Abdul Latif vs Sontosh Kr. Banerjee
2022 Latest Caselaw 3771 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE

Present:

The Hon'ble Justice Moushumi Bhattacharya

                            WPCRC 36 of 2013

                                    and

                             CAN No. 2 of 2013
                        (Old CAN No. 8069 of 2013)

                                Abdul Latif

                                    Vs.

                           Sontosh Kr. Banerjee

                                    In

                            WPA 15518 of 2003

                                Abdul Latif

                                    Vs.

                            State of West Bengal

For the Petitioner                  : Mr.   Biswaroop Bhattacharya, Adv.
                                      Mr.   Anindya Bose, Adv.
                                      Mr.   Diptendu Mandal, Adv.
                                      Mr.   Nikhil Kr. Gupta, Adv.

For the State                       : Mr. Tapan Kr. Mukherjee, Adv.
                                      Ms. Debdooti Dutta, Adv.



Last Heard on                       : 07.06.2022.


Judgment on                         : 30.06.2022.
                                         2


Moushumi Bhattacharya, J.

Re: CAN No. 2 of 2013 (old CAN No. 8069 of 2013) (Recalling application)

1. The State respondents including the alleged contemnor [in WPCRC 36

of 2013 (CPAN 409 of 2012)] being the District Inspector of Schools (S.E.),

Birbhum seek recalling of a judgment and order dated 24th December, 2010

passed by a learned Judge, as His Lordship then was, in WP 15518 (W) of

2003 by which the District Inspector of Schools (S.E.) was directed to

approve the appointment of the petitioner as an Assistant Teacher in the

concerned school.

2. The basis of the direction passed on the District Inspector of Schools

(S.E)/alleged contemnor was that the petitioner had been serving the

institution since 1996 as Assistant Teacher and the appointment should

hence be recognised. The learned Judge relied on U.P State Electricity Board

vs. Pooran Chandra Pandey; (2007) 11 SCC 92. The petitioner thereafter filed

a contempt application being CPAN 409 of 2012 for deliberate violation of

the judgment and order by the alleged contemnor. The State respondents

filed an application for recalling in 2013 being CAN 8069 of 2013.

3. The main ground for recalling the judgment dated 24th December,

2010 is that Pooran Chandra Pandey has ceased to be good law and hence

the learned Judge could not have passed the direction relying on the said

decision. Learned counsel appearing for the State respondents who seeks

recalling of the Judgment of 24th December, 2010 relies on several decisions

to show that the respondents do not have the power to approve the

appointment since the applicant does not have the requisite qualification.

Counsel further refers to the staff pattern of the concerned school and

submits that the impugned judgment did not address this point before

directing appointment of the petitioner. Counsel further relies on the Rules

for Management of recognised non-Government Educational institutions

(aided and non-aided) Rules, 1969 under which no appointment can be

made without the prior approval of the director or authorised Officer of the

State Government. Counsel relies on a Government Memo dated 17th May,

1976 read with the Government Order dated 8th July, 1974 and 15th March,

1989 which stipulates that a teacher must have the requisite qualifications

for appointment. It is further submitted that the disobedience was a result

of the compelling fact of Pooran Chandra Pandey being reversed.

4. Learned counsel appearing for the petitioner relies on the impugned

judgment to submit that the State was represented on the day when the

judgment was passed and hence the correctness of the order cannot now be

called into question. Counsel also places an order passed in appeal (MAT

1308 of 2015 - The State of West Bengal vs. Chinmoy Kumar Mondal) which

involved identical facts. Counsel submits that the appeal from the order of

the learned Judge, as His Lordship then was, was dismissed and the State

thereafter complied with the direction passed by the learned Single Judge in

WP 14073 (W) of 2010 (Chinmoy Kumar Mondal vs. State of West Bengal).

5. The dates relevant for adjudication of the recalling application are as

follows; the impugned judgment was passed on 24th December, 2010. The

petitioner filed a contempt application on 14th March, 2012 for violation of

the direction passed by the learned Single Judge. The State respondents

filed an application for recalling of the judgment on 5th August, 2013. The

recalling application was hence filed after the petitioner came to Court

alleging contempt and as a reaction to the contempt proceedings. Second,

the stand of the State respondents in the recalling application indicates an

admission that the State respondents have violated the direction passed on

the alleged contemnor by impugned order of 24th December, 2010.

6. Further and most significant, the impugned judgment shows that the

State was represented and did not oppose either the prayer made on behalf

of the writ petitioner or the direction passed by the learned Judge on the

District Inspector to approve the appointment of the petitioner. The conduct

of the State respondents deserves further comment. The District Inspector

failed to carry out the direction of the learned Judge and remained silent of

the non-compliance for 3 years. The State respondents, including the

District Inspector, only woke up from their collective slumber, after one and

half years from the filing of the contempt, to be precise. The conduct of the

State respondents including the alleged contemnor hence falls woefully

short of the standards expected from litigants before the Court.

7. The ground now taken by the State respondents is of the Supreme

Court holding that Pooran Chandra Pandey is not good law. This, as well as

the other ground of the petitioner not fulfilling the eligibility requirement are

completely new grounds which were not taken before the learned Judge at

the time of passing of the impugned judgment.

8. The decision relied upon by the State, namely Official Liquidator vs.

Dayanand; (2008) 10 SCC 1, wherein Pooran Chandra Pandey was held to be

read as obiter and not be treated as binding by the High Courts, was already

part of the relevant case law as on the date of the impugned order. Hence,

the State which was represented by counsel, had every opportunity to place

Dayanand before the learned Judge and make the same argument as is now

sought to be made before this Court after a span of 12 years. The effect of

Dayanand must also be clarified; the Supreme Court in paragraph 92 of the

Report held the following-

"92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."

