Lutfar Rahman and Others vs Suprabhat Some and Others

Harish Tandon, J—The petitioners are litigating since two decades for seeking Justice, for even, the contempt application is pending for more than one decade. Several writ petitions were filed by different candidates including the petitioners challenging the action of the authorities in conducting the selection process for filling up the post of Primary School Teachers in the Howrah District.

Some of the challenges were thrown on the selection process whereas in some of the writ petitions, serious allegations as to illegalities and/or irregularities in giving appointment to some of the candidates, who were not otherwise eligible to offer their candidature for such post or appointments outside the panel were also given. Bunch of the writ petitions were considered in a common judgment which was carried to the Division Bench in Intra Court Appeal in Midnapore Zilla Nimna Buniyadi Shikshak Shikshan Prapta Bekar Sikshak Samity & Ors. V. State of West Bengal & Ors; decided on 30th March, 1994. The Division Bench appointed the Joint Special Officers to make an inquiry and submit the report as to whether formalities have been complied with or not in accordance with law. The Special Officer undertook the relevant sheets and other relevant records of the District School Council of Midnapore and Howrah and submitted the report on 10th January, 1994. The report reveals lot of illegalities and/or irregularities having perpetuated in preparation of the panel and the appointments given to the favoured person.

In course of the hearing before the Division Bench, it transpired that the panel was prepared in circle wise manner and not on district basis to which the candidates securing lesser marks were appointed sparing the other eligible candidates securing higher marks. It was further found that there are gross irregularities in regard to the preparation of the panel so far as the Midnapore District is concerned. So far as the panel for Howrah District is concerned, though certain irregularities were found but the Division Bench did not scrap or set aside the entire panel but directed the Director of School Education (Primary) to consider the observations recorded by the Special Officers and proceed to grant approval upon proper verification of the anomalies as pointed in the said report. The Division Bench order was further challenged before the Supreme Court in Civil Appeal Nos. 11521-22 & 11523 of 1995. The aforesaid appeals came up for disposal before the Hon''ble Supreme Court on December 5, 1995 and it is observed that the panel prepared for the District of Malda and Midnapore contained such gross illegality and irregularity that mere recasting the panels would not meet the ends of Justice. So far as, the panel prepared for the other district are concerned, the Apex Court declined to interfere with the directions passed by the Division Bench in Midnapore Zilla Nimna Buniyadi Shikshak Shikshan Prapta Bekar Sikshak Samity (supra). It would be relevant to quote the excerpts from the judgment of the Supreme Court rendered in case of Paschimbanga Prathamik Sikshak Sikshan Prapts Bakar-O-Sikshak Samiti and Others Vs. President, West Bengal Primary School Council and Others, (1995) 9 JT 275 : (1996) LabIC 750 : (1995) 6 SCALE 829 : (1996) 7 SCC 333 : (1996) 1 UJ 494 which are:

"As regards the other districts concerned we, however, make it clear that the directions given by the High Court in the impugned judgment for being complied with before giving appointment from the panel prepared for the district of Howrah, will also apply to them and in complying with the above directions the respondents shall keep in view the observations and findings of the Special Officers appointed by this Court."

While rejecting the contention that certain appointments are made outside the panels, the Supreme Court granted leave to the appellants therein to ventilate those grievances in an appropriate forum. The aforesaid observations can be aptly quoted from Paragraph 15 of the said report which runs thus:

Before we part with this judgment we wish to place on record that in course of the hearing of these appeals a grievance was raised on behalf of the appellants that some appointments have been made even from outside the panels and that directions may be issued annulling those appointments. We are unable to entertain the above grievance as it was not raised earlier. However, the appellants, if so advised, may agitate their such grievance in the appropriate forum.

