Bar & Bench (www.barandbench.

com)

IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction
Appellate Side

Present:

The Hon’ble Justice Harish Tandon
                          And
The Hon’ble Justice Shekhar B. Saraf

R.V.W. No. 159 of 2018

With
C.A.N. 8729 of 2018
in
W.P.S.T. 45 of 2017
The State of West Bengal & Anr.
Versus
Confederation of State Government Employees & Ors.

For the Applicants/Respondents : Mr. Kishore Dutta,

Learned Advocate General
Mr. Joytosh Majumder,
Ld. Govt. Pleader
Mr. S. Ghosh

For the Respondents/Writ Petitioners : Mr. Sardar Amjad Ali,

Learned Senior Advocate
Mr. Prabir Chatterjee,
Mr. Masum Ali Sardar

For the Respondent No. 8 : Mr. Bikash Ranjan Bhattacharyya,

Mr. Firdous Samim

Hearing Concluded on : 08.02.2019

Judgment on: 07.03.2019

Shekhar B. Saraf, J.:

 Bar & Bench (www.barandbench.com)

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
reported in 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
 Bar & Bench (www.barandbench.com)

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 reported in AIR 2018 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 reported in (1988) 2 SCC 602 and State of Rajasthan
and Another –v- Surendra Mohnot and Others reported in 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
 Bar & Bench (www.barandbench.com)

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 reported in AIR 1954 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 reported in 2015 (15) SCC 602 and A. K.
Kaul and Another –v- Union of India and Another reported in
(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
 Bar & Bench (www.barandbench.com)

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 reported in (2013) 3 CHN (Cal) 597 (para 7) and
Spark Dealers Private Limited –v- Official Liquidator reported in
(2015) 2 CHN (Cal) 241.

4. At the very threshold, it would be apt to discuss the jurisdiction of this

court in review of its own judgment. On a reading and comprehension of
the Supreme Court judgments on this issue the following principles
emerge:-

A. The power to review is inherent in the High Court and the High Court
can review its own order/judgment passed in a writ petition.

B. This power of review is a limited power and would be governed by the

principles of Section 151 read with Order XLVII Rule 1 of the Code of
Civil Procedure.

C. Firstly, a court can review its own judgment when there is discovery
of new and important matter or evidence that was in spite of exercise
of due diligence not within the knowledge or could not be produced
due to cogent reasons by the party seeking a review. Secondly, the
court may review its order or judgment on account of some mistake
or error apparent on the face of the record. Thirdly, a residuary
 Bar & Bench (www.barandbench.com)

clause in Rule 1 of Order XLVII provides for a review ‘for any other
sufficient reason’. It is to be noted that the Apex Court on several
occasions has held that the third condition “for any other sufficient
reason” has to be read within the four corners of the first two
conditions.

D. An error which is not self-evident and has to be detected by a

process of reasoning is not an error apparent on the face of the
record.

E. A review petition has a limited purpose and cannot be allowed to be

“an appeal in disguise”. There is a sharp distinction between an
erroneous decision that can be only appealed against and an error
apparent on the face of the record that is subject to review.

[See Sasi (D through LRs -v- Aravindakshan Nair reported in (2017) 4

SCC, paras 6-9; Haridas Das -v- Smt. Usha Rani Banik reported in
(2006) 4 SCC 78, paras 15-18; Parsion Devi -v- Sumitri Devi reported in
1997 (8) SCC 715, paras 7-10; Aribam Tuleshwar Sharma -v- Aribam
Pishak Sharma reported in (1979) 4 SCC 389, para 3]

5. One more aspect of the matter needs to be kept in mind regarding

finality of judgments being left in suspense and the same has been
exquisitely described by Justice Krishna Iyer in P. N. Eswara Iyer –v-
The Registrar, Supreme Court of India reported in 1980 (2) SCR
889; 1980 (4) SCC 680 wherein he laments and states:

“……. unchecked review has never been the rule. It must be supported by
proper grounds. Otherwise, every disappointed litigant may avenge his
defeat by a routine review adventure and thus obstruct the disposal of
 Bar & Bench (www.barandbench.com)

the ‘virgin’ dockets waiting in the long queue for preliminary screening or
careful final hearing……..”

Justice Iyer goes on to further state as follows:

“Frivolous motions for review would ignite the ‘gambling’ element in

litigation with the finality of judgments even by the highest court, being
left in suspense. If, every vanquished party has a filing at ‘review’ lucky
dip and if, perchance, notice were issued in some cases to the opponent
the latter- and, of course, the former, - would be put to great expense and
anxiety. The very solemnity of finality, so crucial to judicial justice, would
be frustrated if such a game were to become popular.”

