Calcutta High Court (Appellete Side)
Sri Tapan Kumar Bhattacharya vs Sri Pradip Kumar Halder & Ors on 9 February, 2009
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray.
And
The Hon'ble Justice Manik Mohan Sarkar.
F.M.A. No. 1906 of 2003.
Sri Tapan Kumar Bhattacharya
Versus
Sri Pradip Kumar Halder & Ors.
For Appellant : Mr. Sumit Kr. Panda
Mr. Taraprasad Halder
For Writ Petitioner-
Respondents : Mr. Jaharlal De
Mr. Jay Saha
Mr. Siddhartha Mukherjee
Mr. Suchayan Banerjee
Ms. Mousumi Ghosh.
For Respondent nos. 2 to 9 : Mr. Somnath Ray
Mr. Suchayan Banerjee.
For State : Mr. S. Dasgupta
Mr. Tulsidas Maity
Heard On :
2
Judgment On : 9TH FEBRUARY, 2009.
Pratap Kumar Ray,J.
Challenging the judgement and order dated 4th April, 2003 passed in CPAN No. 803 of 2002, a contempt proceeding arose out of alleged violation of the order dated 28th January, 2002 passed in W.P. No.17783 (W) of 2001, this appeal has been preferred by respondent No.6 of the said contempt proceeding who was not a party in the said writ proceeding. The impugned judgement under appeal reads such :-
"In this contempt application it is alleged that the holding of the test for selection is in violation of the order of which contempt is alleged. Having gone through the order passed by this Court it does not seem that such a contention can be sustained. The respondents were directed to take steps in terms of annexure "P-9" which is at page 9 of the contempt application. The said circular points out that the case of non-regular employees are to be considered before inviting candidates from the Employment Exchange. It is further alleged that respondent no.6 who is a permanent employee is also one of the candidates whose case is being considered and was allowed to appear in that test.
Mr. Banerjee, learned Counsel appearing on behalf of the alleged contemnor no.2 and the learned Counsel on behalf of the respondent no.6 Mr. Haldar points out that he is holding a post subordinate to the post for which selection is being made and that respondent no.6 having acquired qualification is eligible for being considered. But the fact remains that the direction was to take steps in accordance with the circular at annexure P-9 which does not include the case of respondent no.6, who is a regular employee. Therefore, his case cannot be considered. The respondents shall take steps in terms of annexure "P-9" accordingly.
This order will not prevent them from selecting the best candidates or taking such steps as they may think fit and proper.
This contempt application is thus disposed of.
There will be no order as to costs.
Let xerox plain copies of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Counsel appearing on behalf of the parties on usual undertakings."3
The order dated 28th January, 2002 passed in the writ application W.P. No.17783 (W) of 2001 reads such:
"In this case the petitioners were selected through recruitment process for being appointed on contractual basis against permanent vacancies. The contract that was entered into recorded terms in Clauses (8) that such appointment will not entitle the petitioners, who were so engaged, to claim any right for appointment in future. The petitioners had challenged an attempt on the part of the respondents to recruit some persons against four posts by the notification impugned in this writ petition.
Mr. Saha, learned counsel for the petitioner contends that Annexure 'P-3' was issued on 13th September, 2000 requiring consideration of filling up the posts against which the persons irregularly appointed are working and till such process is undertaken, the names may not be asked for from the Employment Exchange and in asked for, the same may not be proceeded with. The West Bengal Regulation of Recruitment in State Government Establishments and Establishments of Public Undertakings. Statutory Bodies, Government Companies and Local Authorities Act, 1999 was enacted. By reason of the said Act, the recruitment can only be made from amongst the candidates sponsored through Employment Exchange, but that was made subject to the regulation contained in Annexure 'P-9'. In the circumstances, the petitioners have a right to be considered in terms of the said regulation. According to him, such right can neither be ignored nor be postponed. He further commands that by reason of the said regulation if posts are filled up, in that event the authorities in issuing the order contained in Annexure 'P-9' can become anfractuous. Therefore, according to him, before making any regulation attempted to be made for being imposed, the petitioners case should be considered in terms of Annexure 'P-9'.
Mr. Banerjee, learned counsel for the respondent Zilla Parished, on the other hand contends that the petitioners are not eligible for these four posts which are earmarked for scheduled Caste and Scheduled Tribe according to the 100 point roster. Even if the petitioners might claim any right pursuant to the said circular, they cannot take their claim so far as recruitment proposed to be made through the circular impugned in this writ petition. Therefore the respondents should be permitted to make recruitment against the said four posts. The case of the petitioners would be considered against the vacancy of the general candidates since none of the petitioners belonged to the reserved category. According to him, there is no conflict in between the circular contained in Annexure 'P-9' and the attempt to recruit the persons pursuant to the notice impugned in this writ petition inasmuch as the recruitment is being made against the posts from amongst the Scheduled Caste and Scheduled Tribe candidates in 4 respect of which the petitioners cannot stake any claim by reason of their being candidates belonging to the general category.
After hearing the learned counsel for the parties it appears that the petitioners were engaged through selection process on contract basis pursuant to the agreement, which contained a clause, being clauses (9), depriving them of any right to claim appointment pursuant to such engagement. However, Annexure 'P-9' was issued despite having enacted the 1999 Act referred to above. In the said circular it was pointed out that the Government is considering the regularisation of the irregularly appointed employees in the three tier panchayat system against the vacancies available as on the date of the circular, namely, 13th September, 2000, as irregular employees against the vacancies available on the said date. The said circular, however, contains that for the filling up of those posts, the names from the Employment Exchange need not be called for and if called for, the same may not be considered, until the case of persons like petitioners are not considered by the State Government, in terms of the said circular. It further appears from the documents disclosed that the said circular was being attempted to be acted upon by responding/requiring the different departments to furnish the particulars of such vacancies as well as the persons engaged against such vacancies being appointed irregularly.
The Government having issued its own circular cannot ignore the same until it declares that the Government had taken steps to recall the said circular or had decided not to proceed with the circular any further. It is not the case that the said circular has been recalled or there is a decision that such consideration need not be undertaking. Nothing prevents the Government from making any recruitment through regular basis. It is always open to it to make the recruitment on popular basis. At the same time it is also open to the Government to implement the reservation rules and fill up all vacancies earmarked for reserved categories, on the basis of the 100 point roster. But that does not preclude the Government from considering, according to its own circular, the case of the petitioners, for filling up the vacancies against which they were engaged.
In the circumstances, the respondent Government shall take steps in terms of the said circular contained in Annexure 'P-9' for filling up the vacancies, against which the petitioners are working in terms of the said circular, as early as possible, preferably within a period of three months from the date of communication of this order. This order will not prevent the respondent authority to fill up the posts earmarked for reserved categories, which are lying vacant.
