Pradip Kumar Karak & Ors vs The State Of West Bengal & Ors

For the Appellant/Applicant : Mr. Prateek Dhar, Sr. Advocate, Mr. Tarun Kumar Das, Advocate, Mr. Gurusaday Dey, Advocate, Mr. Dilip Kumar Shyamal, Advocate, Mr. Swapan Maity, Advocate.

For the Respondents : Mr. Joytosh Majumder, Govt. Pleader, Md. Yasin Ali, Advocate, Mr. Pinaki Dhole, Advocate, Ms. Tapati Samanta, Advocate, Mr. Debasis Sarkar, Advocate.

Hearing concluded on : December 19, 2017

Judgment on : May 04, 2018 PROTIK PRAKASH BANERJEE, J:

1. The keepers of the flame of knowledge have come to Court complaining

that they are not being paid enough - compared to the additional qualifications

they have earned after securing employment. It is unfortunate, that knowledge,

unlike virtue, is not perceived to be its own reward. Be that as it may.

2. This appeal has been heard analogously with the case of State of West

Bengal and Others--v--Subrata Chatterjee and Another, being MAT No.1956 of

2016. However, separate orders are passed in the two appeals.

3. This appeal has been restored to the file of this Bench by an order dated

February 3, 2017 passed by the Hon'ble Supreme Court in Civil Appeal Nos.

1390--93 of 2017 arising out of Special Leave Petitions (Civil) Nos. 8558--8561

of 2015. For reasons which shall appear hereinafter, we quote the order in full :-

"Leave Granted.

Heard Learned Counsel for the parties.

The High Court has dismissed the matter on account of conduct of

the Appellants in not pursuing the matter properly.

Our attention has been drawn to the judgment of this Court dated

6th March, 2014 in Civil Appeal Nos. 6967--6970 of 2009 titled

"State of West Bengal and Others--v--Shibnath Koley and Others".

We are of the view that the applicability of the said

judgment to the Appellants is a matter which requires to

be considered by the High Court. Accordingly, we set aside the impugned order, and remit the matter back to the High Court

for fresh consideration in accordance with law.

The appeals are, accordingly, disposed of.

The parties are directed to appear before the High Court on

Monday 6th March, 2017." (emphasis supplied).

4. Mr. Prateek Dhar, learned Senior Advocate, on behalf of the Appellants,

on the one hand, argued that the above order was a mandate for this Court to

simply consider whether the facts of the judgment in the case of Shibnath Koley

passed by the Hon'ble Supreme Court were identical or similar to the present

case, and in the event they were, to pass an order in the light of the said

judgment. On the other hand, Mr. Joytosh Mazumdar, the learned Government

Pleader, on behalf of the Respondents, argued that it was an open remand

where this Court was required to consider the judgment in the case of Shibnath

Koley and thereafter decide the matter afresh in accordance with law, and not

restrict itself merely to the ministerial task of comparing the judgment in the

case of Shibnath Koley with the facts of the present case and pass orders

accordingly, if it was found that the facts were similar.

5. The parties may have intended that the above question be decided at the

outset since the scope of consideration of the matter depends upon it. However,

no decision on the issue will be comprehensible, given the chequered history of

the present case, unless the facts of the case are narrated in some detail.

6. The Respondent No. 1 framed rules for revising the pay and allowances of

its servants. These are known as Revision of Pay and Allowances Rules. The Rules as revised by a Pay Commission set up in 1972, and as accepted by a

Memorandum No. 372-Edn(B) dated July 31, 1981 with effect from April 1, 1981

provided not merely the pay scales for various categories of employees but also

the qualifications for the posts. These covered whole-time occupants of posts in

sponsored aided recognized Educational Institutions including Libraries and Day

Students' Homes, and included the post of librarians. The librarians included

those working in secondary schools and rural libraries. We shall call this

Memorandum Alpha. That memorandum of July 31, 1981 made it clear by Note

(2) that "Scales as recommended may be allowed to the incumbents on the basis

of qualifications prescribed for recruitment to the post and not on the basis of

qualifications possessed by the incumbents."

7. Often it was found that after appointment to a post the employee would

acquire additional qualifications, which were higher than the essential

qualifications prescribed for the post. So, after a new Pay Commission was

constituted by the Respondent No. 1 by a Notification dated January 30, 1987,

its recommendations encompassed a benefit for those persons who had acquired

a higher educational qualification than was advertised for the post at the time of

recruitment or who were to acquire such higher educational qualification. After

the Respondent No. 1 accepted these recommendations, by a Notification No.33-

Edn(B) dated March 7, 1990, the benefit that the Respondent No. 1 decided to

make available, for the first time, was as follows: -

"16. Career Advancement Scheme & related issues:

1. An employee whose pay is fixed in any of the revised

scales of pay shown in serial numbers 1 to 12 of

Annexure III and who has not got a single promotion/advancement to a higher scale in the same

post even after completion of 18 years' continuous

and satisfactory service shall be placed in the next

higher scale of pay, his designation remaining

unchanged. This benefit of next higher scale of pay

shall also be admissible to an employee having break-

in service, if the total period of his service excluding

the period of break-in service is not less than 18

years, provided the break is condoned. The pay of

such an employee in the next higher scale shall be

fixed at the stage next above the pay fixed in the

revised scale of pay of his post, the date of his

increment remaining unchanged.

2. All the teaching and non-teaching employees of

Government sponsored/ aided institutions shall be

entitled to an additional increment in the revised scale

for every 10 years of continuous and satisfactory

service, counted from the date of appointment,

subject to a maximum of two such increments in

addition to the benefits which may be admissible

under sub para (1) of this paragraph.

3. All teachers and librarians of Secondary Schools who

have improved/ will improve their qualification or who

were appointed with higher qualification in the

subject or group relevant to their teaching/appointment shall get higher scale of pay

appropriate to their qualifications with effect from the

1st January, 1986 or the date of improving

qualification whichever is later.

This principle shall apply mutatis mutandis to

the teachers/librarians of other institutions/

organisations as mentioned in Annexure-1."

(emphasis supplied)

8. The dates when the Writ Petitioners/Appellants entered service as

librarians in rural libraries and acquired qualifications higher than those

advertised for the said posts at the time of recruitment are averred in paragraphs

2 to 23 of the writ petition.

9. The benefit given by way of Paragraph 16(3) of the said Memorandum

dated March 7, 1990, which we shall call Memorandum Beta, to the

teachers/librarians of institutions/ organizations other than Secondary Schools

therefore, was a benefit which was neither available under the service rules at

the time when the Writ Petitioners/Appellants entered service, nor part of any

common law right. Naturally, this applied also to rural libraries. It was created

and granted for the first time on March 7, 1990, with effect from January 1,

1986.The benefit thus given to librarians of rural libraries was automatic on

acquisition of the higher qualifications.

10. From the face of paragraphs 2 to 23 of the writ petition, it will be clear

that while some of the Writ Petitioners were both in service and had acquired the said higher qualifications at the time when the said benefit was granted for the

first time, many were not. Many had in fact acquired the higher qualification

after 1990. Why this cut-off of 1990 is important, shall appear hereinafter.

11. However, the Respondent No. 1, which had given this benefit by the said

Memorandum Beta, in its wisdom, chose to take away the benefit and its

automatic effect, for all institutions/organizations except Secondary Schools, by

yet another Memorandum, No. 230 - Edn(B)/IM-6/90 dated July 21, 1990, by

amending the said Notification Beta (dated March 7, 1990) in the following

terms: -

(1) "In sub-para 3 of Para 16 of the Order, for the sentence

'This principle shall apply mutatis mutandis to the

teachers/librarians of other institutions/organizations as

mentioned in Annexure-I' the following shall be

substituted: 'Orders in this behalf relating to teachers/

librarians of other institutions/organizations as mentioned

in Annexure-I wherever necessary shall be issued

separately.' We shall call this Memorandum Gamma.

12. This Memorandum Gamma on its face shows that it was sent for printing

in the Official Gazette. It was, therefore, acted upon.

13. The effect of this Memorandum Gamma on the benefit granted to the

rural librarians, to our mind, is immense. It is clearly prospective. It substitutes

the only provision which had been made for extending the benefit to librarians of

Rural Libraries with another. Therefore, the right to automatic benefit of a higher

scale of pay appropriate to the higher qualification, in terms of the unamended paragraph 16(3) of Memorandum Beta, went. It was taken away by the same

Government which gave it, a little over 4 months after it had been given, with

only the caveat that wherever necessary, it shall be issued separately. Even if the

most charitable interpretation is given to this amendment, it means that the

Government of West Bengal would have to be called on to take a decision in

case of each librarian of a Rural Library who acquired a higher qualification

within the meaning of the main part of Paragraph 16(3) of Memorandum Beta as

amended by Memorandum Gamma, and if the Respondent No. 1 found it

necessary, it shall issue a separate notification.

14. None of the present Writ Petitioners challenged the said Memorandum

Gamma on any ground, including that it took away any right which had vested in

such government servant without giving him any opportunity of being heard. In

fact, till 1996, none of the Writ Petitioners even made any representation seeking

such benefit. By that time, as shall appear from what is narrated hereinafter, the

said benefit had been taken away in its entirety, and did not even survive in its

amended, truncated form. At any rate, this much is trite, that on and from July

21, 1990 the benefit of higher scale of pay for higher qualification was no longer

available to librarians of a Rural Library unless an order in that behalf was passed

upon the Government finding it necessary. The Government, the facts show, did

not find it so necessary.

15. Thereafter, the respondent No. 1 issued a MemorandumNo. 663- Edn.

(MEE)/5L-42/90 Dated July 26, 1994, which we shall call Memorandum Delta, by

which Memorandum Beta was continued. It read as follows: - (1) "In continuation of the Education Department Memo. No. 33- Edn

(B) dated 7th March, 1990, the undersigned is directed by order of

the Governor to say that the Governor is pleased to decide that the

revised scales of pay in respect of the members of the staff of

Sponsored/aided libraries effective from 1.1.86 shall be indicated in

the Annexure.

(2) The other terms and conditions as specified in the aforesaid

Government order shall be applicable to the members and staffs of

those libraries.

(3) The terms and conditions given in the foot note below the

Annexure to the Government order No. 372- Edn (B) dt. 1.7.81

should be strictly followed.

(4) This order issues with the concurrence of the Finance Department

vide their U.O. No. 1675 P.I. Cell (policy) dated 13.10.92 read with

U.O. No. Group 'B'55 dated 3.5.94.

(5) This order issues in super session of this department Memo No.

518-Edn (MEE) dated 2.6.94.

(6) All concerned are being informed."

16. Therefore, this Memorandum Beta sought to continue the provisions of

Memorandum Beta and did not detract from it except to the extent of

harmonizing the apparent contradiction in the rules relating to revision of pay

and allowances between Memorandum Alpha and Beta. 17. It will be remembered that Memorandum Alpha, by Note (2) in the

Footnotes, had made it a rule that the scales of pay were to be allowed to the

incumbents based on the qualifications prescribed for recruitment to the posts

and not the qualifications possessed by the incumbents, while Memorandum

Beta, by Paragraph 16(3), had sought to grant higher scales of pay based on the

qualifications possessed by the incumbents themselves, which had been varied

and substituted inter alia in case of librarians in Rural Libraries by way of

Memorandum Gamma as indicated above.

18. Thus, Memorandum Delta removed the inconsistency between the rules

relating to the scales of pay operating in the same field. All of this occurred long

before 1996 when the present Writ Petitioners sought higher scales of pay for

the first time.

19. One Biswajit Das, claimed a higher scale of pay under the un-amended

Memorandum Beta dated March 7, 1990, by presenting C.O. No.9580 (W) of

1996 [Biswajit Das--v--State of West Bengal and Others]. The Appellants herein

allege that the said Biswajit Das was similarly circumstanced as them. The

writ petition of Biswajit Das was allowed by an order dated September 19, 1996

passed by a learned Single Judge, by directing that the higher scale of pay be

granted to such writ petitioner with effect from the date mentioned in

Memorandum Beta dated March 7, 1990. This means January 1, 1986 or the

date of acquiring the said higher qualification, whichever is later. However, from

the said order dated September 19, 1996, it is not reflected when the said

Biswajit Das got the higher qualification and indeed, whether it was before or

after July 21, 1990 (the date of Memorandum Gamma). 20. This order dated September 19, 1996 was carried in appeal by the State

of West Bengal by way of MAT 1898 of 1997.The State of West Bengal applied

for adducing additional evidence, being two circulars of 1981 to try and contend

that such higher scale of pay was not admissible in case of Biswajit Das. For

reasons best known to the State of West Bengal, it chose not to bring on record

or apply that Memorandum Gamma dated July 21, 1990 be considered, though it

was material to the adjudication of the case as to whether any benefit of the sort

claimed by a librarian of a rural library was available to be claimed after July 21,

1990 when no specific order had been passed in that regard.

21. Therefore, without noticing Memorandum Gamma dated July 21, 1990,

and with it passing sub silentio, the Hon'ble Division Bench presided over by the

Chief Justice was pleased by an appellate judgment and order dated March 5,

1998 passed in MAT 1898 of 1997 to affirm the order dated September 19, 1996,

with a specific finding that a special provision was made in the said

Memorandum (dated March 7, 1990) only to give benefit to a person possessing

higher qualifications than the minimum qualification of eligibility and the

Memorandum dated July 26, 1994 was clarificatory in nature and issued only to

remove any doubts as to the reckoning date. Very simply put, neither the

learned Single Judge while passing the order dated September 19, 1996 nor the

Hon'ble Division Bench when passing the judgment and order dated March 5,

1998 noticed Memorandum Gamma dated July 21, 1990 or its effect.

22. The Respondent No. 1 herein applied for leave to prefer appeal by special

leave against the appellate judgment and order dated March 5, 1998 but the

Hon'ble Supreme Court was pleased to dismiss the special leave petition without granting leave. It did not lay down the law or decide any issue raised. Though

the Respondent No. 1 took all the points relating to Memorandum Gamma dated

July 21, 1990, because of the one-line dismissal of the petition to appeal by

special leave, the Judgment and order of the Hon'ble Division Bench dated March

5, 1998 did not merge with the Order of the Hon'ble Supreme Court.Therefore,

there was no question of laying down the law in this regard, though the

judgment and order dated March 5, 1998 became final inter partes.

