropos the submission made by the State regarding pendency
of the review proceeding before the Hon’ble Supreme Court for which
the instant writ petition ought not to be entertained, the Court is of
the opinion that mere filing of a review petition will not tantamount to
continuation of the proceeding which stood finally and conclusively
decided by the Court by passing judgment on 3rd April, 2025.
53. A litigant can never be restrained from filing any application
before the Court. Whether the said application will be entertained or
not is the sole discretion of the Court; but the party to the review
proceeding cannot take the stand of pendency of the proceeding only
because of filing of the review application.
54. According to the State if the petitioners have any grievance, the
same ought to be agitated before the Hon’ble Supreme Court where
the review application is pending and the Scheme impugned herein
cannot be put to judicial scrutiny before this Court in the writ
jurisdiction.
55. If it is the specific stand of the State that the review application
is pending, then the State ought to have taken leave of the Hon’ble
Supreme Court to give effect to the impugned Scheme. On one hand
the State proceeds to publish a new Scheme without obtaining leave of
the Court where the matter is alleged to be pending, and on the other,
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when the said Scheme is challenged before the Court, the State
opposes the same citing pendency of the review application. Such
conflicting stand of the State does not appear to be proper.
56. As regards the submission of the State that the petitioners
should approach the Court in contempt jurisdiction, I am of the
opinion that if a litigant contends that the Scheme has been
formulated in wilful, deliberate and intentional violation of the order of
the Court, then the course of approaching the competent Court in
contempt jurisdiction is always open. Here, the petitioners do not
allege violation of the Court’s order. The petitioners challenge the
Scheme which is a consequential step taken by the State after order is
passed by the Court.
57. The Scheme in question has just been formulated and the State
is in the process of giving effect to the same. Formulation and
publication of the Scheme is an absolute fresh and new cause of
action. Validity of the Scheme is falling for adjudication before this
Court for the first time. It has been brought to the knowledge of the
Court that payment in accordance with the Scheme has not been
disbursed till date.
58. It will not be proper for the Court to enter into and decide the
validity of the impugned Scheme in its entirety at this stage, without
granting the State an opportunity to file affidavit.
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59. The respondents are, accordingly, directed to file affidavit in
opposition within a period of four weeks; reply if any, within a
fortnight thereafter. Liberty to mention the matter for hearing on
conclusion of the aforesaid time period.
60. As an interim measure, the State is restrained from giving any
effect and/or further effect to the impugned Scheme till 26th
September, 2025 or until further order, whichever is earlier.
61. It is made clear that the observations made herein above are
tentative, only for the purpose of deciding the prayer for interim order
and the Court need not be influenced by the same at the time of final
disposal of the writ petition.
62. Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)