Calcutta High Court (Appellete Side)
Asis Kumar Banerjee & Others vs Sakti Ranjan Basu on 2 July, 2010
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
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IN THE HIGH COURT AT CALCUTTA
SPECIAL CIVIL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
C.P.A.N. 505 of 2004
With
C.P.A.N. 877 of 2008
In
C.O. 4651 (W) of 1991
Asis Kumar Banerjee & Others
Versus
Sakti Ranjan Basu
For the Petitioners : Mr. Arabinda Chatterjee
Mr. Sunanda Mohan Ghosh
For the alleged contemnor : Mr. Malay Basu
Mr. Subir Sanyal
Mr. Swapan Kumar Debnath
Mr. Arabinda Bhattacharya
Heard On: 11.06.2010
Judgment On: 02.07.2010
PRANAB KUMAR CHATTOPADHYAY, J.
In the instant contempt application, it has been alleged that the order passed by Mohitosh Majumdar, J. (as His Lordship then 2 was) on 9th April, 1991 in C.O. 4651 (W) of 1991 has been wilfully and deliberately violated by the alleged contemnor. The said order dated 9th April, 1991 passed by Mohitosh Majumdar, J. is set out hereunder:
" Considering the facts and circumstances of the case as also the grievance of the petitioner as urged by Mr. Ganguly and the submissions made by Mr. Paresh Chandra Dutta, learned Advocate appearing for the respondents I deem it fit and proper to dispose of the matter by the following order :
Let the names of the writ petitioners be included in the next panel for the purpose of appointment in the post of primary teachers.
Mr. Dutta, learned Advocate for the respondents, however, does not admit any of the allegations made in the writ application.
The writ application is thus disposed of. There will be no order as to costs."
The learned Counsel of the petitioners submitted that the alleged contemnor in spite of having knowledge of the aforesaid order wilfully and deliberately violated the same by not including the names of the petitioners in the next panel prepared for the purpose of appointment to the post of Primary teacher.
The alleged contemnor, Sri Anil Charan Biswas in his affidavit filed in connection with the contempt application stated that in the year 1999, a panel was prepared on the basis of a written test held on April 18, 1999. The petitioners herein were also called along with others for appearing at the aforesaid written test conducted by the Council but the said petitioners 3 were unsuccessful and, therefore, could not be empanelled for appointment as Primary teacher. The petitioners are admittedly, untrained candidates and no panel, according to the alleged contemnor, was prepared for untrained candidates after the order passed by this court on April 9, 1991 till 1999.
Mr. Malay Basu, learned Senior Counsel representing the alleged contemnor submitted that the aforesaid conduct of the petitioners regarding participation in the selection process by appearing at the written test clearly demonstrate that the said petitioners duly understood the scope, meaning and effect of the solemn order dated 9th April, 1991 to the effect that inclusion of the names of the candidates in the panel for the purpose of appointment to the post of Primary teacher could be made only in accordance with law i.e. by appearing at the written test along with other eligible candidates as per recruitment rules. Mr. Basu further submitted that the learned Single Judge by directing inclusion of the names of the petitioners in the next panel really meant that such inclusion should be made in accordance with law i.e. as per statutory rules as are applicable in this regard. Mr. Basu also submitted that the petitioners herein had virtually waived their right to include their names in the next panel prepared for the purpose of appointment of Primary teachers without appearing at the examination/interview since the said 4 petitioners in response to the invitation of the Council duly appeared at the written test in spite of having specific knowledge about the solemn order dated April 9, 1991 passed earlier by the learned Single Judge of this court.
Mr. Basu referred to and relied on a decision of this Court in the case of Bhakti Hari Nayak & Ors. vs. Vidyawati Gupta, S.C. Agarwala (HUF) & Ors. reported in 2005 (2) C.H.N. 575 wherein it has been specifically held (at Para 40) that waiver is an unintentional relinquishment of a known right.
Mr. Basu submitted that the principle decided by this court in the aforesaid case of Bhakti Hari Nayak & Ors. (Supra) is very much applicable to the facts of the present case since the petitioners inspite of having specific knowledge about the order passed earlier by the learned Single Judge on April 9, 1991 appeared at the written test and thus, the said petitioners relinquished their right by conduct which amounts to waiver of the right. It has also been submitted on behalf of the alleged contemnors that the statutory Recruitment Rules of 1991 was undisputedly in force at the relevant time i.e. in the year 1999 which specifically provided for preparation of panel amongst the sponsored candidates on the basis of their qualification and performance in the written test/interview. In the aforesaid 5 Recruitment Rules it has also been made clear that the appointments are to be made by the Council only from the panel approved by the Director of School Education and not otherwise. The alleged contemnor being the Chairman of the council in the year 1999 was very much aware of the aforesaid provision of law and considering the aforesaid provision of the Recruitment Rules, 1991 called upon the petitioners to appear at the written test for the purpose of preparation of the next panel and the petitioners herein duly appeared at the written test without any reservation.