23. As between the parties in C.O. No.9580 (W) of 1996, the case of Biswajit

Das, the entitlement of Biswajit Das to the higher scale of pay became final

without either the learned Single Judge or the coordinate Bench ever being

aware that there was Memorandum Gamma dated July 21, 1990 which, if had

been brought to the notice of the Hon'ble Courts, may have produced a different

result. The said judgment and order dated March 5, 1998 which affirmed the

order dated September 19, 1996 is not and cannot, however, be a decision on

the issue of the effect of Memorandum Gamma dated July 21, 1990 as a matter

of law being laid down or being binding on any other Court in West Bengal. This

is because Memorandum Gamma was neither noticed, nor any argument

advanced in respect thereof and its effect was not decided. The said decision

does not bind us nor, with respect, does it embarrass us by its existence,

whether by any principle of comity of courts or judicial propriety.

24. Once MAT 1898 of 1997 was dismissed and the order dated September

19, 1996 passed by the learned Single Judge affirmed, the Writ

Petitioners/Appellants in the present case who had made representations seeking

the same benefit on diverse dates from the beginning of September, 1996 and

some in November, 1996 and some thereafter, affirmed on March 19, 1999 a writ petition registered as W.P. No.5146 (W) of 1999 [Pradip Kumar Karak and

Others--v--State of West Bengal and Others] seeking that they be given the

benefit of higher scale of pay based on the higher educational qualifications

which they had acquired as on the dates mentioned in paragraphs 2 to 23. It is

an admitted position that these qualifications were higher than those advertised

for recruitment to the posts themselves. It is also an admitted position that the

said higher qualifications were acquired by them after their recruitment. We find

it very material that none of these 22 writ petitioners had ever applied under

Article 226 of the Constitution of India before the appellate judgment and order

dated March 5, 1998 in the case of Biswajit Das (supra) had become final. They

were sitting on the fence and not proceeding diligently with their claim till they

had seen another person succeeding on the grounds they allege exist also in

their case. As a question of fact, they have not averred in their writ petition

when Biswajit Das acquired the higher qualification on the basis of which he was

claiming a higher pay. So, on the face of their writ petition there is nothing to

show that on facts they are similarly circumstanced as Biswajit Das, especially

since many of them admit that they have acquired the higher qualifications in

1995, 1996 and even 1997.

25. Many other persons, claiming to be similarly situated as these Writ

Petitioners/Appellants also instituted similar petitions under Article 226 of the

Constitution of India. These were heard together with W.P. No.5146 (W) of

1999 [Pradip Kumar Karak and Others--v--State of West Bengal and

Others] and in effect consolidated and heard analogously with arguments being

made in only W.P. No.5146 (W) of 1999. One such writ petition was that of

Sibnath Koley and Others--v--State of West Bengal and Others being W.P. No.8030 (W) of 1999. The learned Single Judge hearing the writ

petition, by judgment and order dated September 25, 2000 was pleased to

dismiss all the writ petitions. Some of the reasons which persuaded His Lordship

to dismiss the writ petitions aforesaid including the writ petition in the instant

case, are discussed hereinafter.

26. The hearing in this writ petition encompassed all the relevant notifications

and memoranda and this time the State of West Bengal both pleaded and

canvassed the said Memorandum Gamma dated July 21, 1990 and its effect on

Memorandum Beta dated March 7, 1990, read with Memorandum Alpha (dated

July 31, 1981) and about their effect. Of course, Memorandum Delta dated July

26, 1994 was also relied upon by the State of West Bengal.

27. In the judgment and order dated September 25, 2000 referred to above,

the learned Single Judge was pleased to record categorically, as follows: -

(1) "This Memorandum dated 21st July, 1990 has not been

challenged in the writ proceedings. The said Memorandum

dated 21st July, has not been quashed or set aside by any

court of law or by any appropriate authority. The said

Memorandum dated 21st July, 1990 is still now very much in

existence."

(2) The Learned Single Judge explained the effect of the existence of

the said Memorandum dated July 21, 1990 (Notification Gamma)

with reference to Shamrao Parulekar--v--The District

Magistrate, Thane, Bombay, reported in AIR 1957 SC 23, a

binding precedent of the Hon'ble Supreme Court,that the Memorandum dated 21st July, 1990 must be read as if the new

provisions had been written into the principal Memorandum dated

7th March, 1990 "with pen and ink" and old words scored out. The

Learned Single Judge set out Notification Beta applying the said

effect with the sentence as substituted, and was further pleased to

hold in categorical terms as follows: -

(3) "Thus, sub-paragraph 3 of paragraph 16 of the

Memorandum dated 7th March, 1990 does not entitle the

petitioners, who are graduates, to get benefit of principles

laid down in first part of sub-paragraph 3 of paragraph 16

of the Memorandum dated 7th March, 1990. The very basis

of the claim of the petitioners has been scored out by the

aforesaid Memorandum dated 21st July, 1990."

(emphasis supplied)

28. Therefore, one of the points on which the learned Single Judge held on

facts that the petitioners in W.P. No. 5146 (W) of 1999 were not entitled to the

benefit of a higher scale of pay for acquiring higher qualifications was that as on

the date when they alleged that they became eligible for the benefit, that benefit

had not been available since it had been substituted as if "with pen and ink" and

that this had never been challenged. In fact, even till date, it has not been

challenged even by way of any application for amendment of the writ petition at

the appellate stage.

29. The learned Single Judge went on to refer to Memorandum Delta dated

July 26, 1994 and further rely upon the fact that it was not under challenge in the said W.P. No.5146 (W) of 1999, had not been set aside or quashed by any

appropriate authority including the Courts of law and had not been amended or

superseded. His Lordship did, however, record a finding that when

Memorandum Delta dated July 26, 1994 stated that it was in continuation of the

Memorandum dated March 7, 1990 it meant Memorandum Beta dated March 7,

1990 as amended by Memorandum Gamma dated July 21, 1990, applying the

principles laid down in binding precedents of the Hon'ble Supreme Court referred

to therein.

30. The learned Single Judge also held that there were three categories of

librarians and not just one homogeneous class. His Lordship held

"one category of librarians is in district library, the other category

of librarians is in sub-divisional/town library and the last category of

librarians is in rural/are a/primary unit library. It is apparent from

the Memorandum dated 26th July, 1994 that librarians in district

library, the librarians in sub-divisional/town library and the

librarians in rural/area/primary unit library do not form one class or

cadre, on the other hand it is apparent that they below to the

classesand the cadres different from each other. The cadre of

librarians in rural/are/primary unit library cannot be equated with

the librarians either in sub-divisional/town library or in district

library under the circumstances I amof the view that the learned

Advocate General rightly argued that aforesaid three categories of

librarians are not equates and they belong to three different

classes. The classifications so made are not under challenge and so

long those classifications are existing they remain unequal and any attempt to treat them as equals violate Article 14 of the

Constitution."

31. On the basis of the above finding, among others, as also Footnote (2) of

Memorandum Alpha dated July 31, 1981 which made it clear that the scales of

pay may be allowed to the incumbents on the basis of the qualification

prescribed for the post and not on the basis of the qualifications possessed by

the incumbents and was to be strictly complied with, as extracted above, it was

found by the learned Single Judge that on facts the Writ Petitioners, who are

Appellants herein, were not entitled to the said benefit of higher scale of pay.

The effect of the judgments rendered by other learned Single Judges and also

Division Benches of this Court in respect of same or similar claims of other

persons were considered by the Learned Single Judge and it was held that they

were not precedents which bound His Lordship because, among other things,

Memorandum Gamma herein dated July 21, 1990 had passed sub silentio.

32. Though the judgment and order dated September 25, 2000 sometimes

appears to be quite interminable, at least it has this virtue of being thorough and

dealing with all the aspects of the matter. This is the judgment and order under

appeal before us now. Our judgment also suffers from the same vice, but of

necessity, the past has to be recounted and the history of the litigation so far as

is material to the present case is to be narrated and only thereafter can we

proceed to the facts, the legal arguments advanced, the issues which arise for

decision, the decision, and the reasons for the decision.

33. Two sets of writ petitioners carried the judgment and Order dated

September 25, 2000 in appeal. One set was Sibnath Koley and Others, who were the writ petitioners in W.P. No.8030 (W) of 1999. They appealed in the

facts of their case. The other set comprised Pradip Kumar Karak and Others,

who are the writ petitioners in W.P. No.5146 (W) of 1999. It is here where the

confusion starts.

34. In Sibnath Koley's appeal being FMA No.119 of 2002, a specific plea was

raised by the respondent State of West Bengal that the impugned judgment

dated September 25, 2000 was required to be sustained and the earlier Division

Bench judgment and order dated March 5, 1998 in the case of Biswajit Das

(supra) in which the order of the learned Single Judge dated September 19,

1996 had merged, did not lay down good law so far as the general entitlement of

librarians of Rural Libraries to higher scales of pay on acquiring higher

qualificationswas concerned, because of non-consideration of Memorandum

Gamma dated July 21, 1990 and the change it wrought on the situation. The

said Memorandum Gamma, which had not been placed before the Single Bench

or the Division Bench hearing the case arising from the writ petition of Biswajit

Das - but which had been placed before the learned Single Judge in both W.P.

No.8030 (W) of 1999 and W.P. No.5146 (W) of 1999 based whereon the said

judgment and order dated September 25, 2000 was passed -was continuously

referred to and relied upon by the State of West Bengal and recorded to have

been so relied upon and argued, as would appear from the decision of the

Hon'ble Division Bench. However, for reasons best known to the said Division

Bench, after recording the arguments made, the coordinate Bench chose not to

decide the effect of the earlier Division Bench or the learned Single Judge in the

other cases not considering the effect of Memorandum Gamma dated July 21,

1990. Instead, the Hon'ble Division Bench by judgment and order rendered on June 8, 2007, which was reported in AIR 2007 Calcutta 223, relied largely on the

decision passed by the learned Single Judge in the case of Biswajit Das (supra)

dated September 19, 1996 (which did not have any independent existence

having merged with the appellate judgment and order dated March 5, 1998) and

allowed the appeal, inter alia, holding that the learned Single Judge did not

properly appreciate the principle of a precedent sub-silentio. In this respect, the

findings of the Hon'ble Division Bench as appear from paragraphs 20 to 28 of the

said judgment reported in AIR 2007 Calcutta 223 hence very material and are set

out hereinbelow.

"17. Since the issues relating to the circulars were duly considered and

decided by the earlier Division Bench we are of the opinion that non‐

mentioning of a particular circular in the earlier judgment of the Division

Bench cannot render the said judgment per incuriam. When the issue has

been specifically decided by the learned Single Judge as well as the

Division Bench of this Honʹble Court in the case of Biswajit Das (supra),

the question of sub silentio cannot and does not arise

20. In the present case, learned Single Judge should not have ignored

the earlier decision of the Division Bench and the Single Bench of this

Honʹble Court on the ground that the same were passed sub silentio or

were rendered per incuriam. We also do not accept that there is any basic

mistake of fact which has been recorded by the learned Single Judge in the

impugned judgment and order under appeal. The learned Single Jude, in

our opinion, had no other option but to follow the earlier decisions of the learned Single Judge in BiswajitDasʹs case, which was subsequently

affirmed by the Division Bench of this Honʹble Court

21. A learned Single Bench must follow the precedents laid down by a

Division Bench in order to avoid any judicial anarchy and to ensure strict

observance of judicial discipline. The judgment of Honʹble Justice

AltamasKabir in the case of Biswajit Das (supra) was admittedly approved

subsequently by the Division Bench of this Honʹble Court and, therefore,

the learned Single Judge herein erred in law by ignoring the aforesaid

judgment of the Division Bench and Single Bench of this Honʹble Court

on the ground that the said judgment and orders were passed sub silentio

and should be treated as given per incuriam.

22. In the instant case, the learned Single Judge while deciding similar

issues could not have ignored the judgment of Altamas Kabir, J. in

Biswajit Dasʹs case, which was subsequently affirmed by the Honʹble

Division Bench. The decision of the Division Bench of this Court, which

affirmed the judgment of Altamas Kabir, J. has a binding effect on the

learned Single Judge. The learned Single Judge cannot ignore the aforesaid

binding effect of the earlier decisions of the Division Bench affirming the

judgment and order of Altamas Kabir, J. in Biswajit Dasʹs case under any

circumstances

23. We cannot allow the learned Single Judge to avoid and/or ignore

the binding effect of the earlier decisions of the Division Bench of this Court since the learned Single Judge is bound to follow the precedents laid

down by the Division Benches of this Court. The learned Single Judge

herein by the impugned judgment and order under appeal decided several

writ petitions and dismissed them without granting the relief as was

granted earlier by this Honʹble Court to Shri Biswajit Das under identical

circumstances. It is not in dispute that the appellants/writ petitioners

herein claimed identical relief which was granted to Shri Biswajit Das

pursuant to the earlier decisions of this Honʹble Court and the learned

Single Judge, therefore, should not have refused to grant the said identical

relief to the said appellants/writ petitioners herein under the similar

circumstances and on identical grounds. In order to observe strict judicial

discipline and to avoid judicial anarchy and also to ensure uniformity of

decisions we have no other alternative but to disapprove the findings and

decisions of the learned Single Judge as mentioned in the judgment and

order under appeal.

24. In this connection, the principles laid down by Salmond in the

famous treatise on jurisprudence is very pertinent. In paragraph 28, page

158 of the treatise, the learned Author opined:

'The general rule is that a Court is bound by the decisions of all

Courts higher than itself. A High Court Judge cannot question a

decision of the Court of Appeal, nor can the Court of Appeal refuse

to follow judgments of the House of Lords.' 25. Following the same principle, we hold that the learned Single

Judge cannot question the decision of the Division Bench as having been

given per incuriam nor can he refuse to follow the same on the ground of

precedents sub silentio. The principle of precedents sub silentio also has

been explained by the learned Author in page 153 of the treatise as follows:

A decision passes sub silentio, in the technical sense that has come to be

attached to that phrase, when the particular point of law involved in the

decision is not perceived by the Court or present to its mind. The Court

may consciously decide in favour of one party because of point A, which it

considers and pronounces upon. It may be shown, however, that logically

the Court should not have decided in favour of the particular party unless

it also decided point B in his favour; but point B was not argued or

considered by the Court. In such circumstances, although point B was

logically involved in the facts and although the case had a specific

outcome, the decision is not an authority on point B. Point B is said to

pass sub silentio.