6. I now proceed to deal with the grounds raised by the Learned Advocate
General in this review petition seriatim. The first argument is that the
court before delivering the said judgment did not put the parties on
notice with regard to the issue of remand. If my memory serves me right
this is factually incorrect. In fact, on going down memory lane, the
exchange between the Bench and the Advocate General is quite fresh in
my mind today. The Court had indicated that the second and third
issues require a further proper examination by the Tribunal below. In
reply, the Advocate General had stated that an affidavit had been filed
by the State before the High Court and the issues could be decided
based on the same. In reply, the Bench had stated that the State had
not filed any affidavit before the Tribunal and it would be proper for the
State to file a detailed affidavit therein, if the matter was so remanded.
It was also remarked that deciding the matter at the High Court would
denude one or either of the parties of a forum. Be as that may, the
argument put forth that a remand cannot be directed by the writ court
unless the same has been specifically pleaded or the parties have been
put to notice is not a acceptable argument. The judgment relied on by
 Bar & Bench (www.barandbench.com)

the Learned Advocate General in Syeda Rahimunnisa (supra) related

to a second appeal under Section 100 read with Order 42 of the CPC,
1908 that requires that the High Court shall formulate the substantial
questions of law, and thereafter, answer the same. In light of the same,
the Supreme Court had held that without there being a substantial
question of law on whether a remand should take place, the High Court
could not have remanded the matter. It is axiomatic that the jurisdiction
of the High Court in writ jurisdiction is far wider and expansive than the
jurisdiction in second appeal where only substantial questions of law
are addressed by the High Court. In view of the same, the first ground of
review raised by the Advocate General is rejected.

7. The second issue relates to ten judgments that were quoted in the said
judgment having not been alluded to by the Bench at the time of
hearing. The argument of the Learned Advocate General was that these
ten judgments should have been referred to by the judges during the
hearing and an opportunity should have been given to the parties to
distinguish these ten judgments. On a close analysis of the said
judgment it is clear that nine out of these ten judgments were referred
to by the author of the said judgment between paragraphs 31 to 48,
where the author, as a prelude, has discussed (a) the relationship
between the government and its employees, (b) the right of government
employees to get remuneration, (c) introduction of the concept of
payment of dearness allowance to the government employees and (d) the
mode of performing the function of fixing and revising the remuneration
of the government employees by the government. It is only from
paragraph 49 that the author goes on to discuss each of the three
issues decided in the said judgment. As would be palpably clear, the
above nine judgments are not directly linked in any manner to
addressing and answering the issues. The tenth judgment has been
referred to at paragraph 62 of the said judgment and the observation of
 Bar & Bench (www.barandbench.com)

the Apex Court has been quoted that simply states that ‘observations of
courts must be read in context in which they appear and that judgments
are not to be construed as statutes’. As would be evident from the
paragraph that was cited, the author was only referring to the judgment
to lay down the rules of interpretations of judgments. Accordingly, it is
clear that the tenth judgment also did not deal with the issue to be
answered and was only used for the purpose of laying down the law on
interpretation of judgments. In light of the above, I am unable to agree
with the Advocate General that there has been a breach of the principles
of natural justice.

8. Furthermore, the judgment referred to by him in relation to the above

issue is distinguishable on both facts and law. In Delta International
(supra), the appellants had advanced three arguments to establish their
case. The third argument was that the trial court had referred to several
judgements, which were not cited in the course of the limited argument
to seek leave under Clause 12 of the Letters Patent. The trial court
referred to a judgement, without giving notice to the parties, while
deciding the entire case. Additionally, a later judgement had modified
the position taken in the judgement cited by the trial court. Thus, in
Delta International (supra), the appellant was unduly prejudiced,
because had it known of the judgement being used against it, it would
have had the opportunity to bring forward any contrary or recent
judgements to counter it. This led the Court to note that it is “generally
undesirable” that judicial precedents be referred to or “made the basis
for any finding in a judgement” without notifying the parties before it.
The instant case is, thus, distinguishable from Delta International
(supra) as none of the 10 judgments referred to by the State had formed
the basis to decide the issue at hand.
 Bar & Bench (www.barandbench.com)

9. Further, one would also have to keep in mind that the erstwhile
principles relating to breach of natural justice have been curtailed to a
large extent and cannot be applied in a vacuum without reference to the
relevant facts. The principles of natural justice are no unruly horse and
cannot be put in a straight jacket formula. The law has developed such
that one has to show that such a violation of principles of natural
justice has resulted in prejudice having been caused. In A.S. Motors
Pvt. Ltd. –v- Union of India reported in (2013) 10 SCC 114, the
Supreme Court at paragraph 8 held as follows:

“………A court examining a complaint based on violation of rules of

natural justice is entitled to see whether the aggrieved party had indeed
suffered any prejudice on account of such violation. To that extent there
has been a shift from the earlier thought that even a technical
infringement of the rules is sufficient to vitiate the action……….”

