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2008 DIGILAW 172 (GAU)

Aribam Rajendra Sharma v. D. V. Singh

2008-02-28

ASHOK POTSANGBAM, UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. Heard Mr. H.S. Paonam, learned Counsel appearing for the respondents. None appears on behalf of the petitioner. 2. The instant contempt petition is filed by the petitioner for initiating a contempt proceeding against the respondents allegedly for then willful violation and deliberate disobedience of the order of Division Bench of this Court dated 18.4.2006 passed in WA No. 15 of 2006 whereby and where under the Division Bench upheld the judgment and order of the learned Single Judge dated 1.9.2005 passed in WP(C) No. 37 of 2005 wherein the learned Single Judge allowed the writ petition filed by the petitioner considering the long and continuous service of the petitioner as ad hoc Assistant Engineer (Elect) for a period more than 18 years and directed the State respondents to allow the petitioner to enjoy the pay-scale of Assistant Engineer (Elect) w.e.f. 24.10.1986 and also to consider the case of the petitioner for regularization as Assistant Engineer (Elect) along with other eligible candidates as and when vacancy of Asstt. Engineer (Elect) arises in the promotional quota. The Division Bench in addition to the order of learned Single Judge, further directed the State appellant respondents to consider the case of the petitioner for regularization in the next available vacancy without causing any delay. 3. Mr. Paonam, learned Counsel appearing for the respondents submits that the petitioner fails to make out any case for initiating contempt proceedings against the respondents. In support of his aforesaid contention, it is contended that the respondents took all possible steps for compliance of the court's order so that the petitioner could be appointed on promotion but as the matter is still awaiting for State Cabinet decision, they are not in a position to regularize the service of the petitioner as Assistant Engineer (Elect). More so, the quota for promotees have already been exhausted and the petitioner is now holding the post of A.E (Elect) meant for the direct recruits, it would be proper for the court to dismiss the contempt petition. 4. This matter came up on 19.2.2008 and on that date learned Counsel for the petitioner made a prayer to list this case in the next week, accordingly, matter is listed today. Even when name of the learned Counsel is shown in the cause list, he failed to appear. 5. 4. This matter came up on 19.2.2008 and on that date learned Counsel for the petitioner made a prayer to list this case in the next week, accordingly, matter is listed today. Even when name of the learned Counsel is shown in the cause list, he failed to appear. 5. Being contempt is between the court and the alleged contemnor, we think it proper to examine the matter to find out whether there is any material for initiating a contempt proceeding, even in the absence of learned Counsel for the petitioner. 6. We have gone through the affidavit filed by the respondents wherein it is specifically stated that the predecessor of the respondent No. 1 and his officers had already initiated necessary action for compliance with the order dated 1.9.2005 passed by the learned Single Judge and the order passed in the Review Petition No. 2 of 2006 as well as WA No. 15 of 2006 for effecting regularization of the service of the petitioner to the post of Assistant Engineer (Elect) by submitting proposal for placement before the Cabinet as advised by the Department of Personnel (DP) after obtaining approval of the Hon'ble Chief Minister, Manipur for placing the matter before the Cabinet. Decision of the Cabinet was awaited in order to effect regularization of service of the petitioner. Not only that, respondents have also stated in their show cause statement/affidavit that there is a clear vacancy of Assistant Engineer (Elect) consequent to retirement of Shri L. Balgopal Singh on attaining the age of superannuation w.e.f. 1.11.2004. And, accordingly the approval of the Cabinet has already been solicited for regularization of the service of the petitioner as per the court's order. 7. And, accordingly the approval of the Cabinet has already been solicited for regularization of the service of the petitioner as per the court's order. 7. The State Cabinet on 20.10.2007 after considering the proposal made by the respondents gave its decision, inter alia, "Administrative Department was advised to re-examine the proposal along with other senior Section Officer Grade-I and vacancy position of Assistant Engineer (Elect) for promotion and direct recruitment quota under the existing Recruitment Rules of the post." In view of the decision of the Cabinet and while examining the matter, it is found that the promotional quota has already been filled up in full and promotion group has encroached six posts against direct recruitment quota thereby indicating that existing 17 number of vacant post of AE(Elect) fall under direct recruitment quota which are presently held by the SO-I (Elect) on in-charge basis including the petitioner. To overcome the aforesaid situation, the respondents also took up the matter with the appropriate authority and the DP was also consulted, accordingly after, obtaining views and observation for enabling compliance of the order of this Court, the matter is again placed before the Cabinet. The decision of the Cabinet is still awaited. 8. The further case of the respondents is that, without approval of the Cabinet, being the government employee, they cannot take any decision on their own for filling up the post of A.E. (Elect) meant for direct recruitment contrary to provisions of relevant Recruitment Rules inasmuch as there is no such decision/direction also from the Court on that aspect. Rather, Court directed to fill up the post as and when vacancy arises against the quota meant for promotees, hence, there is no willful violation or disobedience on their part, hence, the contempt petition deserves to be dismissed. 9. We have gone through the contentions made by the parties in their respective pleadings as well as the order passed by the Division Bench of this Court dated 18.4.2006 passed in WA No. 15 of 2006 as well as the order of learned Single Judge. 10. It is also settled position of law that every violation of court's order cannot be treated as contempt unless the said order is violated intentionally or with oblique motive to frustrate the order of the court or lower down majesty of the Court. 10. It is also settled position of law that every violation of court's order cannot be treated as contempt unless the said order is violated intentionally or with oblique motive to frustrate the order of the court or lower down majesty of the Court. In a contempt case, it is also incumbent upon the Court to see and look into the reasons for non-compliance of an order of the Court. 11. In the instant case, question of violation does not arise, as the respondents have already taken up the matter with the appropriate authority for compliance of court's order. Unless and until a clear case is made out by the petitioner showing that the respondents have intentionally or with oblique motive tried to violate court's order or have violated, it would not be proper for the court to initiate any proceedings against the respondents as prayed for. After going through all the relevant records, there is no doubt in our mind that no case of contempt is made out. 12. We are of further opinion that initiation of contempt and punishment of the contemnor(s) is/are, in fact, the last weapon in the armoury of the Court for noncompliance and/or violation of its order and that would be used sparingly. The Court has also to keep in mind that there may be certain reasons/hurdles for the respondents in complying the court's order as some procedural formalities are required which may take time. 13. For the aforesaid reasons, we are of the considered opinion that it would be proper on our part to close the contempt petition. Accordingly, we close the instant contempt petition.