26. The above exposition on precedents sub silentio has been approved

by the Supreme Court in AIR1989 SC38 (Municipal Corporation of Delhi

v. Gurnam Kaur).

27. The learned Single Judge, with respect, has not properly

appreciated the principle of precedent sub silentio while refusing to follow

the judgment of the Division Bench. 28. The findings arrived at by the learned Trial Judge in the impugned

judgment and order dated 25th September, 2000 that the earlier decisions

of the Honʹble Division Bench and the Single Bench of this Honʹble Court

were passed sub silentio or rendered per incuriam, are erroneous both on

fact and in law inasmuch the argument of the State‐respondents about

alleged disentitlement of the Librarians in Rural Libraries for the benefit of

the higher revised scale of pay in view of issuance of the above referred

circular, stood rejected by the previous Division Bench judgment in the

case of Biswajit Das which was not interfered with by the Honʹble

Supreme Court in the Special Leave Petition filed by the State‐

respondents. Admittedly, the benefit of higher revised scale of pay has

already been given to Shri Biswajit Das after dismissal of the Special

Leave Petition by the Honʹble Supreme Court from the date mentioned in

the circular being memorandum No. 33‐Edn(B) dated 7th March, 1990 in

pursuance of the earlier judgment and order passed by Altamas Kabir, J.

in the writ petition filed by Shri Biswajit Das, which was subsequently

affirmed by the Division Bench."

35. With respect to the coordinate Bench, it placed reliance on the general

rule of stare decisis and the doctrine of precedents and held that the learned

Single Judge was wrong in not following the judgment and order dated

September 19, 1996 (of another learned Single Judge) affirmed by the Division

Bench on March 5, 1998 but did not demonstrate how in the facts of the case

the learned Single Judge was wrong in holding that Memorandum Gamma dated July 21, 1990 had passed sub-silentio since it was not present to the mind of any

of the Courts which had decided the matter in the case of Biswajit Das (supra).

Neither did the Division Bench in AIR 2007 Calcutta 223 itself choose, despite

arguments being advanced before it relying upon Memorandum Gamma dated

July 21, 1990, to decide that the effect of the said Memorandum was otherwise

than what the learned Single Judge had decided on September 25, 2000, or that

even consideration of the said Memo dated July 21, 1990 by the learned Single

Judge in Biswajit Das's case would have rendered the same conclusion on

September 19, 1996 or that appreciation of the said Memorandum dated July 21,

1990 would not have changed the view of the Division Bench on March 5, 1998.

36. The State of West Bengal challenged the said order dated June 8, 2007 by

way of a petition seeking special leave to appeal before the Hon'ble Supreme

Court. These appeals were in the case of Sibnath Koley and Others and some

other writ petitioners in other writ petitions, but not in the case of the order

dated September 25, 2000 arising out of W.P.No. 5146 (W) of 1999.

37. The Hon'ble Supreme Court in the Civil Appeals being Civil Appeals

No.6967--6970 of 2009, was pleased, however, to dismiss the appeals on March

6, 2014 on the following findings: -

5. What we, however, find is that the education department of the

Government of West Bengal issued a Memorandum on 7th March,

1990 in pursuance tot the recommendation of the pay commission

and the Finance Department Resolution dated 30th January, 1997.

This Memorandum dated 7th March, 1990 applied to the school

librarians as well as to the rural librarians. In paragraph 16 of this Memorandum there was a provision for career advancement and in

paragraph 16(3) thereof, all the teachers and librarians of

Secondary Schools who had improved their qualifications were

entitled to better pay. In that paragraph it was specifically

mentioned at that this principle shall apply mutatis mutandis to the

teachers/librarians of other institutions and organisations as

mentioned in Annexure - I to that Memorandum. Annexure- I in

paragraph 4 thereof specifically included Rural/Area/Primary Unit

Library.

6. Mr. Luthra then pointed out that the Government of West Bengal

issued another Memorandum on 26th July 1994 wherein it was

specifically stated that the terms and conditions given in the foot-

note below the Annexure to the Government order dated 31.7.81

should be strictly followed. In our view, this was rather too late in

the day. Once the revision of pay on the basis of better qualification

was granted in March, 1990, the Government could not have looked

back and said in July, 1994 that the Memorandum of 31st July, 1981

will continue to govern these rural librarians.

7. It was also submitted that the Education Department was

bifurcated and the Public Libraries came under the Mass Education

Department from 1998. Be that as it may, the particular

Memorandum of 7th March, 1990 of the Education Department

clearly covered the rural librarians as stated above. The new

department must have taken its own time to settle down and this circular of the Education Department was obviously accepted by the

Mass Education Department.

8. In view thereof, the judgment and order passed by the earlier

Division Bench of the High Court was quite justified on the facts of

that case and in the penultimate paragraph of its judgment the High

Court had observed as follows:" (emphasis supplied by us).

'Having heard the learned Advocate for the appellant and after

examining the circulars carefully, we have no manner of doubt

that with a view only to give benefit to person possessing higher

qualifications than the minimum qualification of eligibility a

special provision was made in the Memorandum of the year 1990

and to remove any doubts as to the reckoning date a

clarificatory memorandum was issued in July, 1994. The above,

in our view, thus leaves no room for interference with the order

of the Learned Single Judge in favour of the petitioner

respondent.'

9. This judgment has been correctly followed by the subsequent

Division Bench in the instant case and that being so we do not

find any reason to interfere therewith. These appeals are

therefore dismissed. There shall be no order as to costs."

(emphasis supplied by us)

38. What is important to note is that the Hon'ble Supreme Court expressly

held that the Division Bench which passed the judgment and order dated March

5, 1998 upholding the order dated September 19, 1996 was quite justified on the facts of that case, id est, the case of Biswajit Das (supra) and theHon'ble Division

Bench was correct in the facts of FMA No.119 of 2002, (which the Hon'ble

Supreme Court called the "instant case") that is to say, the case of SibnathKoley

and Others (supra) to follow the judgment of the Division Bench in Biswajit Das

(supra).

39. The judgment and order dated March 6, 2014 passed by the Hon'ble

Supreme Court does not reflect that any argument was made on the effect of

Memorandum Gamma dated July 21, 1990 or how it changed the situation or

whether those who acquired the higher qualifications after July 21, 1990 were

entitled to the higher scale of pay. It is not, therefore, a decision laying down

the law on the effect of the Memorandum dated July 21, 1990.

40. Moreover there was no discussion in either the judgment and order dated

June 8, 2007 or the judgment and order dated March 6, 2014 whether all the

claimants for the higher scale of pay in the various writ petitions, which came to

be decided on the basis of the law applied by the learned Single Judge on

September 25, 2000, were identically situated and more importantly, whether

the writ petitioners in Sibnath Koley and Others (supra) had acquired their higher

qualifications after July 21, 1990 or on the same dates as the writ petitioners in

Pradip Kumar Karak and Others, being the writ petition from which this appeal

arises.

When the learned single judge accepted the submission on behalf of the parties

that the question of law which was to be decided shall govern all the Writ

Petitions, such acceptance was not preceded by any finding that the factual situation of each of the Writ Petitioners in all the Writ Petitions was the same. In

fact there is no finding as to when each of the petitioners in each of the Writ

Petitions acquired his "higher qualification". Naturally, the question of law

decided would be applicable only if each of them had acquired their "higher

qualification" before July 21, 1990.

41. Agreeing that the question of law to be decided shall govern all the writ

petitions does not mean that the factual situation of all the writ petitioners is the

same. The important distinction is that all the petitioners in each writ petition

might claim a benefit, and canvas a question of law, but only if factually each

writ petitioner in each group is identically situated compared to each writ

petitioner in the other groups, would a writ petitioner in one group having filed

one writ petition get the benefit given by a Court on a decision on the question

of law on the basis of which another set of writ petitioners got the benefit

claimed by the other group.

42. In fact, the Respondent No. 1 acted on this stand, and issued a

Memorandum No. 862(4)/ LS dated June 10, 2014. It had as its "Subject", the

following: -

"Sub: Fixation of Pay of the employees to be benefitted in

compliance of the order of the Hon'ble Supreme Court of India in

connection with Civil Appeal Nos. 6967-6970 of 2009".

It had its reference line the following: -

"Civil Appeal Nos. 6967-6970 of 2009 arising out of FMA No. 119-

122 of 2002 in the matter of State of West Bengal &Ors. -vs-

Shibnath Koley & Ors".

In the body of the said Memo, the respondent No. 1 directed as follows: -

"With reference to above and in compliance to the order of the

Hon'ble Supreme Court of India, as well as according to the

observation of the Finance Department in this regard vide U.O No.

606 (Gr.P) (Pay), dated 27.05.2014 (copy enclosed), the

undersigned is to request him/her to fix the pay of each employee

separately out of the said employees to be benefitted in his/her

district accordingly and submit the same to this Directorate for

onward approval of the same by the respective branch of Finance

Department. For proper verification, he/she is requested to enclose

the authenticated copy of the service book of each employees to

this end. As the matter is very urgent and requires time bound

schedule, so he/she is requested to submit this report positively by

25th June, 2014."

43. In fact, this Memorandum could be seen in another way - since none of

the Courts had invalidated or decided the effect of Memorandum Gamma dated

July 21, 1990 in any way contrary to what was contended by the Respondent No.

1, the Respondent No. 1 was complying with the orders of the Hon'ble Appeal

Court in FMA No.119 of 2002 (June 8, 2007) and the Hon'ble Supreme Court in

Civil Appeals No.6967--6970 of 2009 (March 6, 2014) by issuing separate orders

"where necessary" in terms of Memorandum Gamma dated July 21, 1990,

considering the factual situation of each petitioner.

44. This Memorandum was not challenged by the present Writ

Petitioners/Appellants. They did not contend that it was discriminatory only to

grant the benefit under the order dated March 6, 2014 to the parties to the case

of Sibnath Koley and Others (supra) from which the appeal had been carried to

the Hon'ble Supreme Court or that it was contumacious of the Respondent No. 1

to verify from the service books of the writ petitioners in that case, whether they

truly were eligible on facts to the said benefit. This could have been done by

amendment to WP No.5146 (W) of 1999 even at the stage of appeal.

45. The Appellants in the present case therefore waived their rights to

challenge Memorandum Gamma dated July 21, 1990 or the interpretation put on

it by the Respondent No. 1 and to contend that they too were entitled to the

benefit granted ultimately by the order dated March 6, 2014 of the Hon'ble

Supreme Court in which the other orders passed in the matter of Shibnath Koley

and Others (supra) had merged.

46. On the contrary, after losing before the learned Single Judge in W.P.

No.5146 (W) of 1999 on September 25, 2000, they contented themselves by

preferring a defective appeal being MAT No. 36 of 2001 against it on January 3,

2001 and then not taking any steps in it to remove the defect. They did not

proceed therein with due diligence, or remove the defect despite the Department

pointing out the defect. As a result, on September 25, 2006 a coordinate Bench

of this Court dismissed the appeal for not removing the defect and for non-

appearance. Only after the order dated March 6, 2014 passed by the Hon'ble

Supreme Court in the case of Shibnath Koley and Others (supra) did the

Appellants wake up from their long slumber, and thereafter applied for restoration of the appeal with an application for condonation of delay in making

such application. By an order dated October 30, 2014 a coordinate Bench of this

Court dismissed the applications for restoration, condonation and appropriate

order. It is from this order dated October 30, 2014 - the refusal to condone the

delay in applying for restoration of the appeal, the consequent dismissal of the

applications for restoration and appropriate orders and presumably the original

dismissal of the appeal - that the Appellants moved the Hon'ble Supreme Court

with an appeal by special leave, resulting in the order dated February 3, 2017

referred to in the 3rd paragraph of this Judgment.

47. Though this concludes the history of the present litigation, perhaps we

must digress to notice the trajectory of cases by other groups of writ petitioners,

where too the case travelled to a coordinate Bench and where also the Memo

No. 862(4)/ LS dated June 10, 2014 fell for interpretation in the peculiar facts of

the case, and where too, the effect of Memorandum Gamma dated July 21, 1990

was not considered.

48. The other group of writ petitions referred to above, came to be heard in a

batch by another learned judge of this Court, the principal case being W.P. 7150

(W) of 2015 [Jaganmoy Bhattacharjee and Others--v--State of W.B. and Others]

along with W.P. No.7151 (W) of 2015, W.P. No.7133 (W) of 2015, W.P. No.6475

(W) of 2015, W.P. No.6476 (W) of 2015, W.P. No.4535 (W) of 2015 and W.P.

No.4536 of 2015. These were allowed by His Lordship by a common judgment

and order dated June 9, 2016. These cases, as recorded by His Lordship were

"founded on the memorandum dated June 10, 2014 issued pursuant to the

Supreme Court Judgment" (March 6, 2014). The contents of the said

Memorandum, also quoted above, were then set out. His Lordship held "(I)t is evident from the memorandum of June 10, 2014 that in view of the Supreme

Court Judgment, the State Government has extended the benefit of higher pay

for better qualifications to all rural librarians. It is such memorandum that the

petitioners are entitled to take advantage of notwithstanding their previous

petitions being dismissed for default." His Lordship further held that this was a

cause of action separate from that on which the writ petitions were dismissed for

default. His Lordship was further pleased to hold in this batch of writ petitions

that "it was open to the State to confer the benefits pursuant to the Supreme

Court order to the eo nomine petitioners therein; but once the State

understood the Supreme Court Judgment to imply that the benefits

had to be conferred on all persons similarly placed as the writ

petitioners in the matters before the Supreme Court and the State

Government issued the memorandum of June 10, 2014 covering all

rural librarians, it was open to the petitioners to herein to take up the offer or

seek the benefits thereunder and institute the present proceedings

notwithstanding the dismissal for default of their previous petitions." (emphasis

supplied). His Lordship also went on to hold "The State's contention that the

Supreme Court judgment did not take several matters into account cannot be

considered at all. Apart from the fact that Article 141 of the Constitution

recognizes the law as declared by the Supreme Court to be binding, there is an

order of the Supreme Court which is conclusive on the matters in issue. In any

event, in the acceptance of the Supreme Court's order by the State and issuance

of the memorandum of June 10, 2014, the State is now completely precluded

from urging any ground that could have been urged before the Supreme Court

or may not have been noticed in the judgment of March 6, 2014. Though the

endeavour by the State to urge certain grounds apparently not noticed in the judgment is for the purpose of ultimately carrying these grounds to the Supreme

Court, it may not be open to the State to do so since the State has unequivocally

accepted the judgment and has implemented the same by issuing the

memorandum of June 10, 2014." The petitioners in those writ petitions were

held to be covered by the judgment of the Supreme Court of March 6, 2014 and

the memorandum issued by the State on June 10, 2014 and their individual

cases were directed by the learned Judge to be considered by the Director of

Library services in the light of the Supreme Court Judgment dated March 14,

2014 (sic for March 6, 2014) and the memorandum issued by the State dated

June 10, 2014.