With this observation, this writ petition is disposed of. There will be no order as to costs.
Xerox plain copy of this order duly countersigned by the Assistant Registrar (Court) be given to the learned counsel for the parties on the usual undertaking."5
The appellant who is respondent No.6 of the contempt application, Shri Tapan Kumar Bhattacharya, has challenged the order passed on 4th April, 2003 by the learned trial Judge while exercising the jurisdiction under Contempt of Court's Act, 1971, on the ground that his right for being considered for the post of Sub-assistant Engineer in terms of West Bengal Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla Parishad) Rules, 1997 was denied as under rule 9 of the said Rule irrespective of the fact of not holding any feeder post of promotional post of Sub-assistant Engineer, he is eligible for being considered due to his qualification Diploma in Engineering subject, a qualification prescribed for the post of Sub-assistant Engineer (Civil/Electrical). It is the case of the appellant that a permanent vacancy of Sub-assistant Engineer was intended to be filled up. The appellant was allowed to appear in the selection test for consideration of his candidature on merit along with the writ petitioners of writ application W.P. No.17783 (W) of 2001 who are admittedly contractual appointee for a limited period in the post of Sub-assistant Engineer. It is contended before this Court that the writ petitioners, the contractual appointees, have no right even to appear in the selection process of a permanent vacancy of Sub-assistant Engineer for which the appellants' name was placed for consideration for the sole reason that contractual appointee has no right for being regularized in the post of Sub-assistant Engineer. It is the further submission that the order dated 28th January, 2002 passed in writ petition W.P. 17783(W) of 2001 whereby the writ petitioners' case was directed to be considered on the basis of the circular letter being Annexure P-9 of the writ application, being a circular letter issued by Deputy Secretary, Panchayat and Rural Development Department, Government of West Bengal by a Memo No.4548(34)/PN/O/Cell-3/2A-17/14 dated 13th September, 2000 whereby the Panchayat Authorities were restrained from filing up the vacant post by inviting names from the Employment Exchange due to the reason that a proposal was under active consideration of State Government for regularizing the irregularly appointed employees in the different posts under Panchayat and Rural 6 Development Department, is not an embargo so far as filling up a permanent vacant post as per Recruitment Rule as none of the writ petitioners is holding this post.
It is further contended by the appellant that one vacant post of general category, which became the subject matter of vacancy notification dated 15th October, 2001 issued by the Zilla Parishad fixing the date of examination of eligible candidates to select on merit, though was challenged in the earlier writ application moved by the writ petitioners, but learned trial Judge did not interfere with it. The appellant submits that for unreserved one permanent vacancy, the Zilla Parishad invited the writ petitioners and the present appellant to appear in the written and oral examination fixing the date 29th June, 2002 and by the interim order dated 20th June, 2002, learned trial Judge in the contempt proceeding allowed the Zilla Parishad to hold said examination with a rider that the selection would be subject to the result of the contempt proceeding.
This appeal has been opposed by the writ petitioners-respondents who are the applicants of the contempt application on the grounds that the Intra- Court Appeal is not maintainable against the order passed in the contempt proceeding impugned in this appeal and that in terms of the order dated 28th January, 2002 passed in W.P. No. 17783 (W) of 2001, only the writ petitioners were entitled to appear in the selection test for selection of one of them in the vacant permanent post and appellant is not entitled to appear in said test.
Before considering the rival contentions of the parties since this case has a chequered history, it requires to state the fact in brief, which led the respondents to file a contempt application vis-à-vis the Rules and Regulations of the Zilla Parishad to appoint Sub-assistant Engineer.
Respondent nos. 1 to 10 of this appeal filed a writ application being W.P. No. 17783 (W) of 2001 challenging the notice issued under memo no. 74/ZP/ES11/01 dated 15th October, 2001, by the Additional Executive Officer and Additional District Magistrate, South 24-Parganas Zilla Parishad fixing the date of examination on 17th November, 2001 to fill up the permanent vacant posts of Sub-assistant Engineer, on the grievance that the respondent Zilla 7 Parishad was not legally entitled to fill up the permanent vacant post of Sub- assistant Engineers without regularizing the service of the writ petitioners who were the contractual appointee in the post of Sub-assistant Engineer. The writ petitioners claimed their legal right for being permanently absorbed in the permanent vacant posts of Sub-assistant Engineer on the strength of a circular letter issued by the Deputy Secretary, Panchayat and Rural Development Department, Government of West Bengal being circular no. 4548(34)/PN/O/Cell- 3/2A-17/14 dated 13th September, 2000.
It was the case of the writ petitioners as pleaded in the said writ application as follows: "That the concerned Zilla Parishad published a news advertisement in the daily newspaper "The Statesman", Calcutta Edition and "Ganasakti" in their publication dated 19th July, 1998 inviting the applications from Diploma Holder Civil Engineers for appointment in the service under Zilla Parishad as "temporary Sub-assistant Engineer on contractual basis". Out of 30 candidates appeared, writ petitioners were selected and appointed. A contractual agreement dated 1st October, 2003 was executed in between the writ petitioners and the concerned Zilla Parishad, the tenure of which, time to time was extended. That they are legally entitled to be absorbed in permanent posts on creating new posts by way of regularization, due to their long service in the organization on the basis of circular letter dated 13th September, 2000 aforesaid".
From the records it appears that under Clause (8) of the agreement dated 1st October, 2003, executed in between contractual appointees and the Zilla Parishad, it was categorically stipulated that the appointees would not be entitled for any claim of further engagement, any permanent appointment, pensionary benefits, retirement, pay benefits, pay scale, allowance, enhancement of the remuneration from the employer due to the nature of service, which was purely an assignment on contract basis. The writ petitioners opposed the recruitment process of permanent vacancies in terms of the Recruitment Rule and prayed for regularization on the strength of the said circular letter of Deputy Secretary.