The bunch of the writ petitions started pouring in challenging the selection process for appointment of the post of a Primary Teacher in the District of Howrah and ultimately the matter went before the Division Bench who decided the same on 21st August, 2002. It would be relevant to narrate the findings recorded by the Division Bench in the above noted appeal for the limited purpose whether the contemnors are guilty of deliberate and conscious violation of the order passed by the Single Bench. The Division Bench was concerned with the matter relating to the panel prepared by the District of Howrah only. The grievance, which was raised before the Division Bench, was that the some person have been appointed who were not in the panel and in terms of the order passed by the Apex Court, the said panel is required to be prepared afresh and until such time, the appointees so made, shall continue until the fresh appointment are made in terms of the revised panel. In course of the hearing of the appeal, the Assistant Director of School Education was directed to prepare a fresh panel on the basis of the marks obtained in the selection and to submit the report before the Division Bench. The report reveals certain irregularities in preparation of the panel which is not in consonance with the manner and spirit of the order passed by the Division Bench. The Division Bench held:

"The whole process of selection started in 1986 and it has undergone a litigation since then and it has not yet reached the finality. Therefore, we confine ourselves to the persons who are before us. Number of applications for addition of party have been filed in the appeals as well as in the writ petitions. The learned counsel for the parties have strenuously urged before us to undo the whole selection and direct a fresh selection for the post. In this connection it was mentioned that originally the notified vacancies were 806 but appointments have been made much more than that. We do not propose to re-open the entire selection as by reopening the entire selection of 1986 after a lapse of 16 years, it will cause greater hardship. The litigation has already passed through a tortuous path while travelling from this Court to the Apex Court and back. It has traveled twice to the Division Bench and thrice to the Trial Court. Therefore, every good thing has to come to an end some day. It was also submitted that many persons are likely to be affected by re-opening the whole selection and for that the Division Bench directed a general notice to be published in news paper for all concerned. An affidavit to this effect has been produced before us to show that it was published in newspapers. Be that as it may, we don''t think it proper now to re-open the whole selection of 1986 because it is not going to be conducive to the larger interest of the people as during this long spell of 16 years the persons already appointed have already felt assured about their service and have settled in their lives and by unsettling them we will be causing a greater hardship to the public at large. Therefore, we think it not proper to re-open the entire selection and confine ourselves to the persons who have approached this Court in time and whose matters are pending before this Court."

It was observed by the Division Bench that the cut off marks set up in the panel was 34 and the candidates who filed the writ petition having secured more than the said cut off marks were left out. The Division Bench restricted the applicability of the said order to the candidates who are parties before the Division Bench and passed the following directions:

"Therefore, we deem it just and proper to direct a limited relief to the extent of reviewing the cases of the writ petitioners as well as of the appellants whose petitions are pending before this Court. We direct the Assistant Director of School Education to scrutinise the papers of the following persons, whose appeals and/or writ petitions are pending before this Court, and the persons who have scored more than the cut off mark i.e. 34 marks then their names should be included in the panel and the same shall be forwarded to the School Council for appointment."

The petitioner also filed a separate writ petition challenging the selection process and the manner in which the appointments are made to a person securing below the marks obtained by the petitioners. The Hon''ble Single Bench disposed of those writ petitions directing the respondent authorities, the alleged contemnors to act in conformity with the order of the Division Bench by extending the life of the panel.

The present contempt application is filed alleging the contemptuous action of the respondent authorities in not extending the appointment to the petitioner, though they were put in higher position than to the person who have been appointed under the revised panel.

It is categorically stated that they have obtained marks above the cut off marks of 34 and the person who are put in a lower position have been appointed. The names of the persons are categorically spelt out in Paragraph 9 of the contempt application. In course of the contempt applications, several affidavits came to be filed by the respective parties advancing their claims and rival claims even some persons have filed an application seeking their addition as a co-petitioner alleging that they have also been discriminated by the authorities. The contemnors in their affidavit have taken shelter and it appears that certain irregularities have not been specifically denied. The bone of contention of the contemnors are that in view of the judgment of the Division Bench, the matter is set at rest and therefore, the matter cannot be reopened after a long passage of time. I do not want to delve into the intricacies on several instances disclosed in the respective affidavits as the matter should be confined as to whether the action of the contemnors can be brought within the purview of willful, deliberate and conscious violation of the order passed by the Hon''ble Single Bench.