49. The State did not prefer any appeal from the order dated June 9, 2016. It

was allowed to become final. Of course, it related to Revision of Pay and

Allowances Rules, 1980 and 1990.

50. Instead, in a different matter, relating to Revision of Pay and Allowances

Rules of 1998 and 2009 arising out of a writ petition being Rafique Sekh--v--

State of West Bengal and Others, relying upon the aforesaid judgment, another

learned judge allowed the writ petition whereupon the State of West Bengal

preferred an appeal being MAT No.1406 of 2016 and a coordinate Bench, of

which one of us was a member, by an order dated January 4, 2017 dismissed

MAT No.1406 of 2016. The special leave petition preferred against it was

dismissed by the Hon'ble Supreme Court by an order dated July 24, 2017, and

hence it never merged with the order of the Hon'ble Supreme Court. Therefore,

the order dated June 9, 2016 relating to different revision of pay and allowances

rules, was never affirmed by the Division Bench so far as ROPA 1980 and 1990

were concerned.

THE SUBMISSIONS OF THE PARTIES AND THE ISSUES RAISED:

51. Mr. Prateek Dhar, in addition to the preliminary question relating to the

scope of the hearing by this Bench after remand on February 3, 2017, which we

have extracted in the 4th paragraph of this Judgment, made the following further

submissions: -

(1) The judgment dated March 6, 2014 is a judgment in rem passed by

the Hon'ble Supreme Court and therefore the petitioners, who

according to him are similarly situated as the petitioners in Shibnath

Koley and Others (supra), are entitled to the same benefit.

(2) The judgment dated March 6, 2014 binds this Court since it has laid

down the law that by reason of Memorandum Beta dated March 7,

1990, any rural librarian who betters his qualification is entitled to

the higher scale of pay, and the effort by the Respondent No. 1

State of West Bengal to rely upon Memorandum Delta dated July

26, 1994 was expressly negated by the Hon'ble Supreme Court as

being "too late in the day." The said judgment dated March 6, 2014

rendered in the case of Shibnath Koley and Others (supra) is

applicable to the present case.

(3) Denial of the benefit of higher scale of pay to the rural librarians in

case of the Appellants who had acquired higher qualifications leads

to denial of equality to equals and treats equals asunequals when

compared to the petitioners in Shibnath Koley and Others (supra)

because the Writ petitioners are also entitled as a matter of fact, and in the facts of this case [which they say are the same as those

in the case of Shibnath Koley and Others (supra)] to the benefit of

the higher scale of pay on acquiring the higher qualifications under

Memorandum Beta dated March 7, 1990.

(4) This Court is bound by affirmation on January 4, 2017 in MAT

No.1406 of 2016 by a coordinate bench a decision in the case of

State of West Bengal -v- Rafique Sekh based on the Memorandum

dated June 10, 2014 and the judgment of the learned Judge dated

June 9, 2016 in the batch of cases heard with W. P. 7150 (W) of

2015 [Jaganmoy Bhattacharjee and Others--v--State of W.B. and

Others] and cannot differ from it as to the effect of the

Memorandum dated June 10, 2014 or hold or direct anything

different from what was decided by the Coordinate bench in that

case. Judicial propriety demands it.

(5) The Memorandum dated July 21, 1990 is a draft memorandum

which was never acted upon.

(6) The judgment dated March 6, 2014 passed by the Hon'ble Supreme

Court in Shibnath Koley and Others (supra) is squarely applicable to

the facts of the present case.

52. Mr. Joytosh Mazumdar, made his submissions on behalf of the

respondents opposing those made by Mr. Dhar appearing for the Appellants/Writ

Petitioners. These are not separately set out in each case but shall be apparent

from the discussion of the submissions made on behalf of the Appellants/

Petitioners in respect of each point.

THE PRELIMINARY QUESTION:

53. The preliminary question described in the 4th paragraph of this Judgment

can be restated in another form. By the order dated February 3, 2017, did the

Hon'ble Supreme Court send the matter back in an open remand with a direction

superadded (to consider the applicability of the judgment in the case of Sibnath

Koley and Others, supra) or was it only a remand for the limited purpose of

seeing whether the judgment in that case applied to the petitioners.

54. After all, the writ petition in the present case was present before the

Hon'ble Supreme Court. Paragraphs 2 to 23 clearly set out the respective dates

when the writ petitioners/ Appellants were appointed as rural librarians and the

respective dates when they acquired the higher qualification. If the only question

was applicability of the judgment dated March 6, 2014 to the individual cases of

the writ petitioners on facts, the Hon'ble Supreme Court may have performed the

exercise by merely turning to paragraphs 2 to 23 of the writ petition and finding

out when the qualifications were acquired. For that, an order directing that the

matter be remitted back to us, after setting aside the order of dismissal for not

proceeding properly with the appeal, with a direction to consider the matter

afresh in accordance with law would not have been passed, unless some points

were urged which had not been decided before by the order dated March 6,

2014 and would come to be decided for the first time.

55. To answer this question, we called for the special leave petition, the

memorandum of appeal before the Hon'ble Supreme Court and the counter-

affidavit filed by the Respondent No. 1 herein. We wanted to see what were the

issues before the Hon'ble Supreme Court for which it was pleased to direct us to considerthe matter afresh in accordance with law, instead of merely directing us

to consider the applicability of the judgment dated March 6, 2014 in the case of

Sibnath Koley and Others (supra) to the facts of the present case.

56. We found that the Memorandum dated July 21, 1990 (which we have

referred to as Memorandum Gamma) was not impeached even before the

Hon'ble Supreme Court by the Writ Petitioners/Appellants herein though it was a

part of the records produced before the Hon'ble Supreme Court. Instead, the

cornerstone of the challenge was discriminatory treatment by the State

Government in case of successful librarians before the Hon'ble Supreme Court.

Reliance was placed also on the judgment of Biswajit Das and Others (supra)

passed on March 5, 1998 by a coordinate Bench against which the special leave

petition had been dismissed. Very significantly,in the synopsis, the Writ

Petitioners/Appellants took the following stands: -

a. "The benefit of higher scale of pay for higher qualification was

not extended ultimately to the librarians of sponsored/aided rural

libraries (hereinafter referred to as the librarians) in West Bengal as

per recommendation of the 3rd Pay Commission." (emphasis supplied).

b. "The petitioners, as advised, had been awaiting (sic) for the final

verdict of this Hon'ble Court. Consequently they did not proceed with

their appeal being MAT No.36 of 2011 for final disposal."

c. Eventually the said appeals stood dismissed by a judgment and order

dated 6th March, 2014 of the Hon'ble Court which is in rem. But,the

State Government decided to extend the benefits of higher scale of pay only to the librarians who were the parties to the

said appeals." (emphasis supplied).

57. On the contrary,the State of West Bengal as the respondent therein,

raised a categorical objection in its counter-affidavit affirmed by Debabrata

Manna, on the 5th day of May, 2015, that only some of the Writ

petitioners/Appellants are entitled to the benefit of higher scale of pay and some

are not, and have expressly and specifically referred to Memorandum Gamma

dated July 21, 1990 and relied upon the facts of the case and also disputed that

the judgment dated March 6, 2014 was a judgment in rem inter alia at

paragraphs 3.3, 4.3 and 5.3, which are set out hereunder.

(1) Paragraph 3.3 of the Counter-Affidavit: - "Special Leave Petition is

also not maintainable in the form it has been filed because number

of petitioners is not entitled to claim the benefit of the order of this

Hon'ble Court dated 6.3.2014 passed in Civil Appeal Nos. 6967--

6970 of 2009 directing the implementation of the memorandum

issued by the State in 1990. By clubbing those ineligible petitioners

with some who are entitled to the said decision of this Hon'ble

Court, petitioners are trying to act clever by half and secure

unlawful gain. The Special Leave Petition, thus, is not

maintainable."

(2) Paragraph 4.3 of the Counter-Affidavit refers expressly to the said

Memorandum dated July 21, 1990 and sets out its contents.

(3) Paragraph 5.3 of the Counter-Affidavit: "Statement made by the

petitioner in the 2nd para at page D that they were advised not to seek restoration of their dismissed appeal filed in 2001 and wait till

decision of this Hon'ble Court is absurd on the face of it. The

submission that the order of this Hon'ble Court dated 6.3.2014 is in

rem is wholly misconceived and wrong. Said order of this Hon'ble

Court is restricted to the case which stood decided by this order. It

is submitted that the State Government rightly abided by the order

of this Hon'ble Court rendered in that case."

58. So it is clear, that the Hon'ble Supreme Court was pleased to require a

decision on merits, whether on the facts of the case the Writ

Petitioners/Appellants were entitled to the benefits of the higher scale as rural

librarians considering the dates when they had acquired their higher

qualifications on the basis of the said contention of the State of West Bengal

pertaining to the Memorandum dated July 21, 1990, and since there had not

been any adjudication of the issue as aforesaid by the Appeal Court or the

Hon'ble Supreme Court itself in the judgment dated March 6, 2014 pertaining to

Sibnath Koley and Others (supra). That is why, the Hon'ble Supreme Court

had passed the order dated February 3, 2017 so that this aspect of the matter

which had never been decided in appeal even before the Hon'ble Supreme Court

in any of the above cases, was finally decided, and so that the applicability of the

judgment dated March 6, 2014 was also decided as one of the issues which was

to be considered afresh. The words "consider afresh in accordance with law" in

this case, would mean, considering everything anew, without being influenced by

any of the earlier judgments passed in the other cases, except that we also have

to consider the applicability of the judgment dated March 6, 2014 in the case of Sibnath Koley and Others (supra) to the facts of the present case and the

issues which arise from the pleadings.

59. Therefore, we hold that the case before us is on an open remand with a

direction superadded (to consider the applicability of the judgment in the case of

Sibnath Koley and Others, supra). So, all the questions are open, with the

requirement - which we would have done anyway -also to consider the

applicability of the judgment in the case of Sibnath Koley and Others (supra).

Since the appellants have submitted that the decision of a Co-ordinate Bench in

MAT No. 1406 of 2016 by a coordinate bench on January 4, 2017 affirming the

judgment dated June 9, 2016 as referred to in point no. 4 above binds us let us

deal with that point

POINT 4:

60. Coming to point 4 first, we have referred to the order dated June 9, 2016

passed in the case of W. P. 7150 (W) of 2015 [Jaganmoy Bhattacharjee

and Others--v--State of W.B. and Others] and those which were heard

together with it, only because these papers were made a part of the paper-book

without having been annexed to the writ petition or being brought on record

during the hearing of the writ petition - when naturally they did not exist - or at

any stage at all, after the restoration of the appeal, by way of any application for

amendment of the writ petition or by filing an application seeking permission to

rely on additional evidence. The writ petition from which the present appeal arises is not based on the said separate cause of action being the Memorandum

dated June 10, 2014.

61. That order may have become final between the parties to that petition so

far as the writ petitioners in that batch of writ petitions are concernedand so far

as the benefit granted therein is concerned - but the law decided therein by the

Learned Single Judge does not bind us. We can examine the correctness of the

proposition of law laid down therein.

62. So far as the coordinate Bench Judgment of January 4, 2017 in the case

of Rafiqua Sekh (supra) is concerned, that writ petition and consequently that

internal appeal related to the Revision and Pay and Allowances Rulesof 1998 and

2009 and they cannot be held to have laid down any proposition of law or bind

usas far as the effect of the Memorandum Gamma dated July 21, 1990 in case of

the relevant Rules of 1980 and 1990.We are therefore not bound by it.

63. Besides, when the writ petition was instituted by the Writ

Petitioners/Appellants in 1999, the order dated June 10, 2014 did not exist. The

writ petitioners could therefore neither have made their representation based on

it nor urged it as a cause of action on the date that they filed the writ petition.

The said Memorandum dated June 10, 2014 does not amount to change of law

with retrospective effect or otherwise. It is a fact, whose significance lies in

whether the State of West Bengal treated the judgment dated March 6, 2014 as

a judgment in rem or in personam limited to the petitioners who were given the

benefit thereunder. The avenue was open to the writ petitioners, even after

dismissal of their writ petition, to apply for amendment of their writ petition, if

not earlier, then before the Hon'ble Supreme Court or after the order dated February 3, 2017 was passed by the Hon'ble Supreme Court, when the matter

was restored to the file of this Court. Without such amendment, the writ

petitioners/Appellants cannot be heard on the separate cause of action which

stems from the Memorandum dated June 10, 2014. It is trite that in some

circumstances, even original pleadings may be amended at the appellate stage

or even second appellate stage, and the principles underlying such amendment

apply even to proceedings under Article 226 of the Constitution of India under

the Rules of our Court.

64. If any authority is required for this proposition, then we rely upon the

judgment in the case of S.S. Sharma and Others--v--Union of India (UOI)

and Others reported in AIR 1981 SC 588 where the Hon'ble Supreme Court

by a Bench comprising 3 Hon'ble Judges, were pleased to hold "We are of

opinion that the Courts should ordinarily insist on the parties being

confined to their specific written pleadings and should not be

permitted to deviate from them by way of modification or

supplementation except through the well-known process of formally

applying for amendment. We do not mean that justice should be

available to only those who approach the Court confined in a strait-

jacket. But there is a procedure known to the law, and long established

by codified practice and good reason, for seeking amendment of the

pleadings. If undue laxity and a too easy informality is permitted to

enter the proceedings of a court it will not be long before a

contemptuous familiarity assails its institutional dignity and ushers in

chaos and confusion undermining its effectiveness. Like every public

institution, the Courts function in the security of public confidence, and public confidence resides most where institutional discipline prevails. Besides this,

oral submissions raising new points for the first time tend to do grave

injury to a contesting party by depriving it of the opportunity, to which

the principles of natural justice hold it entitled, of adequately

preparing its response". (emphasis supplied).