In the writ application the writ petitioners prayed the following reliefs:
8(a) A Writ of and/or Writs in the nature of Mandamus directing the Respondent authorities and/or each one of them -
i) to withdraw and/or cancel, recall, rescind the said purported Notification dated 15th October, 2001;
ii) to cancel and/or postpone the examination scheduled to be held on 17th November, 2001 as stated hereinbefore pursuant to the above Notification;
(b) Writ and/or Writs in the nature of Prohibition directing the Respondent authorities and/or each one of them -
i) From not giving any effect or further effect or to act in terms of the said purported Notification dated 15th October, 2001 in any manner whatsoever;
ii) From holding the examination schedule to be held on 17th November, 2001 as stated hereinbefore in terms of the above Notification;
(c) Writ and/or Writs in the nature of Certiorari directing the Respondent authorities and/or each one of thme to transmit and/or produce the relevant papers, documents pertaining to the case before this Hon'ble Court so that conscionable justice may be made by setting aside and/or quashing the said impugned Notification dated 15th October, 2001 as well as by absorbing the Petitioners to the post of Sub- Assistant Engineer (Civil) on permanent basis;
(d) Rule NISI in terms of the above prayers;
(e) Rule NISI be made absolute, if no cause and/or sufficient cause is shown;
(f) Stay of operation of the impugned Notification dated 15th October, 2001 being Annexure "P-14" herein;
(g) Injunction restraining the Respondent authorities therein men, agents, servants, assigns, sub-ordinates, representatives, officers and/or each one of them from giving any effect and/or further effect in terms of the said Notification dated 15th October, 2001 being Annexure "P-14" herein or in furtherance thereof in any manner whatsoever;
(h) Injunction restraining the Respondent authorities men, agents, servants, assigns, sub-ordinates, representatives, officers and/or each one of them from holding any examination scheduled to be held on 17th November, 2001 in any manner whatsoever;
(i) Injunction restraining the Respondent authorities, their men, agents, servants, assigns, sub-ordinates, representatives, officers and/or each one of them from interfering with the working of the Petitioners in any manner whatsoever;
(j) Mandatory Injunction direction the Respondent authorities their men, agents, servants, assigns, sub-ordinates, representatives, officers and/or each one of them to consider the representations made by the Petitioners from time with a reasoned order after giving hearing the Petitioners;
(k) Ad interim orders in terms of the above prayers;9
(l) Cost of and/or incidental to this proceeding be borne by the Respondent authorities and/or each one of them;
(m) Such further order and/or orders be passed, direction and/or directions be given as to this Hon'ble Court may deem fit and proper."
The said circular letter as relied upon by the learned trial Judge, it appears that same was merely a communication expressing that the State Government was considering a proposal for regularization of services of irregularly appointees in Panchayat Department. The circular letter annexed in writ application. English version of such reads as follows:
"Government of West Bengal Panchayet & Rural Development Deptt.
No. 4548 (34)/AN/O/Cel-3/2A-17/14 Dt. 13.9.2000.
From: Sri Tapan Bandopadhyay
Asstt. Secretary.
To: 1) District Magistrate.
2) Exe. Officer.
Sub: Proposal for temporary employee as a permanent employee in the Panchayet Department.
Sir, Proposal for temporary emplyee in the department as a permanent employee on the three tier Panchayet department qualified temporary employee are appoint the Panchayet Deptt., fill up the existing vacancy with the qualifying candidate of this department. So are not necessary to invite the new name from the Employment Exchange. But you already sent the letter to the Employment Exchange for want of candidate, stop that's order and another letter sent to the Employment Exchange that now stop new recruitment as Department's order.
Yours faithfully, Sd/-
Deputy Secretary."
The circular letter issued in Bengali annexed at page 390 of the Paper Book, which as per English translation, reads such:
10"Sub: Regularization of irregularly appointed employees in Panchayat Department.
A proposal for regularization of service of irregularly appointees of different employees in different post in 3-tier Panchayat System is under active consideration of the State Government.
Under these circumstances if there is any vacant post wherein such irregularly appointees could be regularized, the Employment Exchange need not be consulted to fill up those posts requesting them to sponsor the name. If in the mean time the local employer of the concerned department had already consulted the Employment Exchange Authority, no further steps should be taken and sponsored names should be returned to the Employment Exchange by communicating the fact that as per the departmental instruction selection of candidates in those posts would remain stayed."
A contempt application was moved by the said writ petitioners as applicants of the contempt application by affirming the application against the alleged contemnors, namely, Sri Prasad Ranjan Roy, Secretary, Panchayat & Rural Development Department, Smt. Sova Dutta, Sabhadhipati, South 24- Parganas Zilla Parishad, Sri Alapan Bandopadhyay, District Magistrate & Ex- Officio Executive Officer, South 24-Parganas Zilla Parishad, Sri Utpal Mukherjee, Additional District Magistrate & Ex-Officio Executive Officer, South 24-Parganas Zilla Parishad, Sri Kartik Bhattacharjee, Secretary, South 24-Parganas Zilla Parishad, Sri Tapan Bhattacharya, working for gain as Work Assistant at South Parganas Zilla Parishad. It appears that alleged contemnors no. 2 to 5 were officers of the Zilla Parisad. Alleged contemnor no.1 at the relevant time was the Secretary of the Panchayat and Rural Development Department, Government of West Bengal. Alleged contemnor no.6, the appellant before us, is an employee working in the post of Work Assistant in the concerned Zilla Parisad who was made a party in the contempt application for the first time on the allegation of contemptuous conduct that Shri Bhattacharya's name was considered in terms of his application seeking consideration of his candidature on merit for the post of one unreserved vacancy of Sub-assistant Engineer along with the writ petitioners' applicants by allowing the said Shri Bhattacharya to appear in the written examination and oral interview to consider his suitability on merit.
In the contempt application prayer made to this effect:
11(a) Rule be issued calling upon the respondents and each one of them to show cause as to why they should not be committed to prison or be otherwise penalized or dealt with and/or punished for the willful violation of the order dated 28th January, 2002 passed by His Lordship the Hon'ble Justice Dilip Kumar Seth in the manner following:
(i) The order dated 28th January, 2002 was passed in the presence of the Advocates for the respondents. Inspite of being aware of the said order the respondents in utter disregard of the same took no steps to fill up the vacancies from amongst the petitioners within the period of three months or at all.
(ii) The respondents ignored the order dated 28th January 2002 in contumacious disregard and/or violation thereof till such time that the Advocate of the petitioners by its letter dated 24th May, 2002 intimated the respondents that unless the respondents took steps in terms of the order dated 28th January, 2002 proceeding would be initiated against them under the Contempt of Courts Act.
(iii) The order dated 28th January, 2002 does not contain any direction authorizing or empowering the respondents to hold any fresh written examination. The said order dated 28th January, 2002 on the contrary directs the respondents to take steps for filling up vacancies in terms of the Circular being Annexure "P-9"
to the Writ petition being W.P. No. 17783 (W) of 2001. In contumacious breach and disregard of the said order dated 28th January, 2002, the respondents are seeking to hold a fresh written and/or oral examination on 29th June, 2002 only for the purpose of creating a justification for excluding the petitioners and absorbing their own chosen and/or nominated candidates being the respondent no.6.
