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2008 DIGILAW 1405 (ALL)

MEDI LAL v. ACHALA KHANNA

2008-07-23

SANJAY MISRA

body2008
JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri Yogendra Pati Tripathi learned Counsel for the applicant. Rejoinder affidavit has been filed by learned Counsel for the petitioner. Let the same be taken on record. 2. This contempt petition has been filed against the opposite party alleging deliberate disobedience of the judgment and order dated 10.7.2006 passed by this Court in WP No. 35134 of 2006. Notices were issued to the opposite parties on 9.5.2007. 3. A perusal of the order dated 10.7.2006 indicates that this Court considered the contention of the petitioner that he is entitled to be sent for Special BTC Training Course and he had made a representation which is pending consideration before the authority concerned. This Court disposed of the writ petition with a direction to the authority concerned to consider and decide the aforementioned representation of the petitioner by a reasoned and speaking order within two months from the date of production of a certified copy of the said order. According to the averments made in paragraph 7 and 8 of the affidavit supporting this contempt petition, it appears that the order of this Court was served on the opposite party through various representations made by the applicant. However, when the opposite party did not pass any order on the representation of the applicant, this contempt petition has been filed. 4. An affidavit of compliance has been filed on behalf of Miss. Achala Khanna, Director, Basic Education, U.P. Lucknow to state that by an order dated 3.7.2007 (Annexure CA-1), the representation of the applicant has been finally decided. It has been stated in the affidavit that there has been some delay in deciding the matter. However, the same is not wilful or deliberate on the part of the opposite party. 5. A rejoinder affidavit has been filed on behalf of the applicant wherein in paragraph 5 it has been stated that the representation of the petitioner was not decided by the opposite party and hence he was compelled to file the present contempt petition and the decision now taken is beyond the time granted by this Court and also on merits the same is illegal, incorrect and wrong. In paragraph 7 it has been stated that the petitioner has completed his B.Ed Degree as a regular candidate and passed B.Ed examination in 1st Division in 1994. In paragraph 7 it has been stated that the petitioner has completed his B.Ed Degree as a regular candidate and passed B.Ed examination in 1st Division in 1994. The cut off marks was 286.58% but intentionally the opposite party has not sent the applicant for Special BTC Training Course although he was selected for the course in the year 2005 as an OBC candidate and the name of the petitioner was placed at SI. No. 9 of the select list published on 22.9.2005. It is therefore, stated that even the order dated 3.7.2007 has been passed against the factual aspects and hence is illegal and is not a compliance of the directions issued by this Court on 10.7.2006. 6. Having considered the submissions of learned Counsels for the parties and perused the records, it is not disputed that this Court by the order dated 10.7.2006 passed in the writ petition required the representation of the petitioner to be decided within two months by a reasoned and speaking order. Admittedly, the representation of the petitioner has been decided much after two months. However, in the affidavit of compliance filed by the opposite party it has been stated that she has been posted as Director, Basic Education, U.P. Lucknow since 22.5.2007 and earlier she was posted as Director, Rajya Saikshik Anusandhan and Training Course, Lucknow. 7. A perusal of the order dated 3.7.2007 indicates that the opposite party has passed a reasoned and speaking order whereby it has been held that the petitioner is legally not entitled for admission to the Special BTC Training Course, 2004. 8. Insofar as the delay in deciding the representation of the petitioner is concerned, it is settled law that even after issue of notice in contempt proceedings, if the opposite party complies with the directions to decide the representation of the petitioner, the Courts would not insist that the delay was wilful and deliberate defiance of the order of the High Court. 9. It has been held by the Hon’ble Supreme Court in the case of Lalith Mathur v. L. Maheshwara Rao, (2000) 10 SCC 285 , in paragraph 4 as quoted hereunder : “The High Court in the writ petition had issued a direction for the consideration of the respondent’s representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits.” 10. In the case of G.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291 , the Hon’ble Apex Court held that correctness of an order passed by a Statutory Authority on the directions of the writ Court cannot be examined under contempt jurisdiction. The Hon’ble Supreme Court in the case of Rajasthan Housing Board and another v. G.S. Investments and another, (2007) 1 SCC 477 , held in paragraph 12 as quoted under : “It appears that the respondent initiated contempt proceedings against the appellants in which a learned Single Judge passed an order on 4.4.2005 observing that the order passed by the Court on 4.8.2004 had not been complied with in letter and spirit and a further direction was issued to comply with the said order within two weeks. The material placed before us shows that Appellant 1 had issued a notice to the respondent on 15.3.2005 and after giving a personal hearing on the next day, had rejected its representation by the order dated 18.3.2005. In these circumstances, there was no occasion for initiating any contempt proceedings against the appellants.” 11. In the present case, it is not denied that the order dated 3.7.2007 has been passed by the opposite party deciding the representation of the petitioner and therefore, although notices in this contempt petition were issued on 9.5.2007, the decision has been taken by the opposite party in compliance of the order dated 10.7.2006 passed by this Court in the writ petition. As such, this Court is not inclined to accept the contention of learned Counsel for the applicant that mere delay in deciding the representation of the petitioner would be a deliberate and wilful disobedience of the directions issued by this Court in the writ petition. 12. Insofar as the merits of the order dated 3.7.2007 is concerned, learned Counsel for the petitioner has argued that the conclusions and findings recorded in the said order are patently illegal, factually wrong and requires to be set aside. 12. Insofar as the merits of the order dated 3.7.2007 is concerned, learned Counsel for the petitioner has argued that the conclusions and findings recorded in the said order are patently illegal, factually wrong and requires to be set aside. Such argument of learned Counsel for the petitioner is being advanced in a contempt petition wherein this Court has to see the disobedience of the order passed by the writ Court. The writ Court had directed the representation of the petitioner to be decided. There was no direction by the writ Court regarding the merits of the claim made by the petitioner nor any observation or direction was made with respect to such claim by the High Court. Once the directions for deciding the representation of the petitioner was issued and such directions have been complied with by the authority concerned by passing a reasoned and speaking order, it cannot be said that if the said order is factually or legally incorrect or wrong, the opposite party would be liable to be punished under the Contempt of Courts Act. The petitioner, if he is aggrieved by the order passed by the authority in pursuance of such a direction issued by this Court could avail the remedy available to him in law. This contempt petition cannot be proceeded with for the aforesaid reasons. 13. For the aforesaid reasons, there is no merit in this contempt petition. It is accordingly dismissed. Notices, if any, issued to the opposite parties are discharged. 14. No order is passed as to costs. ————