Calcutta High Court (Appellete Side)
Nilotpal Guchhait vs Dr. Ratna Chakraborty Bagchi on 10 September, 2021
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
10.09.
g.b. 2021 WPCRC 188 of 2019
Ct. No.17
66 with
& WPA 1495 of 2018
67
Nilotpal Guchhait
Vs.
Dr. Ratna Chakraborty Bagchi
With
Nilotpal Guchhait
Vs.
State of West Bengal & Ors.
Mr. Bikash Ranjan Bhattacharya
Mr. Sudipta Dasgupta
Mr. Bikaram Banerjee
Mr. Arka Nandi
......For the Petitioner
Mr. L. K. Gupta
Mr. Subir Sanyal
Mr. Ratul Biawas
........For the Board
The petitioner submits that even after getting
six marks and even after qualifying thereby in
Teachers‟ Eligibility Test (TET, in short) 2014 and
despite the order passed by the court in WP No. 1495
(W) of 2018 whereby the court directed the
respondents to give appointment to the petitioner to
the post of Assistant Teacher (of Primary School) and the Secretary was directed to take steps to give appointment to the petitioner in accordance with law, appointment was not given to him and thereby willful and deliberate violation of the order of this court has been done by the contemnor.
Learned advocate for the contemnor submits 2 that the court‟s direction was to give appointment "in accordance with law" and the law being the concerned Rule for Appointment of Primary Teachers show that there cannot be any appointment beyond the declared vacancy. In the said recruitment process some vacancies were declared all of which have been filled up. He also submits that this is a universal rule that there cannot be any appointment in a recruitment process beyond the declared vacancy.
In reply to this submission of the learned advocate appearing for the contemnor the applicant/petitioner submits that first, in 2014 Recruitment Process both trained and untrained candidates were allowed to participate. The applicant here is a trained candidate. By the time he got the order in his favour from the court as appears from Annexure „P-1‟ of the writ application, (operative part whereof is at page 47 paragraph 4), the vacancies were filled up both by trained and untrained candidates and because of the mistake or error committed by the Board in the answer key he though a trained candidate is not being appointed on the ground that the said operative part of the order, contains the expression „in accordance with law‟ as has been submitted today.
The submission on behalf of the contemnor is that after filling up of the vacancies no candidate can 3 be given appointment as the Board of Primary Education had to follow the court‟s observation "in accordance with law" and thus there is no wilful and deliberate violation of the court‟s order as she has followed the Hon‟ble Court‟s order.
I hold that the Secretary of the Board who is the contemnor here, to whom the direction was given by the court cannot take shelter under the ruse of the expression "in accordance with law". It has not been denied that in the vacancies untrained candidates were also given appointment. Now appointment is to be given by the contemnor to the petitioner in a vacancy and how this is to be done is a matter to be decided by the contemnor. It is wholly their affair. This court only wants compliance of the order passed by this court which has been wilfully and deliberately violated. It is disbelievable that in primary schools in the concerned district there is no vacancy.
This is a unique situation where because of the error or mistake committed by the Board the applicant/ petitioner had to come before the court; and if there was no error or mistake on the part of the Board, he was not required to come before this court. Therefore, his right to be considered for appointment as an Assistant Teacher of a primary school arose on the date when the other candidates who participated in the concerned TET were declared as successful. 4 Now the contemnor shall not be allowed to use the excuse of having no vacancy. The applicant/petitioner before me was not responsible for the mistake or error committed by the Board of which the contemnor is the Secretary. If such an excuse is allowed to be taken by the contemnor then the contemnor would be allowed to take the advantage or benefit of the contemnor‟s Board‟s own wrong for the violation of the court‟s order.
I hold the Secretary being the contemnor is guilty of contempt of Court for willful and deliberate violation of the court‟s order which directed the Secretary to take steps to give appointment to the petitioner.
Here I find that there is a President of the Board who is at the helm of affairs of the Board as is found in the West Bengal Primary Education Act 1973 and it is only natural that he has the last say in the affairs of the said Board as the President of the Board. The President cannot say that he does not know the order of the court. The President of the Board is conducting himself in a manner so as to obstruct the course of Justice and has frustrated the effect of the order passed by this Court. The President is willfully and deliberately assisting the contemnor for not complying the order of the court. Following the principle approved by the Supreme Court in Sita Ram vs. 5 Balbir (reported in (2017) 2 SCC 456) as was formulated in Seaward's case [(1897). CH 545 (CA), Seaward -vs- Paterson]. I hold the President is equally liable for committing contempt of court and I add him as a party contemnor in this contempt application.
As he was not named as an alleged contemnor in this contempt proceeding and was not present before the Court, to give his own defence in this matter, I grant him an opportunity to disclose his defence by appearing personally before this Court on 13th September, 2021 at 11 A.M. in this Court when his defence, if any, would be heard before giving him punishment for contempt of court.
Today though I hold both the contemnors guilty for contempt of court, I am not giving them any punishment. It is made clear that if his defense is satisfactory no punishment would be given to him but if it is not satisfactory to this Court, this Court will take steps for giving punishment in accordance with the provisions of Contempt of Courts Act, 1971.
This order has been passed in the presence of the learned advocates of the first Contemnor and also in presence of the learned advocate of the petitioner.
I direct the parties to communicate immediately the gist of this order i.e. personal 6 appearance of the President of the Board Dr. Manik Bhattacharya on 13th September, 2021 at 11 A.M. for disclosing his defence.
The petitioner is directed to put the name and office address of the added contemner in the contempt application immediately.
(Abhijit Gangopadhyay, J.)