Calcutta High Court (Appellete Side)

Samarendu Mukherjee vs Union Of India & Ors on 9 August, 2021

Items-   09-08-2021                        WP.CT 60 of 2015
 92
                                       Samarendu Mukherjee
                                               Versus
                                        Union of India & Ors.

                                  (Through Video Conference)
           Ct. 16
 sg
                            Mr. Sourav Sen, Adv.
                            Ms. Soumashree Ghosh, Adv.
                                            ...for the petitioner

                            Mr. Bhudeb Chatterjee, Adv.
                            Mr. P. Karan Singh, Adv.
                                             ...for UOI



                             The writ application is directed against the order dated

                      29th August, 2014 in O.A. No. 511 of 2012 and O.A. No. 1172 of

                      2012. The writ petitioner approached the learned Tribunal

                      claiming notional appointment and consequential seniority.


                            Shorn of unnecessary details, the writ petitioner was

                      appointed to the post of Extra Departmental Mail Post Man

                      (EDMP)/Extra Departmental Delivery Agent EDDA on 13th

                      April, 1999. Subsequently, the said appointment was cancelled

                      by the appointment authority allegedly on the ground of

                      irregularity. This was challenged by the writ petitioner and on

                      the basis of a direction passed by the Hon'ble Supreme Court, a

                      fresh selection process was initiated only in respect of candidates

                      who had participated in the earlier selection process.


                            Notwithstanding the aforesaid direction, the respondent

authorities invited the persons who, although, made an

application but did not participate in the selection process. In the

process, one Sk. Abbusuddin was appointed to the said post. The

writ petitioner challenged the said appointment in a contempt

proceeding.

In the contempt proceeding, the coordinate Bench by an

order dated 6th July, 2010 held the Assistant Superintendent of

Post Offices, Burdwan guilty for committing contempt of this

Court for willful and deliberate violation by inviting those

candidates who did not participate on earlier occasion. In the

said proceeding, the Assistant Superintendent of Post Offices

furnished the details of the results of the fresh selection in

which, admittedly, the writ petitioner was found to be the most

suitable candidate and accordingly, he was appointed to the said

post on 20th August, 2010. The appointment of said Sk.

Abbusuddin was cancelled on 17th August, 2010.

The learned Counsel for the petitioner submits that a fresh

appointment was given to the petitioner on 20th August, 2010.

At the time of disposal of the contempt application, the

coordinate Bench did not decide the issue whether the

appointment of the writ petitioner would be given a retrospective

effect from 10th December, 2007 when said Sk. Abbusuddin was

given appointment in the earlier proceeding. In view of the fact

that the authority did not consider his claim for notional

appointment and consequential seniority from 10th December,

2007, the writ petitioner approached the learned Tribunal. The

learned Tribunal, on consideration of the materials on record and

the submissions made on behalf of the writ petitioner, declined

to grant such relief.

We have heard the learned Counsel for the parties.

Mr. Sen, Learned Counsel appearing for the petitioner

submits that in view of the undisputed fact, had there been no

irregularity in the fresh selection process initiated in December,

2007 pursuant to the order passed by the coordinate Bench in the

earlier proceeding on 7th August, 2007, the writ petitioner would

have been appointed with effect from 10th December, 2007.

The learned Counsel for the respondent authorities

however, disputes such submission and submits that notional

appointment and consequential seniority would follow when

there is a finding that the appointing authority is acting malafide

or illegally in considering the case of the petitioner for

appointment at the relevant time.

We are unable to accept the submission of the respondent

authorities; primarily on the ground that in the order dated 6th

July, 2010, the coordinate Bench has made the following

observation:

"Mr. Bag, drawing our attention to the first portion of our order submits that any person who was invited earlier to participate in the selection process, is entitled to participate in terms of the order passed by this Court. We are of the view, upon reading the entire operative portion of the order that only those candidates who actually participated pursuant to invitation made by the department along with the applicant, are entitled to participate in the fresh selection process and none else.

In the affidavit in opposition, Mr. Bag's client has annexed a document being R-I, wherefrom it appears that his client only was invited for selection process but whether his client actually participated in the selection

process pursuant to the invitation, is not clear and this is stated in the affidavit in opposition without being supported by any document. Subsequent document is very relevant since such averment has been denied by the petitioner in the affidavit in reply.

Under such circumstances, we doubt whether Mr. Bag's client can get the benefit of the earlier order, to put it differently, whether his client is a party to the alleged act of contempt or not is required to be examined. Mr. Bag's client is one of the candidates who were allowed to participate in the fresh selection process de hors the order passed by this court. In view of non-filling of affidavit by the alleged contemnor No. 1, statements and averments made in the petition as well as the particulars mentioned in the Rule, are not denied, in spite of chance being given.

Accordingly, we hold Sri Harihar Bag, Assistant Superintendent of Post Offices, Burdwan, First Sub- Division, Burdwan guilty for committing contempt of this Court for willful and deliberate violation by inviting those candidates who did not participate on earlier occasion. The said Harihar Bag is directed to be present before this Court, four weeks hence (3.8.2010) and will be entitled to make submission with regard to quantum of punishment to be inflicted upon him."

It clearly shows that the Superintendent of Post Officers,

Burdwan acted contrary to the order passed by the coordinate

Bench. Any order passed in violation of the order by a Court is

void ab initio and it calls for status quo anti.

In view of such clear finding of the coordinate Bench that

the authority concerned had deliberately violated the order

passed by the coordinate Bench, we feel that the petitioner

cannot be denied notional appointment and consequential

seniority on and from 10th December, 2007.

Mr. Sen has drawn our attention to a recent judgment of

the Hon'ble Supreme Court in the case of C. Jayachandran vs.

State of Kerala & Ors. reported in MANU/SC/0271/2020 in