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2009 DIGILAW 193 (JK)

Mohd. Shafi Sheikh v. State

2009-04-24

SUNIL HALI

body2009
1. Appointment to the post of Rehbar-i-Taleem Teachers has invoked controversy between the petitioners and the respondents. Two posts each have been created for Government Primary School, Palpora and Government Primary School, Hardu Schichen. Both schools have been upgraded to the middle school level. Petitioners had applied for the appointment to the said posts. Their applications were not considered on account of the fact that they had obtained degrees from Bhartiya Shiksha Parishad, Lucknow, which were not recognized by University Grants Commission. Resultant effect was that they could not be considered for appointment thereof, which impelled the petitioner to file a civil suit before the learned Munsiff, Anantnag. 2. The ground setout in the plaint was that the petitioners having obtained their degrees from the said Institute, no weightage was given by the respondents while making such appointment. It was contended that the University was not a fake University, as such, the degrees obtained from the said Institute could not be ignored by the respondents. Alongwith plaint an application for grant of ad-interim relief was filed by the petitioners. The learned trial court after hearing the parties passed the following directions: - "...1. That the official defendants will take a decision in a short span of time and decide whether the degrees awarded by the Bhartiya Shiksha Parishad Lucknow are given due recognition by them or not. 2. That the defendants are bound to prepare the panel only after decision on the matter is taken by the official defendants. 3. That the plaintiffs have every right to furnish their degrees to the concerned forum and decision on the recognition of the degrees shall be communicated to the plaintiffs immediately after a decision is rendered in this behalf by the concerned authorities." 3. It seems that on 10th May 2008 a panel was framed by the Zonal Education Officer, and approved by the Selection Committee, private respondents found their name in the said select list and in pursuance to the select list their appointment orders were issued by the official respondents on 12th May 2008. 4. An application for initiating contempt proceedings were filed against respondent No.3 for having flouted the orders of the trial court dated 3rd May 2008. 4. An application for initiating contempt proceedings were filed against respondent No.3 for having flouted the orders of the trial court dated 3rd May 2008. Objections to the said order were filed by the respondents in which they pleaded that they have not committed any violation of the court order but have issued the select list after complying with the directions of the court. The cases of the petitioners were considered and in view of the communication addressed by the University Grants Commission on 24th January 2007, it was intimated that the Bhartiya Shiksha Parishad, Lucknow is not a recognized University under Section 2(f) of the UGC Act 1956. The statement of facts further reveals that no decision could be taken regarding the recognition of the degrees of the said Institute in view of the fact that the matter was subjudice before the Supreme Court. It is further revealed that the University Grants Commission had categorically stated that the said Institute was not recognized under UGC Act. A tentative decision was taken to prepare the select list so as to ensure that the schools do not suffer in absence of the teachers. The selection/appointment was made subject to the outcome of the civil suit. 4. The trial court has after examining the rival contentions of the parties passed the order while dealing with the contempt matter, whereby it has stayed the order dated 10th May 2008 by virtue of which the select list was prepared. 5. It seems that one more application was filed by respondent No.5 under Section 151 of CPC seeking intervention of the court for permitting him to mark attendance and draw his salary. This application came to be decided by the court on 22nd October 2008, whereby the applicant was permitted to mark his attendance and receive his honorarium from the official respondents. It is this order, which has been questioned by the petitioners in this revision petition. 6. I have heard the learned counsel for the parties. The controversy in the present case revolves round the fact as to whether any weightage is to be given to the petitioners for having obtained their degrees from the University, which is not recognized by the University Grants Commission. 6. I have heard the learned counsel for the parties. The controversy in the present case revolves round the fact as to whether any weightage is to be given to the petitioners for having obtained their degrees from the University, which is not recognized by the University Grants Commission. It is revealed from the material that the University Grants Commission has vide its communication dated 24th January 2007, informed the official respondents that the degree is not a recognized degree. The decision to consider its validity has been deferred by the respondents in view of the fact that the matter is subjudice before the Apex Court. 7. Analyzing the aforementioned facts, it is to be seen as to whether the official respondents have committed any breach of court order dated 3rd May 2008. The direction of 3rd May 2008 clearly envisages that the official respondents will take a decision in short spell of time and decide whether the degrees awarded by the Bhartiya Shiksha Parishad, Lucknow are given due recognition by them or not. As already explained hereinabove, the defendants have clearly stated that in view of the University Grants Commission letter, the degrees are not recognized. However, keeping in view the fact that the matter is subjudice before the Supreme Court, no decision can be taken till the matter is decided finally. This, in my view, would be sufficient compliance of the order dated 3rd May 2008. 