WRIT PETITION 2 of 2019 on 10 April 2008

Conclusion

OD-4

ORDER SHEETIN THE HIGH COURT AT CALCUTTAConstitutional Writ JurisdictionORIGINAL SIDE(Via Video Conference)

G.A. No. 2 of 2019(Old G.A. No. 2526 of 2019)In W.P.O. No. 864 of 2004

KALPANA MAITY & ORS. VersusSTATE OF WEST BENGAL

BEFORE:

The Hon'ble JUSTICE ARIJIT BANERJEE

Date : 19[h] February, 2021.

Appearance :Mr. Kamalesh Bhattacharya, Adv.Mr. S. P. Pahari, Adv.Mr. A. Pradhan. Adv.Mr. T. K. Mahapatra, Av.…for the petitioners Mr. Arkaprava Sen, Adv.

Mr. Sirsanya Bandopadhyay, Adv.…for the State.

The Court : W.P.O. No. 864 of 2004 was filed by three persons two of whomclaim to be Assistant Teachers and the other claim to be a non-teaching staff ofBasudevpur Kanyamilan Vidyabhaban, Village:-Basudevpur, P.O.- Khanjanchak,Dist:- Purba Medinipore. They wanted their services to be regularized andapproved by the competent authority.

By a judgment and order dated April 10, 2008, a learned judge of thisCourt allowed the writ petition. The operative portion of the said order reads asfollows:- “Having heard the submissions of the learned counsel for the writpetitioners and the learned counsel for the State and considering the merits ofthe writ petition, the concerned District Inspector of Schools (S.E.), PurbaMedinipore, the third respondent herein, is directed to approve theappointments of the writ petitioners within a period of four weeks from thedate of communication of this order.

It is submitted by the learned Advocate for the petitioners thatnecessary papers regarding the respective services of the writ petitioners havealready been sent to the concerned District Inspector of Schools for approval oftheir appointments.

Needless to mention that on the basis of the approval of the services ofthe petitioners, the writ petitioners shall be entitled to all financial benefits onthe basis of such ‘approval’ in terms of and by virtue of this order.

Till such approvals take place, the petitioners will continue to serve theschool as they have been doing for all these years.

The above order shall be treated to be mandatory by the concernedrespondents.”

The school authorities were parties to the writ petition. However, in spite ofdirection for affidavits having been given, neither the school authorities nor theState filed any affidavit-in-opposition. On the day the writ petition was disposedof, the State was represented but the school authorities chose not to appear. TheLearned Judge passed the order after hearing the appearing parties and notingthat there was no opposition form the respondents.

In view of the necessary approval not having been given by the concernedDI of school, the petitioners filed a contempt application being C.C. No. 135 of2008 which is still pending in this Court.

After about 11 years, the school authorities have now taken out thisapplication for recalling of the order dated April 10, 2008 referred to hereinabove.

I have heard learned counsel for the applicant school authorities. It issubmitted that the order was obtained by the petitioners by practising fraud onCourt. The ground of fraud can be taken at any stage. The writ petitioners werenever members of the staff of the school in question. Hence, the question ofapproving the appointments of the petitioners did not arise.

I have noted the above contention but sitting in contempt jurisdiction Icannot venture to decide the correctness of the same. The order of the learnedJudge is in existence. I am told that in an appeal preferred by the State againstthe said order, initially an interim order of stay was passed. However, the appealwas dismissed for default in 2013. No steps have been taken to have the appealrestored. In other words, the order dated April 10, 2008 has attained finality. Iam aware that fraud unravels everything. However, a case of fraud has to bepleaded with sufficient details and particulars of fraud must be pleaded as isprescribed by Order VI Rule 4 of the Code of Civil Procedure, the principleswhereof apply to writ proceedings also. The case of fraud sought to be run by theschool authorities is that the writ petitioners were never employees of the saidschool. However, there is a report of the District Level Inspection Team (DLIT) onrecord which indicates the dates of appointments of each of the three petitioners.

It is nobody’s case that the said report is a forged document or has beenmanufactured by the petitioners. The school authorities say that there isabsolutely no document available with them to show that the petitioners were, infact, serving the said school. I am afraid, that is not the problem of thepetitioners. The DLIT is an arm of the State administration and its report wouldcarry requisite weight and sanctity.

For the reasons aforesaid, I am not inclined to allow this application. Itappears to me that this application has been filed after 11 years to get aroundthe order dated April 10, 2008 with the oblique motive of depriving thepetitioners of the benefit of the said order for reasons best known to theapplicant. I was inclined to impose substantial costs on the applicant but I amdissuaded from doing so by the eloquence of learned counsel appearing for theapplicant.

G.A. No. 2 of 2019 (Old G.A. No. 2526 of 2019) is accordingly dismissed. .

(ARIJIT BANERJEE, J.)

S.Bag