Susmita Gayen v. the State of West Bengal and Ors.

Calcutta HC11 Feb 2021WPO/119/2020

Case brief

AI extract

What is this about?

A teacher's challenge to adverse action affecting increments raised an objection to Original Side entertainability. The court held that the petition belonged on the Appellate Side but could not be dismissed merely for incorrect filing. It directed conversion, registration and listing there without deciding the merits.

What did the court decide?

Registry directed to convert and register the petition on the Appellate Side within one week and list it under Motion immediately thereafter.

What the court decided

Susmita Gayen Vs the State of West Bengal and Ors. — Service and Employment | Calcutta HC (2021)

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this court the jurisdiction to entertain and deal with the writ petition and the rules set out above have been framed only for convenience of business". Subsequently, this very question came up for consideration before a Division Bench of this Court in the case of (3) United Province Electric Supply & Co. & Ors. v. Industrial Tribunal (III) Allahabad & Ors. reported in (1975) 79 CWN page 312 wherein Mr. S. P. Mitra the Chief Justice of this court sitting with Mr. S. K. Roy Chowdhury, J. agreed with the view expressed by the earlier Division Bench in Messrs. Arther Butler & Co.'s case (Supra), and observed that "In the absence of any such rules in a case in which the cause of action either wholly or in part arises within the territorial jurisdiction of the High Court at Calcutta, a writ petition may be filed either in the Original Side or in the Appellate Side according to the choice and convenience of the petitioner". In para 17 the Division Bench observed that "the question referred to us is whether an application under Art. 226 of the Constitution can be maintained on the Original Side of this court where all the persons and authorities against whom the rule is asked for are outside the jurisdiction of this High Court, but where part of the cause of action is alleged to have arisen within the Original jurisdiction of this Court. Our answer to this question is in the affirmative ". The earlier Division Bench judgment presided over by B. C. Mitra, J. in Arther Butler & Co.'s case is the authority for the proposition that the writ rules have been framed only for the purpose of convenience and that does not ' take away the jurisdiction of a particular Judge whether sitting in Appellate Side or in Original Side. The later judgment of this Court in 1985 C.H.N. 187 had only considered the Division Bench judgment of this Court in United Province Electric Supply Co.'s case (Supra), and sought to distinguish the same on the ground that this case was an authority for jurisdiction in regard to a case where part of cause of action arose within the Original Jurisdiction of this Court but the later judgment of Division Bench had completely overlooked and failed to take into consideration of the earlier Division Bench judgment of this Court in Arther Butler & Co.'s case (Supra).

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as 'Appellate Side' application. Reading the said rules it is also clear that it was never intended by the Rule making authority that this rule is mandatory in nature. If the reference is made to the relevant provisions of Civil Procedure Code, it would be abundantly clear that the provision of the Civil Procedure Code in this regard is clear and mandatory and there is no scope for making any departure.…...[T]he rule framed under Article 226 of the Constitution of India is completely silent on this aspect of the matter. The provision of the Civil Procedure Code is expressly inapplicable in case of writ proceeding. So far as the writ petitions are concerned, it has to be presented to the Judge having writ jurisdiction. No provision has been made in the writ rules for return of the writ petition if it was filed before an appellate side Judge when it was an original side writ. If the Original Side writ Judge had writ jurisdiction to hear and dispose of the matter, in that event, it can also dismiss the same. A petition can be dismissed if the court had jurisdiction to deal with it. If the Court had no jurisdiction to deal with it, it cannot dismiss it. The only requirement under the rules was to make certain petitions in the Appellate Side and certain petitions in the Original Side. It does not lay down any other embargo with regard to the jurisdiction of a particular Judge, either taking Appellate Side or the Original Side. In my view, this artificial distinction between the Appellate Side and the Original Side of this Court cannot take away the jurisdiction of a Judge, should have been empowered to deal with the writ application by the learned Chief Judge. It is not a case of entertaining a writ application by the learned Judge who had no determination. It is a case where a particular Judge sitting in the Appellate Side or Original Side, has entertained a writ application and that under such circumstances, I am unable to hold that simply because, the application should have been marked as Appellate Side, the application should be dismissed by a Judge sitting in Original Side because the Judge sitting in Original Side has no jurisdiction to hear it. If it was the intention of the writ rules that the classification of the Original Side and the Appellate Side should be strictly followed and that these rules are mandatory in nature, in that event, that should have a provision akin to the Civil Procedure Code in this regard and that there would have been certain provisions declaring that unless this rule is strictly followed, the writ application should be incompetent and should not be followed by this court by a particular side. Looking at the provision of Rule 4 in case of mandamus, it should be dealt with Original Side application. In case of certiorari, records must be in the Original Side. The said rules are strictly construed and an

