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2011 DIGILAW 748 (CAL)

Dhiren Soren v. STATE OF WEST BENGAL

2011-05-20

HARISH TANDAN

body2011
JUDGMENT 1. THE judgment of the Court was as follows:- This writ petitioner impugned an inaction on the part of the respondent No. 4 to give appointment to the writ petitioner on compassionate ground in terms of an earlier order dated 31st March, 2008 passed in W.P. No. 13449 (W)/2005. 2. THIS case has a chequered history. One Durga Pada Majhi @ Soren was appointed as a primary teacher. The said teacher was subsequently attacked by various diseases and was medically incapacitated and was not in a position to render services any longer. In terms of the then prevalent rules, the said Durga Pada Majhi @ Soren applied on 17.4.1998 for permission to retire and prayed for appointment of the writ petitioner on the compassionate ground. Thus, the said teacher sought for an appointment of the writ petitioner on the ground of medical incapacitation. The respondent No. 4 constituted an Enquiry Committee and report was duly submitted by such Committee. It was found by the said Committee that the family of the said teacher is in financial distress and recommended the said teacher to be examined by the Medical Board. In spite of such recommendation, no Medical Board was constituted. The said teacher thereafter filed writ petition being W.P. No. 7781 (W)/ 2002 before this Court which was disposed of on 1.7.2002 directing the Chief Medical Officer, Health, Purulia to examine the said teacher and to give report as to the permanent incapacitation of the said teacher. Ultimately, the said teacher died on 9.8.2002 before the examination by the Medical Board. 3. SUDDENLY, the respondent No. 4 issued a memo No. 2490/DPAC dated 12.10.2004 to the mother of the writ petitioner asking her to produce a certificate from the local Gram Panchayat about the composition of the family and the monthly income of each of its members and also no objection from other family members for appointment of the writ petitioner on compassionate ground. In terms of the said memo the documents as requisitioned were submitted. The application of the writ petitioner seeking an appointment on compassionate ground was rejected on 1st March, 2005 by the Director of the School Education, the respondent No. 2 which was communicated by the respondent No. 4 vide memo No. 139 dated 25th April, 2005 to the petitioner. In terms of the said memo the documents as requisitioned were submitted. The application of the writ petitioner seeking an appointment on compassionate ground was rejected on 1st March, 2005 by the Director of the School Education, the respondent No. 2 which was communicated by the respondent No. 4 vide memo No. 139 dated 25th April, 2005 to the petitioner. The writ petitioner challenged the said memo No. 139 dated 25th April, 2005 by which the respondent No. 4-communicated the decision taken by the respondent No. 2 about the rejection of the application filed by the writ petitioner seeking appointment on compassionate ground before this Court in W.P. No. 13449(W)/2005. The said writ petition was disposed of on 31.3.2008 directing the respondent No. 4 to enlist the name of the petitioner for appointment on compassionate ground on due compliance of the formalities as indicated in memo dated 12th October, 2004 and shall issue an appointment letter to the writ petitioner within six weeks from the date of such compliance. The said order dated 31st March, 2008 passed in W.P. No. 13449(W)/2005 was duly communicated to the respondents on 24.4.2008. In spite of the aforesaid order the respondent. No. 4 did not take any steps for appointment of the writ petitioner who having complied the formalities as mentioned in memo dated 12th October, 2004. 4. IN this writ petition, the writ petitioner has impugned inaction on the part of the respondent authorities in not adhering and/or acting in terms of the order dated 31st March, 2008 passed in W.P. No. 13449(W)/2005. The respondents were permitted to file an affidavit-in-opposition by this Court vide order dated 2.9.2009 but no affidavit-in-opposition is filed by the respondent as yet. However, the learned Advocate appearing for the respondents proceeded to argue the instant writ petition without filing the affidavit-in-opposition. 5. MR. Gouri Sankar De, learned Advocate appearing for the petitioner submitted that this Court in an earlier proceeding directed the respondent authorities to give an appointment to the writ petitioner on due compliance of the requisitions made in memo dated 12th October, 2004. Once the writ petitioner complied the formalities as mentioned in memo dated 12th October, 2004 and if nothing is found adverse on verification of the documents, the respondent authorities are bound by the order dated 31st March, 2,008 having no alternative but to give appointment to the writ petitioner. 6. Once the writ petitioner complied the formalities as mentioned in memo dated 12th October, 2004 and if nothing is found adverse on verification of the documents, the respondent authorities are bound by the order dated 31st March, 2,008 having no alternative but to give appointment to the writ petitioner. 6. WHILE contending that if non-adherence to an earlier order passed by the Court is brought to the notice in a subsequent proceeding, the Court has the power to pass an appropriate order even if no application under Contempt of Court Act is filed, reliance is placed on a judgment in case of Nawal Kishore Prasad Sinha v. State of Bihar and Ors., reported in AIR 1983 Patna 8. He lastly argued that the right of the writ petitioner has already been crystallized in an order passed in an earlier proceeding and prays for an order allowing the writ application by directing the concerned respondent authorities to issue an order of appointment to the writ petitioner. Mr. Jayanta Mitra, learned Advocate appearing for the respondent No. 4 submits that the instant writ application is, in effect, seeking an enforcement of an order passed in an earlier writ application, which is not maintainable. Such point was taken by him by way of a demurer. He further argues that the order passed in an earlier writ application was an ex parte order which was challenged by the respondents, though belatedly, in an appeal along with the application under Section 5 of the Limitation Act for condonation of delay. The application for condonation of delay was dismissed but not an appeal itself and thus the said order does not attain finality and not binding upon the parties. He further argues that even though a teacher is found medically incapacitated but if the family is not under financial distress, no appointment could be made on compassionate ground. He further argues that the word "family" has not been defined under Rule 14 of the Rules regulating the recruitment and leave of the teachers in primary school in West Bengal made in exercise of the power conferred by Section 1 of Section 106 of the West Bengal Primary Education Act, 1973 and published vide Notification No. 768 Edn.