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IN THE HIGH COURT OF CALCUTTA
Shekhar B Saraf, J.
Susmita Gayen - Appellant
Versus
State Of West Bengal & Ors. - Respondents
W.P.O. No. 119 of 2020
Decided On : 11-02-2021
WRIT PETITION - MAINTAINABILITY - ORIGINAL SIDE - CAUSE OF ACTION - TRANSFER OF WRIT PETITION - INHERENT POWER OF THE COURT - RULES OF 1986 - INTERPRETATION - HARMONIOUS CONSTRUCTION - DISCRETIONARY REMEDY - ARTICLE 226 OF THE CONSTITUTION OF INDIA - PRELIMINARY OBJECTION - WAIVER OF RIGHT - CONVERSION OF WRIT PETITION - APPELLATE SIDE - URGENCY - MOTION - SUPPLEMENTARY LIST.
Fact of the Case:
The writ petitioner, an Assistant Teacher, challenged an impugned order dated November 19, 2012 issued by the West Bengal Council of Higher Secondary Education (Council) directing adverse action against her for allegedly not discharging her duties in evaluating answer scripts of the Higher Secondary Examination conducted in 2012. As a result of such impugned order, the School Management concerned, which employs the services of the writ petitioner, prohibited three financial increments due to the petitioner (amounting to Rs. five thousand per month) from September 2015 onwards and such a prohibition continues as on date.
Finding of the Court:
1. The writ petition is not entertainable on the Original Side since no cause of action or any part thereof arose within the Original Side jurisdiction of this Court. 2. The writ petition is hereby directed to be released from the Original Side with a direction upon the Registry to register the same in the Appellate Side.
Issues: 1. Whether this writ petition is entertainable on the Original Side of this Court when a preliminary objection has been raised on two counts: a) That the writ petitioner as well as all the respondents arraigned reside or carry on their businesses beyond the Original Side jurisdiction of this Court and, b) That the cause of action or any part thereof has also arisen beyond the Original Side jurisdiction of this Court. 2. In the event that this writ petition is not entertainable on the Original Side, what is the lawful course of action?
Ratio Decidendi: 1. The Rules of 1986, primarily Rules 4, 5 and 7 have to be so construed and read in a harmonious manner so as to not render it otiose while also ensuring that it does not throw a spanner in the works when it comes to the overall exercise of the Court's writ jurisdiction, which is essentially governed by Article 226 of the Constitution of India and which cannot be circumscribed by the "subsidiary" Rules of 1986. 2. If such a preliminary objection is raised before a Judge, the grounds of examination for the same, as directed by the Rules 4, 5 and 7 of the Rules of 1986, shall be the following: a) Rules 4 and 5, read strict sensu, prescribes that all applications for writs in the nature of mandamus, quo warranto, prohibition and certiorari shall be dealt with by the Original Side and shall be marked as "Original Side" if all the respondents reside or carry on their business or have their offices situated or such records are located/available within the ordinary original civil jurisdiction of this High Court. b) Rule 7 read lato sensu and by "necessary implication", takes within its ambit all other applications which are beyond the original civil jurisdiction of this High Court and shall be dealt with by the Appellate Side of the High Court and marked as "Appellate Side" applications. c) In cases of writ petitions/applications wherein the cause of action or any part thereof were to arise within the Original Side jurisdiction of the Court, such writ petitions/applications are to be filed in consonance with Rules 4 and 5 of the Rules of 1986 (i.e. the Original Side) whereas other applications are to be filed in consonance with Rule 7 of the aforesaid Rules (i.e. the Appellate Side). 3. If such writ petition/application under Article 226 of the Constitution of India, notwithstanding that it is constitutionally sound, appears to be run afoul of Rules 4, 5 or 7 of the Rules of 1986, and as a result is filed under a wrong administrative nomenclature (Original Side/Appellate Side), it cannot entail the dismissal on this ground alone. 4. While "cross-entertainment" of such applications has been discouraged, the inherent power vested in the High Court permits the conversion and transfer of such writ applications/petitions from one administrative side to another, considering that a Judge of this Court normally possesses requisite determination in both the Original as well as Appellate Sides. 5. If a Judge deems it fit that such a writ petition/application runs afoul of Rules 4, 5 and 7 of the Rules of 1986, she can transfer such writ petition from one administrative Side to the other, upon a procedural conversion of the same i.e. from a "WPO" nomenclature to a "WPA" nomenclature or vice versa, by issuing necessary directions in this regard to the concerned Registry.