(iv) The petitioners have been engaged on the basis of a written examination in which the petitioner have already been graded according to merit. In the circumstances the respondents in wilful violation and/or contumacious disregard of the order dated 28th January, 2002 cannot seek to hold any fresh written examination.
(v) The respondents by acting in the manner aforesaid are seeking to render the said order dated 28th January, 2002 infructuous and are in the process ridiculing the prestige, dignity and/or authority of this Hon'ble Court.
(b) Rule NISI in terms of prayers above;
(c) Injunction restraining the respondents and each one of them from holding any examination on 29th June, 2002 or on any other 12 date in terms of the letter dated 11th June, 2002 for the purpose of filling up any vacancies in respect of which the petitioners are entitled to claim employment;
(d) Injunction restraining the respondent Nos. 1 to 5 from granting any fresh employment to the respondent no. 6 or from allowing the respondent no.6 to appear for any examination either written or oral and as directed by the respondent nos. 1 to 6;
(e) Ad-interim orders in terms of prayers (c) and (d) above;
(f) Costs of and/or incidental to this Application be paid by the respondents;
(g) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may deem fit and proper."
The alleged contemnors attached with the concerned Zilla Parishad and the alleged contemnor no.6 opposed the contempt application by filing their respective affidavits. The alleged contemnor respondent no.5 who was the Secretary of South 24-Parganas, Zilla Parishad, in his counter affidavit took the following stand to oppose the contempt application:
(a) That in compliance with the order dated 28th January, 2002 passed in the writ application to fill up one unreserved exempted category permanent post of Sub-assistant Engineer, the writ petitioners were invited to appear in the examination to prepare a panel on merit along with other eligible candidates as per Recruitment Rule.
(b) That in terms of the West Bengal Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla Parishad) Rules, 1997 (hereinafter for brevity referred to as concerned Recruitment Rules) as Rule 9 thereof provides scope of any permanent employee working in the organization who may satisfy the eligibility criteria for the post of Sub-assistant Engineer would be entitled to appear along with other candidates for selection, the respondent no.6 (the appellant before us) was invited to file his candidature for consideration on merit.13
(c) There was no violation of the order of High Court by the Zilla Parishad due to said action aforesaid under para (a) and (b) above.
(d) That State Government did not sanction additional posts to regularize the writ petitioners.
The alleged contemnor no.6, the appellant before us opposed the contempt application by filing an affidavit on taking the following points:-
a) Due to rendering of service in a permanent post of Work Assistant in the concerned Zilla Parishad, under Rule 9 of the concerned Recruitment Rules, he was eligible to appear in the selection process due to his qualification Diploma in Civil Engineering.
b) Writ petitioners were not eligible even to appear in such selection process of a permanent post of Sub-assistant Engineer even on the basis of the order dated 28th January, 2002 since the Government did not finalize their proposed idea to regularize the irregularly appointees by issuing any circular letters/executive instruction.
Furthermore the communication of Deputy Secretary of the West Bengal Panchayat and Rural Development Department dated 13th September, 2000 provided no embargo to consider the candidature of existing employee holding permanent post as per recruitment rule and Zilla Parishad had no power to regularize any appointment unless additional posts were created by State Government by issuing Government order regularizing service of contractual appointees.
c) That he was not a party in the original writ proceeding and his right in terms of the concerned Recruitment Rule could not be denied/curtailed.
Having regard to the rival contention of the parties, namely, the appellant and writ petitioner-respondents as well as respondent Zilla Parishad, the following points emerge for adjudication in this appeal:
141) Whether an appeal against the order dated 4th April, 2003 passed in contempt jurisdiction whereby respondent no.6's right in terms of the Recruitment Rule was denied, is maintainable.
2) Whether the order under appeal is sustainable in view of the legal question raised that the order dated 4th April, 2003, entered into an area adjudicating the rights of alleged respondent no.6 in terms of the Recruitment Rule, which entitled him to appear in the selection process though it was not the subject matter of lis in the writ application W.P. 17783(W) of 2001.
3) Whether contempt application itself was maintainable on the alleged ground of contemptuous act and conduct against the Zilla Parishad Authorities who proceeded to select a meritorious candidate by holding a written examination and oral interview, on allowing the writ petitioners even though they were not eligible to appear and the respondent no.6 to appear in such selection process.
4) In terms of the judgement dated 28th January, 2002, when the State Government did not take steps for implementing the circular letter issued by the Deputy Secretary dated 13th September, 2000 for filling up the posts unsanctioned against which writ petitioners were working by issuing any circular letter/Government Order, whether any new order in contempt jurisdiction where new party was implicated, could lawfully be passed to nullify the right of respondent no. 6, accrued by application of statutory recruitment rule.
So far as the maintainability of the appeal from any order passed in contempt jurisdiction the matter could be answered from the rule itself and the judgement delivered by the Apex Court.
The Calcutta High Court Contempt of Courts Rule, 1975 was framed and constituted by the High Court at Calcutta in exercise of the power conferred by Section 23 of the Contempt of Courts Act, 1971 and by Article 215 of the Constitution of India and all other powers in that behalf enabling the High Court of Calcutta to make rules. Under Rule 35 it is provided that an appeal could be 15 laid against the order of any Judge or Bench to the appropriate Bench of the Appellate Side if the matter is originated from the Appellate Side jurisdiction or otherwise to the Original Side jurisdiction, if the matter arises from Original Side. Rule 35 reads such :
"In respect of appeal from the orders of any Judge or Bench of the Original Side the rules of the Original Side relating to appeals and in respect of appeals from the order of any Judge or Bench of the Appellate Side, the rules of the Appellate Side shall apply mutatis mutandis."
Since this contempt matter was decided by the learned trial Judge sitting in the Appellate Side of the High Court, Calcutta, as it arose on alleged violation of the order passed in a writ proceeding filed in Appellate Side, the Appellate Side rules has applicability so far as preferring the appeal against any order passed in the contempt jurisdiction, which are otherwise not appealable under Section 19 of the Contempt of Courts Act, a specific provision of preferring an appeal in the event of imposition of penalty upon the alleged contemnor finding him guilty of contemptuous conduct.
The provision of Calcutta High Court Appellate Side Rules of preferring an Intra-Court appeal reads such:
"CHAPTER VIII Appeals under Clause 15 of the Letters Patent.
1. The provisions of Chapters IV and V shall apply, so far as may be, to every Appeal under Clause 15 of the Letters Patent.
2. Every Appeal to the High Court under Clause 15 of the Letters Patent from a Judgment of [***] a Judge sitting singly, on the Appellate Side of the High Court, shall be presented to the Deputy Registrar, or such other Officer as the Registrar may appoint, within 60 days from the date of the Judgment Appealed from, unless the Court in its discretion, on good cause shown, shall grant further time.
