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2007 DIGILAW 157 (CAL)

SANTI BHATTACHARYA v. TAPAS KUMAR BOSE

2007-03-08

INDIRA BANERJEE

body2007
( 1 ) THIS is an application for contempt for violation of a judgment and order dated 22nd August, 2003 of this Court in the writ petition being C. O. 10929 (W) of 1994, the operative portion whereof is extracted hereinbelow for convenience : "the writ application is therefore, disposed of by setting aside and/or quashing the Memo dated 9th January, 1992 to the extent that the services of the petitioners have been approved with effect from 1st May, 1991. The respondents shall accord post facto approval of the appointment of the petitioners as Assistant Teachers of the school with effect from the respective dates of their initial appointment as assistant Teachers of the school. The salary and allowances of the petitioners shall forthwith be computed after notionally fixing the same from the respective dates of their initial appointment and after notionally giving the petitioners the benefit of any increments/enhancements as per the rules on and from the said dates. The petitioners shall be entitled to the benefit of the revision, if any, of salary and allowances as aforesaid, from the next month onwards (September, 2003 ). In computing the terminal/ retirement benefits of the petitioners the entire period of service rendered by the petitioners to the school shall be taken into account and the petitioners shall be given the benefit of notional fixation of salary, notional increments and revision, if any, of salary and allowances. It is, however, made clear that the petitioner shall not be entitled to any arrears of salary and allowances. " ( 2 ) THE petitioners claim to have been appointed teachers of Ariadaha kalachand High School, hereinafter referred to as the school with effect from 1st July, 1976. ( 3 ) BY an order dated 9th January, 1992, the District Inspector of schools, Primary Education, North 24 Parganas approved the appointments of the petitioners with effect from 1 st May, 1991. ( 3 ) BY an order dated 9th January, 1992, the District Inspector of schools, Primary Education, North 24 Parganas approved the appointments of the petitioners with effect from 1 st May, 1991. ( 4 ) THE petitioners filed the said writ petition No. C. O. 10929 (W) of 1994 challenging the approval of their appointments with effect from 1st may, 1991 and contending that the petitioners were entitled to have their appointments approved from the actual dates of their initial appointment ( 5 ) THIS Court by its order referred to above allowed the writ petition and directed the respondents to approve the appointments of the petitioners from the dates of their actual appointment and to re-fix the salary of the petitioners accordingly. The petitioners were directed, however, to be given only the notional benefits of refixation. ( 6 ) THE respondents did not comply with the aforesaid order. In the circumstances, the petitioners were constrained to initiate contempt proceedings in this Court. In the contempt proceedings, the respondents have impleaded the Principal Secretary, School Education Department, the director of School Education, the District Inspector of Schools and the Sub- inspectors of Schools concerned and the Chairman, District Primary School council as alleged contemnor respondents in addition to the Secretary and the Teacher-in-Charge of the school. ( 7 ) IN the judgment and order, violation whereof has been alleged, there was no direction on any specific respondent but a direction on the respondents. The petitioners communicated the order to the Director of school Education, the District Inspector of Schools and the sub-inspectors of Schools concerned in addition to the Secretary and the headmaster of the school by a letter dated 29th September, 2003. ( 8 ) THE Primary School Councils and/or its offices were neither impleaded as respondents in the writ petition nor was the order of this Court communicated to them, even though the West Bengal Primary Education came into force sometime in 1994 and, since then, aided recognized primary schools have been under the management of the ad hoc Primary School councils/primary School Councils. ( 9 ) AFTER the above order was communicated to the education department, the Director of School Education wrote a letter dated 1st April, 2004 to the Chairman of the Primary School Council, North 24 Parganas contending that the Chairman, District Primary School Council was the appropriate authority to comply with the order of this Court. ( 10 ) MR. Subir Sanyal appearing on behalf of the alleged contemnor respondent No. 4 being the Chairman, District Primary School Council submitted that there was no direction of this Court on his client who was not a party to the writ proceedings. ( 11 ) MR. Sanyal argued that, in any case, the services of the petitioners had been approved long before the District Primary School council was constituted. Mr. Sanyal further argued that the duties of the primary School Councils have been set forth in Section 60 of the West bengal Primary Education Act, 1973. No power has been conferred on the district Primary School Councils to approve appointments already made to teaching posts in primary schools. ( 12 ) MR. Sanyal submitted that there was no provision in the 1973 act for approval of an appointment. The