The main legal point established in the judgment is that the statutory rules provided for separate category-wise lists after the application procedure and after the total marks were available after the selection test, ensuring the purpose of reservation and affirmative action.

Protik Prakash Banerjee, J.

1. Other backward class candidates are aggrieved with a selection process for public employment. They complain that when the Constitution of India has guaranteed affirmative action in their favour, the State, while implementing the statutory rules for such selection, has done exactly the opposite. That is why, they say, that for candidates from the "general" better called "unreserved" category, the cut-off marks for being called to sit for the written test is 60% while for them it is 68%.

2. Three sets of writ petitioners are appellants in these three appeals. These appeals are directed against three several judgments and orders, all dated May 13, 2010 passed by the learned single Judge.

3. The first of these judgments was passed in WP No. 9524 (W) of 2010 [Prashanta Mahato and Others-v-The State of West Bengal and Others], dismissing the writ petition, without calling for affidavits. WP No.9038 (W) of 2010 [Mahadev Mahato and Others-v-The State of West Bengal and Others] and WP No.9037 (W) of 2010 [Ram Shankar Mahato and Others-v-The State of West Bengal Others] were also listed on the same day. They were dismissed by separate orders on May 13, 2010 itself, following the ratio of the judgment passed in WP No.9524 (W) of 2010. The learned single Judge held that the issue sought to be raised in these other writ petitions were more or less identical to the first writ petition dismissed by His Lordship.

4. These were all appealed against, by way of FMA 2376 of 2011, AST 405 of 2010 (Mahadev Mahato, supra), FMA 2377 of 2011, AST 411 of 2010 (Prashanta Mahato, supra) and FMA 2378 of 2011, AST 168 of 2010 [Ram Shankar Mahato, supra]. In the first round of litigation, a coordinate bench by a judgment dated December 16, 2010 was pleased to reverse the decisions, allow the appeals and pass orders on the basis of proposals made on behalf of the respondent no. 1 and on a concession made by the learned Advocate General of the respondent no. 1. The matters were carried to the Hon'ble Supreme Court by way of special leave to appeal, which was granted. The Hon'ble Supreme Court by a common order dated July 18, 2014 was pleased to set aside the judgments under appeal finding substance in the contention that the appellate judgments were passed on concession affecting the valuable rights of non-parties, and to restore "to the file of the High Court for fresh disposal in accordance with law. Appeals are allowed to the above extent." Some of those affected non-parties had applied for intervention before the Hon'ble Supreme Court. These were allowed by the Hon'ble Supreme Court itself, to the extent that they were directed to be impleaded in the restored appeals before this court. Some others claiming to stand on a similar footing also applied for intervention before this court after such order, which this court allowed by an order dated May 4, 2018.

5. As I see it, the effect of the above journey to the Hon'ble Supreme Court is that nothing remains of the order dated December 16, 2010. Even the reasoning recorded by the coordinate bench prior to recording the concession made on behalf of the respondent no. 1, is no longer there as a ratio which binds this court, since the Hon'ble Supreme Court has clearly been pleased to record that the judgment was based on concession of the learned Advocate General, and set aside the order and direct this court to decide the matter a fresh in accordance with law. That "freshness" cannot come if this court revives and continues the stale reasoning which too was set aside. This court has already held, in the case of Pradip Kumar Karak and Others-v-State of West Bengal and Others reported in, (2018) 4 CalHN 131 (Cal), that when the Hon'ble Supreme Court passes such a direction, all the questions remain open to be decided by the High Court in the appeal as restored to file. Thi