The Advocate General has failed to demonstrate as to how prejudice was

caused to the State by reference to any of these 10 judgments in the
said judgement. Accordingly, this argument holds no water and is
therefore rejected.

10. The next argument of the Learned Advocate General relates to

ignorance of a binding precedent (G. C. Mandawar (supra)). It is to be
noted that paragraphs 49 to 65 of the said judgment deals specifically
with the first issue of whether the employees serving under the
Government of West Bengal have a legally enforceable right for claiming
dearness allowance. After referring to various provisions of the ROPA
Rules, 2009 and the Memorandum bearing no. 1691-F and 1692-F,
both dated February 22, 2009, the author held that the said
memorandums created a right of dearness allowance in favour of the
employees. After holding this, the author distinguished G. C.
Mandawar (supra) at paragraph 63 and held that the said case was
distinguishable in the facts and circumstances as the above case was
 Bar & Bench (www.barandbench.com)

decided in the light of the Fundamental Rules. In G. C. Mandawar

(supra), Rule 44 of the Fundamental Rules states that, “a Local
Government ‘may’ grant such allowance to any Government servant
under its control…” Thus, under this provision, grant of dearness
allowance and how much was a matter of discretion with the local
Government, which is why no right accrued to the Government
servants and no duty was cast on the State. However, in the present
case, the grant of dearness allowance was not discretionary and a
Government employee was ‘entitled’ to the same. Having specifically
distinguished a particular judgment, rightly or wrongly, cannot bring
the said judgment under the purview of review. In the event G. C.
Mandawar (supra) had been wrongly distinguished, the only right
available to the State of West Bengal was to file an appeal. A review
cannot lie on this ground. The judgment referred to by the Learned
Advocate General in Surendra Mohnot (supra) related to a case where
a wrong authority had been cited by one party and such authority had
been wrongly conceded by the other side. Furthermore, an existing
binding precedent had been completely ignored. Such is not the case
here, and therefore, Surendra Mohnot (supra) is clearly
distinguishable and has no precedential value to the present review
petition. Ergo, this ground raised on behalf of the State stands rejected.

11. The Advocate General cited A.R. Antulay (supra) and Grafton Isaacs
(supra) to submit that if there is a violation of the principles of natural
justice while giving an order, such order is irregular and can be set
aside by the same court that passed such order. It need not be
appealed. On the other hand, a regular order has to be set aside by an
appellate court. In the instant case, there has been no violation of the
principles of natural justice as has already been held above. Thus, the
said judgement is not irregular and no circumstances arise, which will
warrant the setting aside of the said judgement in review.
 Bar & Bench (www.barandbench.com)

12. The last issue relates to the averments made in the affidavit in
opposition filed by the State before the High Court at paragraphs 6(b)
and 6(c) that submit that dearness allowance is not a justiciable right
and since dearness allowance is not a justiciable right no writ of
mandamus can be issued. The Learned Advocate General argued that
the court should have first looked into the aspect as to whether a writ
of mandamus could lie against the State for payment of dearness
allowance. He argued that the right of an employee to get dearness
allowance was not a justiciable right as the payment of such dearness
allowance was an ex gratia payment. He relied heavily on paragraph 12
of A. K. Kaul (supra). The said paragraph is delineated below:

“12. It is, therefore, necessary to deal with this question in the instant
case. We may, in this context, point out that a distinction has to be
made between judicial review and justiciability of a particular action. In
a written constitution the powers of the various organs of the State are
limited by the provisions of the Constitution. The extent of those
limitations on the powers has to be determined on an interpretation of
the relevant provisions o the Constitution. Since the task of interpreting
the provisions of the Constitution is entrusted to the Judiciary, it is
vested with the power to test the validity of an action of every authority
functioning under the Constitution on the touchstone of the Constitution
in order to ensure that the authority exercising the power conferred by
the Constitution does not transgress the limitations placed by the
Constitution on exercise of that power. This power of judicial review is,
therefore, implicit in a written constitution and unless expressly
excluded by a provision of the Constitution, the power of judicial review
is available in respect of exercise of powers under any of the provisions of
the Constitution. Justiciability relates to a particular field falling within
the purview of the power of judicial review. On account of want of
judicially manageable standards, there may be matters which are not
susceptible to the judicial process. Such matters are regarded as non-
justiciable. In other words, during the course of exercise of the power of
judicial review it may be found that there are certain aspects of the
exercise of that power which are not susceptible to judicial process on
account of want of judicially manageable standards and are, therefore,
not justiciable.”
 Bar & Bench (www.barandbench.com)

