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1998 DIGILAW 297 (CAL)

Binoy Kumar Mondal v. Swata Chandra

1998-07-15

BHAGABATI PROSAD BANERJEE, RONOJIT KUMAR MITRA

body1998
JUDGMENT Banerjee, J.: This case discloses some peculiar facts which are distressing and this case had a chequered career. This petitioner, Binoy Kumar Mondal, a Primary Teacher, appeared in person before the learned Single Judge and because of his ignorance of law and the practice and procedure followed by this Court, he had to pay a penalty. 2. For the purpose of appointment of a Primary Teacher an Interview took place by the competent authority and on the basis of the regular interview in accordance with the Recruitment Rules, the petitioner Binoy Kumar Mondal was placed 26 in the panel. It is not in dispute that in the said panel was giving effect to in respect of the some candidates in the panel and the petitioner has been able to find out at least one candidate of the said candidates who has been given appointment on the basis of the said selection panel, for not giving appointment on the basis of the panel as prepared. The petitioner moved the writ application before the learned Single Judge whereupon D.K. Basu, J. by an order dated 17.8.1992 Inter alia directed the District Inspector of School, Primary Education, Murshidabad to file a report as regard the claim of the petitioner. The claim of the petitioner was simple that he was selected and his name was placed in the panel but he was not given appointment on some mysterious grounds. The District Inspector of Schools pursuant to the order passed by the Hon'ble Justice D.K. Basu dated 17.8 92 held an enquiry and submitted the report before this Court in which it was categorically stated by the District Inspector of School. "Original correct report submitted by the District Inspector of Schools (Primary Education), Murshidabad. It was suppressed with force by the Chairman, Murshidabad District Primary School (Council). It The District Inspector of Schools In his report dated 17.4.93 had stated that the claim of the petitioner was correct and based on facts and he was entitled to relief before this Court. "Original correct report submitted by the District Inspector of Schools (Primary Education), Murshidabad. It was suppressed with force by the Chairman, Murshidabad District Primary School (Council). It The District Inspector of Schools In his report dated 17.4.93 had stated that the claim of the petitioner was correct and based on facts and he was entitled to relief before this Court. The conclusion of the said report was as follows :- "This report is submitted and I request to the Hon’ble Court for favour of the petitioner to direct respondents to accord approval of the appointment of the petitioner and to pay his salary from the date of recognisation of the school and also to pay his salary month by month to act in accordance with law.” 3. From the said report it appears that the petitioner was an organiser teacher of a primary school and the laid primary school was approved and when it was approved with the organiser teacher they were qualified and for that purpose of a selection committee was set up and the selection committee interviewed the candidates in accordance with the Recruitment Rules In which the petitioner succeeded as a candidate fit to be absorbed as a primary teacher. Thereafter, the said writ application-came up for final hearing before the learned Single Judge of this Court and the learned Single Judge by the order dated 12th December, 1995 considered all the aspects of the matter in details in which the learned Single Judge found that the petitioner was entitled to the relief as prayed for on the basis of the materials and Informations on record and ultimately passed the following order:- "10 the facts and circumstances, stated hereinabove this Court directs the respondents to accord approval to the petitioner from the date of recognition of the school and also to pay his salary which he is entitled to from the said date of recognition. The respondents are also directed to pay to the petitioner his salary month by month and to act in accordance with law. This direction should be complied with within three weeks from the date of communication or this order so the respondents. The respondents are also directed to pay to the petitioner his salary month by month and to act in accordance with law. This direction should be complied with within three weeks from the date of communication or this order so the respondents. Since the writ petitioner is appeared in person and since the matter appears to be Important because the writ petitioner was wrongly deprived of his right for such a long period; let a plain cop, of this order duly countersigned by the Assistant Registrar (Court) be given to the writ petitioner on usual undertaking Accordingly, the writ petitioner disposed of. There will be no order as to costs." 