65. Therefore, the Writ Petitioners/Appellants are not entitled to base any part

of their cause of action on the existence of the Memorandum dated June 10,

2014 and therefore its interpretation by the learned Single Judge as a separate

cause of action and in fact, urge any cause of action apart from what has been

urged in the writ petition. The said judgment dated June 9, 2016 did not

consider the effect of Memorandum Gamma dated July 21, 1990 for the reasons

mentioned in the said order.

66. If the Memorandum dated June 10, 2014 is no part of the cause of action

of the writ petitioners/Appellants and cannot, in the eye of law, so become,then

we fail to appreciate how the decision whether of the learned Single Judge or a

coordinate Bench arising out of some other rules for revision of pay and

allowances not of 1980 or 1990,relating to the effect of the Memo dated June

10, 2014 can bind us or be urged. At the risk of repetition, the order dated June

9, 2016 expressly held that the said Memo dated June 10, 2014 was a separate

cause of action for the Writ Petitioners in those cases, on which the writ petitions

in those cases were founded. Since the cause of action was different, a decision

on the memorandum dated June 10, 2014 on which the present

Appellants/Petitioners never founded their case, does not bind us, especially

when we see that the learned Single Judge in those other cases resolutely

refused to consider the impact of Memorandum Gamma dated July 21, 1990 only because in some other case the State had not relied upon it before the Hon'ble

Supreme Court and the Hon'ble Supreme Court had therefore not considered it.

67. The decision in the case affirming the order dated June 9, 2016 inW. P.

7150 (W) of 2015 [Jaganmoy Bhattacharjee and Others--v--State of

W.B. and Others] and the other cases which were heard alongwith it, we

hasten to add, will naturally apply to the writ petitioners in those cases and will

bind the State of West Bengal if it wishes to deny the benefits granted

thereunder to those petitioners in the batch of those other cases, which the

State shall not be permitted to do. It does not affect the adjudication or bind or

limit us in any way.

68. Even otherwise, the learned Single Judge in the order dated June 9, 2016

assumed on the basis of the Memorandum dated June 10, 2014 that the State of

West Bengal had understood that the order dated March 6, 2014 passed by the

Hon'ble Supreme Court implied that the benefits had to be conferred on persons

similarly situated as the writ petitioners (in the case of Sibnath Koley and

Others, supra) which, with respect, the plain meaning of the words of the

Memorandum dated June 10, 2014 does not support. The subject line, the

reference line and the text clearly show that the State of West Bengal

understood only that now that the judgment dated March 6, 2014 had become

final, the fixation of pay of the employees to be benefitted under the said order

of the Hon'ble Supreme Court in the said Civil Appeals before the Hon'ble

Supreme Court had to be done, on a case to case basis for each employee

separately. We find nothing in this memorandum which gives a blanket benefit

to all employees as held by the learned Single Judge and therefore cannot

persuade ourselves to agree that the same applies to the present Writ Petitioners/Appellants and each of them, without considering each of their cases

on the anvil of Memoranda Alpha, Beta and Gamma and the law of the land in

the facts of this case. We are not considering Memorandum Delta since the

Hon'ble Supreme Court has laid down that it cannot be relied upon to deny the

benefit claimed by any rural librarian who has acquired a higher qualification

after March 7, 1990.

69. Besides, if the Writ Petitioners/Appellants have themselves admitted

before the Hon'ble Supreme Court that the State Government decided to extend

the benefits of higher scale of pay only to the librarians who were parties to the

said appeals, as we have extracted above while deciding the preliminary

question, they cannot now be heard to urge that the State Government decided,

after March 6,2014, to extend the benefit of the said judgment of the Hon'ble

Supreme Court to all rural librarians, regardless of when they had acquired their

higher qualifications. It may be that the hearing of the appeal was concluded in

dead winter in this city but that cannot justify the Writ Petitioners/Appellants

blowing hot and cold and taking one stand in writing in their Special Leave

Petition and another while submitting before this Court about what the Memo

dated June 10, 2014 implied the State Government understood and accepted

about the entitlement of the Writ Petitioners/Appellants.

70. The Submissions made in Point 4 on behalf of the Writ petitioners

/Appellants is therefore rejected for the above reasons.

Now that we have held that the decision dated January 4, 2017 does not binds

us in the instant case we proceed to deal with the other points. POINT 1

71. Mr. Dhar, Learned Senior Advocate, would submit that the Order dated

March 6, 2014 is a Judgment in Rem. It will be rewarding to find out what is a

judgment in rem as understood by the Courts in India.

72. A judgment in rem has been explained in Black's Law Dictionary, 8th

Edition, edited by Bryan A Garner, (Published by Thomson-West) to mean: - "A

judgment that determines the status or condition of property and that operates

directly on the property itself. The phrase denotes a judgment that affects not

only interests in a thing but also all persons' interest in the thing.".

73. The Hon'ble Supreme Court has had the occasion to lay down the law as

to what constitutes a judgment in rem in India. In the case of

SatrucharlaVijaya Rama Raju--v--Nimmaka Jaya Raju and Others

reported in AIR 2006 SC 543the Apex Court has been pleased to hold that

"Under the Indian Evidence Act Section 41 is said to

incorporate the law on the subject. A judgment in rem is

defined in English Law as 'an adjudication pronounced (as

its name indeed denotes) by the status, some particular

subject matter by a tribunal having competent authority

for that purpose'. Spencer Bower on Res Judicata defines

the term as one which 'declares, defines or otherwise

determines the status of a person or of a thing, that is to say, the jural relation of the person or thing to the world

generally'"

74. If Section 41 of the Indian Evidence Act, 1872 incorporates the law in

India on the subject, it would be worthwhile to consider the statute law in India

relating to where and in what circumstances a judgment in a case between one

set of claimants can be held to bind or give the same benefit to another set of

claimants in another case.

Under the Indian Evidence Act, 1872, "Section 41 ‐ Relevancy of

certain judgments in probate, etc., jurisdiction -

A final judgment, order or decree of a competent Court, in the exercise of

probate, matrimonial, admiralty or insolvency jurisdiction which confers

upon or takes away from any person any legal character, or which declares

any person to be entitled to any such character, or to be entitled to any

specific thing, not as against any specified person but absolutely, is

relevant when the existence of any such legal character, or the title of any

such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof‐

that any legal character which it confers accrued at the time when such

judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be

entitled, accrued, to that person at the time when such judgment, 1 [order

or decree] declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased

at the time from which such judgment, 1 [order or decree] declared that it

had ceased or should cease;

and that anything to which it declares any person to be so entitled was the

property of that person at the time from which such judgment,[order or

decree] declares that it had been or should be his property."

75. In the instant case, going by the ratio of the judgment of the Hon'ble

Supreme Court as extracted above, unless the proceeding is of probate,

matrimonial, admiralty or insolvency jurisdiction, it cannot operate as a judgment

in rem. In the instant case, the proceedings are under Article 226 of the

Constitution of India and in the constitutional writ jurisdiction. A judgment

rendered in such jurisdiction, therefore, cannot constitute a judgment in rem

under Section 41 of the Indian Evidence Act, 1872 and therefore by reason of

the judgment of the Hon'ble Supreme Court, cannot be a judgment in rem.

76. Since, however, the Hon'ble Supreme Court also referred to the concept

of res judicata en passant - though the two concepts are not the same - let us

consider the statute law in India on res judicata.

77. Under the Code of Civil Procedure, 1908, as amended, Section 11 and

particularly Explanation VI thereto, is very illuminating: -

"No Court shall try any suit or issue in which the matter directly and

substantially in issue has been directly and substantially in issue in a

former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent

to try such subsequent suit or the suit in which such issue has been

subsequently raised, and has been heard and finally decided by such

Court."

"Explanation VI: Where persons litigate bona fide in respect of a public

right or of a private right claimed in common for themselves and others,

all persons interested in such right shall, for the purposes of this section,

be deemed to claim under the persons so litigating".

78. The ingredients of res judicata and judgment in rem are not the same. A

judgment in rem operates on the "thing" or "status" which is the subject matter

of litigation and is not concerned with whether the parties to the dispute are the

same as in an earlier dispute or claiming under those who were parties to an

earlier dispute which was decided in a particular manner. A judgment in rem

operates not against any person in particular, but absolutely, against the world,

regardless who were parties to it. However, "res judicata" operates as binding,

in the manner of an issue estoppel by judgment or records only against those

who were parties to the earlier litigation or are claiming under such parties. In

India, by a deeming provision, where the persons litigate bona fide in respect of

a right which is claimed in common for themselves and others, all persons

interested in such right, shall for the purposes of 'res judicata' are deemed to

claim under the persons so litigating.

79. Interestingly, the concept of res judicata is more a prohibition on a court

against trying a case - if the ingredients mentioned in Section 11 read with its explanations are satisfied - than a declaration of entitlement of a person against

a world at large. It is perfectly possible for res judicata to apply in a case in

respect of a judgment which is not a judgment in rem. Take for example the

case of a man who sues another claiming ownership of a particular property,

with prayers for declaration and injunction. The declaration will only bind those

who are parties to the proceeding and those claiming thereunder. Anyone who

tries to proceed for ownership in respect of that property, claiming under a party

to the earlier proceeding, against anyone who is claiming under another party to

the earlier proceeding, will be bound by the judgment in the earlier proceeding

and the Court will be debarred from deciding the case anew or afresh or hold

differently. However, if the claimant sets up a right independent of any of the

parties to the earlier proceeding, the Court will retain jurisdiction to decide the

questions raised and pass a different order. If A sues B for a declaration that he

is the owner of a house, claiming under a document of title executed by C, the

judgment in that case will not prevent a court from deciding a claim of W against

A, when W claims on a document of title executed by X, when X is not claiming

under B or C or anyone B or C claims under, in respect of that property.

80. Explanation VI would, however, operate only where the Court has

recorded a finding in the judgment that the claimantwas claiming the right in

question in common with himself and others who were similarly interested in it.

This conclusion would have to be part of the judgment itself which is contended

to be so binding as a judgment in rem on a court trying a different proceeding.

In effect a judgment within the meaning of Explanation VI aforesaid, would

become a judgment in a suit brought and/or contested in a representative

capacity. That is why it would have that effect of debarring a court in a subsequent proceeding from deciding the matter anew where the parties were

similarly interested. In the absence of such a finding in that judgment itself,it

cannot be set up before a subsequent court as debarring the jurisdiction of that

subsequent court to determine afresh the rights of the new set of claimants.

81. There is yet another class of judgments in rem recognized in India. It was

held by the Hon'ble Supreme Court in the case of State of Karnataka and

Another--v--All India Manufacturers Organization and Others reported in

AIR 2006 SC 1846"As a matter of fact, in a Public Interest Litigation, the

petitioner is not agitating his individual rights but represents the public at large.

As long as the litigation is bona fide, a judgment in a previous Public Interest

Litigation would be a judgment in rem. It binds the public at large and bars any

member of the public from coming forward before the court and raising any

connected issue or an issue, which had been raised/should have been raised on

an earlier occasion by way of a Public Interest Litigation".

82. It is trite that the judgment of the Hon'ble Supreme Court dated March 6,

2014 was not rendered in a public interest litigation. It does not record a

conclusion that the Writ Petitioners therein, being SibnathKoley and Others

(supra) were agitating any right in common with themselves and others who

were similarly interested. As extracted supra, the said Judgment dated March 6,

2014 in fact upheld the decision of the Division Bench as having correctly

followed the judgment dated March 5, 1998 which was held to be quite justified

in the facts of that case (Biswajit Das, supra). As already demonstrated above,

the judgment dated March 6, 2014 was also not rendered in any proceeding as

referred to in Section 41 of the Indian Evidence Act, 1872 and thus not a

judgment in rem as defined by the Hon'ble Supreme Court. Therefore, we must hold that the Judgment dated March 6, 2014 passed by the Hon'ble Supreme

Court in the case of SibnathKoley and Others (supra) is not a judgment in

rem.

83. On behalf of the Appellants, without dealing with the above submissions,

reliance was placed on the case of Sub-Inspector Sadhan Kumar Goswami

and Others--v--Union of India and others, reported in (1997) 2 SCC 225.

Paragraphs 3 and 4 of the said report were relied upon by the Appellants.

However, that was a case where a petition under Article 32 was made by some

persons who were similarly situated as the respondents in previous appeals

before the Hon'ble Supreme Court at the instance of the State as Appellant; the

Hon'ble Supreme Court had ruled in favour of the State holding that the

respondents were not entitled to the allowances they claimed but had directed

that whatever money had been paid to the respondents in that appeal by the

State would not be recovered by them. The new petitioners under Article 32

sought to challenge the correctness of the earlier order passed by the Hon'ble

Supreme Court in the Civil Appeals by way of a petition under Article 32 of the

Constitution of India which the Hon'ble Supreme Court held was impermissible,

and that if they were similarly situated, then they were as bound as the original

parties and could not keep on challenging the correctness of an order passed by

the Hon'ble Supreme Court in a proceeding in which they were not parties on

new grounds, coming up by way of petitions under Article 32 of the Constitution

of India. That begs the question of whether the parties were similarly situated

and the instant case has come to us on open remand for fresh consideration in

accordance with law, and we cannot therefore ignore the law which is yet to be

interpreted, to wit, the Memorandum dated July 21, 1990.

84. For exactly the same reasons as given in paragraph 83 above,

thejudgment of the Hon'ble Supreme Court in the case of Devilal Modi--v--

Sales Tax Officer, Ratlam and Others reported in AIR 1965 SC 1150 does

not preclude us from allowing the State of West Bengal to raise the issue of the

effect of July 21, 1990 before us. Mr. Dhar, has relied upon paragraphs 8 and 9

of the Report to impress upon us that a citizen ought not to be allowed to file

successive petitions challenging the validity of the same order by reason of the

doctrine of finality of litigation and that the technical or artificial rule prescribed

in the Code of Civil Procedure relating to constructive res judicata (as outlined in

paragraph 9 of the report) is founded on the same considerations of public

policy. However, where a question of law based on a memorandum (dated July

21, 1990) is continuously raised by a party but is decided by the learned Single

Judge in favour of the party, noticed but not decided by the Division Bench and

not considered nor argued before the Hon'ble Supreme Court and if the Hon'ble

Supreme Court is pleased to send back the case on open remand with a direction

to consider the matter afresh in accordance with law as also whether a previous

decision of the Apex Court applies, we would say that it opens the field for the

Division Bench to consider the matter afresh including the effect of the said

Memorandum and it is not res judicata, whether constructively or actually.