13. The Learned Advocate General argued that no judicial review could lie
on an issue that is not ‘justiciable’ by the courts. I first want to
elucidate the meaning of the word ‘justiciable’. According to Black’s
Law Dictionary (Tenth Edition), ‘justiciable’ means “capable of being
disposed of judicially” and ‘justiciability’ means “the quality, state, or
condition of being appropriate or suitable for adjudication by a court.”
According to Jowitt’s Dictionary of English Law, Volume 2: J-Z (Fourth
Edition), ‘justiciable’ means a matter, which is “proper to be examined
in courts of justice” or “…determining whether a matter which should
be examined before the English courts (or some foreign court)”. Lastly,
in Corpus Juris Secundum, Volume 36, § 268, a justiciable
controversy is one that is “…susceptible of judicial enforcement
according to accepted principles of common law or equity.”

14. I have examined A. K. Kaul (supra) in great detail and find that this
judgment is of no assistance whatsoever to the Advocate General. The
contention of the learned Advocate General that the said judgement
has not considered the issue of justiciability is unfounded and
baseless. In fact, the judgment in A. K. Kaul (supra) goes completely
against the argument placed by the Advocate General before us. In A.
K. Kaul (supra), the appellants were officers of the Intelligence
Bureau. On 23.07.1979, the employees of the Bureau formed a trade
union and the appellants got elected as office-bearers thereof. By a
circular, the Joint-Director of the Bureau warned that disciplinary
action would be taken against employees partaking in the trade
union’s activities. This circular was impugned in the Supreme Court,
which by an interim order, restrained its implementation.
Subsequently, the appellants were dismissed from service by orders
passed under Article 311 (2) (c) of the Constitution of India. The
appellants filed writ petitions, which were transferred to and
ultimately dismissed by the Central Administrative Tribunal, and they
 Bar & Bench (www.barandbench.com)

preferred an appeal against the Tribunal’s decision. The question that

arose in appeal was whether an order passed under Article 311 (2) (c)
of the Constitution is subject to judicial review or not. The Apex Court
held that it is subject to judicial review and the principles laid down in
the S.R. Bommai –v- Union of India reported in AIR 1994 SC 1918
case governing the justiciability of the satisfaction of the President in
the matter of exercise of power under Article 356 would be applicable
to the present case.

15. While arriving at this conclusion, the Court espoused on judicial

review and justiciability of matters before it. The Court held that the
judiciary is vested with the power to check the validity of an action of
every authority functioning under the Constitution on the touchstone
of the Constitution in order to ensure that powers conferred by the
Constitution on that authority are not transgressed. On account of
want of judicially manageable standards, some matters may not be
within the purview of the judicial process and such matters are
regarded as non-justiciable.

16. The judgment clearly states at paragraph 12 that the power of judicial
review is explicit in a written Constitution and, unless expressly
excluded by a provision of the Constitution, the power of judicial
review is available in respect of exercise of powers under any of the
provisions of Constitution. The court went on to hold that justiciability
relates to a particular field falling within the purview of the power of
judicial review. It is only in certain specific cases that for want of
judicially manageable standards certain matters may not be
susceptible to the judicial process; those matters may be regarded as
non-justiciable. On a reading of the entire judgment, it is clear that
the Supreme Court held in the said case that even in cases wherein
the satisfaction of the President is involved, the same would be subject
 Bar & Bench (www.barandbench.com)

to judicial review if the said satisfaction was mala fide or based on

extraneous and irrelevant grounds.

17. Further, the learned Advocate General cited the case of R.K. Zalpuri
(supra) to submit that a palpable error had been committed by the
Division Bench in not deciding the issue of justiciability and the same
deserved to have been addressed. In R.K. Zalpuri (supra), the Single
Bench and thereafter the Division Bench of the High Court had not
taken note of the issue of delay and laches, which was put forward by
the State. Neither the Single Judge nor the Division Bench had
addressed the issue of delay and laches and the Supreme Court held
this to be a ‘palpable error’ since the ‘principal stand’ of the State was
not addressed. However, in the instant case, there is no such palpable
error since the issue of justiciability has been duly addressed.

