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2007 DIGILAW 1610 (PAT)

Paropkari Sharma v. State Of Bihar

2007-10-01

NAVIN SINHA

body2007
Judgment 1. Heard learned Counsel for the petitioner and the learned Counsel for the opposite parties. 2. The petitioner, a Class IV employee, took up cudgels in 1999 against the might of the State for regularisation of his services as a Black Smith in the Central Jail, Buxar, where he was working since 1986. 3. The State considered it prudent to oppose the claim with all its mite and resources. 4. Placing reliance on a Division Bench judgment of this Court it was held that the appointment of the petitioner on daily wages ex facie was not illegal. He was inducted by the opposite party no. 2 who was competent to do so. The respondents were therefore directed by order dated 27.11.2004 to consider the case of the petitioner for regularisation within three months from the date of the order. 5. The order was not questioned by the opposite parties and thus attained finality. 6. Despite passage of more than reasonable time, compliance not forthcoming, the petitioner instituted the present application on 15.7.2005. The opposite party no. 2 then woke up from stupor and passed an order on 20.8.2005 relying on a government instruction that the post being a single post in accordance with the reservation roster it now fell in the reserved category and therefore the petitioner could not be regularised. A departmental instruction was sought to be urged to justify non-compliance of the order of this Court. It additionally stated that the petitioner had a good case for regularisation by relaxation of age by the Committee existing for the purpose. Till then he was reinstated on daily wages, 7. The Apex Court in AIR 1996 SC 302 (T. R. Dhananjaya vs. J.Vasudevan) was considering the defence of departmental rules in an action for contempt in non compliance of Court orders. Their Lordships at the relevant extract of paragraph 11 held as follows "12......When the claim inter se had been adjudicated and the claim of the petitioner had become final and that of Dasegowda was negatived, it is no longer open to the government to go behind the orders and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimise legal alibi to circumvent orders by this Court......." 8. The apparent conflict with the law in defiance of the implementation of the order of this Court, led the opposite party to seek adjournment for passing fresh orders. Magnanimity persuaded this Court to accede the request. 9. Thereafter followed an order dated 28.9.2006 of the opposite party no. 2 that in view of the judgment of the Apex Court in (2006) 4 SCC 1 [:2006(2) PLJR (SC)363] (Secy., State of Karnataka vs. Uma Devi) that regularisation of the petitioner was not possible and that his case was being recommended for selection process to the Staff Selection Commission after relaxation on age. 10. The fact that the case of the petitioner was covered under the one time exercise, excepted in paragraph 53* of the aforesaid judgment, promoted the opposite party to seek further adjournment for compliance of the order of the Court. 11. The present order dated 5.7.2007, then followed regularising the services of the petitioner. Paragraph 7 of the order states that it was being passed on basis of the fate accompli confronting the opposite party no. 2 as opined by the Advocate General. 12. Notwithstanding that the Supreme Court as far back as AIR 1957 SC 742 (Messrs Associated Tubewells Ltd. vs. R.B. Gujarmal Modi) may have deprecated recital of what may have transpired during hearing, the opposite party no. 2 nonchalantly and brazenly resorted thereto almost as if it was very condescendingly and reluctantly he was favouring the Court by compliance, not in obedience to the directions of the Court, but in graciousness to what was advised by the Advocate General. To the opposite party no. 2, the legal advice that he may receive takes precedence over the command of the Court. It would only be appropriate to quote para 5 and 6 of the judgment. "5. We cannot help saying that this was wholly improper. We are not saying that a Judge is infallible. It is possible that a view which ultimately appeals to a Judge in coming to his conclusion is erroneous. That by itsell can afford no ground for review. But what is improper is to assume and assert as to what a Judges view is in making a particular order when the order pronounced does not set it out and to make references to what Judges say in course of arguments and make that a ground for rehearing. 6. That by itsell can afford no ground for review. But what is improper is to assume and assert as to what a Judges view is in making a particular order when the order pronounced does not set it out and to make references to what Judges say in course of arguments and make that a ground for rehearing. 6. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. What may have been said or expressed may often enough be in the course of tentative loud-thinking and may reflect only very partially what the Judges had in view. What ultimately weighs with the Judges in pronouncing the order. when doing so without giving reasons, may often be not reflected in what is tentatively and openly expressed. Judges cannot be drawn into controversy over such matters. It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice." 13. The order of the Court 27.11.2004 to be complied in three months took the catalyst of a contempt proceeding to persuade a rather reluctant opposite party no. 2 to comply the same as late as 5.7.2007. 14. The materials and conduct of opposite party no. 2 as noticed aforesaid compels this Court to quote paragraph 16 of the judgment of the Apex Court arising out of a contempt proceeding reported in (2004)8 SCC 683 (E. T. Sunup vs. C. A. N.S.S. Employees Association and Another) as under: "16. It has become a tendency with the government officers to somehow or the other circumvent the orders of court and try to take recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the Courts order cannot be countenanced. It has become a tendency with the government officers to somehow or the other circumvent the orders of court and try to take recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the Courts order cannot be countenanced. This Court time and again has emphasised that in a democracy the role of the court cannot be subservient to administrative fiat. The executive and legislature have to work within the constitutional framework and the judiciary has been given the role of watchdog to keep the legislature and executive within check. In the present case, we fail to understand the counter filed by the appellant before the Court. On one hand they say that all the cases of GPF have been processed and on the other hand they are not prepared to revoke the administrative order. This only shows a deliberate attempt on the part of the bureaucracy to circumvent the order of the Court and stick to their stand. This is clear violation of the Courts order and the appellant is guilty to flouting the Courts order." 