4. Thereafter the said order was modified by the learned Single Judge by the order dated 19th December, 1995 which was as follows:- “The respondent Nos. 3 and 4 are directed to accord approval to the petitioners from the date of recognition of the school and also to pay his salary which he is entitled to from the said date of recognition. The respondent Nos. 3 and 4 are also directed to pay to the petitioners his salary month by month and to act in accordance with law. This direction should be compiled with within 3 weeks from the date of communication of this order to the respondents. Since the writ petitioner is appearing in person and since the matter appears to be important, because the writ petitioner was wrongly deprived of his right for such a long period, let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the petitioner (in person) on usual undertakings. Accordingly, the writ petition is disposed of. There will be no order as to costs. Thus, the last paragraph of the earlier order dated 12.12.1995 has been modified. The other portion or the said order dated 12.12.95 remains same." 5. Accordingly, the writ application was finally disposed of. For non-compliance of the said order passed by the learned Single Judge as aforesaid a Contempt Application was filed and the Contempt Rule was issued on 5th February, 1996 upon the respondents. The other portion or the said order dated 12.12.95 remains same." 5. Accordingly, the writ application was finally disposed of. For non-compliance of the said order passed by the learned Single Judge as aforesaid a Contempt Application was filed and the Contempt Rule was issued on 5th February, 1996 upon the respondents. After Issuance of the Contempt Rule, the respondents moved an application before the learned Single Judge for modification and In the said application it was alleged that in the Interview the writ petitioner could not come out successfully and as a result of which his name was not placed in the panel and accordingly asked for recalling for the order dated 19th December, 1995. The said application was ultimately beard by the learned Single Judge and from the order dated 6th June, 1996 the learned Single Judge was pleased to reject the application for recalling of the order but after rejecting the said application the learned Single Judge passed the following order;- “In course of hearing of the matter. Mr. Aloke Biswas, the learned Advocate appearing for the respondent, verbally suggested in presence or the writ petitioner who is appearing In person, that the writ petitioner may prefer a comprehensive representation stating all, his grievances to the Chairman, Murshidabad District Primary School Council for proper consideration of the grievances and doing the needful. The writ petitioner who Is appearing in person did not oppose the said suggestion. According, the writ petitioner, who is appearing in person is given liberty to make a comprehensive representation stating all his grievances supported by relevant documents to the Chairman, Murshidabad District Primary School Council, Panchanatala, Berhampore within two weeks from today. The said Chairman of the Primary School Council is directed to consider the said representation if the said representation is made, after giving personal hearing to the writ petitioner dispose of the said representation with reasoned order, within three weeks from the date of receipt of such representation. Such reasoned order should be communicated to the writ petitioner within ten days from the date of passing such order. In the view of the peculiar circumstances of the case, let plain copies of this order countersigned by the Assistant Registrar (Ct) be handed over to the learned Advocate for the respondents and the writ petitioner who is appearing in person.: 6. In the view of the peculiar circumstances of the case, let plain copies of this order countersigned by the Assistant Registrar (Ct) be handed over to the learned Advocate for the respondents and the writ petitioner who is appearing in person.: 6. Thereafter pursuant to the said order, the writ petitioner who was appearing in person, who agreed to the suggestion given, may be in good faith but in total ignorance of the fact that the writ application was filially disposed of and a matter which is finally disposed of has not been recalled for any reason whatsoever. No appeal was preferred against this final order, so application for review was filed but be agreed to the suggestion given by the learned Counsel appearing on behalf of the State in good faith. Taking advantage of that situation It appears that the petitioner made representation with the expectation that his misery would come to an end and the Chairman of the Ad-hoc Committee, Murshidahad District Primary School Council considered the same and rejected the claim of the petitioner holding that "Sri Mondal could not come out successfully In the said interview". From the said order, it appears that the report submitted by the District Inspector of Schools (Primary Education) which fully supports the case and the claim made by the petitioner was suppressed and taking advantage of the ignorance of a litigant who was' appearing in person had passed an order as stated above whereupon the learned Single Judge disposed of the Contempt Rule holding that no contempt has been committed in view of the fresh determination made by the Chairman, Ad-hoc Committee dated 22nd August, 1997 and the petitioner was given liberty to challenge the same by filing a fresh representation against the disposed of orders dated 23.12.96 and 22.8.96 and If such representation is made, the authority concerned had been considered and disposed of the same by giving a speaking order. 7 In normal Course the petitioner should have challenged the same by filing the writ application. But In the Instant case, question is whether that course of action is the only remedy available to the petitioner. 