The learned Senior Counsel of the alleged contemnors further submitted that the Council being a body corporate and a creature of the statute could not act in contravention of the provisions of the statutory Rules. Mr. Basu also specifically urged before this court that this Court never issued any direction for including the names of the petitioners in the next panel bereft of any rules. The learned Senior Counsel of the alleged contemnors submitted that the petitioners had waived their right to be in the panel even without appearing at the examination/interview under the said order dated April 9, 1991 by conduct.
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Mr. Arabinda Chatterjee, learned Counsel of the petitioners, however, submitted that the order passed by the learned Single Judge on April 9, 1991 was communicated to Sri Manoranjan Mondal on 16th April, 1991 and by not accommodating the petitioners in the next panel, the then Manoranjan Mondal had wilfully violated the order.
I am, however, not concerned with the conduct of Sri Manoranjan Mondal at this stage in these contempt applications.
However, Mr. Chatterjee has rightly submitted that the order passed by the learned Single Judge on 9th April, 1991 had reached its finality and, therefore, the alleged contemnors were bound to comply with the directions passed by the learned Single Judge in the said order dated 9th April, 1991. Mr. Chatterjee admitted that the petitioners herein subsequently appeared at the selection test and were unsuccessful. The learned Counsel of the petitioners also submitted that by appearing at the subsequent selection test, petitioners herein did not waive their right under the order dated April 9, 1991. Mr. Chatterjee further submitted that the petitioners herein appeared at the selection test in view of the procedure adopted by the authorities concerned for empanelment of the names of the said petitioners for the purpose of appointment to the posts of Primary Teacher and in order to comply with the 7 procedural formalities, petitioners appeared at the selection test without waiving any right under the order dated 9th April, 1991 passed by the learned Single Judge.
Considering the rival contentions of the parties I am of the opinion that the learned Single Judge by the order dated 9th April, 1991 although directed empanelment of the petitioners in the next panel, the same obviously did not mean any empanelment without following the prescribed rules and regulations. In any event, after the lapse of almost 8 years when the petitioners were asked to appear at the selection test in the year 1999, the said petitioners without any reservations appeared at the said interview. If the petitioners understood that the names were required to be empanelled even without appearing at the selection test then the said petitioners should have challenged the aforesaid directions of the alleged contemnors which undisputedly, the said petitioners did not do. The petitioners admittedly, appeared at the subsequent selection test and being unsuccessful filed the contempt application on the plea that their names were required to be empanelled without considering their performance in the selection test.
It is not in dispute that the petitioners herein were asked to appear at the selection test held on April 18, 1999 and the 8 said petitioners duly appeared at the said written examination without raising any objection. The aforesaid conduct of the petitioners goes to show that they had also understood the true scope, meaning and effect of the order dated April 9, 1991 and, therefore, appeared at the selection test without any reservation as the said petitioners knew that their names could be included in the panel in terms of the order passed earlier by the learned Single Judge on April 9, 1991 only after completion of the required formalities in terms of the relevant recruitment rules i.e. by participating at the selection process and appearing at the selection test.
The aforesaid order dated April 9, 1991, in my opinion, actually meant that the names of the petitioners could be included in the next panel obviously in accordance with law i.e. upon complying with the requirements as provided in the Recruitment Rules and the petitioners herein also realising the true scope, meaning and effect of the order participated in the selection process in terms of the Recruitment Rules by appearing at the written examination in order to include their names in the panel. Since the petitioners were unsuccessful in the selection test, the alleged contemnors had no scope to include their names in the next panel.
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The alleged contemnors by not including the names of the unsuccessful candidates like the petitioners herein in the next panel did not violate any order and/or direction passed by the learned Single Judge as I have already observed that this Court by the aforesaid order dated April 9, 1991 never directed the Council to include the names of the petitioners in the panel in violation of the Recruitment Rules.
In my opinion, the earlier order passed by this court was substantially complied with by inviting the petitioners to appear at the selection test.
For the aforementioned reasons, after a lapse of almost two decades I am not prepared to hold that the alleged contemnors had willfully and/or deliberately violated any direction mentioned in the order dated April 9, 1991 passed by a learned Judge of this Court.
Therefore, the contempt applications filed by the petitioners herein being C.P.A.N. 505 of 2004 and C.P.A.N. 877 of 2008 stand dismissed as I do not find any merit in the same.
In the facts and circumstances of this case, there will be, however, no order as to costs.
10Let urgent Xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates of the parties on usual undertakings.
[PRANAB KUMAR CHATTOPADHYAY, J.]