3. The Memorandum of Appeal shall be drawn up in accordance with the provisions of Order XLI, Rule 1, Civil Procedure Code, and shall be subscribed by an Advocate of the Court. It need not be accompanied by a copy of the Judgment Appealed from. It shall be the duty of the Officer to whom the Memorandum is presented under Rule 2 above to endorse thereon the date of presentation and send the same to the Stamp Reporter, who shall satisfy himself that there is a declaration by the 16 Judge who passed the Judgment that the Case is a fit one for Appeal, and that it is in order and within time.
4.................................
9. In every appeal under Clause 15 of the Letters Patent against the Judgment of [***] a Judge sitting singly, on the Appellate Side of the High Court, copies of the Memorandum of Appeal and of the Judgment or Judgments shall be typed, and four copies shall be prepared for use at the hearing."
Section 19 of the Contempt of Courts Act, 1971, provides provision of appeal, which reads such:
"19. Appeals.-(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt-
(a) where the order or decision is that of a Single Judge, to a Bench of not less than two Judges of the Court;
(b) where the order or decision is that of a Bench, to the Supreme Court;
Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.
(2) Pending any appeal, the Appellate Court may order that-
(a) the execution of the punishment or order appealed against be suspended;
(b) if the application is in confinement, he be released on bail;
and
(c) the appeal be heard notwithstanding that the appellant has not purged his contempt.
(3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub-section (2).
(4) An appeal under sub-section (1) shall be filed-
(a) in the case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to the Supreme Court, within sixty days, from the date of the order appealed against."
A question cropped up that when no punishment is imposed by the Court in a contempt proceeding against the alleged contemnors by finding him 17 guilty of the contemptuous conduct whether an appeal under Section 19 of the said Act could be laid. The issue was first decided in the case of D.N. Taneja vs. Bhajan Lal, reported in (1988) 3 SCC 26 by settling the conflict of law that when there was an order not punishing the alleged contemnor in a contempt proceeding, the said order would not come under the anvil of exercise of jurisdiction to punish for contempt and hence not appealable under Section 19 of the Contempt of Courts Act, 1971. The latest view on that issue relying upon the earlier judgements, passed in the case of Midnapore Peoples' Coop. Bank Ltd. Vs. Chunilal Nanda & Ors., reported in (2006) 5 SCC 399 wherein D.N. Taneja (Supra) was relied. It was held therein "any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the Contempt of Courts Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. However, other orders, could be challenged in an intra Court appeal (if the order was of a single Judge and there was a provision for an intra Court appeal, namely, Clause 15 of Letters Patent or others) or by Special Leave Petition under Article 136 of the Constitution of India to the Supreme Court." Paragraph 11 of the said report Midnapore Peoples' Coop. Bank Ltd. (supra) is profitable to consider, which reads such:
"The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be sumarised thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.18
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits or a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases)."
In the instant case, it appears that the impugned order dated 4th April, 2003 was an order not punishing the alleged contemnors under the Contempt of Courts Act, 1971, but a new order was passed whereby alleged contemnor respondent no.6, who is appellant before us, had suffered an order by which Zilla Parishad Authority was restrained not to include him in the selection process by consideration of his candidature to fill up a permanent vacant post of unreserved category of Sub-assistant Engineer though it was submitted before the learned trial Court by the respondent no.6 therein that under Rule 9 of the said Recruitment Rules he was eligible to appear and in terms of the order dated 28th January, 2002, which was the subject matter of contempt application, there was no embargo to restrict his right and it was never the subject matter of writ application even. Appellant further submitted that it was not possible by the Zilla Parishad to implement the order passed in writ proceeding as State Government did not finalize its proposal to regularize the irregularly appointees even if it was assumed that the writ petitioners were irregularly appointees in the post of Sub-
19assistant Engineer though in fact they were not being appointees on contractual basis by the terms and condition fixed for such contractual appointment.
Due to the very nature of the order it appears that the appellant has suffered injury so far as the applicability of Rule 9 of the Recruitment Rule is concerned to consider his candidature in a permanent vacant post. This order, accordingly, in our view, having regard to the decision of the Apex Court, Midnapore Peoples' Coop. Bank Ltd. (Supra) is appealable before us as an intra Court appeal in terms of the provision of Clause 15 of the Letter Patent read with Appellate Side Rules and the Contempt Rules 1975 framed by the High Court. Point no.1 is accordingly answered by holding that appeal is maintainable.
So far as the point no.2 is concerned, namely, whether in a contempt jurisdiction the Court can in exercise of such jurisdiction may pass a new order adjudicating a different lis in respect of a third party who was never a party in the original writ application, the order of which is the subject matter of the contempt application. From the factual matrix of the case, it appears that the present appellant who was a party respondent no.6 in a contempt proceeding never was added as a party in the writ application, wherein, the writ petitioners prayed for regularization of their services on the strength of circular letter of Deputy Secretary dated 13th September, 2000. In deciding the point whether the right of respondent no.6 could be curtailed from appearing in the selection process of a permanent vacant post, which was neither created nor sanctioned in terms of the Circular letter dated 13th September, 2000 or any other circular letter by the State Government on implementing the order passed in the writ proceeding but it was existing permanently before the writ application was moved wherein Recruitment Rules existing has full effect. To decide that question we have to travel down the lane of the Recruitment Rule for appointment of Sub- assistant Engineer. In exercise of power conferred by Section 224 of the West Bengal Panchayat Act, 1973, the Governor was pleased to make after previous publication as required by Sub-section (1) of the said Section a Rule named and styled as West Bengal Panchayat (Recruitment and Conditions of Appointment of Employees of Zilla Parishad) Rules, 1997, earlier which has been referred to for 20 brevity as concerned Recruitment Rules. Chapter II of the said Rule stipulates posts of officers and employees of a Zilla Parishad, scales of pay and method of recruitment etc. Under Rule 4, Clause XVI of said chapter, post of Sub-assistant Engineer (Civil/Electrical) has been identified by detailing scale pay, method of recruitment, Appointing Authority, age and qualification etc. Rule 4, Clause XVI reads such :
"(a) Scale of pay: Rs. 1390-45-1615-55-2055-65-2445-75-2970.
(b) Method of recruitment: (i) By absorption of Draftsman, Tracer, Surveyor, and Estimator, having the qualifications laid down in sub-
clause (e) and working against a sanctioned post under the Zilla Parishad on being appointed in a regular manner before the commencement of these rules:
Provided that the employee putting the maximum tenure of service under the Zilla Parishad shall get priority in absorption.
(ii) By direct recruitment on obtaining, on requisition, names of eligible candidates from Employment Exchange of the district and/or on obtaining applications in response to notices published in this behalf in leading newspaper.