7 In normal Course the petitioner should have challenged the same by filing the writ application. But In the Instant case, question is whether that course of action is the only remedy available to the petitioner. A question arises whether the petitioner in agreeing to file the representation for considering his prayer when there was a valid and enforceable order in his favour and whether he can waive his right created under the order which finally disposed or the writ application in his favour. Supreme Court In the case of (1) Shrl Krishan V. The Kurukshetra University reported In AIR 1976 SC 376 , held that any admission made in ignorance of legal rights or on a duress cannot bind the maker of the admission. In that case, a candidate to Part-II, Law Examination was given permission to appear. In that examination on the basis of undertaking that If he would not be able to get requisite permission from his employer to join the law classes be abide by any order that the University might pass. The candidate was very anxious to appear in Part-II Examination and the undertaking was given in terrorem and in complete Ignorance or his legal right. It was held that the undertaking given by him did not put him out of Courts If the University cancels his candidature. 8. In the case of (2) State of U.P. v. Brahm Datt Sharma reported In AIR 1987 SC 943 , the Supreme Court held that when a proceeding stands terminated by final disposal of writ application It is not open to the Court to reopen the proceedings by means of a miscellaneous application and observed If this principle is not followed there would be confusion and chaos and the finality of the proceedings would cease to have any meaning. 9. Accordingly when a writ application is disposed of on its merit and after hearing the parties the said order disposing of the writ application could not be changed, altered or set aside without an application for review and the Court in such circumstances, can review the order oven the ground for review exist alternatively against the order passed by the learned Single Judge on an appeal under Clause 15 of the Letters Patent is provided wherein a party aggrieved may prefer an appeal and on appeal the order may be set aside, altered or modified. But in the instant case, a peculiar course of action has been adopted, the order finally disposing of writ application has not been modified, altered or on the contrary remained as It is. The said order is binding on all the parties. No appeal has been preferred against that order and no application for review has been filed. In the Instant case in our view, the learned Single Judge had no jurisdiction whatsoever to modify the order finally disposing of the writ application and as matter of fact, the learned Single Judge in his fairness did not do so. The learned Single Judge did not in so many clear words modify or alter the orders dated 12.12.95 or 19.12.1995 but passed an order without referring to the order, already passed and accordingly, the order that was passed on 6.6.96 could not have the effect or modifying or nullifying the orders dated 12.12.95 and 19.12.95 which still remain valid binding and unforceable and the appellant-petitioner was entitled to get the fullest benefit of the said order. The learned Single Judge had no occasion to take a contrary view taken earlier and that the learned Single Judge had no occasion to hold that the petitioner was not select In the Interview. In the facts and circumstances of this case particularly in view of the report of the District Inspector of Schools (P.E.) in which a serious allegation is being made against the Chairman of the District Primary School Council has suppressed. Earlier the report submitted by the District Inspector of Schools (P.E.) which was correct, the subsequent report submitted by the District Inspector of Schools clearly indicates that a fraud was practised by the Chairman of the Council of the District Primary School taking advantage of its power and position that the petitioner was an indigent litigant did not know law and that he had no knowledge and he is unable to protect himself against these types of fraud and malpractices. 10. When an order is passed by this Court it is the duty on the part of the Court to enforce and give effect to the judgment. 10. When an order is passed by this Court it is the duty on the part of the Court to enforce and give effect to the judgment. The Constitution of India has not provided any separate machinery for execution of an order passed under Article 226 of the Constitution of India and accordingly, the usual method of enforcing a judgment passed under ‘Article 226 of the Constitution can only be done by commitment for contempt. If the order granting relief by the writ Court is not enforced or executed by the Court in that event, the purpose of constitutional remedy under Article 226 of the Constitution is rendered completely infructuous and the fundamental right of the citizens guaranteed under Part-III of the Constitution and the legal rights of the citizens would become mere lip service. There cannot be any right without any remedy. When the order passed by the learned Single Judge was allowed to reach in its finality in that event, the respondent by not preferring any appeal and by not filing any application for review are estopped according to the rules and debarred from making as application for modifying of any order finally disposing of the writ application. 