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2006 DIGILAW 161 (GAU)

Promode Boro v. Paramesh Dutta

2006-02-20

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. The issues raised in this group of Contempt Petitions being common, all the cases were heard together and are being disposed of by this common order. 2. The petitioners in all the contempt petitions are school teachers who were appointed under the O.B.B. Scheme in the Mangaldoi Sub-Division of Darrang District sometime in the year 2001. All such appointments were valid upto 31.3.2002 and the posts in which the petitioners were appointed were to be abolished on and from the said date, i.e., 31.3.2002, i.e., on the date of expiry of the ninth five-year plan. The writ petitioners along with other O.B.B. teachers, numbering 5,218 in all, had instituted a series of writ petitions before this Court, i.e., W.P.(C) No. 8764/2001 and other connected cases which were disposed of by this Court on 8.4.2002 with the following operative directions: 25. In view of what has been stated above, the above mentioned batch of writ petitions are disposed of with a direction to the Govt. of Assam and other State respondents to regularize the services of the writ petitioners appointed as teachers against the posts created under the Operation Blackboard Scheme by adjusting/absorbing them in regularly sanctioned posts/vacancies of Assistant Teachers of L.R/Middle Schools of Assam in a phased manner and not to terminate their services pending such regularization allowing them to continue in service beyond 31.3.2002 by sanctioning retention of these temporary posts created under the Operation Blackboard Scheme till completion of the process of such regularisation. 26. The State respondents are further directed to pay the monthly salary to the writ petitioners along with arrears for the period they have been found actually rendering service as teachers in the respective schools within three months from the date of this order. 27. It shall, however, be open to the State Government to take necessary action following due procedure for termination of services in individual cases if, on enquiry any appointment is found to have been made in violation of the guidelines like excess appointments or appointments in the manner other than the prescribed format vide WT message dated 8.3.2001 (Annexure-C2 to the affidavit in reply in W.P.(C) No. 687/2002) issued by the Secretary to the Govt. of Assam, Education Department. Alleging non-compliance/disobedience of the aforesaid directions of this Court, the present contempt petitions have been filed. 3. of Assam, Education Department. Alleging non-compliance/disobedience of the aforesaid directions of this Court, the present contempt petitions have been filed. 3. This Court by order dated 4.10.2005 passed in the present cases took note of the directions issued by this Court, as noticed hereinabove, and the stand taken in the affidavit filed by the contemner. Thereafter, by the said order dated 4.10.2005, this Court recorded its conclusion that Sri Paramesh Dutta, the present Commissioner and Secretary to the Government of Assam, Education Department, is guilty of commission of contempt. However, on a plea being made by the contemner that he may be given some more time to implement this Court's order dated 8.4.2002, this Court deferred the question of imposition of sentence to a subsequent date, i.e., 7.11.2005 (the date of reopening of the Court after the long vacation). 4. Thereafter, on 7.11.2005 the contemner filed an affidavit before this Court to the effect that after the order dated 4.10.2005 was rendered by the Court, the contemner had initiated steps to implement this Court's order dated 8.4.2002. In the course of the said exercise it came to the knowledge of the contemner that by a series of identical orders dated 22.10.2001, the appointments of all OBB teachers in the Mangaldoi Sub-Division including the petitioners were cancelled. The aforesaid orders of cancellation were challenged by some of the aggrieved parties including some of the petitioners in as many as 11 writ petitions filed before this Court which were registered and numbered as W.P.(C) No. 999/2004, W.P.(C) No. 1000/2004, W.P.(C) No. 1002/2004, W.P.(C) No. 1003/2004, W.P.(C) No. 1004/2004, W.P.(C) No. 1005/2004, W.P.(C) No. 1006/2004, W.P.(C) No. 7931/2001, W.P.(C) No. 7929/2001, W.P.(C) No. 7928/2001 and W.P.(C) No. 7930/2001. All the aforesaid writ petitions were dismissed by judgment and order dated 11.3.2004 upholding the cancellations made. Thereafter, against the judgment and order dated 11.3.2004, a writ appeal being Writ Appeal No. 223 of 2004 was filed by the petitioners in W.P.(C) No. 999/2004 which was also dismissed by the Appellate Bench by order dated 23.2.2005. All the aforesaid writ petitions were dismissed by judgment and order dated 11.3.2004 upholding the cancellations made. Thereafter, against the judgment and order dated 11.3.2004, a writ appeal being Writ Appeal No. 223 of 2004 was filed by the petitioners in W.P.(C) No. 999/2004 which was also dismissed by the Appellate Bench by order dated 23.2.2005. On the said facts, the contemner in the affidavit filed on 7.11.2005, had taken the stand that as the appointments of all the OBB teachers in Mangaldoi Sub-Division, including the petitioners in the present contempt cases, were cancelled by order dated 22.10.2001 and the aforesaid cancellations, in some cases, has been upheld by this Court, the order of this Court upholding such cancellations must be understood to be applicable to all cases of OBB teachers in Mangaldoi Sub-Division. It was, therefore, contended in the affidavit filed that as the appointments of the petitioners had been cancelled and such cancellations have been approved by the Court it is no longer open for the contemner to implement the judgment and order dated 8.4.2002 passed by this Court in W.P.