9. The correctness or incorrectness of a judgment and order cannot be

urged in recalling proceedings where there is admitted violation of the order

in contempt. The alleged contemnor must first purge himself/herself of the

contempt by ensuring obedience of the order. This was the view of the

Supreme Court in Prithawi Nath Ram vs. State of Jharkhand; (2004) 7 SCC

261 where it was clarified that the only question which the Court is

concerned with in an application for contempt is whether the earlier

decision which has received finality has been complied with. The Supreme

Court held that it would not be permissible for the Court to examine the

correctness of the earlier decision which had not been challenged and to

take a view different from what had been taken in earlier decision. This

would also be supported from a similar view taken in K.G Derasari vs. Union

of India; (2001) 10 SCC 496 which also reiterated that in exercising

contempt jurisdiction the Court is primarily concerned with the question of

contumacious conduct of the party who is alleged to have violated the order

particularly where there is no ambiguity in the order. In K.G Derasari, the

Supreme Court further opined that a party should approach the higher

forum if the order is not legally tenable.

10. The ratio in Prithawi Nath Ram fits squarely with the contentions

raised in the present case. The State did not challenge the impugned order

of 24th December, 2010 by way of an appeal and instead filed for recalling of

the same after 3 years and that too after being faced with contempt

proceedings. There is hence a presumption of finality of the impugned order

of 24th December, 2010. This Court is also of the view, taking support from

the Supreme Court decisions in Prithawi Nath Ram and K.G Derasari, that

the arguments now advanced by the State on merits are matters which can

only be and should have been gone into by the Appeal Court. As stated

above, none of these contentions were urged before the learned Judge on

24th December, 2010.

11. The reference made by the petitioner's counsel to an identical matter

where a similar direction has been passed by the same learned Judge

(Chinmoy Kumar Mondal vs. State of West Bengal) is also significant. The

appeal from the said order was dismissed and the State thereafter complied

with the direction passed by the learned Judge. It can therefore be said that

the State cannot choose which orders it will comply with particularly where

the orders are identical in nature; or in other words, decide to only comply

with orders after a challenge from such orders has been dismissed.

12. The decisions relied upon on behalf of the State respondents proceed

on the applicant not having the requisite qualifications for being appointed

to the concerned post; refer Shivdev Singh vs. State of Punjab; AIR 1963 SC

1909. M.M Thomas vs. State of Kerala; (2000) 1 SCC 666 dealt with an

apparent error noticed by the High Court in respect of the orders passed by

it and the Supreme Court holding that the High Court, as a Court of record,

has a duty to correct the error. Maruti Real Estate Pvt. Ltd. vs. Life Insurance

Corporation of India; (2008) 1 CHN 442 is not relevant for the present

adjudication since a Division Bench of this Court held that a Court will not

be precluded from granting relief in an application for review even though it

has been described as one of clarification. Another Division Bench of this

Court in the District Inspector of Schools (S.E.) Burdwan vs. Abdul Barik

Shaikh (MAT 1626 of 2017) referred to Dayanand and the dilution of Pooran

Chandra Pandey. In State of Orissa vs. Mamata Mohanty; (2011) 3 SCC 436,

the Supreme Court in fact held that persons in whose favour an order has

been passed, are entitled to move the Court for initiating proceedings for

contempt with a view to enforcing a right flowing from the order or direction

in question. The Supreme Court made a distinction between the proceedings

in contempt and exclusion proceedings under the Code of Civil Procedure.

13. None of the decisions relied upon on behalf of the State, save and

except Md. Ainul Haque vs. State of West Bengal, dealt with admitted

violation of a judgment and order of a Court. The decisions shown are on

merits, namely, the alleged lack of eligibility of the petitioner. The present

case is also not one of mistake involving an error apparent on the face of the

record which needs immediate correction. To repeat, Dayanand had already

been pronounced in 2008; hence the State should have informed the learned

Judge on 24th December, 2010 that Pooran Chandra Pandey was diluted by

Dayanand. This admittedly was not done. The State cannot now seek to

reopen the merits of the case or take refuge in Dayanand when it has failed

to challenge the impugned order or make appropriate submissions on the

date of the order.

14. The ground realities also cannot be ignored. The petitioner was given

relief in 2010 and waited for 12 years thereafter for the State to implement

the relief. The State sought to stall the contempt proceedings filed in 2012

with the recalling application in 2013. The petitioner has hence been

deprived of the benefit of the judgment of 2010 till 2022. There may be a

consequential presumption that apart from the financial loss, the petitioner

may naturally have disqualified himself from the post by crossing the age

limit in the intervening 12 years. If that is so, the State by its conduct has

disentitled the petitioner to relief despite a judgment of Court.

15. There is also every reason to believe that the objections taken in the

recalling application do not have a foundational basis in the pleadings which

were before the learned Judge at the time of passing of the impugned order.

The practice of filing recalling applications to stall implementation of orders

or contempt proceedings for non-compliance of orders needs to be firmly

discouraged. An aggrieved litigant can always approach the Appeal Court

within the time frame. If the litigant however fails to challenge the order, it

can and should be presumed that the litigant has accepted the order.

Thereafter, there cannot be any other excuse for not carrying out the

direction passed by the Court.

16. For the above reasons and considering the effect of Prithawi Nath Ram

vs. State of Jharkhand, this Court is of the view that the State cannot seek

recalling of the judgment on the grounds urged. CAN No. 2 of 2013 (old CAN

No. 8069 of 2013) is accordingly dismissed without any order as to costs.

Re: WPCRC 36 of 2013 (Contempt application)

17. List the contempt application on 22nd July, 2022.

Urgent Photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfillment of the requisite

formalities.

(Moushumi Bhattacharya, J.)