G.N. Ray, J.@mdashThis appeal is directed against order dated 25th of November, 1987 passed by the learned trial -Judge in C. O. No. 12745(W) of 1986. It appears that several persons who were empanelled in the panels prepared from time to time by the District School Board, Burdwan for being appointed as teachers in the Primary Schools in the district of Burdwan, moved writ petitions before this court inter alia contending that without exhausting the said panels no other person should be appointed as teacher in the primary schools and it appears that in such writ petitions orders were passed to the effect that they should be appointed as Primary teachers in the disrtcit of Burdwan and the life of the said panels should continue until the said panels are exhausted. Subsequently some persons, contending that they were empanelled in the year 1975 and as such they should get appointment as Teachers in the Primary School in the district of Burdwan on the basis of the said panel of 1975 also moved a writ petition and C. O. No. 12745(W) of 1986 was issued on such writ petition. Such writ petition was also disposed of and directions were given about absorption of such persons. The District School Board, Burdwan and the State of West Bengal preferred appeals against the orders passed in all such writ procedings including the order passed in C. O. No. 12745(W) of 1986 inter alia contending that it was not possible to reconcile and give effect to the orders passed in different writ proceedings and according to the Rules, the life of the panel must come to an end after the expiry of the stipulated period and no-appointment from such panels should be made after expiry of the stipulated time. The appeals preferred against such orders passed in different writ proceedings were heard analogously and were disposed of by the Court of Appeal presided over by the Chief Justice Mr. Chittatosh Mookerjee on 16th September, 1987 and the order passed in all the writ proceeding including C. O. No. 12745(W) of 1986 were set aside. The Court of Appeal made certain observations and gave directions how the appointments are to be made. During the pendency of the said appeals, the writ petitioners in C. O. No. 12745(W) of 1986 made an application for action for contempt under the Contempt of Courts Act. After the disposal of the said appeals, the said contempt application filed on 14th of January, 1987, was disposed of by the learned trial Judge and the instant appeal has been preferred against such order passed on November 25, 1987 in the contempt application. It appears that the learned Judge in disposing of the Said contempt application was of the view that as the appeal being F. M. A. T..No. 3754 of 1986 pre-ferred against the judgment passed in C. O. No. 12745(W) of 1986 was disposed of by setting aside the order passed in C. O. No. 12745(W) of 1986 there was no need for going into the question of contempt alleged to have been committed by the alleged contemners. The learned trial Judge, however, by the impugned order dated November 25, 1987 passed certain order inter alia directing for preparation of a panel for filling up the vacancies after getting the consent of the concerned Employment Exchange and the Employment Exchange was also directed to send suitable names within a fortnight. Some other directions were also given in the said order dated 25th November. 1987. Mr. A. N. Banerjee, learned counsel for the appellants has contended that as the order passed in C..O. No. 12745(W) of 1986 was set aside by the Court of Appeal, there was no further occasion to proceed with the contempt application on the ground that the order passed in the contempt application had been violated. He has also submitted that the learned trial Judge was also of the view that in view of such disposal of the appeal prefered against the judgment passed in the said writ proceedings there was no need to go into the question of alleged violation of the order by the alleged contemptors. In the aforesaid circumstances, the learned trial Judge should not have passed the impugned order dated 25th November, 1987. Moreover, the directions given in the said order have come in conflict with the order passed by the Court of Appeal. He has, therefore, submitted that this appeal should be allowed and the order pased by the learned trial Judge should be set aside.
