Susmita Roy vs Mrs. Smritikana Mani
2022 Latest Caselaw 2653 Cal

10.05.2022
 Ct. 5
 D/L 4
  ab


                             CPAN 292 of 2022
                                    In
                             WPA 20216 of 2021

                               Susmita Roy
                                    -Vs-
             Mrs. Smritikana Mani, OSD(Nursing), Department of
              Health & Family Welfare (Nursing Branch) & Anr.

             Mr. Soumya Majumdar,
             Mr. Biswaroop Bhattacharya,
             Mr. Subhankar Chakraborty,
             Mr. Saptarshi Bhattacharjee,
             Ms. Ruchira Manna
                                               ... for the petitioner

             Mr. Swapan Kumar Datta,
             Mr. Rajat Datta,
                                                    ... for the State

             Mr. Amitava Chaudhuri,
             Mr. N. Roy,
                                ... for the alleged contemnor no. 2


                  The affidavits filed on behalf of the alleged

             contemnors are taken on record.

                  The contempt petition relates to a judgment and

             order passed by this Court on 1st March, 2022. The

             respondents/State and the West Bengal Joint Entrance

Board, were directed to consider the rank and score of

the petitioner, who was an aspirant to the M. Sc.

(Nursing) Course as per the rank obtained by the

petitioner before the merit list was cancelled by the

Board on 23rd November, 2021. The alleged contemnor

no. 1 is the OSD to the Department of Health & Family

Welfare and the alleged contemnor no. 2 is the

Chairman, the West Bengal Joint Entrance Board.

The affidavit filed by the Board states that the

Board handed over of the papers of relevant

examination to the State on 28th December, 2021 and

hence became functus officio to the extent of the

examination. The affidavit of alleged contemnor no. 1

states as follows:-

(i) Certain number of posts are available both

in B. Sc Nursing and M.Sc Nursing

categories, but these are not of Trainee

Reserve categories.

(ii) The alleged contemnor no. 1 has complied

with the direction passed by this Court by

calling for and conducting physical

counselling on 26th March, 2022.

(iii) The All India admission process for the

nursing Courses was concluded on 7th

April, 2022.

(iv) The alleged contemnor no. 1 was

constrained to fill up the Trainee Reserve

vacancies since by an interim order passed

by this Court, the counselling process was

directed to go on.

(v) Paragraph 8 of the affidavit of the alleged

contemnor no. 1 states as follows:-

" As the Board could not cancel the

merit list which was prepared on the basis of

wrong answers of the candidates including

that of the petitioner, the State was compelled

to follow the revised merit rank list during the

counselling".

Upon considering the submissions of the learned

counsel appearing for the alleged contemnors and the

affidavits filed on their behalf, this Court is of the view

that the act of contempt is writ large on the part of the

alleged contemnors. While the alleged contemnor no. 2

(Board) has conveniently passed the onus on the State,

the alleged contemnor no. 1 has admitted to the act of

contempt in paragraph 8 of its affidavit, which has been

extracted above. Both the alleged contemnors seek to

provide a justification for their acts of contempt of the

direction passed by this Court.

The non-compliance would be evident from the

two following factors. First, by the interim order dated

14th December, 2021 by which the Board had been

directed to keep one seat vacant till the matter is

considered on affidavits. The prayer made on behalf of

the petitioner for stay of counselling was denied upon

considering the fact that stalling the counselling would

derail the entire selection process in which a large

number of candidates had participated. The

observations in the interim order make it clear that the

rank obtained by the petitioner before the same was

refused on 23rd November, 2021, was sufficient to

qualify the petitioner for the Trainee Reserve category

seat. The interim order has merged into the final

judgement of 1st March, 2022 and hence, both the order

and the judgment must be read together for

ascertaining the true purpose of the direction given by

the Court on 1st March, 2022. The purpose was to keep

one seat vacant for the petitioner whose rank was

revised by the Board without affidavits and without

explanation. The interim order for keeping one seat

vacant has also to be read with prayer (c) of the writ

petition which prays for inducting the petitioner as a

trainee reserve in the M. Sc Nursing Course.

Hence, the position now taken by the alleged

contemnors, particularly, the alleged contemnor no. 1

that all the Trainee Reserve category seats were

subsequently filled up in view of the counselling process

being directed to continue shows the clear contempt on

the part of the alleged contemnors.

It is clear from the affidavits of alleged

contemnors that besides passing the buck from one to

the other, the alleged contemnors seek to go round in

circles trying to justify their non-compliance. There is

no doubt that the Court in contempt petition can seek

to undo the wrong and pass orders in the nature of

restitutive measures. This would be clear from the

decision reported in (2017) 5 SCC 506 (Baranagore Jute

Factory PLC. Mazdoor Sangh (BMS) Vs. Baranagore Jute

Factory PLC.), where the Supreme Court held that the

Court has a duty to issue appropriate directions for

remedying or rectifying the things done in violation of

orders. The tenor of Baranagore Jute Factory PLC

Mazdoor Sangh (BMS) (supra) can also be found in

Division Bench decision of this Court in Ranjit Kumar

Haider Vs. State of West Bengal, reported in (2006) 1 Cal

LT 355.

In view of the above reasons, the alleged

contemnors are directed to keep one seat in M. Sc

Nursing in Trainee Reserve category vacant for the

purpose of considering the eligibility of the petitioner in

admission to the course in the Trainee Reserve

Category. The alleged contemnors shall of course

evaluate the eligibility of the petitioner in accordance

with the requisite standards under the relevant Rules

but the consideration must be in relation to the Trainee

Reserve category seat. If the petitioner is found to be

eligible in accordance with the rank/score of the

petitioner, as obtained before 23rd November, 2021, the

alleged contemnors shall ensure that the petitioner gets

a berth in the M. Sc Nursing Course against the Trainee

Reserve category seat.

Since the physical counselling has already been

conducted on 26th March, 2022, the whole exercise

should be completed within a period of fortnight, as

prayed for by learned counsel appearing for the alleged

contemnor no. 1. The submission that the selection

process has been closed by the Indian National Council

of Nursing on 7th April, 2022, is of little relevance since

the respondents were directed to act on the basis of the

judgment dated 1st March, 2022. The alleged contemnor

no. 1 is hence directed to sort out the said issue with

the Indian National Council of Nursing for effective

compliance of the direction passed by this Court.

CPAN 292 of 2022 is disposed of in terms of the

above.

( Moushumi Bhattacharya, J.)