Calcutta High Court
Kalpana Maity & Ors vs State Of West Bengal on 19 February, 2021
OD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
(Via Video Conference)
G.A. No. 2 of 2019
(Old G.A. No. 2526 of 2019)
In W.P.O. No. 864 of 2004
KALPANA MAITY & ORS.
Versus
STATE OF WEST BENGAL
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 19h February, 2021.
Appearance :
Mr. Kamalesh Bhattacharya, Adv.
Mr. S. P. Pahari, Adv.
Mr. A. Pradhan. Adv.
Mr. T. K. Mahapatra, Av.
...for the petitioners
Mr. Arkaprava Sen, Adv.
Mr. Sirsanya Bandopadhyay, Adv.
...for the State.
The Court : W.P.O. No. 864 of 2004 was filed by three persons two of whom
claim to be Assistant Teachers and the other claim to be a non-teaching staff of
Basudevpur Kanyamilan Vidyabhaban, Village:-Basudevpur, P.O.- Khanjanchak,
Dist:- Purba Medinipore. They wanted their services to be regularized and
approved by the competent authority.
2
By a judgment and order dated April 10, 2008, a learned judge of this
Court allowed the writ petition. The operative portion of the said order reads as
follows:-
"Having heard the submissions of the learned counsel for the writ
petitioners and the learned counsel for the State and considering the merits of
the writ petition, the concerned District Inspector of Schools (S.E.), Purba
Medinipore, the third respondent herein, is directed to approve the
appointments of the writ petitioners within a period of four weeks from the
date of communication of this order.
It is submitted by the learned Advocate for the petitioners that
necessary papers regarding the respective services of the writ petitioners have
already been sent to the concerned District Inspector of Schools for approval of
their appointments.
Needless to mention that on the basis of the approval of the services of
the petitioners, the writ petitioners shall be entitled to all financial benefits on
the basis of such 'approval' in terms of and by virtue of this order.
Till such approvals take place, the petitioners will continue to serve the
school as they have been doing for all these years.
The above order shall be treated to be mandatory by the concerned
respondents."
The school authorities were parties to the writ petition. However, in spite of
direction for affidavits having been given, neither the school authorities nor the
State filed any affidavit-in-opposition. On the day the writ petition was disposed
of, the State was represented but the school authorities chose not to appear. The
Learned Judge passed the order after hearing the appearing parties and noting
that there was no opposition form the respondents.
3
In view of the necessary approval not having been given by the concerned
DI of school, the petitioners filed a contempt application being C.C. No. 135 of
2008 which is still pending in this Court.
After about 11 years, the school authorities have now taken out this
application for recalling of the order dated April 10, 2008 referred to hereinabove.
I have heard learned counsel for the applicant school authorities. It is
submitted that the order was obtained by the petitioners by practising fraud on
Court. The ground of fraud can be taken at any stage. The writ petitioners were
never members of the staff of the school in question. Hence, the question of
approving the appointments of the petitioners did not arise.
I have noted the above contention but sitting in contempt jurisdiction I
cannot venture to decide the correctness of the same. The order of the learned
Judge is in existence. I am told that in an appeal preferred by the State against
the said order, initially an interim order of stay was passed. However, the appeal
was dismissed for default in 2013. No steps have been taken to have the appeal
restored. In other words, the order dated April 10, 2008 has attained finality. I
am aware that fraud unravels everything. However, a case of fraud has to be
pleaded with sufficient details and particulars of fraud must be pleaded as is
prescribed by Order VI Rule 4 of the Code of Civil Procedure, the principles
whereof apply to writ proceedings also. The case of fraud sought to be run by the
school authorities is that the writ petitioners were never employees of the said
school. However, there is a report of the District Level Inspection Team (DLIT) on
record which indicates the dates of appointments of each of the three petitioners.
4
It is nobody's case that the said report is a forged document or has been
manufactured by the petitioners. The school authorities say that there is
absolutely no document available with them to show that the petitioners were, in
fact, serving the said school. I am afraid, that is not the problem of the
petitioners. The DLIT is an arm of the State administration and its report would
carry requisite weight and sanctity.
For the reasons aforesaid, I am not inclined to allow this application. It
appears to me that this application has been filed after 11 years to get around
the order dated April 10, 2008 with the oblique motive of depriving the
petitioners of the benefit of the said order for reasons best known to the
applicant. I was inclined to impose substantial costs on the applicant but I am
dissuaded from doing so by the eloquence of learned counsel appearing for the
applicant.
G.A. No. 2 of 2019 (Old G.A. No. 2526 of 2019) is accordingly dismissed.
.
(ARIJIT BANERJEE, J.)
S.Bag