(B) dated 2nd November, 1991, but includes the unemployed wedded wife, unemployed son or the unemployed unmarried daughter. According to him the financial hardship of the family is to be judged on the basis of the total income of the family and not of its solitary member. He lastly argued that an application was made in the year 1997 and by this time the financial status of the family may have changed. He concludes with the submission that the instant writ application should be dismissed. 7. MR. De, learned Advocate in reply submits that the subsequent writ application for enforcement of an order passed in earlier writ application is maintainable and reliance was placed upon a judgment in case of Bibekananda Mondal v. State of West Bengal and Ors., reported in 2003 (1) CHN 154 . 8. HAVING considered the submission and the points canvassed by the respective parties it would be proper to narrate undisputed facts. The father of the writ petitioner who was appointed as a primary teacher made an application in the year 1997 for permission to retire and to appoint the writ petitioner on compassionate ground. On the basis of the said application Enquiry Committee was constituted and gave a report as to the financial condition of the family of the said teacher and recommended the Constitution of Medical Board. No steps thereafter were taken and a writ petition was taken out by the father of the writ petitioner being W.P. No. 7781 (W) of 2002. The said writ petition was disposed of directing the Chief Medical Officer to constitute the Board and to give report as to the medical condition of the said teacher. Though there was a specific direction but no step was taken thereafter. In the meantime the father of the petitioner died. After the death the respondent No. 2 rejected the said application which was challenged in another writ petition and the said decision was quashed with the direction to give an appointment to the writ petitioner on complying the requisition made in the memo dated 12th October, 2004. 9. In the meantime the father of the petitioner died. After the death the respondent No. 2 rejected the said application which was challenged in another writ petition and the said decision was quashed with the direction to give an appointment to the writ petitioner on complying the requisition made in the memo dated 12th October, 2004. 9. THE only consideration left after the subsequent order dated 31st March, 2008 is if on verification of the documents required to be submitted in terms of the memo dated 12th October, 2004 the same is not found to be genuine or sufficient, the application could have been rejected otherwise the earlier order passed by this Court was clear and explicit that if on verification nothing is found adverse to the writ petitioner an order of appointment should be passed. 10. IT would be profitable to mention the said memo dated 12th October, 2004 which are as follows:- "She is hereby asked to produce the following papers to this office immediately. (1) A certificate from the local Gram Panchayat showing the composition of the family of Durgapada Majhi, the petitioner No. 1 mentioning name, date of birth and occupation of each member (2) The monthly income of each of the members having any occupation/profession (3) If Sri Dharani Soren, is a son of Durgapada Majhi (Soren), his no objection to the proposed appointment in favour of Sri Dhiren Soren, his younger brother. This is urgent." There is no doubt that pursuant to such memo documents indicated therein was duly submitted wherefrom it appears that the monthly income of the widow is Rs. 200 and that of a daughter-in-law is Rs. 300/- apart from the several certificates issued by the local Gram Panchayat and no objection was given by the elder brother. In spite of such compliance as well as the order dated 31st March, 2008 passed in an earlier writ petition no step has been taken by the respondent authorities as yet. Since no affidavit-in-opposition is used there is no document before the Court wherefrom it can be gathered that the documents as requisitioned in memo dated 12th October, 2004 is not genuine and sufficient for the purpose of appointing the writ petitioner on compassionate ground. Since no affidavit-in-opposition is used there is no document before the Court wherefrom it can be gathered that the documents as requisitioned in memo dated 12th October, 2004 is not genuine and sufficient for the purpose of appointing the writ petitioner on compassionate ground. Though the Court should not pass an order for appointment which is the domain of an appointing authority but this is an exceptional case where the Court should exercise its power directing the respondent authorities to give an appointment to the writ petitioner. 