Calcutta High Court (Appellete Side)
Mominul Islam vs Sm. Debalina Chatterjee & Ors on 17 August, 2018
Author: Arindam Sinha
Bench: Arindam Sinha
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17.08.2018
Item No. 1
Ct. No.4
AB
W.P.C.R.C. 12 (W) of 2018
in
W.P. 18803 (W) of 2009
In the matter of: Mominul Islam
-versus -
Sm. Debalina Chatterjee & Ors.
Mr. Golam Mohammad
...... For the applicant
Mr. Subir Sanyal
Mr. Dilip Kumar Sinha
........ For the contemnor no. 2
Rule issued in this contempt application is taken
up for hearing. Mr. Sanyal, learned advocate appears on
behalf of alleged contemner no. 2 and submits, direction
made for appointment to be given, upon compliance with
all formalities, to applicant was on view taken of
submissions made and recorded in order dated 22nd
December, 2015. He emphasizes, submissions made on
behalf of Madrasah Service Commission was that if there
is a vacancy petitioner will be appointed. According to
him purport of this submission is and can only be in
relation to notified vacancy. In event there was notified
vacancy, in compliance of required formality
recommendation would be made for appointment to
follow. Submission made on behalf of the Commission
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cannot be interpreted otherwise than what he submits.
Thus there was no direction upon his client and no
question arises of deliberate or willful violation. On query
from Court Mr. Sanyal submits, order dated 22nd
December, 2015, directions in which are alleged to be
violated, was not an order passed on concession.
He relies on several judgments:
(i) Mukul Saikia Vs. State of Assam reported
in (2009) 1 Supreme Court Cases 386,
paragraphs 33, 46 & 47. It would be
sufficient to reproduce paragraph 33 -
"33. At the outset it should be noticed that the
select list prepared by APSC could be used to fill the
notified vacancies and not future vacancies. If the
requisition and advertisement was only for 27
posts, the State cannot appoint more than the
number of posts advertised, even though APSC had
prepared a select list of 64 candidates. The select
list got exhausted when all the 27 posts were filled.
Thereafter, the candidates below the 27 appointed
candidates have no right to claim appointment to
any vacancy in regard to which selection was not
held. The fact that evidently and admittedly the
names of the appellants appeared in the select list
dated 17-7-2000 below the persons who have been
appointed on merit against the said 27 vacancies,
and as such they could not have been appointed in
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excess of the number of posts advertised as the
currency of select list had expired as soon as the
number of posts advertised are filled up, therefore,
appointments beyond the number of posts
advertised would amount to filling up future
vacancies meant for direct candidates in violation of
quota rules. Therefore, the appellants are not
entitled to claim any relief for themselves. The
question that remains for consideration is whether
there is any ground for challenging the regulation of
the private respondents."
(ii) Chhotu Ram Vs. Urvashi Gulati reported in AIR 2001 Supreme Court 3468, paragraph
8. He submits, Supreme Court found submission made on behalf of alleged contemner regarding omission to plead regarding willful neglect to comply with order of Court being a requirement to bring home charge of contempt as having some signature. Furthermore Supreme Court said where the order was to consider for promotion by treating petitioner to be qualified there was no mandate as such to give promotion to petitioner. In this case direction was to give appointment upon compliance of formalities. Where 4 compliance of formalities is not possible in absence of declared vacancy there neither was nor can be mandate to give appointment to petitioner.
(iii) State of Orissa Vs. Md. Illiyas reported in (2006) 1 Supreme Court Cases 275, paragraphs 9 & 11. He submits, Supreme Court, inter alia, considered true import of word 'willful'. The Court said an act is said to be 'willful' if it is intentional, conscious and deliberate. The word does not necessarily imply blame although it is more commonly used for bad conduct than of good.
(iv) Mira Bose Vs. Santosh Kumar Bose reported in 76 C.W.N. 923, paragraphs 5 &
6. A Division Bench of this Court relied on an observation made by Supreme Court in Debabrata Bandyopadhyay & others Vs. The State of West Bengal & another reported in AIR 1969 Supreme Court 189 to find in facts of the case that alleged contemnors failure was not deliberate nor 5 willful but on the basis of position in law, in respectfully agreeing. He submits, there being no notified vacancy, inability to comply with formality of recommendation on part of his client should not be viewed as either deliberate or willful but as prevented by in position of law.
(v) Corpn. Teachers Association Vs. C.M.C. reported in 1993 (II) CHN 444, paragraph
12. A Division Bench of this Court took view that strict compliance of rules 4 and 7, being procedural requirements, is essential for finding in contempt, proceedings being quasi-criminal in nature.