From the narration of the facts above, it appears that the challenges were made to a selection process for filling up the post of a Primary Teacher in different districts within the State of West Bengal. The spate of litigation filed before this Court ended with the directions and it is undeniable that irregularities were found evident from the documents produced in course of those litigations. The Division Bench in case of Midnapore Zilla Nimna Buniyadi Shikshak Shikshan Prapta Bekar Sikshak Samity (supra) found incurable irregularities and illegalities in respect of the panel prepared for the District of Malda and Midnapore. Though the panel prepared for Howrah District was described as irregular but the Division Bench directed the Director of School Education (Primary) to recast the panel in the light of the observations of the Special Officer appointed therein and grant approval to the revised panel upon proper verification of the anomalies as pointed out in the said report. The Apex Court held that except the panel prepared for District Malda and Midnapore, the panel prepared for other district shall be prepared by the concerned authority in terms of the directions passed by the Division Bench (supra) and virtually did not interfere with the said portion of the order of the Division Bench. Admittedly, the writ petitions filed by the petitioner were disposed of directing the concerned authorities to act strictly in terms of the direction of the Division Bench which necessarily imbibed within itself, the preparation of the revised panel upon verification and scrutiny of the relevant papers and records and the appointment should be given to the eligible candidates who secured above the cut off marks. The authorities are not above the law and any action which is ex facie discriminatory offends the fundamental right of a citizen of the Country.

The subsequent Division Bench in case of Amiya Kumar Mondal & Ors. v. State of W.B. & Ors. (W.P. No. 1353 (w) of 1997) was considering the matter pertaining to the panel prepared for the Howrah District and categorically found the irregularities in the revised panel as well. It was observed therein that once the cut off marks is fixed at 34, the person obtaining the marks above the same cannot be spared and discriminated. The Division Bench was oblivion of the law that those who do not asserts their right promptly cannot get a benefit after awaking from slumber. Even in the year 2002, the Division Bench extended the benefits to those persons who promptly approached the Court asserting their rights with the specific directions upon the Assistant Director of School Education to scrutinize the papers and include the names of the person of the appellants therein if secured more than the cut off marks. The aforesaid observations were made considering the earlier Division Bench judgment rendered in Midnapore Zilla Nimna Buniyadi Shikshak Shikshan Prapta Bekar Sikshak Samity (supra) wherein the direction was made upon the concerned authorities to prepare a revised panel on the basis of the observations recorded in the report of the Special Officers. It is apparent therefrom that petitioner No. 1 to 4 were placed in a higher position than the persons named in Paragraph 9 of the contempt application but still they are kept awaiting for appointments.

The meaningful reading of the averments made in the affidavits by the contemnors wherein it is stated that certain appointments were made because of the specific directions passed in the writ petitions filed by them, this Court does not find that the contemnors can be held guilty for deliberate and willful violation of the order passed by the Hon''ble Single Bench. Simultaneously, this Court cannot loss sight of the fact that the petitioner No. 1 to 4 have been discriminated and were eligible for appointment having secured more than the cut off marks. Since the petitioner No. 5 died during the pendency of the contempt application and right to sue does not survive upon his heirs, his name was deleted from the cause title.

Even if, the Court found that the contemnor cannot be punished under the Contempt of Courts Act having not flouted the order deliberately, knowingly and consciously but the Court cannot be a mute spectator if it appears that the rights of the petitioners are denied and infringed by the authorities.

Instead of passing an order to punish the contemnors, this Court directs the Commissioner of School Education to call for the records and the documents of the petitioners and after verification thereof if found the same in order and the petitioners having placed in a position above the position of the other candidates who have been appointed under the said panel shall approve the appointment and extend the benefit to the petitioners admissible under the law. The observations and the directions passed in this contempt petition are restricted to the petitioner No. 1 to 4 and shall not be treated as a precedent.

So far as, the application for addition of parties are concerned, those applicants have not promptly approached the Court and it is only after the contempt application is found to have been pending for a pretty long time have taken a chance. Those applicants do not deserve to be treated identically with the petitioner who promptly asserted their rights and have been knocking the doors of the Court for more than two decades.

The applications for addition of parties filed in the contempt application are dismissed.

The contempt application is thus disposed of.

However, in the circumstances of this case, there shall be no order as to costs.