15. Presently a Class IV employee litigated the mite of the State, with his own financial resources in his claim for bread and butter for survival. The officials of the State in their cocoon of power aided with the financial strength of the State indulged in luxury litigation in the present proceedings. Learned Counsel for the opposite party on query with regard to the rationale of the orders dated 20.8.2005 and 28.9.2006 vis-a-vis his own order dated 5.7.2007, very fairly as an officer of the Court stated that his instruction were to only urge compliance of the order dated 27.11.2004, and that he was unable to say or explain anything further. 16. The order of the Court has been reluctantly complied with and hence the Court does not consider it appropriate to proceed in the contempt jurisdiction to that extent which shall only result in multiplicity of proceedings. But the Court is constrained to take notice of the conduct of the opposite party no. 2. The present is not a stray case. This Court gets the clear impression that there are some in the echelons of power in the State who consider Court orders to be treated with disdain by resort to frivolities unless confronted with no further option. 17. 2. The present is not a stray case. This Court gets the clear impression that there are some in the echelons of power in the State who consider Court orders to be treated with disdain by resort to frivolities unless confronted with no further option. 17. Unfortunately, the present case is not one of its kind. A similar attitude on part of the State officials was noticed by this Court in MJC No. 534/2005. By a reasoned order dated 27.9.2006 the Court took notice of the attitude of the opposite parties therein in employing every possible guise not to obey the order of the Court. Ultimately the Advocate General appeared and who then informed the Court that the matter shall be properly looked into. It was only thereafter that the orders of the Court were complied with. This court considers it proper to quote para 9 of the aforesaid order as under: "9. The facts of the present case reveal a very sorry state of affairs which cannot be described as solitary and is recurrent in contempt matters before this Court. The order of reinstatement with consequential benefits was complied with by simple reinstatement belatedly. The opposite parties before the L.P.A. Bench did not question the order of reinstatement with consequential benefits. The order was accepted. Nonetheless, this Court had to steadfastly pursue the opposite parties why apparently in their wisdom were obstinate in their reluctance to implement the order of the writ court even while paying lip service in their repeated show cause that they had the highest regard for this Court and its orders. The Court is satisfied that the opposite parties have flouted the order of this Court." 18. The situation appears very familiar in the present matter. Even presently the opposite party no. 2 has complied the order of this Court rather reluctantly on 5.7.2007, faced with a fate accompli advised by the Advocate General. What was noticed in para 10 of the order in MJC No. 534 of 2005 applies here with equal force which this Court considers to quote as under: "10. No doubt, today, after serious persuation by this Court over a period of more than one year the opposite parties have reluctantly complied with the Courts order. The question of initiating proceedings in contempt against them, therefore, does not arise. No doubt, today, after serious persuation by this Court over a period of more than one year the opposite parties have reluctantly complied with the Courts order. The question of initiating proceedings in contempt against them, therefore, does not arise. There is, however, another disturbing feature of the manner in which the opposite parties have wasted the time of the Court and indulged in what may be termed as frivolous litigation at the tax payers expense. This Court cannot help but take notice of the same." 19. The Court then at paragraph 12 of the order relying upon AIR 1991 SC 489 (Dr. Ajay Kumar Agrawal vs. State of U.P. & Ors) while declining to initiate contempt proceeding, nonetheless considered it proper to impose heavy costs upon the opposite parties alongwith certain directions for compliance. The aspect of accountability and recovery of costs personally from negligent officers was emphasised by the Supreme Court in (2004)13 SCC 53 (State of A.P. vs. Food Corporation of India) which was also noticed. The directions of the Apex Court in (2005)12 SCC 174 (State of U.P. & Ors vs. Vijay Dutt & Ors.) for recovery of costs from the delinquent officers who indulged in frivolous and luxury litigation was also noticed, when liberty was granted to recover the same from the) erring officers. 20. The Chief Secretary of the State of Bihar then filed an affidavit of compliance of the order dated 27.9.2006 when responsibility was fixed and recovery from the delinquent officer initiated. The affidavit disclosed the delinquent of the senior rank of Secretary of a Department. 21. It is unfortunate that the superior officials of the State Government refuse to take lessons from the past, when it is human nature to learn from the past. Taking a serious view of the matter the Court considers it proper to impose a cost of Rs. 25,000/- upon the opposite parties which shall be paid by the State of Bihar to the petitioner within three weeks from today and receipt filed within the same period. The costs paid by the State shall be recoverable by it from the personal salary of opposite party no. 2. In absence of any cogent explanation by the opposite party no. 25,000/- upon the opposite parties which shall be paid by the State of Bihar to the petitioner within three weeks from today and receipt filed within the same period. The costs paid by the State shall be recoverable by it from the personal salary of opposite party no. 2. In absence of any cogent explanation by the opposite party no. 2, for which the Court granted him adequate opportunity, in passing repeated orders of varying nature contrary to the mandate of the Court, this Court further directs that all costs and expenses whatsoever incurred by the State in contesting the present proceeding shall be recovered from the salary of the opposite party no. 2. Liberty is also given to proceed departmentally should the State consider necessary. 22. The Court is disturbed by the attitude of the Senior Officials in not paying heed to the orders of this Court and resorting to subterfuge for non-compliance even while the order is accepted by them in principle and not challenged before appellate forum. 23. Before closing the proceedings, this Court in like manner as directed in MJC No. 534/2005 considers it proper to direct that an affidavit be filed within 12 weeks affirmed by the Chief Secretary of the Stale that the directions of this Court for recovery of the costs and the expenses incurred by the State, for the erring conduct of the officials, has been complied with. 24. The matter stands disposed of in terms of the aforesaid directions.