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Appellate Side. It cannot be said that the Calcutta High Court has been divided into two High Courts namely, Calcutta High Court Original Side, Calcutta High Court Appellate Side. A Judge of the Calcutta High Court is a Judge of the Calcutta High Court as a whole it cannot be said that the Judge sitting in the Original Side is a Judge of the Original Side of the Calcutta High Court and a Judge sitting in the Appellate Side is a Judge of the Appellate Side of the Calcutta High Court. It is the determination made by the Hon'ble Chief Justice of the Calcutta High Court and a Judge takes up a matter relating to Original Side and matters relating to the Appellate Side but fact remains, a Judge of a High Court is a Judge of the High Court Cal. which includes Original Side and also the Appellate Side. Whan a litigant filed an application under the Article 226 of the Constitution of India the description constitutional writ jurisdiction is the description of the jurisdiction of the High Court. The word "Original Side" or the word "Appellate Side" are superfluous. The said words do not confer any jurisdiction on the High Court whatsoever. It is for the identification for the facility of the administration that the application will be heard in the Original Side and/or in the Appellate Side. When a litigant files an application in the High Court and the application is entertained by the Calcutta High Court, it cannot be said that the application was filed before the Original Side of the High Court, Calcutta or the application is filed in the Appellate Side of the High Court, Calcutta. I have already pointed out that the Calcutta High Court is one High Court and not two High Courts and when an application filed before the Calcutta High Court and is entertained by any Judge of this Court whether in the Original Side or in the Appellate Side in its writ jurisdiction, the said application got to be decided on merit and it cannot be thrown away or dismissed on the ground that the same should be filed in the Appellate Side or in the Original Side and/or the lack of jurisdiction of the Judge concerned in the Calcutta High Court. Since the present application was entertained by this Court, I hold the applicant cannot be denied justice by holding that this matter should be heard by a Judge of the Appellate Side and as such the application should be dismissed. As the same is tantamount to denial of justices to a litigant which he is entitled to under Article 226 of the Constitution of India, and this Court will be failing in it's duty if the application is not disposed of on merit.”

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" 11) In support of the other preliminary point regarding the lack of jurisdiction of this court in entertaining the writ application on the Appellate Side, the learned advocate appearing for the appellants drew our attention to a Division Bench judgment of this court in the case of University of Calcutta & Ors. v. Sri Shyamal Kumar Das & reported in 1984 (2) CLJ 320. It was very strongly urged that in the light of the ratio laid down in that judgment, the writ petition of the petitioners ought to have been filed on the original side of this court since it was not maintainable on the appellate side and, therefore, the same having wrongly been filed on the Appellate Side, following the analogy of the Order passed in abovereferred case, it attracted straight dismissal by the Court. We are not at all impressed by this submission. First of all, we want to make it very clear that the jurisdiction of this court under Article 226 of the Constitution is not at all dependent upon any subsidiary Rules as such. Jurisdiction under Article 226 is exercisable by this court under this court's constitutional power since any person approaching this court for the exercise of such of power does so based on his guaranteed right under this Article of the Constitution. Such constitutionally guaranteed right cannot be taken away or frustrated merely because the writ application for enforcing a right, filed under Article 226 may have wrongly been classified in terms of such subsidiary Rules on the Original Side or the Appellate Side. If a writ application under Article 226, even though otherwise maintainable constitutionally speaking, comes to be wrongly filed or entertained on the Appellate Side because of some socalled infraction of some Rule on the subject, in our opinion, it cannot entail the dismissal on this ground alone. The filing of the writ application either on the Original Side or the Appellate Side, as the case may be has nothing to do with its maintainability. The question of maintainability of a writ application is totally unrelated to any subsidiary Rules framed on

Susmita Gayen v. the State of West Bengal and Ors.

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Susmita Gayen v. the State of West Bengal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

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Arup Pal Vs State of West Bengal and Ors.

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