(c) Appointing authority: Executive Officer.
(d) Age: 18 to 35 years, relaxable in the case of Scheduled Castes, Schedules Tribes, other backward classes and ex-servicemen as per rules and orders of the Government for the time being in force.
(e) Qualifications: Diploma in Civil or Electrical Engineering as may be applicable from any Council or Board recognized by the State Government."
The concerned post, an unreserved permanent vacancy of general category, was existing prior to the filing of the writ application and the selection process of which intended to be proceeded with which became the subject matter of challenge in the writ application by the writ petitioners on the ground that they should be absorbed permanently by creation of ten additional posts of Sub- assistant Engineer on the strength of circular letter of Deputy Secretary dated 13th September, 2000, but Court did not put any embargo in this post and no issue decided about applicability of said Rule 9 of recruitment rule in this post, a sanction permanent post not even held by any of the writ petitioners. Hence the present post to be considered in the angle of Recruitment Rules aforesaid. Rule 9 21 of the said Recruitment Rule stipulates that any employee in another post may appear for selection in other post subject to his eligibility in terms of qualification prescribed for that post. Rule 9 reads such:
"9. Appointment of an employee in another post.-
Notwithstanding anything to the contrary contained in these rules, an employee of a Zilla Parishad eligible for appointment to any post may, on his option, be considered, along with other candidates sponsored by Employment Exchange or brought under consideration in any other manner, for appointment to such post:
Provided that the selection shall be made strictly on the basis of merit."
The writ petitioner admittedly was appointee in the post of work assistant, a permanent post. This post has been mentioned in Rule 4 Clause (XVII) of the said Recruitment Rules.
The respondent no.6 upon being duly permitted by his employer, the Zilla Parishad, enhanced his qualification acquiring a Diploma in Civil Engineering and thereby he became eligible in terms of the said Rule 9 to appear in the selection process on merit for consideration of his candidature for the post of Sub-assistant Engineer (Civil), the concerned post, which is lying vacant being a permanent unreserved post under General Category. Having regard to such position of Recruitment Rule, the respondent no.6 applied when the Zilla Parishad Authority intended to fill up said vacant permanent unreserved post of General Category of Sub-Assistant Engineer and his application was considered by directing him to appear in the written examination as well as in the oral interview as fixed.
Hence from the documents as produced before us and the pleading submitted before the learned trial Court in the contempt jurisdiction, respondent no.6 had made out a positive case justifying his appearance in the written examination and oral interview for selection on merit for the post of Sub- assistant Engineer.
22Now the question is whether respondent no.6 was restrained to appear in test or Zilla Parishad was restrained by the order dated 28th January, 2002 passed in W.P. No.17783 (W) of 2001 to fill up any permanent vacant post in terms of the Recruitment Rule of the organization. If the answer is yes then surely the order passed by the learned trial Court in contempt jurisdiction could be considered as justified. On perusal of the order dated 28th January, 2002, which became the subject matter of the contempt application it appears that the writ petitioners therein prayed for permanent absorption by converting their employment status from temporary contractual appointee to a permanent appointee on the plea that the Zilla Parishad Authority approached the State Government for creation of additional posts for their absorption and Deputy Secretary, Panchayat and Rural Development Department by Circular of 13th September, 2000 communicated that Government was actively considering a proposal for absorbing the temporary appointee who were irregularly appointed in different departments of Panchayat. Learned trial Judge directed the State Government to take steps in terms of the said circular letter of 13th September, 2000 as early as possible by dealing with the cases of writ petitioners who were working. The circular letter of 13th September, 2000 practically was a communication by Deputy Secretary of the concerned department to this effect that Government was actively considering the regularization issue of irregularly appointees. In terms of the judgement dated 28th January, 2002 passed in the writ proceeding accordingly State Government was directed to take steps in terms of the said circular letter, namely, to issue any Government Order for permanent absorption of the writ petitioners, which could be possible by creation and sanction of ten additional posts. State Government did not issue any Government Order under Article 162 of the Constitution of India, exercising executive power irrespective of the legal point as to whether the State Government has any power at all to pass such an order when already a Recruitment Rule is existing in the field providing method and mode of appointment of Sub-assistant Engineers by stipulating the appointment procedure absorbing the Draftsman, Treasurer, Surveyor and Estimator qualified 23 to hold the post of Sub-assistant Engineer and working against a sanctioned post under Zilla Parishad being appointed in regular manner before commencement of the Rule or alternatively in absence of such by direct recruitment on obtaining regular names of eligible candidates from Employment Exchange and/or obtaining application in response to notice as to be published in the leading newspaper as well as by entertaining the application of other qualified persons working in the organization who are eligible to be appointed in the post of Sub- assistant Engineer due to fulfillment of the qualification prescribed in terms of the Rule 9 of the Recruitment Rules.
It is a settled legal position now that when a Recruitment rule is existing in the field, even the State Government is not empowered under Article 162 of the Constitution of India to regularize any employee contrary to the Recruitment Rules. Reliance is placed to the judgement passed in the case of B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., reported in AIR 1979 SC 1676, a judgement of three Judges Bench, which has been considered and affirmed in the Constitution Bench judgement passed in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi (3) & Ors., reported in 2006 (4) SCC 1. The relevant portion of the said judgement of B.N. Nagarajan & Ors. (Supra) reads such:
"when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules."
Even in the case of State of M.P. & Anr. Vs. Dharam Bir, reported in 1998 (6) SCC 165 in paragraph 26 the Apex Court held:
"the status in employment namely ad hoc/temporary/casual cannot be changed automatically unless there is a rule providing such scope and in the absence of such a rule, no regularization by elevating this status is admissible"24
In the case of Umadevi (3) & Ors. (Supra) Constitution Bench of Apex Court categorically held that there is no scope of regularization of any illegal appointment and it may not be the mode of recruitment, only exception is the contingency detailed in paragraph 53, wherein irregularly appointees got a chance for regularization, subject to the criterion prescribed thereto. Paragraph 53 reads such:
"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
It is also a settled legal position that any appointment and/or regularization in the permanent post in violation of the Recruitment Rule practically a breach of constitutional scheme under Article 14 & 16 of the Constitution of India, a view expressed in the Umadevi (3) (Supra). Distinguishing the judgment of Umadevi (3) & Ors. (Supra), a judgment was passed by a two Judges Bench of the Apex Court in the case of U.P. State Electricity Board Vs. Pooran Chandra Pandey & Ors., reported in 2007 (11) SCC 92 but recently the Apex Court by three Judges Bench in the case of Official Liquidator vs. Dayanand 25 & Ors., reported in 2008 (10) SCC 1 has declared that the views expressed in the case of Pooran Chandra Pandey & Ors. (Supra) as obiter. Paragraph 92 of the report reads such:
"In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."