11. In the instant case, there was no occasion on the part of the leaned Single Judge to revoke, cancel and/or modify the earlier order passed by the learned Single Judge finally disposing of the writ application and accordingly, the directions contained in the latter part of the order dated 6.6.96 cannot be said to have altered or modified the order passed on 12.12.95 or 19.12.95 and we have no hesitation that the latter part of the order dated 6.6.96 cannot and does not override the orders dated 12.12.95 or 19.12.95 and the relief granted by the learned Single Judge in the aforesaid two orders are final and conclusive and accordingly, it is the duty on the part of the Court of enforce and give effect to the same. 12. We have to bear in mind before the learned Single Judge, that the petitioner appeared in person and he was unaware of the practice and procedure of the Court and his admission and/or concession does not and cannot be construed as a waiver of a right arose out of a judgment of this Court. 12. We have to bear in mind before the learned Single Judge, that the petitioner appeared in person and he was unaware of the practice and procedure of the Court and his admission and/or concession does not and cannot be construed as a waiver of a right arose out of a judgment of this Court. No Court can give any direction to the respondents to refrain from enforcing a provision of the order or not to carry out that the order or to carry out the same in a different manner. 13. In our view, the learned Single Judge has committed an error or mistake in passing that order in the latter part of the order dated 6.6.96 at the instance of the learned Advocate appearing on behalf of the respondents. 14. We are of the view that when a litigant is not aware of the practice and procedure of this Court and when he is not aware of the infructuous of the law cannot be left at the mercy of the respondents. In the instant case, it is clear from the report of the District Inspector of Schools, who is the responsible Officer of the Educational Directorate that the claim of the petitioner was full, and lawfully justified and accordingly made recommendation but that recommendation was suppressed by the Chairman of the District Council. This is a very serious allegation against the Chairman of the District Council and the Chairman by passing and/or suppressing the report on record and by passing the order passed by the learned Single Judge on the basis of fresh report submitted by the District Inspector of Schools had practice a fraud in the sense that the claim of the appellant petitioner was rejected on a plea which is false and frivolous and which is contrary to the records and reports. 15. It Is nothing but an administrative lie made at the sacrifice of the truth and taking wrongful advantage of his power and position of any Chairman of any Council. It is not expected that a Chairman of the Council was resort to such a malpractice while dealing with the career of a teacher and dealing with the matter suppressing the report of the District Inspector of Schools. It is not expected that a Chairman of the Council was resort to such a malpractice while dealing with the career of a teacher and dealing with the matter suppressing the report of the District Inspector of Schools. This is nothing but a gross abuse and misuse of the power and position of the Chairman with an unholy motive of depriving of the teacher for the benefit of the judgment and his right to get an appointment which is based on facts and supported by two reports of the District Inspector of Schools. It is not expected. 16. Accordingly, we are clearly of the view that in terms of the orders of the learned Single Judge dated 12.12.95 and 19.12.95, the respondents are bound to carry out the same and give effect to and confer the benefits or the said judgment to the appellant who appeared in person and that it is a matter of fact that he has no money and means to engage a Lawyer and he also appeared In person, but as we found that he was not able to present his case properly, we requested Mr. Asok De, a learned Advocate of this Court, who was sitting in Court to take up the brief of the petitioner and to reader the free legal aid to a person who is fighting for himself. We are glad to place on record that Mr. De had accepted the brief without any remuneration pursuant to the desire expressed by this Court and place all the materials before this Court which was not possible if the petitioner had appeared in person. 17. Accordingly, we have no option but for the purpose of maintaining the dignity of law and to uphold the rights of the citizens, direct the Chairman of the District School Councils, Murshidabad to give effect to the orders passed by the learned Single Judge dated 12.12.95 and 19.12.95. Necessary orders shall be passed within 30 (thirty) days from today by the respondents who is directed to place a copy of the order before this Court as this is a fit and proper case where It is necessary for the end of Justice to keep and watch whether the order passed by this Court is executed or not in view of the fact that the petitioner has no money to engage a Lawyer and it is Mr. De who on our request has helped the petitioner. Unless this course of action is taken by us it would result in depriving of a poor litigant the benefit of the litigation. Mitra, J.: I agree.