IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:-

The Hon’ble Justice Madhuresh Prasad And The Hon’ble Justice Supratim Bhattacharya W.P.S.T. 163 of 2023 Minati Chakraborty Versus State of West Bengal and others For the Petitioner : Mr. Biswanath Chakraborti, Mr. Krishnendu Bera.

For the State : Mr. Tapan Kumar Mukherjee, Ld. AGP Mr. Pinaki Dhole, Mr. Sayan Dutta.

Judgment on : June 10, 2025 Madhuresh Prasad, J.:

1. The writ petitioner is applicant number 1 (one) before the West Bengal Administrative Tribunal (“SAT” for short) in O.A. No. 1057 of 2015, seeking the following relief:

“8. RELIEFS SOUGHT:

(a) Provision contained in sub Rule (vii) of Rule 189 A of the West Bengal Death Cum Retirement benefits Rule, 1971 be declared ultra vires to constitution of India.

b) In the event of a declaration proclaiming sub Rule (vii) of Rule 189 A of the West Bengal Death Cum Retirement benefits Rule,1971 ultra vires to constitution of India direction be issued to grant the benefits of family pension to the applicants as admissible to the family of a deceased normal pensioner.

c) Respondents may be directed to transmit all records pertaining to this case for better appreciation of the matter by this Hon'ble Tribunal.

d) Any other order and/or orders and/or orders or further orders as this Hon'ble Tribunal may deem fit and proper for administration of justice and equity.

e) Leave be granted to file the application collectively.

f) Costs.”

2. The learned AGP raised a preliminary objection regarding maintainability of the instant writ petition. He submits that in view of decision of the Apex Court in the case of L. Chandra Kumar vs. Union of India and others reported in (1995) 1 SCC 261 the jurisdiction of the writ Court under Article 226 of the Constitution of India has been recognized so as to exercise judicial review in respect of an order passed by the Tribunal. The judgment, however, has held that the Tribunal shall continue to be the Court of first instance. The petitioner has already moved the Tribunal and her O.A. is still pending. Under such circumstance, this Court should not proceed to consider the matter until and unless the petitioner’s claim is decided by the Tribunal. He has also relied upon decision of the Apex Court in the case of State of West Bengal and Others vs. Samar Kumar Sarkar reported in (2009) 15 SCC 444

3. We find that in the case of L.Chandra Kumar (Supra) the Apex Court has held the jurisdiction of this Court under Article 226/227 of the Constitution of India and the jurisdiction of the Hon’ble Supreme Court of India under Article 32 of the Constitution of India to be a part of the inviolable basic structure of our constitution. It has proceeded to hold that such jurisdiction cannot be ousted, though other Courts and Tribunals may perform a supplemental role in discharging the powers conferred under Article 226/227 of the Constitution of India. The competence of the Tribunals created under Article 323-A and 323-B of the Constitution of India to test constitutional validity of statutory provisions and rules has also been acknowledged. The Apex Court thus held all decisions of these Tribunals to be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. Having observed so, the Apex Court has proceeded to state in unambiguous terms that “the Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned”.

4. The exposition of law has been made considering various earlier judgments of the Apex Court. The law has been stated as regards the basic structure of the Con