2. Mr. Saktinath Mukherjee, learned counsel appearing for the District School Board, Burdwan has supported Mr. Banerjee in his contention that the order passed by the learned trial Judge should be set aside. Mr. Mukherjee has further added that the learned trial Judge assumed jurisdiction under Contempt of Courts Act in entertaining the said application made under the Contempt of Courts Act. The learned Judge has rightly held that in view of the disposal of the appeal preferred against the judgment passed in C. O. No. 12745(W) of 1986, there was no further occasion to go into the question of alleged violation of the order passed in the said writ proceeding. In view of such finding, the contempt application should have been disposed of by the learned trial. Judge and there was no further occasion for him to entertain the said application for any other purpose and to give various directions as contained in the said order. Mr. Mukherjee has also contended that since the learned trial Judge even after coming to the decision that there was no further occasion to consider the question of alleged violation of the order passed in the earlier writ proceeding had entertained the said application for other purpose dehors the contempt proceeding, it may be presumed that in exercise of the jurisdiction under Article 226 of the Constitution, he has passed the impugned order. Mr. Mukherjee has submitted that after the disposal of the writ proceeding, a miscellaneous petition for further orders in the writ petition should not have been entertained by the learned Judge in exercise of the powers under Article 226 of the Constitution of India more so when the application was made under the Contempt of Court Act. It has been held by the Supreme Court that the Court should not entertain a fresh cause of action by way of miscellaneous proceeding in a writ petition already disposed of. He has submitted that on that score alone the impugned order passed by the learned trial Judge should be set aside. Mr. Mukherjee has further contended that the directions contained in the order passed by the learned trial Judge run counter to the order and or directions given by the Court of Appeal in disposing of the various appeals heard together including the appeal preferred against the judgment passed in C. O. No. 12745(W) of 1986. In the aforesaid circumstances, the order passed by the learned trial Judge must be set aside.
3. Mr. S. S. Huq, the learned counsel appearing for the applicants in the said contempt application has, however, submitted that although the Court of Appeal presided over by Chief Justice Mr. Chittatosh Mookerjee set aside the order passed in the connected writ proceedings including the writ preceding concerning C. O. No. 12745(W) of 1986, the Court of Appeal had made certain observations, the learned trial Judge was justified in giving the directions as contained in the impugned order, and as such, the order should not be set aside.
4. After considering the respective contentions made by the learned counsels for the parties, it appears to us that the order made in writ petition relating to C. O. No. 12745(W) of 1986 having been expressly set aside in the appeal preferred against the judgment passed in C. O. No. 12745(W) of 1986, there was really no occasion for the learned trial Judge to proceed further in the contempt application for the alleged violation of the order passed by the learned trial Judge. In disposing of the said contempt application, the learned trial Judge has rightly held that there was no need for him to go into the question of alleged contempt of this Court. Having come to such finding, in our view, the learned trial Judge should have straightaway disposed of the application for contempt without passing any other order and there was no further occasion for him to deal with the said application for passing further order and or directions as contained in the impugned order. In our view, there is enough force in the contentions of Mr. Saktinath Mukherjee, learned counsel for the District School Board. Even if we assume that the learned trial Judge had assumed the jurisdiction under Article 226 of the Constitution in passing the directions as contained in the impugned order, such directions should not have been passed in a miscellaneous petition when such miscellaneous petition was made in the writ proceeding finally disposed of. We may also indicate here that in the instant case, even a miscellaneous petition was not presented but a contempt application was made and as aforesaid, such contempt application was disposed of without going into the question of alleged violation of the order of this Court in view of the fact that the order passed in the writ proceeding has been expressly set aside by the Court of Appeal. In the aforesaid circumstances, we do not think that there was any justification in passing the directions as contained in the impugned order If the applicants in the said contempt application had felt that in terms of the order passed by the Court of Appeal or otherwise they were entitled to get certain orders from the concerned authorities but such concerned authorities had failed and neglected to pass such orders, they should have moved a fresh writ application but the contempt application was not maintainable in view of the order pased by the Court of Appeal. The said contempt application could not also be treated as a miscellaneous application and in any event, no such miscellaneous application could be entertained in a writ proceeding finally disposed of.
5. We accordingly allow the appeal and set aside the order passed by the learned trial Judge. We however, make it clear that we have not expressed any opinion on the merits of the contentions as to whether or not the applicants in the contempt application are entitled to get any relief as teachers in the Primary School under the Burdwan School Board. Such questions sought to be raised in the instant appeal need not be gone into for disposing of this appeal and they are kept open. The application for interim order is also disposed of.
In the facts of the case, however, there will be no order as to costs.
K.M. Yusuf, J.
I agree.
