ARINDAM SINHA,J. - (1.) Rule issued in this contempt application is taken up for hearing. Mr. Sanyal, learned advocate appears on behalf of alleged contemner no. 2 and submits, direction made for appointment to be given, upon compliance with all formalities, to applicant was on view taken of submissions made and recorded in order dated 22nd December, 2015. He emphasizes, submissions made on behalf of Madrasah Service Commission was that if there is a vacancy petitioner will be appointed. According to him purport of this submission is and can only be in relation to notified vacancy. In event there was notified vacancy, in compliance of required formality recommendation would be made for appointment to follow. Submission made on behalf of the Commission cannot be interpreted otherwise than what he submits. Thus there was no direction upon his client and no question arises of deliberate or willful violation. On query from Court Mr. Sanyal submits, order dated 22nd December, 2015, directions in which are alleged to be violated, was not an order passed on concession.
(2.) He relies on several judgments: (i) Mukul Saikia v. State of Assam reported in (2009) 1 Supreme Court Cases 386 , paragraphs 33, 46 and 47. It would be sufficient to reproduce paragraph 33 - "33. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and future vacancies. If the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regulation of the private respondents." (ii) Chhotu Ram v. Urvashi Gulati reported in AIR 2001 Supreme Court 3468 , paragraph 8. He submits, Supreme Court found submission made on behalf of alleged contemner regarding omission to plead regarding willful neglect to comply with order of Court being a requirement to bring home charge of contempt as having some signature. Furthermore Supreme Court said where the order was to consider for promotion by treating petitioner to be qualified there was no mandate as such to give promotion to petitioner. In this case direction was to give appointment upon compliance of formalities. Where compliance of formalities is possible in absence of declared vacancy there neither was nor can be mandate to give appointment to petitioner. (iii) State of Orissa v. Md. Illiyas reported in (2006) 1 Supreme Court Cases 275 , paragraphs 9 and 11. He submits, Supreme Court, inter alia, considered true import of word 'willful'. The Court said an act is said to be 'willful' if it is intentional, conscious and deliberate. The word does necessarily imply blame although it is more commonly used for bad conduct than of good. (iv) Mira Bose v. Santosh Kumar Bose reported in 76 C.W.N. 923 , paragraphs 5 and 6. A Division Bench of this Court relied on an observation made by Supreme Court in Debabrata Bandyopadhyay and others v. The State of West Bengal and another reported in AIR 1969 Supreme Court 189 to find in facts of the case that alleged contemnors failure was deliberate nor willful but on the basis of position in law, in respectfully agreeing. He submits, there being no notified vacancy, inability to comply with formality of recommendation on part of his client should be viewed as either deliberate or willful but as prevented by in position of law. (v) Corpn. Teachers Association v. C.M.C. reported in 1993 (II) CHN 444 , paragraph 12. A Division Bench of this Court took view that strict compliance of rules 4 and 7, being procedural requirements, is essential for finding in contempt, proceedings being quasi-criminal in nature.
(3.) In adjudicating this contempt rule issued on admission of contempt application alleging deliberate and willful of violation of directions in order dated 22nd December, 2015, it is said order that must be looked into. Perusal of the order reveals direction made was based on submissions made by parties. On behalf of applicant/writ petitioner it was submitted, there were four vacancies in concerned Madrasah out of which three were notified and one omitted by mistake. Further submission was, in any event the notification was of no effect by reason of order dated 9th December, 2015, by Division Bench of this Court in appeal, striking down West Bengal Madrasah Service Commission Act, 2008. Applicant had submitted, he was in second category of candidates, those awaiting appointment. This second category submission was made on basis of extract from said order dated 9th December, 2015 reproduced in order dated 22nd December, 2015. The said extract is reproduced below: " Since the Act of 2008, according to us is nothing but violation of the fundamental rights guaranteed by the Constitution to the minority institutions, it is exclusively left to the concerned Madrasahs either to accept contention of such teachers, who are already in service and permit them to continue in service and/or to provide appointment to the candidates who are empanelled by the Commission awaiting such appointment.";