In adjudicating this contempt rule issued on admission of contempt application alleging deliberate and willful of violation of directions in order dated 22nd December, 2015, it is said order that must be looked into. Perusal of the order reveals direction made was based on submissions made by parties. On behalf of applicant/writ petitioner it was submitted, there were four vacancies in concerned Madrasah out of which three were notified and one omitted by mistake. Further 6 submission was, in any event the notification was of no effect by reason of order dated 9th December, 2015, by Division Bench of this Court in appeal, striking down West Bengal Madrasah Service Commission Act, 2008. Applicant had submitted, he was in second category of candidates, those awaiting appointment. This second category submission was made on basis of extract from said order dated 9th December, 2015 reproduced in order dated 22nd December, 2015. The said extract is reproduced below:
" Since the Act of 2008, according to us is nothing but violation of the fundamental rights guaranteed by the Constitution to the minority institutions, it is exclusively left to the concerned Madrasahs either to accept contention of such teachers, who are already in service and permit them to continue in service and/or to provide appointment to the candidates who are empanelled by the Commission awaiting such appointment."
Submission recorded in said order as made by State was, petitioners grievance would be addressed in line with order dated 9th December, 2015 of Division Bench. In that context, submission was made on behalf of Madrasah Service Commission, if there is a vacancy petitioner will be appointed. Submission made on behalf 7 of High Madrasah was there was existing such a vacancy. What is important to note is parties appearing made submissions but none disputed any submission made by any other. Acting on the basis of such submissions Court passed direction. The order was of parties conceding to position on facts.
Contention of answering alleged contemner there was no notified vacancy loses significance when what stood accepted by appearing parties was, notification was of no effect by reason of Division Bench order dated 9th December, 2015 striking down West Bengal Madrasah Service Commission Act, 2008. Also that applicant was in second category awaiting appointment. Once this position stood ascertained, what becomes significant is submission made on behalf of High Madrasah that there exists a vacancy. It is to be emphasized, this was undisputed.
On earlier occasion this contempt application was taken up for hearing on 12th January, 2018 when rule was issued. Relevant parts of order made that day is necessary to be reproduced below:
"By order dated 10th November, 2017 alleged contemner no.2 was required to file a supplementary affidavit disclosing the intimation of existence of vacancies in 8 Takipur High Madrasah on the basis of which the final vacancy list was prepared by the Commission. This requirement was necessitated by the applicant's reliance upon letter dated 6th September, 2017 answering his query made under Right to Information Act, 2005. It was stated that the vacancies notified under Memo no.4428-G dated 28th December, 2006 in respect of Takipur High Madrasah were 4 (four) in number.
Ms. Sinha, learned advocate appearing on behalf of alleged contemner no.2 files supplementary affidavit. Paragraphs 8, 11, 13 and 14 are extracted from the affidavit and are reproduced below:
"8. Thereafter the said Committee published the exact and final vacancies for the posts of Assistant Teachers on 20th June, 2008 vide Advertisement No.294/ME. In the Northern Region, 27 posts of Assistant Teachers in Physical Education (pass) was finally published."
"11. That the Commission was formed in terms of the West Bengal Madrasah Service Commission Act, 2008 on and from 22nd October, 2008 and started its function on and from 1st December, 2008".
"13. I say that the final vacancy list was published by the said Interim Committee on 20.06.2008 vide Notification No.294-ME dated 20.06.2008 and the said Interim Committee did not exist on and from 1st December, 2008 after formation of the Commission. I say that the concerned vacancy was reported before the Commission on 20.06.2009 after its formation on 22nd October, 2008".
"14. I further say that the petitioner after looking into the final vacancy published on 20.06.2008 cannot 9 claim for his recommendation in another vacancy which was not published at all as a wait listed candidate".
Alleged contemner no.2, it appears, is the functionary who is to comply with the directions made in order dated 22nd December, 2015. The said direction is also extracted below:
"From the submissions recorded above, the petitioner appears to be entitled to the appointment he is seeking. Such appointment must be given upon compliance with all formalities within a period of four weeks from the date of communication of a copy of this order obtained from the website of this Court to be made by the petitioner upon the concerned authorities."
Ms. Sinha submits, for complying with the above directions formalities must be complied with as was also directed. Formalities are that the appointment can only be given against notified vacancy. The notified vacancies have all been filled up. The applicant is seeking appointment against a vacancy which was not notified. Hence, the formalities cannot be complied with and as such, her client has not, in any way whatsoever, violated the direction made upon him. She submits, the contempt application be, therefore, dismissed.
