IN THE HIGH COURT OF JUDICATURE AT PATNA MISCELLANEOUS JURISDICTION CASE No.5146 of 2010 PRASHANT KUMAR - Petitioner/s(s) Versus THE STATE OF BIHAR & ORS. - Respondent/s(s) ------ For the Petitioner: Mr.Ajey Kumar Advocate For the Board : Mr.A.P.Sinha, Advocate -------- 3. 13.07.2011 Heard learned Counsel for the petitioner and the learned Counsel for the Bihar Sanskrit Shiksha Board. The order of the writ Court adequately noticed the grievance of the petitioner questioning the order dated 8.1.2008 of the District Education Officer, Begusarai, that the Madhyama mark sheet of the petitioner issued in the year 1991 was fake and fabricated. The petitioner contended that he was a student of the Sanskritik Vidyapeeth, Begusarai. The mark sheet was issued by the Board. He pursued higher studies of Acharya in Sahitya and Vyakaran in 2003 successfully. He secured appointment as a Teacher in the Saraswati Sanskrit Uchya Vidyalaya, Begusarai. The Board provisionally approved his appointment on 23.2.2007 and subsequently confirmed it on 5.6.2007. The Court observed that if the Board issued a mark sheet, approved the temporary appointment based on the mark sheet issued by it and subsequently gave permanent approval there was a presumption that such powers were exercised by due application of mind including verification and confirmation of its own records by the Board. If the Board subsequently opined that any error had taken place on its part, it was required to notice the petitioner, make available to him the materials on which the Board contends that its own earlier decisions 2 were erroneous, grant an opportunity to the petitioner and then decide the matter. The Court observed that unless such procedure was complied with the order dated 8.1.2008 could not be said to have achieved finality. Fresh orders were thus required to be passed by the Board. The respondent Board then passed a fresh order dated 23.6.2011 which was placed on record by a show cause on 27.6.2011. It was observed by the Court that no procedure as directed by the Court had been followed and there was no reflection in the order that the petitioner was made aware of the grounds on which the Board proposed to question its own mark sheet, provisional and final confirmation of his appointment and why they were erroneous. The matter was then adjourned at the request of the Board to further examine matters. A second show cause has been filed today. Annexure „B‟ to the same is a fresh order passed on 12.7.2011.The show cause states that the petitioner was called upon to explain. What was the explanation called for and whether it complied with the directions of the writ Court were disclosed to the Court. It was left to the petitioner to place a copy of the show cause notice dated 30.6.2011 during the course of submission. The same is being kept on the record. The Court has gone through the show cause notice. It does not contain any discussion as to why and on what materials the Board was satisfied that its own earlier decisions in issuing the mark sheet, approving the provisional appointment and then confirming the same were erroneous. The show cause notice dated 30.6.2011 therefore falls foul of the direction of the Court. The fresh order dated 12.7.2011 in this manner only reiterates the materials already noticed and rejected in the order of the writ court as not conclusive. It only states that now that the records have been 3 computerized and earlier the records were handwritten, it appears that the petitioner had resorted to forgery and had failed to produce materials to satisfy the Board that the documents had been issued by the Board. It concludes that the petitioner had acted in collusion with his father to obtain the mark sheet which had not been issued by the Board. The Court is satisfied from the manner in which the Board has proceeded with, that it is unable to understand the orders of the Court, and if it does understand the order, it has no defence. Two opportunities were granted to the Board in the contempt proceeding to satisfy the Court that it had issued a show cause notice to the petitioner containing grounds and materials why its earlier decisions were erroneous. The order dated 12.7.2011 proceeds on assumptions and presumptions skirting the issue for decision trying to save the skin of the officials of the Board. The Board being a statutory body, with the trappings of a „State‟ under Article 12 of the Constitution is required to act more responsibly, fairly and reasonably while dealing with citizens. Its actions not only smock of arbitrariness but also borders on callousness. No useful purpose is going to be served by drawing up a contempt proceeding against them. The Court leaves that matter with the fond hope that wisdom shall be bestowed on the officials of the Board by the Almighty. The apology tendered by the Board is but a sham. The powers of the contempt Court are not confined only to awarding punishment for flouting orders of the Court only. If in alleged compliance of the order of the Court fresh orders are passed which clearly fell foul and are in teeth of the order and directions of the court it is not powerless to rectify the wrong done also. It is trite law that an 4 order passed contrary to the direction of the Court is not an order in law and is a nullity. In (1996) 4 SCC 622 (Delhi Development Authority v. Skipper Construction Co. (P) Ltd.) it was observed at paragraph 17 as follows :- “17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that “the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)”. Like wise in the case of All Bengal Excise Licensees' Association v. Raghabendra Singh, (2007) 11 SCC 374, at paragraphs 34 & 39, it was held :-: “34. In view of the clear finding of the Court, the respondent had acted in clear violation of the order made by the High Court. It is settled law that a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof by pleading misunderstanding and thereafter retain the said advantage gained in breach of the order of the Court. Such violations should be put an end to with an iron hand. 39. As rightly observed by the Full Bench of the Madras High Court in Century Flour Mills Ltd. that as a matter of judicial policy the court should guard against itself being stultified in circumstances like this by holding that it is powerless to undo a wrong done in disobedience of the Court's orders.” 5 In AIR 1983 Patna 8 (Nawal Kishore Prasad Sinha Vs State of Bihar & ors) it was held at paragraph 8 as follows:- “8….. The question of committal or noncommittal under the Contempt of Courts Act is one of the discretion of the Court and can be exercised when this Court is fully satisfied that there has been deliberate attempt to flout the order of this Court. That will depend on the facts of each case, the nature of the order and the act complained of. But without initiating a proceeding for contempt this Court can quash any order or proceeding done in disregard of such orders which may also tantamount to contempt. It is very difficult to accept this extreme proposition that the acts done in defiance of Court‟s order can only be dealt with under the Contempt of Courts Act where a complete machinery is provided for and in no other manner. The Act do not put any bar. By accepting this proposition this Court will have to completely ignore the illegal acts of the subordinate authority and I may hasten to add, this will lead to dangerous results. This Court, when confronted with such situation has to exercise its power conferred under the Constitution and pass necessary orders to undo the wrong and to do justice between the parties.” The orders dated 23.6.2011 and 12.7.2011 are accordingly declared to be a nullity being in teeth of the directions of the Court in CWJC No. 15115 of 2010. The Board having failed to act in accordance with the directions given in the order, the order dated 8.1.2008 also cannot be given effect to. It is therefore held that the mark sheet originally issued to the petitioner, the provisional appointment approved and confirmation thereof by the Board are valid and none of them can be held to be fake affecting its correctness and genuineness. The contempt application stands disposed. Snkumar/- (Navin Sinha,J.) 6