Shekhar B. Saraf, J. - (1.) The present memorandum of review filed by the State of West Bengal seeks a review of a judgment and order dated August, 31, 2018 passed by the Division Bench of this High Court comprising of the Hon'ble Justice Debasish Kar Gupta and the Hon'ble Justice Shekhar B. Saraf in WPST No. 45 of 2017 (Confederation of State Government Employees, West Bengal and Others -v- the State of West Bengal and Others) (hereinafter referred to as 'said judgment'). The said judgment was delivered on a challenge of a judgment passed by the West Bengal Administrative Tribunal (hereinafter referred to as 'Tribunal').
(2.) The Learned Advocate General appearing for the State of West Bengal sought the review on several grounds as enumerated below: a. The Court while passing the said judgment had not put the parties on notice that the matter shall be remanded to the Tribunal for reconsideration. The Learned Advocate General argued that remand could not have been made in a routine manner unless the same had been specifically pleaded and taken as a ground in the writ petition. He relied on the Supreme Court judgment in Syeda Rahimunnisa - v- Malan Bi (Dead) By Legal Representatives and Another, 2016 10 SCC 315 to support his contention that unless a substantial question of law was framed by the Court, the Court could not have remanded the matter to the Tribunal. b. The Court in the said judgment had relied upon ten judgments that were neither cited by either of the parties nor referred to by the judges during the hearing. He argued that having not put the parties to notice of these ten judgments the court had violated the principles of natural justice, and accordingly, the same amounted to a mistake or error apparent on the record. Such a mistake, in his opinion could very well be corrected in review as the same had made the judgment an irregular judgment. He further relied on a Division Bench judgment of the Calcutta High Court in Delta International Limited -v- Nupur Mitra, 2018 AIR(Cal) 8 to support his argument that a decision when made on the basis of a judicial precedent not referred to in course of the argument would amount to a breach of the most elementary canons of natural justice. He further relied on a Privy Council judgment in Grafton Isaacs -v- Emery Robertson reported in 3 W.L.R. 705 to draw a distinction between a 'regular' order and an 'irregular' order. c. The third ground for review argued by the Learned Advocate General was that the Court had ignored a binding precedent and relied upon irrelevant judgments having no nexus with the core issue and accordingly had committed a patent error. He argued that ignorance of a binding precedent is fatal and amounts to a manifest and palpable error. To buttress this argument he placed reliance on paragraphs 57 and 76 of A. R. Antulay -v- R.S. Nayak and Another, 1988 2 SCC 602 and State of Rajasthan and Another -v- Surendra Mohnot and Others, 2014 14 SCC 77. d. The Learned Advocate General thereafter relied on the affidavit in opposition filed on behalf of the respondent nos. 1 and 2 before the earlier Division Bench and placed reliance on paragraphs 6(b) and 6(c) at page 13 of the said affidavit wherein it had been argued by the State of West Bengal that the settled principle of law is that payment of dearness allowance is not a justiciable right and since the same was not a justiciable right no writ of mandamus could be issued by the courts on the State Government for payment of dearness allowance, either at a particular rate or within a particular time frame. He argued that the court had completely ignored these averments made in the affidavit in opposition. He further argued that the ratio laid down in the case of State of Madhya Pradesh -v- G. C. Mandawar, 1954 AIR(SC) 493 that dearness allowance is a exgratia payment and no writ of mandamus would lie for the same was completely ignored by the Court. In view of the same, said judgment contained palpable and patent errors that needed to be reviewed. In support of the above argument, he placed reliance on the judgment in G. C. Mandawar (supra) and also the Supreme Court judgments in State of Jammu and Kashmir -v-R.K. Zalpuri and Others, 2015 15 SCC 602 and A. K. Kaul and Another -v- Union of India and Another, 1995 4 SCC 73 to emphasize on the concept of justiciable right.
(3.) Sardar Amzad Ali Khan, appearing on behalf of the petitioners supported the judgment passed on August 31, 2018 and submitted that the present review petition is nothing but an appeal in disguise. He submitted that there is no error apparent on the record and the review jurisdiction being extremely limited, as curtailed by Order XLVII, Rule 1 of the Code of Civil Procedure, the present review petition needs to be dismissed with impunity. He submitted that it is crystal clear from the said judgment that having decided the principal issue as to whether dearness allowance is a legally enforceable right, the court was absolutely justified to remand the other issues to the Tribunal. He submitted that this Court on the earlier occasion had put the parties on notice with regard to the issue of remand. He further submitted that the Court had remanded the matter with regard to the second and third issues so that neither of the parties would lose a forum. He placed paragraph 63 to 65 of the said judgment to indicate that G. C. Mandawar (supra) had been specifically dealt with by the Court and distinguished with reasons. Accordingly, the argument of the Learned Advocate General that a binding precedent had been ignored is without any basis whatsoever. He further placed paragraph 83 of the said judgment to indicate that the Court had given reasons as to why the matter needed to be remanded and only after giving those reasons were the second and third issues remanded. To support his argument, that no review lies in the present facts and circumstances he relied on two Calcutta High Court judgment in Makhan Chandra Das -v- Parimal Chandra Das, 2013 3 CalHN 597 (Cal) (para 7) and Spark Dealers Private Limited -v- Official Liquidator, 2015 2 CalHN 241 (Cal).;