18. The fact that the Court held that the grant of dearness allowance is a
legally enforceable right meant that the Court considered the issue of
such grant of dearness allowance to be justiciable and then proceeded
to render the decision therein. Had the Court considered the grant of
dearness allowance to be a non-justiciable right, the Court would not
have pronounced a decision on this matter. It is implicit in the said
judgment that the author regarded dearness allowance to be a
justiciable right and, accordingly, held it to be legally enforceable.
Thus, there was no need for the Court to separately enunciate that the
matter before the Court was justiciable or that dearness allowance is a
justiciable right. The question had been addressed and it cannot be
now argued that the issue of justiciability had not been decided.

19. The argument put forward by the Advocate General that the court
should have first decided whether a justiciable right was present and
 Bar & Bench (www.barandbench.com)

to see whether writ of mandamus could be issued by the court before

deciding on the legally enforceable right of the employees seems a case
of putting the cart before the horse. The said judgment was dealing
with an order passed by the Tribunal that had held that dearness
allowance cannot ever be a legal right of an employee and was subject
to the discretion of the employer. The court in the said judgment
clearly dealt with this issue and reversed the finding of the Tribunal
on facts as well as on law. In the present case, whether a particular
component of remuneration is payable to government employees can
by no means be a non-justiciable issue. The sophistry of the
arguments placed by the Learned Advocate General, though innovative
and enticing, they are absolutely fallacious and without any basis in
law.

20. It is to be noted that today when the matter was fixed for delivery of
the judgment the Learned Advocate General after seeking leave of this
Court brought to the notice of this Court a very recent Supreme Court
judgment passed on February 13, 2019 by the Division Bench
comprising of R. Banumathi, J. and Indira Banerjee, J. in Tamil
Nadu Electricity Board Rep. By Its Chairman –v- TNEB-
Thozhilalar Aykkiya Sangam by its General Secretary reported in
2019 SCC OnLine SC 189. He submitted that the Supreme Court in
the above judgment had held that there is no rule or obligation on the
State Government to always adopt the dearness allowance as revised
by the Central Government. He, accordingly, submitted that the said
judgment was required to be reviewed in the light of the latest
judgment of the Supreme Court. He placed reliance on paragraphs 2,
12, 24 and 25 of the above Supreme Court judgment to highlight that
the State Government is not required to adopt the dearness allowance
rates fixed by the Central Government and has to fix the rates
depending upon its own financial position.
 Bar & Bench (www.barandbench.com)

21. The above submission again holds no merit for two reasons. Firstly,
subsequent events and judgments cannot be taken into account for
the purposes of review of a judgment. This principle is settled by a
catena of judgments of the Supreme Court and our High Court.
Secondly, it is to be noted that the said judgment never decided on the
issue as to whether the State Government was required to adopt the
dearness allowance as revised by the Central Government. The said
judgment, in fact, has remanded this issue to the Tribunal for
consideration after completion of exchange of affidavits. The very fact
that the issue as to whether the State Government was required to
adopt the dearness allowance as revised by the Central Government is
now required to be decided by the Tribunal after considering various
factors such as the financial ability of the State Government and
whether any arbitrary action has been taken by the State Government
means that the issue was not decided in the said judgment. In light of
the same, it is clear that the Supreme Court judgment relied on by the
Learned Advocate General has no application to the said judgment as
the issue itself was never decided by the said judgment.

22. In light of the observations and reasons provided above, I am of the

view that this is not a fit case for review. Accordingly, the
Memorandum of Review (RVW 159 of 2018) and the interim
application (CAN 8729 of 2018) are dismissed.

23. I would go amiss if I do not acknowledge the assistance provided to

this Court during the hearing of this matter by the Learned Advocate
General, Mr. Kishore Dutta; the Learned Government Pleader, Mr.
Joytosh Majumder and Senior Advocates, Mr. Sardar Amjad Ali and
Bikash Ranjan Bhattacharyya.
 Bar & Bench (www.barandbench.com)

24. On a prayer made by the Learned Advocate General, the time to file
the affidavit in opposition before the Tribunal is extended by a period
of three weeks from date, reply if any, one week thereafter. The
Tribunal is requested to expeditiously hear and decide the matter,
preferably within a period of two months from date.

I agree

(Harish Tandon, J.) (Shekhar B. Saraf, J.)