(C) No. 8764/2001 and other connected cases in so far as the present contempt petitioners are concerned. 5. After the aforesaid affidavit was filed, a Miscellaneous case, i.e., M.C. No. 3400/2005 was filed by the contemner on 10.11.2005, seeking a recall of this Court's order dated 4.10.2005 passed in the present contempt petitions holding the contemner to be guilty of commission of contempt. The aforesaid miscellaneous application has been followed by an additional affidavit dated 13.12.2005 placing before the Court the several orders passed by the authorities and the correspondences exchanged in the matter as well as some orders of cancellation of the appointment, of some of the petitioners and other OBB teachers in Mangaldoi Sub-Division. Records, in original, have also been placed before the Court to substantiate the stand taken that all appointments of OBB teachers in Mangaldoi Sub-Division including those of the petitioners had been cancelled by the authority. 6. Though the question of availability of a power in this Court to review/recall its earlier conclusion that the contemner is guilty of commission of contempt has not been specifically raised in the present proceedings on behalf of the petitioners, before embarking upon any discussion it will be necessary for the Court to be satisfied that such a power, indeed, is available. The power of the High Court to punish for contempt is a plenary power vested in it as a Court of record by Article 215 of the Constitution. The provisions of the Contempt of Court Act, 1971 are supplemental and procedural. The absence of the review power under the Act cannot, therefore, come in the way of such an exercise which is a necessary adjunct of the plenary power of the Court to do justice and to prevent miscarriage thereof, as the case may be. The following observations contained in paragraphs 14, 15 and 16 of the judgment of the Apex Court in the case of M. M. Thomas v. State of Kereala and Anr. reported in [2000] 1 SCR 33 would justify the above view. 14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra a nine-Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a court of plenary jurisdiction being a court of record. 15. In Halsbury's Laws of England (4th edn., Vol. 10, para 713) it is stated, thus: The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action. (Though the above reference is to English courts the principle would squarely apply to the superior courts in India also.) 16. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar a two-Judge Bench of this Court in M. V. Elisabeth v. Harwan Investment & Trading (P.) Ltd. has observed, thus : (AIR Headnote) The High Courts in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.... 7. In the present case, what the records reveal is that the appointments of all OBB teachers in Mangaldoi Sub-Division, to which category the petitioners belong, had been cancelled on 22.10.2001. Though the aforesaid fact should have been placed before this Court hearing W.P.(C) No. 8764/2001 and other connected cases it was not so done. The aforesaid cancellations have also been subsequently upheld by this Court by its judgment and order dated 11.3.2004 passed in W.P.(C) No. 999/2004 and order dated 23.2.2005 passed in Writ Appeal No. 223/2004. Though the respondents have committed a serious lapse in not pointing out the cancellation of the appointments of the OBB teachers in Mangaldoi Sub-Division to the Court prior to the judgment and order dated 8.4.2002 rendered in W.P.(C) No. 8764/2001 and other connected cases, the said lapse, by itself, cannot obliterate the fact that the petitioners, on account of the cancellations of the appointments made on 22.10.2001. which has been subsequently upheld by this Court, cannot be understood to have any legally valid and/or subsisting right for regularization, notwithstanding the directions contained in paragraphs 25, 26 and 27 of the judgment and order dated 8.4.2002 passed in W.P.(C) No. 8764/2001 and other connected cases. The cancellation of the appointments of the petitioners and the order of this Court upholding such cancellations is the basic and primary fact which must be understood by the Court to have an over-riding effect over all other facts and events which will assume a supplementary character. None of the aforesaid facts were placed before the Court at the time when the order dated 4.10.2005 came to be passed in the present cases. This Court would not have passed the order dated 4.10.2005 had the said facts been before the Court at the pertinent point of time. In such a situation, the Court is satisfied that if the order dated 4.10.2005 is allowed to remain on record it will operate injuriously and prejudicially to the contemner. Accordingly the said order is recalled. 8. In view of the discussions that have preceded, I am of the view that there is no basis to proceed any further in any of these contempt cases. Accordingly, all the contempt cases are dismissed. However, having regard to the facts and circumstances of the case, there will be no order as to costs.