Basir Ahmed vs State Of West Bengal & Ors

Re: C.A.N. 7471 of 2019

This is an application for modification or clarification of the order dated June 26, 2019 passed by a Division Bench of this Court to which one of us (Dr. Chakrabarti, J) was a party. On being pointed out that such an application should be filed before the Bench which had passed the original order, Mr. Gupta, the learned Senior Counsel appearing on behalf of the applicants, prayed for recasting the relief treating the prayer as one in the nature of a direction. We accept the submission and treat the application as one for that.

A bunch of writ petitions filed on identical point have been disposed of by a learned single Judge of this Court by a judgement and order dated October 3, 2018. Against that order, the West Bengal Board of Primary Education and another have filed an appeal being M.A.T. 1594 of 2018.

One Basir Ahmed sought to file an independent appeal with the leave of this Court for a declaration that the order passed by the learned single Judge operated in rem and not in personam. A Division Bench of this Court having rejected the prayer for leave to appeal, the matter was carried to the Supreme Court by way of a Special Leave Petition. By an order dated April 1, 2019, the Supreme Court, inter alia, granted liberty to file a writ petition which is to be heard along with the appeal filed by the West Bengal Board of Primary Education. Thus, there was a specific leave for the writ petition to be heard by a Division Bench together with the appeal "in order to bring finality to the dispute".

Pursuant to the leave, W.P. 7809(W) of 2019 was filed.

On June 26, 2019, the writ petition was moved and necessary directions for exchanging of affidavits were passed by a Division Bench. The petitioner prayed for an order of injunction restraining the respondents from giving any appointment from the panel already prepared. The Division Bench upon consideration of the claim and after hearing the learned advocates for the parties declined to grant any such interim order. It has been specifically recorded that the petitioner had failed to make out any prima facie case for the grant of such an interim order. However, it was made clear that any step taken by any authority would abide by the final result of the writ petition.

Mr. Gupta submits that the writ petitioners who have succeeded before the learned single Judge have filed an application for contempt though in terms of the order of the Supreme Court, the lis is yet to be finalized. It has been specifically mentioned in the application that the "finalization is dependent upon disposal of the present writ petition along with the appeal of the applicant No. 1 Board". It has also been specifically mentioned in the application that the order of the Division Bench dated June 26, 2019 is being wrongly interpreted as if by the said order the Court permitted the appointments to be made in compliance of the judgement and order dated October 3, 2018 passed by the learned single Judge. It is, however, not clear who is trying to put a wrong interpretation on the order passed by the Division Bench on June 26, 2019.

We have perused the order passed by the Division Bench and we are of the view that the order calls for no further clarification and no direction as prayed for needs be passed. When the learned single Judge passes an order in the form of Mandamus and when a stay is refused, the Court never directs the learned single Judge to implement the order. All that it says that the prayer for stay is refused, as has been done in this case. It has been specifically recorded that the writ petitioner could not make out any prima facie case for the grant of an interim order by way of an injunction. The Division Bench went that far to clarify that any step taken by any authority would abide by the final result of the writ petition.

The applicants themselves, though appellants against the order of the learned single Judge, did not file any application for stay. In a writ petition filed by somebody else who was not a party to the original writ petition, they want to get a clarificatory direction and directory clarification that the order did not amount to permitting any appointment to be made by way of implementation of the order of learned single Judge, we find absolutely no occasion for such an application, far less any justification. The earlier Division Bench not having granted stay of the operation of the judgement and order passed by the learned single Judge, the appellants in a writ petition filed by somebody else cannot really have a clarification which is likely to thwart the order passed by the learned single Judge when they themselves did not file any application for stay. The explanation for not filing an application for stay in the appeal filed by the present appellants, as submitted by Mr. Gupta, does not appeal to us. Mr. Gupta submitted that the appeal has been filed as the appellants considered the judgement of the learned single Judge to be wrong. That is the raison d'etre for filing an appeal in all cases. And that is particularly the reason why an appellant files an application for stay of the operation of the order where a mandamus has been issued. The appellants not having done so cannot ask for the order as prayed for in the application in a round-about manner.

We have carefully considered the submission of Mr. Gupta that such order could not be passed as the lis was yet to be finalized. The dispute in the present case relates to the Teachers' Eligibility Test of 2014. The Supreme Court directed the appeal and the writ petition to be heard together to bring a finality to the dispute.

Mr. Gupta submitted that the order of the Supreme Court had added a totally new complexion to the matter as the question of operation of the impugned judgement and order whether as in personam or in rem has to be decided.

That will definitely be decided along with the appeal. But for the present case there can be no reason for us to give a direction of the nature which was not the order of the Division Bench. The order dated June 26, 2019 was passed in the presence of the applicants. They did not support the application for an interim order. The Board not having filed any application for stay of the operation of the order impugned cannot really seek a direction of this sort prayed in this application. That is all the more so as the Division Bench directed that any step taken by the respondents would abide by the result of the writ petition.

It is a settled principle of law that mere pendency of an appeal does not operate as a stay and the Supreme Court also while directing that the writ petition to be filed be heard along with the appeal did not grant any stay of the operation of the impugned judgement and order.

The reliefs claimed by the applicants in this application are not sustainable. We dismiss the application being C.A.N. 7471 of 2019 with a further reiteration that any step taken by any authority shall abide by the final result of the writ petition. This clarification is extended to the fate of the appeal itself.