From the order, which was the subject matter of the contempt application, namely, the order dated 28th January, 2002 it appears that the learned trial Judge directed the respondent-Government to take steps in terms of the circular dated 13th September, 2000 issued by the Deputy Secretary concerned being annexure P-9 of the writ application for filling up the vacancies against which the petitioners were working. Petitioners are working as contractual appointee without any post. It is a settled legal position that contractual appointee has no right to the post and their appointment as for a contractual period, service consequences are dependent upon the contractual term and there is even no scope to regularize the appointment. Reliance is placed to the judgement of Constitution Bench passed in the case of Satish Chandra Anand vs. The Union of India, reported in AIR 1953 SC 250 wherein the Apex Court held that there is no applicability of Article 14 and 16 of the Constitution of India in respect of contractual appointees for denial to regularize them. The Apex Court held in the language "State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound". The Apex Court further considered the issue in the angle of service jurisprudence regarding the power of the Government to appoint the employee in different category, namely, officiating, ad hoc, contractual etc. in the case of P.K. 26 Sadhu vs. Shiv Raj V. Patil, reported in 1997 (4) SCC 348 in the following language "power to make an appointment includes the power to make an appointment on substantive basis, temporary or officiating basis, ad hoc basis, on daily wages or contractual basis". The said view has been referred to in the case of Retd. Armed Forces Medical Association & Ors. Vs. Union of India & Ors., reported in 2006 (11) SCC 731.
Having regard to such legal position and the order passed by the learned trial Judge in the writ proceeding, we are of the view that the right of other employees in the organization, namely, in the Zilla Parishad in terms of the Recruitment Rules never was contoured/encroached upon by the order dated 28th January, 2002 passed in W.P. No.17783(W) of 2001 and it was even not an issue for adjudication, but simply the Court directed the State Government to take steps on the basis of the circular letter dated 13th September, 2000 of Deputy Secretary, whereby the said officer expressed the views that State Government proposed to consider the issue actively for regularizing the irregular appointees.
So far as the effect, impact of the said order on State Government we are not adjudging the same in any way as no appeal has been preferred against that order dated 28th January, 2002 passed in the writ proceeding, but in adjudicating the present appeal, we are compelled to interpret the same in the limited angle to test whether the same caused prejudice to the right of the appellant who is respondent no.6 in the contempt proceeding so far his right derived from Rule 9 of the Recruitment Rules as already discussed.
The writ petitioners sought for regularization of their service by creation of posts by the State Government relying upon the letter dated 13th September, 2000 of Deputy Secretary, which was only an intimation about the Government's mere thinking, which even not culminated to any Government action and not any order under Article 162 of the Constitution of India. Even if for argumendo it is assumed that it was permissible, the rights of the writ petitioners accordingly are confined so far as the steps as to be taken by the State Government to regularize them, if any, but for that reason Zilla Parishad was not restrained to fill up 27 permanent vacancies of sanctioned posts following the Recruitment Rules. The said rule also was not dealt with in writ proceeding. The candidature of respondent no.6 was considered and he was directed to appear in the written examination and oral interview for selection on merit wherein the writ petitioners also were allowed to appear though within strict framework of the order dated 28th January, 2002, we are of the view that as per settled legal position writ petitioners had no scope even to appear in the selection test as they are the contractual appointee and recruitment rule does not provide such scope. The Zilla Parishad followed Rule 9 of the Recruitment Rules to include the name of appellant and there was no illegality done by the Zilla Parishad in doing such.
The right of respondent no.6 was wrongly decided by the order impugned herein passed in a contempt jurisdiction though issue was not at all co-related issue on the reflection of the judgement dated 28th January, 2002, which was the subject matter of the contempt application. It is a settled legal position that in a contempt jurisdiction the consequential relief could be passed, which are incidental and consequential to implement any order, but the same cannot be a jurisdiction to decide a new lis in between new parties while adjudicating alleged violation of any judgement/order, which became the subject matter of the contempt application. We are of the view that the writ petitioners could have approached the Court below with an application in a contempt jurisdiction against the State Government for their delay to comply with the order on the averment of alleged breach, if any, that State Government did not issue any Government Order regularizing the contractual appointees/ the writ petitioners, by creating/sanctioning additional posts of Sub-assistant Engineer. On the factual foundation of the contempt application, it appears that the writ petitioners-applicant did not plead to that effect but attacked the action of Zilla Parishad for inclusion of the name of respondent no.6, the present appellant, in the selection process to fill up the vacancy of Sub-assistant Engineer, a permanent unreserved vacancy as per Recruitment Rules on application of Rule 9 as referred to. In passing the impugned order under appeal, accordingly, we are view that the learned trial judge had travelled beyond the jurisdiction and the 28 parameters of exercise of jurisdiction under Contempt of Courts Act, 1971, to deal with the issue and practically adjudicated a new lis with reference to the applicability of Rule 9 and eligibility of present appellant to appear in a vacant permanent post of Sub-assistant Engineer, which was not at all permissible under the law. The order impugned, accordingly, is of without jurisdiction and it breached the right of the present appellant available to him under Rule 9 of the Recruitment Rules. Point no. (2) is accordingly answered in favour of appellant.
So far as the point no. (3) is concerned, having regard to the findings of point no.2, the contempt application itself was not maintainable against the action of Zilla Parishad, whereby the appellant's candidature was intended to be considered on merit on application of Rule 9 of the Recruitment Rules for the post of Sub-assistant Engineer by directing him to appear in the written examination and oral interview. The Zilla Parishad, in our view, cannot be saddled with the liability of any contemptuous act and conduct for such act on the allegation of violation of the order dated 28th January, 2002 passed in writ petition, which was the subject matter of contempt application.
The contempt application on the pleading accordingly was not maintainable. The relevant pleadings from the contempt application reads such:
"7. In an attempt to frustrate the said order dated 28th January 2002 and in an attempt to render infructuous the said circular and the Policy stated therein being Annexure "P-9" to the Writ Petition being W.P. No.17783(W) of 2001 the respondents by a letter dated 11th June 2002 invited the petitioners and the respondent no.6 to participate in a written and oral examination.
9. The respondent no.6 is a regular and/or permanent employee of the respondents. Consequently, the respondent no.6 is outside the scope and purview of the said Circular being Annexure "P-9"
to the said W.P.No.17783(W) of 2001.
10. The respondent no.6 is chosen and/or nominated by the other respondents. The other respondents have been seeking to device ways and means to absorb the respondent no.6 instead of the petitioners although the respondent No.6 is already a permanent employee.