85. Finality of litigation is a laudable objective. Yet litigation is not a game

played under arcane rules where matters of substantive rights are to be decided

on the basis of technical, sometimes hyper-technical pleas, where the failure of

the High Court to decide an issue urged before it vehemently, will allow a walk-

over to one side, while the other side laughs in derision at the manner in which

the legal system of the country has been abused by suppression. We would have thought it was the duty of the Writ petitioners/ Appellants to bring to the

notice of the Court in the case of SibnathKoley and Others (supra) or prior to

that the case of Biswajit Das (supra) or even in the present case, the existence

of the Memorandum dated July 21, 1990 and then argue on its effect and the

necessity of issuance of the later memoranda, rather than furtively suppress it

and avoid any reference to it as if it was a proverbial skeleton in the writ

petitioners' cupboard.

86. The submissions made on behalf of the Appellants/Petitioners on Point (1)

are therefore rejected on the above reasons.

POINT 2

87. Like points 4 and 1, this point too has been urged by the Appellants to

persuade us that we do not have jurisdiction to decide the matter at hand

differently from what has been decided by the Hon'ble Supreme Court on March

6, 2014. The thrust of this submission is subtly different from those other points

which have been decided against the Appellants as appears from hereinabove.

In the other submissions already decided, an effort was made to urge that the

Judgment dated March 6, 2014 was a judgment in rem and therefore it bound

us, or that in view of the judgment of a coordinate Bench in a different matter

relating to Rules for the years 1998 and 2009 we were bound to decide the

matter relating to the Rules for the years 1980 and 1990 in the same way. The

submissions in point (2) however, are that the ratio of March 6, 2014 is "law laid

down" by the Apex Court within the meaning of Article 141 of the Constitution of

India.

88. It is well settled that "law laid down" refers to the ratio of a judgment

passed by the Hon'ble Supreme Court. Again, even an obiter dicta of the Hon'ble

Supreme Court binds the High Court. There can be no dispute with those

propositions.

89. The real question which arises from this submission, therefore, is whether

the Hon'ble Supreme Court laid down the law that a benefit is available to rural

librarians under a statutory rule on March 7, 1990 when the rule granting that

benefit to rural librarians ceased to exist on and from July 21, 1990. For this, we

do not have to rely upon the Notification dated July 26, 1994 which the Hon'ble

Supreme Court has expressly held not to affect the benefit of Paragraph 16(3) of

the Memorandum dated March 7, 1990 so far as the rural librarians are

concerned. All we have to see is whether it was present to the mind of the

Hon'ble Supreme Court that there was a Memorandum dated July 21, 1990 and

whether it had been pleased to consider what effect it had on the benefit under

Paragraph 16(3) granted on March 7, 1990 to rural librarians. If the Hon'ble

Supreme Court had considered these things in its judgment dated March 6,

2014, and pronounced on the effect, then it is a part of the ratio of the judgment

and binds us as "law laid down" under Article 141 of the Constitution of India.

90. Coming to the proceedings ofBiswajit Das (supra) we find that there is

no reference to the Memorandum dated July 21, 1990 at the stages of the Writ

Petition and the intra-Court Appeal. It is only when the matter went up to the

Hon'ble Supreme Court that the matter was taken in the grounds, but the

petition to appeal by special leave (SLP) was dismissed in limine, with a one

sentence order. Therefore, it did not decide or lay down the law on the question. Since the one-line dismissal does not, it is well-settled, result in a

merger of the decision of the Appellate Court with the Hon'ble Supreme Court it

would not amount to laying down the law on a proposition not argued before the

Appellate Court, either. If any authority is required for this settled proposition of

law, we draw inspiration from the judgment in the case of Kunhayammed and

Other--v--State of Kerala and Another, reported in (2000) 6 SCC 359,

inter alia at paragraphs 41, 42 and 43 of the report.It therefore passed sub-

silentio. The Hon'ble Supreme Court did not consider that Memorandum or its

effect. The judgment dated March 6, 2014 in the case ofSibnathKoley and

Others (supra) is not only silent about the Memorandum dated July 21, 1990, it

in fact approves the course of action of the Division Bench as having correctly

followed the judgment dated March 5, 1998 passed in Biswajit Das (supra) and

also approves the judgment dated March 5, 1998 as being justified in the facts of

that case where too the said Memorandum dated July 21, 1990 passed sub-

silentio. Therefore, the fact of the issuance of the Memorandum dated July 21,

1998 passed sub-silentiobefore the Hon'ble Supreme Court as on March 6, 2014.

Had the said Memorandum - which has the effect of substituting a provision in a

statutory rule granting a benefit to the rural librarians mutatis mutandis with

librarians of secondary schools by a provision which takes away that benefit as

an automatic consequence - been considered, then and only then would the

Apex Court have had the occasion to lay down the law as to whether even after

substitution or taking away of a provision granting a benefit to the rural

librarians, they would still be entitled to the said benefit particularly when they

acquired the qualification for claiming the said benefit after the date of the

substitution of the provision.

91. The Hon'ble Supreme Court itself, in the case of Shanti Conductors (P)

Ltd and Others--v--Assam State Electricity Board and Others reported in

(2016) 15 SCC 13 has held its earlier decision in the case of Purbanchal

Cables and Conductors Pvt. Ltd--v--Assam State Electricity Board and

Another reported in (2012) 7 SCC 462 and other decisions of the court

referred to therein, as sub silentio for not having considered that the provisions

of a statute were retroactive in nature, despite the argument of the binding

nature of precedents.

92. The concept of 'sub silentio' has been explained by Salmond on

Jurisprudence "12th Edition" as follows: -

"A decision passes sub silentio, in the technical sense that has

come to be attached to that phrase, when the particular point of

law involved in the decision is not perceived by the Court or

present to its mind. The Court may consciously decide in favour of

one party because of point A, which it considers and pronounces

upon. It may be shown, however, that logically the Court should

not have decided in favour of the particular party unless it also

decided point B in his favour; but point B was not argued or

considered by the Court. In such circumstances, although point B

was logically involved in the facts and although the case had a

specific outcome, the decision is not an authority on point B. Point

B is said to pass sub silentio".

93. The Hon'ble Supreme Court has itself laid down the law in the case of

Municipal Corporation of Delhi--v--Gurnam Kaur reported in AIR 1989

SC 38 in the following terms: -

"Therefore, a point in respect of which no argument was advanced

and no citation of authority was made is not binding and would not

be followed" and further that "Precedents sub silentio and without

argument are of no moment. This rule has ever since been

followed."

94. The Hon'ble Supreme Court has in effect held that such decisions, which

are treated having been passed sub silentio and without argument, are of no

moment. The Court further explained the position by saying that one of the chief

reasons behind the doctrine of precedent is that once a matter is fully argued

and decided the same should not be reopened and mere casual expression carry

no weight. In Gurnam Kaur (supra) the Hon'ble Supreme Court conclusively

held that not every passing expression of a Judge, however eminent, can be

treated as "ex cathedra statement, having the weight of authority".

95. It is trite that Memorandum Gamma which took away the provision in

Paragraph 16(3) of the Memorandum dated March 7, 1990, and substituted it

with a different sentence depriving the rural librarians of an automatic

entitlement to a higher scale of pay on obtaining a higher qualification, effected

a change in the statutory rules. It was therefore at least a relevant and material

change of statutory provisions which point, however, was neither noticed nor

referred to, whether in the judgment dated March 5, 1998 passed by the Division

Bench in the case of Biswajit Das (supra) or the judgment dated March 6, 2014 passed by the Hon'ble Supreme Court in the case of Shibnath Koley and Others

(supra) and no argument was advanced on that point and no citation of authority

was made on that point. As such, the said point clearly passed sub silentio and

the said judgments do not bind us since they do not declare the law on the

point.

96. Since that point has been pleaded, argued and is materially in issue in this

case, and since as demonstrated above, the judgment dated March 6, 2014 in

the case of Shibnath Koley and Others (supra) does not decide the point nor was

it present to the mind of the Hon'ble Supreme Court when passing the judgment,

with the greatest respect, we must conclude that it does not lay down the law

within the meaning of Article 141 of the Constitution of India on the point

aforesaid and we are free to decide it in accordance with law, in this

consideration of the entire matter "afresh", as directed by the Hon'ble Supreme

Court.

97. Hence the submissions on behalf of the Appellants/petitioners on Point

No. (2) also fail and are rejected.

98. Before dealing with any other point, since Mr. Dhar has urged that the

Memorandum dated July 21, 1990 was never acted upon and the learned

counsel for the State respondent has contended that it was acted upon, let us

discuss this point before point nos. 3 and 6.

POINT 5:

99. Even though Mr. Dhar did urge the point that the Memorandum dated July

21, 1990 was never acted upon since it was a draft memorandum, for which

reason the respondent No. 1 had never relied upon it prior to 1999 in the writ

petitions heard alongwith WP No.5146 (W) of 1999, we find that the

memorandum itself was sent for publication to the Government Press, and that

this point was never urged at any stage of the litigation by any party till date.

There is nothing on record impeaching the authenticity of the said Memorandum

dated July 21, 1990 or that even any allegation that it was not acted upon by the

respondent No. 1. We are afraid that we cannot accept such a submission, made

perhaps in extremis. It cannot also be the case that reliance on such

Memorandum dated July 21, 1990 will be constructively res judicata as against

the respondent No. 1, simply because even in the case of Shibnath Koley and

Others (supra) this was urged by the respondent No. 1 but not decided by the

coordinate Bench and not adverted to by the Hon'ble Supreme Court as indicated

above and so there is no decision on the issue even constructively though it was

made a point of attack by the respondent No. 1.

POINTS 3 and 6

100. The Appellants/petitioners have made out a case that they are on

an equal footing with the petitioners in the case of Shibnath Koley and Others

(supra) and hence denying them the benefit of the higher scale of pay after

obtaining the higher qualification is denial of equality before the law and equal

protection of the laws which they say violates Article 14 of the Constitution of

India.

101. Firstly, as discussed above, they are not on an equal footing with

the petitioners in the case of Shibnath Koley and Others (supra) because those

other petitioners had been expressly given the benefit under a Memorandum

dated June 10, 2014 by virtue of the orders of the Hon'ble Supreme Court which

benefit was not in rem for the reasons stated above and because the said

judgment does not lay down the law in respect of the effect of the Memorandum

dated July 21, 1990. As already discussed above, it was no part of the

Appellants' cause of action that they were entitled to the said benefit under the

said Memorandum dated June 10, 2014. Therefore, denying them the benefit

would not, by itself, mean treating equals as unequals.

102. Secondly, as we have held above, the case of Shibnath Koley and

Others (supra) is not an authority on the proposition of what would have

happened if the effect of the Memorandum dated July 21, 1990 had been

considered. That is one of the reasons why the Hon'ble Supreme Court remitted

the matter to us on open remand as we have held above.

103. We have no hesitation in holding that on considering the effect of

the Memorandum dated July 21, 1990 the learned Single Judge was perfectly

correct in following the ratio of Shamrao Parulekar--v--The District

Magistrate, Thane, Bombay, reported in AIR 1957 SC 23 to hold that:

"Thus, sub-paragraph 3 of paragraph 16 of the Memorandum dated 7th

March, 1990 does not entitle the petitioners, who are graduates, to get

benefit of principles laid down in first part of sub-paragraph 3 of

paragraph 16 of the Memorandum dated 7th March, 1990. The very

basis of the claim of the petitioners has been scored out by the aforesaid Memorandum dated 21st July, 1990.". Once that entitlement

goes, the basis of judgment in the case of Shibnath Koley and Others (supra) as

decided by the Coordinate Bench - which as decided earlier does not bind us

since the issue was argued upon but never decided - also goes and therefore the

judgment dated March 6, 2014 which is not a judgment on the issue of the

Memorandum dated July 21, 1990 also ceases to be applicable to the case of the

present petitioners.

104. Once the said judgment dated March 6, 2014 is held to be

inapplicable to the case of the Appellants, the question of their equality with the

petitioners in the case of Shibnath Koley and Others (supra) becomes otiose,

since on merits they are laying claim in 1999 to a benefit under a rule which

ceased to exist in the form they allege, from July 21, 1990.

105. Our judgment will not affect the rights inter partes so far as the

petitioners and the respondents in the case of Shibnath Koley and Others (supra)

are concerned, which have achieved finality inter partes with the judgment dated

March 6, 2014.

106. Still, without considering the facts pertaining to the petitioners, it

cannot be decided whether any of the Appellants/petitioners is entitled even to

the benefit under Paragraph 16(3) of the Memorandum dated March 7, 1990 for

the limited time that it existed.

107. So far as the factual matrix is concerned, a chart was handed up to

the Court and accepted as being true by the Appellants and the respondent No.

1 State of West Bengal as being accurate, which shows the names of each of the Appellants and the dates of their joining as Rural Librarians and the date when

they acquired the higher qualifications. The said chart is reproduced below.

Sl NAME OF THE DATE OF JOINING DATE OF HIGHER

No. APPELLANT QUALIFICATION

Pradip Kumar Karak 01.07.1985 1983.

1.