Final Decision: The writ petition is not entertainable on the Original Side and is hereby directed to be released from the Original Side with a direction upon the Registry to register the same in the Appellate Side.
JUDGMENT
Shekhar B. Saraf, J. - The writ petitioner has challenged an impugned order dated November 19, 2012 issued by the West Bengal Council of Higher Secondary Education (hereinafter referred to as the "Council") directing adverse action against the writ petitioner for allegedly not discharging her duties in evaluating answer scripts of the Higher Secondary Examination conducted in 2012. As a result of such impugned order November 19, 2012, the School Management concerned, which employs the services of the writ petitioner as an Assistant Teacher reacted by prohibiting three financial increments due to the petitioner (amounting to Rs. five thousand per month) from September 2015 onwards and such a prohibition continues as on date.
2. When the matter was taken up for hearing on February 2, 2021 and before the Court could have an opportunity to take up this writ petition on merits, Mr. Santanu Kumar Mitra, learned counsel appearing on behalf of the Council raised a preliminary objection on the maintainability of this writ petition on the Original Side of this Court. Mr. Mitra's primary contention for such an objection was the reason that the cause of action arose beyond the territorial limits of the Original Side of this Court as well as the fact that the writ petitioner and none of the respondents arraigned in this writ petition, were subject to the Original Side jurisdiction of this Court.
3. Mr. Anjan Bhattacharya, the learned counsel appearing for the writ petitioner, sought to repel such an objection by submitting that such an objection was extremely "technical" in nature and for such reason, should not be entertained by this Court. In furtherance of this submission, Mr. Bhattacharya sought to place his reliance on certain precedents passed by Division Benches of this Court to repel the preliminary objection so pressed and prayed for some accommodation to produce the same. Accordingly, such liberty was granted.
4. On February 4, 2021 when the matter was next taken up, Mr. Bhattacharya was armed with a catena of precedents to prove that this Court was well within its powers to hear this writ petition on the Original Side. Mr. Bhattacharya placed his reliance on the following judgments to buttress his argument:
a) Sakti Steel Traders -v- Ashok Chakraborty, (1992) AIR Calcutta 187;
b) Sri. Balaram Poddar -v- Sri. Bhaskar Chandra Mondal, (1998) 3 SLR 545;
c) An unreported decision rendered by a Division Bench of this Court dated November 21, 2013, in Mrs. Ila Chakraborty -v- the State of West Bengal & Ors (APOT No. 349 of 2013);
d) Bimal Kumar Ghosh -v- Kolkata Municipal Corporation,2015 SCCOnLineCal 3811;
e) An unreported decision rendered by a Division Bench of this Court dated April 16, 2019, in Ramnagar Atul Vidyalaya (H.S.) & Ors. - v- Tapas Kumar Das & Ors (APO No. 58 of 2019);
f) An unreported decision of a coordinate Bench dated July 25, 2019 passed in Amlan Singha -v- the State of West Bengal & Ors in W.P. 289 of 2019;
g) An unreported decision rendered by a Division Bench of this Court dated July 8, 2019, in M/s. Eastern Coalfields Ltd. & Ors. -vPremlata Devi & Ors (APOT No. 49 of 2019);
5. Not to be left far behind, Mr. Mitra placed his reliance of two coordinate bench decisions of this Court to buttress his argument that this writ petition was not maintainable on the Original Side and that his preliminary objection is not without substance. These precedents are as follows:
a) Ajoy Kumar Ghosh -v- the State of West Bengal & Ors.,1995 1 CalLJ 121;
b) An unreported decision dated July 21, 2016 passed in Nirmalya Bose -v- West Bengal Council of Higher Secondary Education & Anr. , in W.P. 528 of 2016;
6. I have heard the learned counsels appearing on behalf of both the parties and perused the materials placed on record.
7. Therefore, the question of law that falls for consideration is as follows:
I. Whether this writ petition is entertainable on the Original Side of this Court when a preliminary objection has been raise
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