Primary School Council might, subject to the prescribed conditions, appoint teachers and other staff, transfer teachers and other staff from one primary school under its jurisdiction to another and to pay the salary and allowances of the teachers and other staff at rates fixed by the State Government. ( 13 ) IN view of the stand taken by the Director of School Eduction vide his letter dated 1 st April, 2004 referred to above a question arose as to which of the respondents was responsible for compliance of the order and assuming that the order was to be carried out by the Chairman of the District primary School Council whether the Chairman could be penalized for contempt in the facts and circumstances of the instant case. ( 14 ) ON behalf of the Chairman, the propriety of the approval has also been questioned. The issue of validity of appointment is no longer open in view of the order passed by this Court in C. R. No. 6367 (W) of 1990 upon contested hearing which has been accepted and acted upon. There was no appeal from the aforesaid order. The issue of validity of appointment is no longer open in view of the order passed by this Court in C. R. No. 6367 (W) of 1990 upon contested hearing which has been accepted and acted upon. There was no appeal from the aforesaid order. ( 15 ) THIS Court by its order dated 25th August, 2005 appointed Sri kashikanta Moitra, Senior Counsel, as an Amicus Curiae to assist this Court on the question of whether penal orders could be passed against the chairman at the District Primary School Council in these contempt proceedings. This Court expresses its appreciation for pains taken by Sri moitra to assist this Court, notwithstanding his heavy professional commitments. The assistance rendered by Sri Moitra to this Court was indeed valuable. ( 16 ) MR. Moitra submitted that a mere declaration of a right by a Court of law would be enough and all consequential reliefs would flow from such declaration as held by the Privy Council in the case of High Commissioner for India and Anr, v. J, N. Lal reported in AIR 1948 PC 121. ( 17 ) SRI Moitra has painstakingly taken this Court through the various provisions of the West Bengal Primary Education Act, 1973 and in particular sections 19 and 16 thereof with regard to the powers, functions and duties of Primary School Councils. As rightly argued by Mr. Sanyal, the Council has no power to approve appointments. ( 18 ) SRI Moitra referred to the judgment of the Supreme Court in the case of Indira Bai v. Nanda Kishore reported in (1990)4 SCC 668 where the Supreme Court observed as follows : ". . . . . . . . . . . . . . the Courts have extended the broad and paramount considerations of equity to transactions and assurances, express or implied to avoid injustice. " it has been further observed in this case by the Hon'ble Court that "courts in this country are primarily the Courts of equity, justice and good conscience. " ( 19 ) MR. Moitra submitted that since this Court had declared the right of the petitioners to have their appointments approved with retrospective effect from the respective dates of their appointment, a right had accused to the petitioner to have their appointments approved with effect from the dates directed by Court. " ( 19 ) MR. Moitra submitted that since this Court had declared the right of the petitioners to have their appointments approved with retrospective effect from the respective dates of their appointment, a right had accused to the petitioner to have their appointments approved with effect from the dates directed by Court. ( 20 ) THERE appears to have been an element of collective responsibility in effectively implementing the order of this Court. An earlier order of a District Inspector approving the appointment with effect from 1991 has been set aside. The respondents have been directed to approve the appointment with effect from an earlier date. Even though the process of appointment of teachers of Primary Schools has since undergone a change, the appointment in issue was made prior to the enforcement of the west Bengal Primary Education Act, 1973. ( 21 ) AT the material time when the appointments were made, the authority empowered to make appointments was the Managing Committee of the concerned school. Appointments made by the Managing Committee were, however, required to be approved by the concerned District Inspector of Schools (Primary Education ). ( 22 ) AN order of approval has been set aside on the ground that approval ought to have been granted with effect from the date of appointment and not from any subsequent date. The effect of the order of the Court is that a fresh order of approval would have to be passed granting approval from an earlier date. The approval would, however, have to be granted by the District Inspector of Schools whose earlier order has been set aside. ( 23 ) THE District Inspector of Schools was, in view of the judgment and order referred to above, against which there was no appeal, bound to approve the appointment with retrospective effect from the date of appointment. ( 24 ) THE District Primary School Council would be responsible for updating the records for refixation of salary and allowances preparation of salary statements and submission of the statement so prepared, to the State for dismissal, upon issuance of a formal order of the District Inspector of schools approving