2. Asoke Kumar Sahana 01.07.1985 1984.

3. Dipal Das 16.05.1977 1981.

4. Samir Kumar Goswami 27.06.1985 1997.

5. Nikhil Karmakar 18.10.1986 1995.

6. Chandan Kumar 18.10.1986 1998.

Mukhopadhyay

7. Biswajit Chattopadhyay 18.10.1986 1995.

8. Sujoy Kumar Pain 27.06.1985 1996.

9. Nimai Chandra Nandi 02.01.1985 1996.

10. Asish Kumar Patra 22.12.1985 1996.

11. HaridasDey 27.06.1985 1996.

12. Janmenjoy Nandi 30.04.1982 1991.

13. Samir Kumar Roy 25.10.1984 1996.

14. Madhumangal 20.10.1984 1993.

Chattopadhyay

15. Dilip Kumar Singha 07.12.1981 1990.

16. RadhashyamGhosal 21.10.1984 1985.

17. Janapriya Bag 21.12.1985 1995.

18. Goutam Mukherjee 27.02.1989 1987. 19. PrabhatMahanti 28.06.1985 1996.

20. Ramprasad Chattopadhyay 21.08.1983 1987.

21. ParthaSarathi Ghosh 20.10.1984 1995.

22. Kartick Biswas 18.11.1981 1991.

108. It is amply clear from the above chart, which is based on

paragraphs 2 to 23 of W.P. 5146 (W) of 1999, that the Appellants/petitioners 1,

2, 3, 16, 18 and 20 acquired their higher qualification and were thus entitled to

the benefit of the Memorandum dated March 7, 1990 from that date itself and do

not have to invoke the words "will improve their qualification". This was clearly

long before July 21, 1990. So far as the appellant/petitioner No.15 is concerned

the only particular of acquiring the higher qualification is "1990" without any

date. However, from the copy of the mark-sheet in case of the Appellant/

petitioner No. 15 which was annexed to the writ petition and is available in the

paper-books we found that he acquired such qualification on April 30, 1990,

which too is prior to July 21, 1990. None of the other Appellants/petitioners

acquired the higher qualification prior to July 21, 1990. From the chart aforesaid,

it is clear that the said other Appellants/petitioners - that is to say, all the

Appellants/petitioners apart from the petitioners 1, 2, 3, 15, 16, 18 and 20 -

acquired their respective higher qualifications only after July 21, 1990.

109. It is clear therefore, that the Writ Petitioners/Appellants No.4, 5, 6,

7, 8, 9, 10, 11, 12, 13, 14, 17, 19, 21 and 22 acquired their higher qualifications

after the benefit granted to rural librarians by the Memorandum Beta dated

March 7, 1990 had been taken away, and substituted by way of amendment by

Memorandum Gamma dated July 21, 1990 by another sentence in paragraph 16(3) of the said Memorandum dated March 7, 1990 which made it clear that

where necessary separate orders would be issued. Since all these writ

petitioners/Appellants acquired their higher qualifications after July 21, 1990,

when the said amendment had already taken place, they had no vested right

which was being affected. By the time they had acquired their higher

qualification, there was no statutory rule as would allow them to claim the

benefit automatically. If there is no rule allowing something to be done, but in

fact a deliberate "amending out" of a previously extant rule which had allowed it

to be done, then it is to be necessarily inferred that the State of West Bengal in

its wisdom did not want that "something" to be done. There was, therefore, no

legal right inhering in the said writ petitioners/Appellants to claim a higher scale

of pay. It is to be noted that they did not seek that on introduction of the

amendment by Memorandum gamma dated July 21, 1990.

110. Therefore, their cases are clearly on a different footing from the

writ petitioners No.1, 2, 3, 15, 16, 18 and 20 as demonstrated above. .

111. For the above reasons, the cases of the writ petitioners No.1, 2, 3,

15, 16, 18 and 20 are on a wholly different footing from the other petitioners

and only these named petitioners can claim the benefit under Paragraph 16(3) of

the said Memorandum dated March 7, 1990 as it existed prior to July 21, 1990,

because they acquired the higher qualification before the cut-off date created by

the Memorandum dated July 21, 1990. The petitioners No.1, 2, 3, 15, 16, 18

and 20 were all entitled to the benefit of Paragraph 16(3) of the Memorandum

dated March 7, 1990 as it stood till July 20, 1990 before the Memorandum dated

July 21, 1990 was issued, amending the Memorandum dated March 7, 1990 and

taking away and replacing the said benefit.

112. Merely because the petitioners/Appellants No.4, 5, 6, 7, 8, 9, 10,

11, 12, 13, 14, 17, 19, 21 and 22 were joined with the other writ petitioners,

though the two sets are not similarly circumstanced and though they acquired

their qualifications after July 21, 1990, would not mean that they were entitled to

be treated en masse as equal to the said other petitioners. The cut-off created

by the Memorandum dated July 21, 1990 makes it possible for the respondent

No. 1 to treat the two sets as two distinct classes with reasonable differentia

based on the dates when members of each set acquired their higher qualification

Since Memorandum Gamma has not been challenged, we need not examine the

policy behind its issuance or its effect on those who stand deprived thereby.

113. Since this distinction was never decided in the case of

SibnathKoley and Others (supra)though argued before the Division Bench, we

are free, in terms of the order dated February 3, 2017 passed by the Hon'ble

Supreme Court, to consider the matter afresh and so hold, as we have done as

above.

114. Therefore, it cannot be said that the decision in the case of

SibnathKoley and Others (supra) will apply irrespective of the dates of

acquiring the qualification to all the writ petitioners in the instant case without

there being any diffrentia. Question No.6 is answered accordingly.

115. Read with the admission made by the respondent No. 1 in their

counter affidavit before the Hon'ble Supreme Court in Special Leave Petition (C)

Nos. 8558--8561 of 2015 which culminated in the Civil Appeals No.1390--1393

of 2017, referred to above, it is clear that these six Appellants/writ petitioners

were covered by the said Memorandum and had a right vested in them to be granted the higher scale of pay.Their pay will be therefore be fixed with

retrospective effect from the January 1, 1986 in case of the Writ

Petitioners/Appellants No.1, 2, 3 and 16, and with retrospective effect from the

dates of acquiring the higher qualification being 1990, 1987 and 1987

respectively in case of the petitioners/Appellants No.15, 18 and 20, since

theyacquired their higher qualification later than January 1, 1986, and the later

date is to be preferred according to Paragraph 16(3) of the Memorandum dated

March 7, 1990 prior to its amendment by the Memorandum dated July 21, 1990.

116. So far as the other writ petitioners/Appellants are concerned,

namely the Writ Petitioners/Appellants No.4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17,

19, 21 and 22, who acquired their higher qualifications after the benefit granted

to rural librarians by the Memorandum Beta dated March 7, 1990 had been taken

away, and substituted by way of amendment by Memorandum Gamma dated

July 21, 1990 by another sentence in paragraph 16(3) of the said Memorandum

dated March 7, 1990, we hold that they are not entitled to the benefit of the

higher scale of pay under Paragraph 16(3) of the Memorandum dated March 7,

1990 as it had stood prior to July 21, 1990 and they are not entitled to any

benefit as claimed by them.

117. It is expected that the State of West Bengal and its authorities

concerned shall fix the scale of pay in respect of the successful Appellants/

petitioners expeditiously and make payment of the benefits thereunder, with

arrears, as expeditiously as possible, but in no case later than 3 months from the

date of communication of this Order.

118. The appeals are disposed of accordingly and partially allowed in

case of the named writ petitioners/Appellants No.1, 2, 3, 15, 16, 18 and 20 and

dismissed as against the other writ petitioners/Appellants and the connected

applications are also disposed of in terms of the above order.

119. In the circumstances, however, there shall be no order as to costs.

(PROTIK PRAKASH BANERJEE, J.)

DIPANKAR DATTA, J. :

120. My learned brother, in the judgment proposed, has meticulously

traced the genesis of the litigation, given anxious consideration to the grievance

espoused by the writ petitioners/appellants (hereafter the appellants), noted the

relevant decisions of this Court as well as the Hon'ble Supreme Court having a

bearing on the controversy, discussed the applicable law in depth and assigned

sufficient reason to conclude why some of the appellants are entitled to relief

while the majority are not. I respectfully concur with the ultimate conclusions of

His Lordship regarding grant of relief to certain librarians while denying the same

to the others. However, the length of the proposed judgment has made His

Lordship lament that it suffers from the vice of being interminably long as the

judgment and order of dismissal of the writ petition [W.P. 5146(W) of 1999]

under challenge before us. To my mind, a lengthy decision was perhaps

inevitable having regard to the erudite submissions advanced at the bar, which had to be dealt with, and the very intricate issue that had arisen for adjudication

upon the situation taking somewhat of a complex turn because of the order of

the Hon'ble Supreme Court dated February 3, 2017 in Civil Appeal Nos.1390-93

of 2017 remanding the appeal (MAT No. 36 of 2001) for (i) considering the

applicability of an earlier decision of the same Court dated March 6, 2014 in Civil

Appeal Nos. 6967-70 of 2009 [State of West Bengal & ors. v. Shibnath Koley &

ors.), originating from similar facts, to the appellants and (ii) "fresh consideration

in accordance with law". Such direction, without doubt, has placed us in some

discomfort. Had it been a case where the writ appeal could have been allowed by

simply following the decision of the Hon'ble Supreme Court in Shibnath Koley

(supra), the prospect of an anomalous result could have been eschewed once

and for all. However, the consequence of the order dated February 3, 2017, as

has been understood by my learned brother and by me, is that we are not under

any fetter to give a decision in a particular manner so as to obviate the chance of

any anomaly, or to decide the appeal in a manner that is consistent with the

principle of comity. If indeed proper and correct reading of the order dated

February 3, 2017 of the Hon'ble Supreme Court were that the Division Bench is

merely required to accomplish a ministerial task by considering the applicability

of the decision in Shibnath Koley (supra) to the appellants, the simultaneous

direction for fresh consideration (of the matter) in accordance with law would be

rendered otiose. As has been held by my learned brother, an open remand was

what the Hon'ble Supreme Court directed by its order dated February 3, 2017

and not a limited remand. I completely agree with the end result of the appeal

proposed by my learned brother but since His Lordships's decision essentially

resurrects in part a well-considered decision of a learned Single Judge of this

Court passed on a batch of writ petitions, notwithstanding that such decision has been reversed by a coordinate Bench of this Court on a few writ appeals having

been carried therefrom and the appellate decision of the coordinate Bench has

even been upheld by the Hon'ble Supreme Court in Shibnath Koley (supra), it is

imperative that such decision be backed by strong and cogent reasons for

avoidance of any criticism of being disrespectful to the Hon'ble Supreme Court or

the coordinate Bench. It is for this reason, and for no other, that I wish to

indicate in brief my own reasons in support of the conclusions that I have

reached which are consistent with those recorded by His Lordship.

121. Since the factual narrative leading to presentation of the writ

petition by the appellants and its progress in this Court coupled with the orders

passed by the coordinate Bench on the writ appeal as well as the civil appeal by

the Hon'ble Supreme Court is clear from the proposed judgment of my learned

brother, I avoid its repetition.

122. It is, however, crucial to note that the appellants prayed for better

pay (higher scale of pay based on the qualifications they possessed i.e. higher

than the qualifications required for the post of rural librarian), by presenting their

writ petition in the year 1999. Paragraph 16(3) of memorandum dated March 7,

1990 and the appellate judgment and order dated March 5, 1998 in MAT 1898 of

1997 [State of West Bengal & ors. v. Biswajit Das], confirming the judgment and

order dated September 19, 1996 passed by a learned Judge while allowing C.O.

9580(W) of 1996 [Biswajit Das v. State of West Bengal & ors.] formed the plinth

of such writ petition.

123. Based on the materials that had been placed by the rival parties

before the coordinate Bench, which decided the writ appeal (MAT 1898 of 1997) carried by the State from the order of the writ court allowing the writ petition of

Biswajit Das [CO 9580 (W) of 1996], we are ad idem with such Bench that in

view of paragraph 16(3) of memorandum dated March 7, 1990, Biswajit Das was

indeed entitled to better pay (assuming that he had acquired higher qualification

prior to March 7, 1990).

124. That a subsequent memorandum dated July 21, 1990 drastically

amended paragraph 16(3) of memorandum dated March 7, 1990 [thereby

suspending whatever benefit paragraph 16(3) in its original form contemplated,

till a fresh order is issued by the Government] was, however, neither brought to

the notice of the learned Single Judge while His Lordship decided Biswajit Das's

writ petition nor the learned Judges of the Division Bench that decided the writ

appeal, which the State carried therefrom, despite seeking and obtaining leave to

rely on additional evidence. We had called for the records of MAT 1898 of 1997

and looked into the application seeking permission to rely on additional evidence

(CAN 1301 of 1998). Although memoranda dated June 2, 1994 and July 26, 1994

were sought to be relied on by the State, inexplicably, the State did not seek to

rely on memorandum dated July 21, 1990. The State as the petitioner in its

special leave petition before the Hon'ble Supreme Court (subjecting the order

dated March 5, 1998 to challenge) did frame a question of law based on

memorandum dated July 21, 1990 but, unfortunately, leave was declined and

the Court did not have the occasion to consider the effect of such memorandum.

125. It would be profitable at this stage to note the contents of the

relevant memoranda issued by the State and its effect on the controversy

involved in this appeal.

126. The entitlement of rural librarians to enjoy a higher scale of pay

commensurate with their educational qualifications started with introduction of a

career advancement scheme. It was contained in paragraph 16(3) of

memorandum dated March 7, 1990, which reads as follows:

Paragraph 16(3) of memorandum dated March 7, 1990

"*****

(3) All teachers and librarians of Secondary Schools who have improved/ will improve their qualification or who were appointed with higher qualification in the subject or group relevant to their teaching/appointment shall get higher scale of pay appropriate to their qualifications with effect from the 1st January, 1986 or the date of improving qualification whichever is later.

This principle shall apply mutatis mutandis to the teachers/librarians of other institutions/ organisations as mentioned in Annexure-1."

Such entitlement was, however, short lived. Memorandum dated July 21, 1990

suspended such entitlement. The relevant portion of such memorandum reads as

follows:

Memorandum dated July 21, 1990

"The Governor has been pleased to order that this Department Memorandum No.33-Edn(B) dated 7th March, 1990 relating to the revision of pay and allowances of teachers and non-teaching employees etc. and other terms and conditions of their service shall be amended in the following manner:-

In sub-para 3 of para 16 of the order, for the sentence 'This principle shall apply mutatis mutandis to the teachers/librarians of other institutions/organizations as mentioned in Annexure-I' the following shall be substituted: 'Order in this behalf relating to teachers/librarians of other Institutions/Organizations as mentioned in 'Annexure-I' wherever necessary shall be issued separately.'

This order issues with the concurrence of the Finance Department vide their U/c No. Group P No.2512 dated 10.7.90."

