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2011 DIGILAW 348 (CAL)

Bidhan Chandra Mondal v. Ashok Banerjee

2011-03-11

BISWANATH SOMADDER

body2011
JUDGMENT : 1. A novel and innovative excuse has been conjured up by the learned Advocate representing the District Primary School Council, South 24 Paraganas, to try and explain an act of non-compliance on part of his client for complying with a mandatory order passed by this Court on 8th July, 2010, in W.P.No.9793 (W) of 2010. 2. The Writ Petition was with regard to non-issuance of Appointment Letter in favour of the Writ Petitioner, who was selected for the post of Assistant Primary Teacher by the said Council. This Court, on 8th July, 2010, had been pleased to observe that there could be no valid justification for withholding issuance of the Appointment Letter in favour of the Writ Petitioner in the facts and circumstances of the case as there was no embargo and /fetter upon the District Primary School Council, South 24 paraganas, to do so. By the said order the Writ Petition was disposed of, inter alia, with a direction upon the District Primary School Council, South 24 Paraganas, to take appropriate steps in the matter within a certain time-frame, based on the observations made therein. 3. The novel and innovative excuse, as submitted by the learned Advocate for the Council, is that in the meanwhile there has been a directive of the Chief Election Commissioner of India introducing a Code of Conduct in this State restraining the authorities from issuing fresh appointment letters. In this regard, the learned Advocate hands-up a memo dated 2nd March, 2011, issued by the Director of School Education, Government of West Bengal, addressed to the Chairman/Chairperson of all Districts Primary School Council, which may be kept on record. 4. Perusing the said Memo dated 2nd March, 2001, it appears that the Director of School Education, Government of West Bengal, has taken into consideration the Code of Conduct introduced by the Chief Election Commissioner of India, consequent upon the announcement of the Assembly Election Programme for the State on 1st March, 2011. In terms of the said memo dated 2nd March, 2011, the Chairman/Chairperson of various Districts Primary School Council were directed not to issue appointment Letters for recruitment to the post of Primary School Teachers as well as staff of the District Primary School Councils including Kolkata and Siliguri Primary School Council, on and from 2nd March, 2011, until further order. 5. 5. It is, indeed, a preposterous argument sought to be advanced by the learned Advocate for the Council, who strives to contend that the said Memo of the Director of School Education, West Bengal, is a binding directive in the facts of the instant case. Nothing can be farther from the ground realities of the case. 6. As observed herein before, this Court, on 8th July, 2010, passed an order disposing of a Writ Petition with certain directions. The Respondent-Authorities were supposed to act in terms of those directions, but did not do so for months together. Willful disobedience and contumacious violation, as alleged by the Writ Petitioner, prompted filing of the instant Contempt Application on 29th November, 2010. 7. The Memo dated 2nd March, 2011, issued by the Director of School Education, Government of West Bengal, asking the Chairman/Chairperson of the various Districts Primary School Council, to adhere to the Code of Conduct introduced by the Chief Election Commissioner of India, following announcement of the Assembly Election for the State on 1st March, 2011, has no manner of Application in the facts of the instant case, since the order of this Court was passed on 8th July, 2010. The Code of Conduct introduced by the Chief Election Commissioner of India, as sought to be highlighted by the Director of School Education, Government of West Bengal, in his memo dated 2nd March, 2011, came into effect on 1st March, 2011, and thus, cannot stand in the way of execution or compliance by the State or a Statutory Authority of the State of a mandatory judicial pronouncement made by a competent Court of law. Moreover, this is a case where the cause of action arose not due to the Writ Petitioner being aggrieved by the introduction of such Code of Conduct, but because of inaction on the part of the concerned Respondent-Authorities to issue Appointment Letter in favour of the Writ Petitioner, who was a successful candidate in the recruitment process. The court in the instant matter, as will appear from record, passed a mandatory order under Article 226 of the Constitution of India on 8th July, 2010, and it was the bounden duty of the concerned authority to comply with the directions contained therein. 8. For reasons stated above, this Court rejects outright the submissions made by the learned Advocate for the Council. 9. 8. For reasons stated above, this Court rejects outright the submissions made by the learned Advocate for the Council. 9. However, with regard to the submission made by the learned Advocate for the Council that the testimonials of the Writ Petitioner are required to be verified by the Council and some time is required, the same is accepted by this Court. 10. Accordingly, the matter stands adjourned for six weeks and this Court directs the District Primary School Council, South 24 Paraganas, to complete all formalities, regarding the verification of the testimonials of the Writ Petitioner, in the meanwhile.