11. BEFORE taking an exception as indicated above other legal points argued by the learned Advocate appearing for the respondent No. 4 as to the maintainability of the writ petition are required to be dealt with. 12. THE point taken by Mr. Mitra that a subsequent writ application for enforcement of an order passed in an earlier writ petition is not tenable in view of the judgment delivered in case of Bibekananda Mondal (supra) where the learned Single Judge while confronted with the similar point was pleased to observe:- "5. A Division Bench of the Patna High Court in Nawal Kishore Prasad Sinha and Ors. v. State of Bihar and Ors., reported in AIR 1983 Patna 8, held "Now I take up the submissions of Mr. Singh that even if there was a violation of the order action has to be taken under the Contempt of Courts Act, 1971 which is a self contained Act and procedure has been laid down for violation of such orders which may amount to civil or criminal contempt. The inherent power of the High Court-the argument continues-puts a limit on the powers by requiring a trial of the issue and enjoins that no sentence can be imposed, unless the Court is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere with the due course of justice. And in this connection reliance has been placed on some decisions which I will discuss later but at the very outset I must say the argument is wholly misconceived. The question of committal or non-committal under the Contempt of Court's Act is one of the discretion of he Court and can be exercised which this Court is fully satisfied that there has been deliberate attempt to flout the order of this Court. The question of committal or non-committal under the Contempt of Court's Act is one of the discretion of he Court and can be exercised which this Court is fully satisfied that there has been deliberate attempt to flout the order of this Court. That will depend on the facts of each case, the nature of the order and the act complained of. But without initiating a proceeding for contempt this Court can quash any order or proceeding done in disregard of such orders which may also tantamount to contempt. It is very difficult to accept this extreme proposition that the acts done in defiance of Court's order can only be dealt with under the Contempt of Courts Act where a complete machinery is provided for, and in no other manner. The Act does not put any bar. By accepting this proposition this Court will have to completely, ignore the illegal acts of the subordinate authorities and, I may hasten to add, this will lead to dangerous results." 6. It is, therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ Court. This Court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done in wilful disobedience of a Court order is not only contempt, but, also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said article recognises a very wide power on the High Courts to remedy injustice wherever it is found." The support can also be made from a judgment of the Supreme Court in case of Commissioner, Karnataka Housing Board v. C. Muddaiah, reported in 2007 (7) SCC 689 where the Apex Court observed as follows:- "32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected." 13. THE order passed in a proceeding against the parties thereto are binding on the parties if any of them is aggrieved by such order the remedy is to challenge the said order in appeal. If a party who has suffered from an order did not file an appeal or filed an appeal which suffers dismissal, is bound by the said order. Even in case where an appeal is filed belatedly along with an application for condonation of delay and such an application for condonation is dismissed, the order attains finality as the dismissal of an application under as Section 5 in filing an appeal amounts to a dismissal of an appeal itself (see: Shyamsundar Sarma v. Pannalal Jaiswal, reported in 2005 (1) SCC 436 ). 14. THUS an order which was passed in an earlier writ petition which was assailed by the respondent No. 4, attains finality on rejection of an application for condonation of delay. Rule 14(b) of the said Rule provides that a primary teacher who is declared permanently incapacitated by a competent Medical Board and has been allowed to retire at least two years before attaining the age of superannuation and his family is in extreme economic hardship, one of the following, the unemployed wife, the unemployed son or the unemployed unmarried daughter may make an application within two years from such retirement for appointment as primary teacher. There is no dispute that an application was filed by the primary teacher for permission to retire being medically incapacitated and by invoking the said provision sought for an appointment of the writ petitioner on compassionate ground. There is no dispute that an application was filed by the primary teacher for permission to retire being medically incapacitated and by invoking the said provision sought for an appointment of the writ petitioner on compassionate ground. The said application could not see its logical conclusion during the lifetime of the said primary teacher as no Medical Board could be constituted even there was a specific order passed by this Court in his writ petition directing the respondent No. 4 to verify the document submitted by the petitioner in terms of a memo dated 12th February, 2004 and on verification if nothing is found adverse, should give an appointment. 15. SINCE no document is forthcoming whereby it can be logically concluded that the veracity of the statement made in the said document could be doubted. Thus, it is inescapable that the statement stands on its truth and an order for appointment should have been passed. 16. DESPERATE argument was advanced by Mr. Mitra about the change of the financial condition during the period from making an application in the year 1997 till date. The said argument has no basis since no affidavit-in-opposition is filed in spite of the direction being passed. Such contention cannot be allowed to be made at this juncture. The underlying object behind the appointment on compassionate ground is to tide over the family from a sudden penury for the loss of the life of a bread earner. In case of premature retirement on medical incapacitation the family not only faces sudden financial outburst but have to incur huge expenditure for treatment of the said medically incapacitated employee. Such consideration should weigh more than the case of a sudden death. Thus the writ application deserves to be allowed and the respondent No. 2 is directed to pass an order of approval of the appointment of the writ petitioner within a period of three weeks from the date of communication of this order and the respondent No. 4 shall thereafter issue formal letter of appointment to the writ petitioner within two weeks from the date approval granted by the respondent No. 2. The writ application is, thus, disposed of. However, there shall be no order as to costs.