127. Although memorandum dated July 21, 1990 spoke of issuance of

an order wherever necessary, no such order saw the light of the day in excess of

four years. Memorandum dated June 2, 1994, issued in continuation of the

memorandum dated March 7, 1990 seems to be the first Government Order on

the subject of pay scales of library staff after memorandum dated July 21, 1990

was issued. The contents of memorandum dated June 2, 1994, however, need

not be noticed in any great detail since close on the heels thereof, memorandum

dated July 26, 1994 was issued in supersession of the former. Memorandum

dated July 26, 1994 laid down what would be the revised scales of pay in respect

of the members of the staff of sponsored/aided libraries w.e.f. January 1, 1986.

In addition, it provided that "other terms and conditions as specified in the

aforesaid Govt. Order shall be applicable to the members and staff of those

libraries" and that "terms and conditions given in the foot note below the

Annexure to the Govt. Order No.372-Edn(B) dated 31.7.81 should be strictly

followed". Memorandum dated July 31, 1981 made it clear by Note (2) that

"Scales as recommended may be allowed to the incumbents on the basis of

qualifications prescribed for recruitment to the post and not on the basis of

qualifications possessed by the incumbents."

128. To my mind, upon the benefit conferred by paragraph 16(3) on

rural librarians being suspended and the Government having made it clear that further order would follow, wherever necessary, the memorandum dated July 26,

1994 (in the absence of any other Government Order being brought to our

notice) has to be regarded as the Government Order that was issued following

the amendment of paragraph 16(3) of memorandum dated March 7, 1990 by

memorandum dated July 21, 1990. It is noted that not only did memorandum

dated July 26, 1994 not confer any benefit of higher scale of pay to rural

librarians who had acquired or might acquire qualifications more than what was

required in terms of the memoranda laying down minimum qualifications for

appointment as rural librarians but the position was made amply clear that the

footnote below the Annexure to Memorandum dated July 31, 1981 should be

strictly followed, meaning thereby the earlier position i.e. pre-March 7, 1990 was

restored in respect of rural librarians.

129. The learned Judge, while considering the writ petition of the

appellants, was shown memorandum dated July 21, 1990 by learned counsel for

the State and His Lordship was urged to decide the writ petition considering its

effect. His Lordship did exactly so and held that the appellants had no legal right

to claim better pay based on higher qualifications in the absence of any provision

in that behalf. The writ petition was dismissed. The decision of the Division

Bench dated March 5, 1998 in the writ appeal arising out of the writ petition of

Biswajit Das was held not to have precedential value by the learned Judge since,

according to His Lordship, memorandum dated July 21, 1990 had passed sub-

silentio in the absence of being noticed. Other writ petitions presented by rural

librarians claiming to be similarly situate as Biswajit Das (including the one

presented by Shibnath Koley & others) met the same fate.

130. Several writ appeals were carried from the decision of the learned

Judge. The writ appeal of Shibnath Koley & others succeeded before the Division

Bench. The decision of the Division Bench is reported in AIR 2007 Calcutta 223.

The learned Judges comprising the Division Bench took strong exception to the

learned Judge not following the binding decision of the Division Bench dated

March 5, 1998 (while dismissing MAT 1898 of 1997). While it would have been

appropriate for the learned Judge (since His Lordship was taking a view different

from the one taken by the Division Bench based on memorandum dated July 21,

1990, which the Division Bench had no occasion to consider) to refer the matter

of difference either to a Division Bench or to the Hon'ble the Chief Justice for

constituting an appropriate Bench abiding by the law laid down in the decision

reported in AIR 1965 SC 1767 (Shri Bhagwan v. Ram Chand), it is intriguing that

despite learned counsel appearing for the State having urged the Division Bench

in seisin of the writ appeal of Shibnath Koley & others to consider the effect of

memorandum dated July 21, 1990, not a single word was said in regard to its

applicability or the lack of it to the facts and circumstances that had been placed

before the Court. The only decipherable reason seems to be that memorandum

dated July 21, 1990 had been made a part of the special leave petition which the

State had filed before the Hon'ble Supreme Court while challenging the decision

dated March 5, 1998 in MAT 1898 of 1997 and the Division Bench possibly

perceived the decision of the earlier Division Bench dated March 5, 1998 to have

attained finality with the dismissal of the special leave petition by the Hon'ble

Supreme Court and consequently, it was bound by what the earlier Bench had

held on similar facts.

131. Having failed in its attempt to have the decision of the learned

Judge dated September 25, 2000 sustained and having suffered the decision of

the Division Bench, since reported in AIR 2007 Calcutta 223, the State moved

the Hon'ble Supreme Court. Leave was granted but the State's appeal ultimately

failed. The Hon'ble Supreme Court in its decision dated March 6, 2014 held that

the earlier Division Bench decision of March 5, 1998 in MAT 1898 of 1997 was

"quite justified on the facts of that case" and the subsequent Division Bench

correctly followed such decision.

132. It is the applicability of this decision dated March 6, 2014 to the

appellants that is required to be considered coupled with the direction for fresh

consideration (of the matter) in accordance with law.

133. The first paragraph of the decision dated March 6, 2014 referred to

what the appeals under consideration sought to challenge, the second paragraph

noted that earlier a similar issue had been dealt with by the Division Bench of

this Court while disposing of MAT 1898 of 1997, the third and fourth paragraphs

recorded the arguments advanced by learned counsel for the State, the fifth

paragraph contained observations of the Court upon reading paragraph 16(3)

which entitled, inter alia, the librarians to better pay on the basis of higher

qualifications, the sixth to eighth paragraphs contained the findings of the Court

and the ninth paragraph recorded dismissal of the appeals. To cull out the ratio

of the decision dated March 6, 2014, I consider it useful to extract below the

relevant paragraphs therefrom (although the same have been extracted in the

proposed judgment of my learned brother):

"6. Mr. Luthra then pointed out that the Government of West Bengal issued another Memorandum on 26th July 1994 wherein it was specifically stated that the terms and conditions given in the foot note below the Annexure to the Government order dated 31.7.81 should be strictly followed. In our view, this was rather too late in the day. Once the revision of pay on the basis of better qualification was granted in March, 1990, the Government could not have looked back and said in July, 1994 that the Memorandum of 31st July, 1981 will continue to govern these rural librarians.

7. It was also submitted that the Education Department was bifurcated and the Public Libraries came under the Mass Education Department from 1998. Be that as it may, the particular Memorandum of 7th March, 1990 of the Education Department clearly covered the rural librarians as stated above. The new department must have taken its own time to settle down and this circular of the Education Department was obviously accepted by the Mass Education Department.

8. In view thereof, the judgment and order passed by the earlier Division Bench of the High Court was quite justified on the facts of that case and in the penultimate paragraph of its judgment the High Court had observed as follows:

'Having heard the learned Advocate for the appellant and after examining the circulars carefully, we have no manner of doubt that with a view only to give benefit to person possessing higher qualifications than the minimum qualification of eligibility a special provision was made in the Memorandum of the year 1990 and to remove any doubts as to the reckoning date a clarificatory memorandum was issued in July, 1994. The above, in our view, thus leaves no room for interference with the order of the Learned Single Judge in favour of the petitioner respondent'.

9. This judgment has been correctly followed by the subsequent Division Bench in the instant case and that being so we do not find any reason to interfere therewith. These appeals are therefore dismissed. There shall be no order as to costs."

(underlining for emphasis by me)

134. The ratio decidendi of the aforesaid decision is that the

Government having conferred a benefit (of better pay) to the librarians vide

memorandum dated March 7, 1990, it was "too late in the day" for the

Government to call back such benefit after four years by issuing memorandum

dated July 26, 1994 and to say that the librarians would continue to be governed

by memorandum dated July 31, 1981. In arriving at such view and dismissing the appeal, the Court approved the earlier decision of the Division Bench dated

March 5, 1998 in MAT 1898 of 1997 too.

135. The paper-books relating to the civil appeals on which the decision

dated March 6, 2014 was rendered by the Hon'ble Supreme Court have been

placed before us. It is found that memorandum dated July 21, 1990 was a part

of the paper-books and, thus, was a material placed for consideration of the

Hon'ble Supreme Court. Reading of the said decision in between the lines,

however, does not persuade me to infer that the said memorandum was brought

to the notice of the learned Judges comprising the Bench by learned counsel for

the State. In fact, the decision records learned counsel representing the State

having referred to memorandum dated March 7, 1990 and "then" to

memorandum dated July 26, 1994, without referring to memorandum dated July

21, 1990. If indeed the Court's attention had been invited to memorandum dated

July 21, 1990, there could be no reason why reference thereto would be missing.

Be that as it may, the impact of memorandum dated July 21, 1990 on the

librarians' claims for better pay based on higher qualifications went unnoticed.

There could be an argument favouring the appellants that nothing much turns on

it, based on the principle of law laid down in the decision reported in (2002) 4

SCC 638 (Director of Settlements v. M. R. Apparao). It has been held therein that

the decision in a judgment of the Supreme Court cannot be assailed on the

ground that certain aspects were not considered or the relevant provisions were

not brought to the notice of the Court. So, even if the memorandum dated July

21, 1990 was not placed for the Court's consideration, the decision dated March

6, 2014 cannot be ignored on the specious ground that the learned Judges of the Hon'ble Supreme Court proceeded to decide the issue being oblivious of the

same. Having regard to the same, the decision in Shibnath Koley (supra), in

ordinary circumstances, could be regarded as the last word on the controversy

leaving no option but to follow it without much ado. However, there is one

weighty reason dissuading me from blindly applying the ratio of such decision to

the facts and circumstances. Decisions of the Hon'ble Supreme Court are legion

that a decision is an authority for what it actually decides, and not what can

logically be deduced therefrom. It has been held in the decision reported in

(1976) 3 SCC 334 (Regional Manager v. Pawan Kumar Dubey) that it is the rule

deducible from the application of law to the facts and circumstances of a case

which constitutes its ratio decidendi and not some conclusion based on facts

which may appear to be similar; an additional or different fact may make a world

of difference between conclusions in two cases even when the same principles

are applied in each case to similar facts. With respect, what prompted the

Hon'ble Supreme Court to not allow the civil appeals before it filed by the

present appellants based on the decision in Shibnath Koley (supra), if such

decision concluded the controversy of rural librarians being entitled to better pay

based on higher qualifications once and for all, is not spelt out in its order dated

February 3, 2017. It would not be preposterous to assume that the Hon'ble

Supreme Court felt that the claims of the appellants ought also to be considered

in the light of memorandum dated July 21, 1990, which was a part of the

materials before it; or else, there could be no plausible reason for fresh

consideration (of the matter) in accordance with law. There cannot be any

gainsaying that with the passing of the said order directing fresh consideration

(of the matter) in accordance with law, the controversy has to be decided not

only bearing in mind the ratio decidendi of the decision in Shibnath Koley (supra), to the extent applicable, but also giving due regard to the contents of

un-amended paragraph 16(3) of memorandum dated March 7, 1990, read with

memoranda dated July 21, 1990 and July 26, 1994. Bearing in mind the principle

of law laid down in Pawan Kumar Dubey (supra), and on the face of paragraph

16(3) of memorandum dated March 7, 1990 having been amended by

memorandum dated July 21, 1990, followed by memorandum dated July 26,

1994, I have no doubt that the reasoning in paragraph 6 of the decision in

Shibnath Koley (supra) of taking back of the benefit being "too late in the day"

and "the Government could not have looked back" would not apply here.

Memorandum dated July 21, 1990 was issued barely four and a half months after

memorandum dated March 7, 1990 was issued. No financial benefit had passed

on to the rural librarians in terms of memorandum dated March 7, 1990. The

Government having sought to confer a benefit, it had the right to withdraw the

same. It is not as if a vested right had accrued, which could not have been taken

back.

136. My learned brother has in a list indicated the names of the

librarians who acquired higher qualifications before and after July 21, 1990,

being the cut-off date.

137. Those librarians who acquired higher qualifications after July 21,

1990 had no legal right to move the writ court for enforcement of the terms of

un-amended paragraph 16(3) of memorandum dated March 7, 1990. The benefit

that was conferred thereby was plainly not there when they moved the writ

court. Rightly so, it is proposed by my learned brother that such of the appellants

who acquired higher qualifications after the cut-off date i.e. July 21, 1990, are not entitled to the benefit of higher pay and I fully agree with His Lordship that

the appeal at their instance ought to be dismissed.

138. At this stage, it is also considered appropriate to record my

agreement with the views expressed by my learned brother that neither is the

decision in Shibnath Koley (supra) a judgment in rem nor are the librarians who

have acquired higher qualifications after the cut-off date entitled to any benefit

flowing from memorandum dated June 10, 2014, as interpreted in the order of

the learned Judge dated June 9, 2016 while disposing of a batch of writ petitions

with W.P. 7150(W) of 2015 being the lead case. With utmost respect to the

learned Judge who decided W.P. 7150(W) of 2015, the memorandum dated June

10, 2014 [which allowed benefits of better pay to the librarian respondents in

Shibnath Koley (supra)] was misread and, therefore, cannot be of any persuasive

value. Insofar as the decision of the coordinate Bench dated January 4, 2017 in

State of West Bengal -v- Rafique Sekh (of which I was a member) is concerned,

the appeal of the State was dismissed not because the aforesaid decision dated

June 9, 2016 in W.P. 7150(W) of 2015 had been found to be legal but on the

premise that the State not having challenged such decision in an appropriate

proceeding, the same had attained finality and further orders on the

administrative side could not have been passed contrary to such final and

binding decision.

139. However, those librarians who have acquired higher qualifications

before the cut-off date of July 21, 1990 are entitled to claim that they be treated

at par with the librarians (Shibnath Koley & others) who were before the Hon'ble

Supreme Court as respondents in Civil Appeal Nos. 6967-6970 of 2009. In fact,

the State in its counter-affidavit before the Hon'ble Supreme Court was also candid in its stance that at least some of the appellants were entitled to better

pay based on higher qualifications without, however, identifying them. In my

opinion, the issue as to whether the librarians who had acquired higher

qualifications before the cut-off date i.e. July 21, 1990 is no longer res integra in

view of the decision of the Hon'ble Supreme Court in Shibnath Koley (supra).

140. For the foregoing reasons, I would allow the appeal in part and

direct the State to confer similar benefits on the appellants referred to in the

preceding paragraph, which have been extended to Shibnath Koley and others

by memorandum dated June 10, 2014, within three months from date of receipt

of a copy of this judgment and order. The appeal, at their instance, stands

allowed.

141. Parties shall bear their own costs.

(DIPANKAR DATTA, J.)