Calcutta High Court (Appellete Side)
Transcriber: Nandy vs The State Of West Bengal & Ors on 17 May, 2022
17.05.2022
WPST 32 of 2022
Court : 04
Item : PB-05
Matter : WPST
Dr. Sembagamuthu Sembiah
Status : OP
Transcriber: nandy
Vs.
The State of West Bengal & Ors.
Mr. D.N. Ray, Advocate
Mr. Biswarup Nandy, Advocate
Mr. Rajesh Kumar Singh, Advocate
Mr. Sourav Haldar, Advocate
.....for the Petitioner
Mr. Anirban Roy, Learned Government Pleader
Mr. Raja Saha, Advocate
Mr. Biswabrata Basu Mullick, Advocate
Mr. Sayan Ganguly, Advocate
.....for the State
Mr. Ashok Bhowmik, Advocate
.....for the Respondent No. 4 (AIIMS)
It is really unfortunate that the Secretary,
Department of Health & Family Welfare, Government of
West Bengal have exceeded its domain and
overreached the order of the Division Bench of this
Court in treating the law laid down by this Court to be in
personam not in rem. It is a sordid state of affairs that
such a responsible officer has acted lopsided and
denied the right accrued from the contract by artificially
and infirmly applying certain provisions of the Act which
was held by the Division Bench to be not applicable to
the person appointed temporarily or within the probation
period.
The writ-petitioner was appointed as Assistant
Professor in the Department of Community Medicine at
Deben Mahato Government Medical College, Purulia on
February 26, 2021 and tendered resignation on January
25, 2022 within one year from the date of his joining.
Thereafter, the writ-petitioner appeared at the interview
after obtaining prior permission from the competent
authority for the post of Assistant Professor in the same
department in AIIMS, Kalyani and was subsequently
found suitable for such post.
Since the application for resignation was not
accepted nor the 'no objection' was issued by the
department of Health and Family Welfare the approach
was made to the Tribunal by filing OA 37 of 2022. At the
time of hearing of the said original application, the
attention of the Tribunal was brought to the decision of
this Court rendered in WPST 25 of 2021 decided on
27.07.2021 (The State of West Bengal & Ors. Vs. Dr.
Mukut Mani Adhikari) wherein it is held that since the
appointment to the said post is temporary, the provision
of the Rule 34A of the West Bengal Service Rule, 1978
shall not apply. It is categorically held that the said Rule
would apply only to a Government employee holding a
permanent post under the Government and not with
regard to any temporary employee. It was further made
clear that the Notification dated August 26, 2016 is
applicable to an officer in the cadre of West Bengal
Health Services. The appointment of the petitioner was
purely temporary and hence, neither the said Rule nor
the Notification on the basis of which his resignation was
not accepted, does not appear to be correct application
of the said Rule or the Notification.
The Tribunal after noticing the Division Bench
judgment disposed of the tribunal application directing
the Secretary, Health and Family Welfare, Government
of West Bengal to take a decision regarding the letter of
resignation filed on January 25, 2022 along with 13 point
declaration in the light of the judgment passed in OA 28
of 2021 and WPST 25 of 2021 on/or before February
26, 2022.
It is apparent from the aforesaid directions passed
by the Tribunal that the said authority was required to
take a decision in the light of the observations and the
decisions rendered by the Tribunal as well as the
Division Bench of this Court but it never conferred any
power upon the authority to take a contrary decision to
the judgment of the Tribunal as well as the Division
Bench of this Court.
Astonishingly, the said authority have interpreted
the said judgment to be in personam and not in rem.
The concept of treating the judgment in personam and
not in rem are distinct and appears to have been
misplaced by the said authority. Once the Tribunal or
the Court has declared the law holding that the Rule
34A of the Service Rule does not apply to a temporary
employee, the decision of the authority in upholding the
applicability of the said Rule runs counter and contrary
of the judgment of the Division Bench of this Court.
Interestingly, it is held by the said authority that since
the said Rule has not been challenged, the writ-
petitioner is bound to obey the said Rule and cannot
defy the same.
The moot question was whether Rule 34A of the
said Rule has any manner of application to a temporary
employee who is not in the cadre and unless such
answer is given in the light of the observations of the
Division Bench, the decision falls on the anvil of
precedence of defiance to the mandate of the Tribunal
as well as the High Court. The authorities cannot take
any decision which runs counter to the decision of the
Tribunal or the High Court but must travel within the
peripheral thereof as any transgression therefrom or the
boundaries of such precincts is rendered illegal.
A plea is sought to be taken that the aforesaid
decision constitutes an independent cause of action and
the contempt application in this regard is not
maintainable.
We are afraid to appreciate such broad principles
because of the peculiarity of the facts discerned from
the records. Ordinarily the contempt Court shall not
enter into, the decision taken in terms of the order
passed by the Tribunal or the High Court as it would
constitute an independent cause of action but if the
Tribunal or the Court finds that the same has been taken
contrary to the mandate or the directions passed upon
the employee, it may tantamount to the colourable
exercise of power and may be brought within the
peripheral of contempt. There is no fetter on the part of
the Court or the Tribunal to see that the order is obeyed
in true and proper manner and not on the pretext where
such authority have acted in apparent defiance thereof.
The Tribunal appeared to have shown apathetic
attitude in dismissing the contempt application despite
having found that its order has not been complied in the
manner as directed and inviting further litigation which
would simply explode the docket of the Tribunal though
the result would be the one and same.
The writ-petitioner has communicated to the Court
that AIIMS has extended the period of joining till May 19,
2022 taking into account the pendency of the writ-
petition pending before this Court and if appropriate
directions are not passed the writ-petitioner would lose
the better opportunity impacting his future career.
We thus find that it is a fit case to pass an order
by way of interim relief to the writ-petitioner.
The Secretary, Department of Health and Family
Welfare, Government of West Bengal is directed to
issue a release order by tomorrow i.e. May 18, 2022
positively so that the petitioner may join the post at
AIIMS before the extended date.
Let this matter be listed one week after reopening
of this Court following Summer Vacation for the year
2022.
(Harish Tandon, J)
(Rabindranath Samanta, J)