11. In order to wrongful exclude the petitioners from the vacancies which have occurred and in order to ensure the selection of the respondent no.6 to such vacant post the other respondents have sought to once again hold oral and written test on 29th June 2002.
2912. The petitioners have already undertaken oral and written test for the position in which they are now engaged. The petitioners have already been ranked according to merit.
13. In as much as the petitioners have already undertaken an oral and written examination and inasmuch as there is no confusion with regard to the standing of the each petitioner in the merit list there can be no conceivable reason to hold any written or oral test on 29th June 2002.
Copies of documents demonstrating that the respondent no.6 is a regular and permanent employee of the other respondents and further demonstrating that the respondent no.6 was also invited along with the petitioners to participate in the said written and oral test are thereto annexed and collectively marked with letter "F".
14. The entire intention of the respondents is to try to frustrate the order dated 28th January, 2002. The respondents will themselves be responsible for holding the examination on 29th June 2002 and they themselves will be in charge of evaluation of such examination and awarding marks thereon. The respondents will consequently ensure that none of the petitioners have the desired results and/or marks and will use the same as a justification for not granting any employment to the petitioners and for flouting the order dated 28th January 2002.
15. Your petitioners state that should be the respondents be allowed to hold the said examination and should the petitioners be compelled to participate in such examination the authority of this Hon'ble Court will altogether be undermined and ridiculed.
16. The respondents and each of them acted in gross breach and contumacious disregard of the order dated 28th January 2002 passed by His Lordship the Hon'ble Justice Dilip Kumar Seth in the manner following :-
(i) The order dated 28th January 2002 was passed in the presence of the Advocates for the respondents. Inspite of being aware of the said order the respondents in utter disregard of the same took no steps to fill up the vacancies from amongst the petitioners within the period of three months or at all.
(ii) The respondents ignored the order dated 28th January 2002 in contumacious disregard and/or violation thereof till such time that the Advocate of the petitioners by its letter dated 24th May 2002 intimated the respondents that unless the respondents took steps in terms of the order dated 28th January 2002 proceedings would be initiated against them under the Contempt of Courts Act.
(iii) The order dated 28th January 2002 does not contain any direction authorising or empowering the respondents to hold any fresh written examination. The said order dated 28th January 2002 on the contrary directs the resp0ndents to take steps for filing up vacancies in terms of the Circular being Annexure "P-9" to the Writ Petition being W.P.No.17783(W) of 2001. In contumatious breach and disregard of the 30 said order dated 28th January 2002, the respondents are seeking to hold a fresh written and/or oral examination on 29th June 2002 only for the purpose of creating a justification for excluding the petitioners and absorbing their own chosen and/or nominated candidates being the respondent no.6.
(iv) The petitioners have been engaged on the basis of a written examination in which the petitioners have already been graded according to merit. In the circumstances the respondents in wilful violation and/or contumacious disregard of the order dated 28th January 2002 cannot seek to hold any fresh written examination.
(v) The respondents by acting in the manner aforesaid are seeking to render the said order dated 28th January 2002 infructuous and are in the process ridiculing the prestige, dignity and/or authority of this Hon'ble Court.
18. The said Circular being Annexure "P-9" to the Writ Petition expressly provides that the vacancies must be filed up from existing employees whose employment is irregular. Inasmuch as the respondent no.6 is a regular and permanent employee and is a chosen and nominated person of the other respondents, the said other respondents will seek to favour the respondent no.6.
19. Should the petitioners be made to appear in the written and/or oral test scheduled to be held on 29th June 2002 the order dated 28th January 2002 will rendered infructuous."
Furthermore, Rule 4 of the Contempt of Courts Rule, 1975, stipulates that in every petition in connection with contempt application, contemptuous conduct and the particular conduct of the respective alleged contemnors should be narrated. Rule 4 reads such:
"Rule 4.- Every petition and affidavit in connection therewith (suitably modified where necessary) shall be entitled:
In the matter of Contempt of Court And In the matter of (state briefly the nature of contumacious conduct complained of) And In the matter of (state the name and other particulars required as in a plaint, of the petitioner and each of the petitioners) -Petitioner Versus (State the name and other particulars required, as in a plaint, of the respondent or each of the respondents)-Respondents."31
The contempt proceeding is a quasi-criminal proceeding. The alleged contemnors have to suffer imprisonment of jail or fine if there is finding of guilt due to alleged contemptuous conduct. In view of such penal consequences, the alleged contemtuous conduct is alike a charge of a criminal proceeding, which demands that particular contemptuous act and conduct of respective individual alleged contemnors should be stated clearly, so that alleged contemnors may answer it properly. In terms of the said rule in the cause title, in the pleading as well as in the prayer portion, the alleged contemptuous conduct of the respective alleged contemnors should be mentioned in detail so that alleged contemnors may get a chance to make a rejoinder thereof. Having such nature of quasi criminal proceeding, we are of the view that contempt application on the face of it, was not maintainable as in the cause title, in the pleading as well as in the prayer portion nowhere any contemptuous conduct has been identified by identifying the alleged contemnors therein. The contempt application as such was not maintainable on that point also.
Having regard to our aforesaid findings and observation, we are of the view that the learned trial Judge was not correct to pass the impugned judgement/order under appeal. Impugned judgement under appeal accordingly stand set aside and quashed. Appeal is allowed. Contempt application stand dismissed.
However, it is made clear that we have not touched the merit of the order dated 28th January, 2002 in any way so far as the point as to whether it at all could be implemented on the face of different settled judgements as referred to and particularly on the point of Constitution Bench judgement on issue of regularization, namely, Umadevi (3) & Ors. (Supra) and Satish Chandra Anand (Supra) and this point is kept open for decision by appropriate Court as and when such a situation will arise, due to any proceeding seeking implementation of said order and the Court would be at liberty to consider the issue without being influenced by this judgement passed by us. It is further made clear that our judgement is confined only with reference to the eligibility of respondent no.6 to appear in the oral interview and written examination in terms of the 32 Recruitment Rule for the said post as discussed and to decide that incidentally, we have scanned the order passed in writ application, as we are compelled to do it, to test legality and validity of order impugned in present appeal and such adjudication is limited so far as the present appeal is concerned. Since by interim order, learned trial Judge allowed selection test. Zilla Parishad may proceed with such selection by declaring result and giving its effect. Appeal is thus allowed.
(Pratap Kumar Ray,J.) I agree, (Manik Mohan Sarkar,J.) Later:
Urgent Xerox certified copy of this judgment if applied for be given.
(Pratap Kumar Ray,J.) (Manik Mohan Sarkar,J.) 33