Abdul Latif vs Sontosh Kr. Banerjee

Moushumi Bhattacharya, J

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

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.

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.

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.

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).

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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)

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.