the appointments of the petitioners from the respective dates of appointment. Since this Court had clearly directed that notional benefits be given for the period prior to September, 2003 the Primary School council would have to calculate and determine the actual salary payable from September, 2003 and raise bills accordingly. ( 25 ) IN the instant case, there appears to have been some genuine confusion. This Court is unable to hold any of the alleged contemnors guilty of deliberate violation and disregard of orders of this Court. If this Court considered it necessary to appoint an Amicus Curiae to assist this Court on the question of implementation of this order and particularly, the question of who in fact, was responsible for compliance and/or effective implementation of the order of this Court, it cannot be said that the doubts which arose amongst the alleged contemnor respondents were not genuine and/or bona fide. ( 26 ) IT is difficult to accept the contention of Mr. Sanyal that the Council not having been impleaded in the writ proceedings, the Council has no responsibility towards implementation of orders passed thereon. As held by the Supreme Court in the judgment reported in AIR 1963 SC 1903 referred to by Mr. Moitra when a party takes the stand that he was not impleaded as party and hence not bound by the decision, the remedy of that party lies in making an application for recalling and/or review of the order or an application for leave to appeal from the order. ( 27 ) THE District Primary School Council has been made aware of the judgment and order of this Court but has chosen not to file any application for leave to appeal or for recalling and/or reviewing of the order impugned. The Chairman of the Council has thus accepted the order. The Council cannot, now turn around and contend that it was not party to the writ proceedings only to avoid compliance of the order of this Court. ( 28 ) MOREOVER, as held by the Supreme Court in the case of Autorized officer (Land Reforms) v. M. M. Krishnamurty Chettry reported in (1998)9 scc 138 cited by Mr. Moitra, even orders which may not be strictly legal become final and are binding between the parties if they are not challenged in appeal. ( 29 ) ATTENTION of this Court was also drawn to a decision in the case of N. Trading Co. Moitra, even orders which may not be strictly legal become final and are binding between the parties if they are not challenged in appeal. ( 29 ) ATTENTION of this Court was also drawn to a decision in the case of N. Trading Co. v. Union of India reported in 72 Cal WN 431 where this court observed that a party who knows of an order whether null or void, regular or irregular cannot be permitted to disobey it. ( 30 ) AS pointed out by Sri Moitra solemn orders of this Court cannot be permitted to stand frustrated. The petitioners whose rights have been declared cannot be deprived of the fruits of the judgment merely on the score that a particular authority has not been named to carry out the order of this Court. ( 31 ) IN the case of State of West Bengal v. Anil Chandra Chowdhury reported in (2000)1 Cal LJ 39 a Division Bench of this Court held if the party has a knowledge of the order, the plea that he was not a party to the proceeding would not absolve him of his liability to comply with the order. ( 32 ) THE order set aside being that of the District Inspector of Schools and a direction having been given to grant approval with retrospective effect the District Inspector of Schools is bound to issue a fresh order approving the appointments with retrospective effect from the actual dates of appointment of the petitioners. Upon issuance of the fresh order the District primary School Council shall be required to take necessary steps such as updating its records, re-computation of the salary of the petitioners with effect from September, 2003 group notional benefits of increments, preparation and submission of salary statement and/or bills etc. ( 33 ) THE State respondents would be bound to assume the financial responsibilities for implementation of the order. The petitioners shall not be entitled to any arrears prior to September, 2003 in view of the original order, which cannot be varied in contempt proceedings and has, in any case, assumed finality. However, the petitioners would be entitled to the benefits of refixation from the date specified in the judgment and order, violation whereof has been alleged,. e. , September, 2003. However, the petitioners would be entitled to the benefits of refixation from the date specified in the judgment and order, violation whereof has been alleged,. e. , September, 2003. ( 34 ) THE contempt proceedings are disposed of by directing the alleged contemnor respondents to ensure that the judgment and order of this Court, violation whereof has been alleged, is complied with within six weeks from the date of communication of this judgment and order. ( 35 ) THE petitioner No. 1 has since been retired from service. It hardly need be mentioned that the last pay for computation of pension shall be determined in accordance with the order dated 22nd August, 2003. The pensionary benefits of the petitioner No. 1 shall be computed and released expeditiously, preferably within eight weeks from the date of communication of this order. If pension cannot be finalized, at least provisional pension should be released.