It appears to this Court, alleged contemner no.2 cannot positively assert that the vacancies were notified correctly. The Commission may have been formed on 1st December, 2008 of which alleged contemner no.2 is Chairman. Said alleged contemner while asserting non- compliance of formalities to say there cannot be complete compliance of the directions, has also pleaded ignorance of events taken place prior to 1st December, 2008. He has scrupulously avoided dealing with the existence of Memo no.4428-G dated 28th December, 2006 as disclosed 10 under the Right to Information Act, 2005, to the applicant.
Let a rule be issued upon alleged contemner no.2. Returnable four weeks hence that is on 9th February, 2018."
Above have been extracted for this Court finding mistake made regarding omission to notify 28 vacancies as appears to lie at door of answering alleged contemner or the authority being his predecessor in office. In Mukul Saikia (supra) Supreme Court said State cannot appoint more than number of posts advertised. In event appointment was made in excess, of number of posts advertised, would amount to filling up future vacancies. Question arising from facts in this case was not before Supreme Court. Case of applicant in writ petition was for appointment out of existing vacancies as opposed to it being said that if appointment is given to him, it would amount to filling up a future vacancy. Mistake made was not made by applicant for him to suffer consequences of it.
Chhotu Ram (supra) was relied upon both for application of procedural law in favour of answering alleged contemner as well as mandate in direction made for cognizance of contempt to be taken. Other decisions 11 have also been relied upon regarding procedural law which will be dealt with in one go. So far as mandate of directions is concerned, in Chhotu Ram (supra) direction made was to consider for promotion petitioner by treating him to be qualified on cut-off date. Promotion was to be offered only, however, upon compliance with certain eligibility criteria. Supreme Court said this was not a mandate but a direction for consideration only. In event contextual facts depicted that consideration was effected in accordance with normal rules, practice and procedure and upon such consideration no promotion could be offered, question of there being any act of contempt would not arise. Direction here was to give appointment on finding applicant to be entitled thereto. Further direction was for compliance with all formalities. These directions do not call for consideration but for action. Chhotu Ram (supra) does not apply in this case.
Md. Illiyas (supra) is relevant and applicable in facts and circumstances. Record in order sheet will reveal omission on part of answering alleged contemner which can be said to be an act which is willful as intentional, conscious and deliberate. No blame is being 12 put on him but he has acted by omission in interpreting position of law as preventing him from complying. His omission is not recommending petitioner for appointment as such recommendation cannot be made, according to the rules, in the absence of notified vacancy. This Court by order dated 20th December, 2017 had directed him to comply with formalities. That meant his office had to recommend. No appeal was preferred against the order. He was required to comply therewith.
In Mira Bose (supra) Division Bench of this Court relying on observation made by Supreme Court had dealt with care in exercising contempt jurisdiction. On careful consideration of facts in that case Division Bench found omission on part of alleged contemnor was not deliberate or willful but on the basis of position of law. This decision for to be made applicable to this case required answering alleged contemner to demonstrate that direction made for compliance of formalities could, in facts and circumstances recorded in order dated 22nd December, 2015, be said to be direction upon him to do something illegal. Parties before Court had conceded Act of 2008 stood set aside by Division Bench rendering 13 insignificant matter of omission to notify 28th vacancy. In this contempt proceedings answering alleged contemner was on notice of Court's view that he had not been able to successfully dispute mistake did not lie at door of his office or of his predecessor. Mira Bose (supra), therefore, does not come to his aid.
On behalf of answering alleged contemner Corpn. Teachers Association (supra) was relied upon to urge strict compliance with procedural requirements as essential for finding in contempt proceedings. Division Bench was of view it is imperative alleged contemner is clearly informed of the charge he is called upon to meet. Compliance with rules 4 and 7 of Calcutta High Court Contempt of Court's Rules, 1975 ensures this. Submission was of omission in contempt application by failure to state briefly in cause title nature of contumacious conduct complained of. Similar omission is in prayer portion of the application thus non- compliance with rule 7. It appears from Corpn. Teachers Association (supra) applicant therein was given opportunity to amend. Likewise opportunity applicant is entitled to.
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Mr. Sanyal submits, applicant has already been given appointment by concerned Madrasah. Mr. Mahammed submits, concerned District Inspector of Schools is not granting approval of appointment in absence of recommendation made by answering alleged contemner.
List under heading "For Orders" on 14th September, 2018. Applicant is given opportunity to use time in between to amend contempt application, if so advised or to urge compliance with rules 4 and 7 made.
(Arindam Sinha, J.)