8. Coming to the question as to whether the trial court could have issued a direction which was not contemplated by the order dated 3rd May 2008. The trial court has in the contempt application stayed the select list prepared on 10th May 2008. 9. Mr. M.A. Qayoom, appearing on behalf of the petitioners states that the court has ample powers to issue such order while hearing the contempt petition. It is contended that the contemnor cannot be permitted to enjoy and keep the fruits of his contempt. The court has the power to ensure full justice between the parties. 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. It is contended that the contemnor cannot be permitted to enjoy and keep the fruits of his contempt. The court has the power to ensure full justice between the parties. 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. Learned counsel has relied on the judgment cited in AIR 1996 SCC 2005, Delhi Development Authority v. Skipper Construction Company (P) Ltd. The Supreme Court in the said judgment stated as under: - "...The principle that a contemnor ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In Mohd. Idris v. R.J. Babuji, (1985) 1 SCR 598 : (AIR 1984 SC 1826), 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..." 10. On the other hand, stand of the leaned counsel for the respondents is that in the contempt proceedings the court is concerned only with the question as to whether the earlier decision has been complied with or not. It cannot examine the correctness of the earlier decision. This, according to the respondents, would be exercising the review jurisdiction while dealing with the contempt application. The other contention raised by the respondents is that assuming such direction can be given by the court the same can be issued only on arriving at the finding that the contemnors have flouted the order of the court. They have relied on the judgment cited in (2006) 6 Supreme Court Cases 759, State of Orissa and Another v. Aswini Kumar Baliar Singh. Para-8 of the judgment reads as under: - "The learned counsel, however, may be correct in contending that while exercising its contempt jurisdiction, the High Court may, in a given case, issue appropriate direction, although no penal action is taken against the contemnors. But, even in respect thereof, a finding would be required to be arrived at to the effect that the contemnors have disobeyed the order of the Court. Only when such finding is arrived at, the Court may in exercise of its inherent jurisdiction put the parties to the same position as if its order was not violated." 11. But, even in respect thereof, a finding would be required to be arrived at to the effect that the contemnors have disobeyed the order of the Court. Only when such finding is arrived at, the Court may in exercise of its inherent jurisdiction put the parties to the same position as if its order was not violated." 11. After analyzing the import of the judgments cited by learned counsel for the petitioners and respondents, it can safely be said that the courts are not powerless to issue directions in the contempt proceedings in order to set the wrong/right. The courts can issue directions for remedying and rectifying the things done in violation of its orders. But before doing that, the courts must record the finding that the alleged contemnors have flouted the order of the court. No direction can be issued unless the finding is recorded that the alleged contemnors have violated the court order. In essence there has to be a determination by the court before any such direction can be issued that the contemnor has defied the court order. 12. Applying the principle to the present case, no finding has been recorded by the court below vide its order dated 5th June 2008. Consequently, no such direction could be issued by the court in the said order. 13. The order impugned in this revision petition only permits the selected candidate to resume his duties. This has been done after the select list has been prepared and the appointment orders have been issued on 12th May 2008. It is important to note that the appointment order dated 12th May 2008 has not been questioned by the petitioners. The order further reveals that the selected candidates including defendant No.5 have been permitted to join with an undertaking that the appointment shall remain subject to the outcome of the main suit. The question that still remains un-answered is as to whether the selected candidates can be permitted to join in view of the directions issued by the court on 3rd May 2008. As a matter of fact the statement of facts filed by the respondents clearly reveals that they have strictly complied with the directions of the court by considering their cases. The decision has been deferred in view of the fact that the matter is subjudice before the Supreme Court and the decision is awaited. As a matter of fact the statement of facts filed by the respondents clearly reveals that they have strictly complied with the directions of the court by considering their cases. The decision has been deferred in view of the fact that the matter is subjudice before the Supreme Court and the decision is awaited. They have also referred to the communication issued by University Grants Commission. To keep the post vacant till the decision of the Supreme Court would have the effect of leaving the school without teachers. As a matter of fact by ordering the stay of the selection, the plaintiffs are not likely to gain anything at this stage. They are required to await decision of the Supreme Court as well as the outcome of the civil suit. 14. The decision taken by the official respondents, in my opinion is justified, as the balance of convenience is in favour of the candidates. In case the plaintiffs succeed they will be entitled to the appointment if they are otherwise found fit on the basis of their merit and eligibility. I find no reason to interfere with the order of the court below and hold that the official respondents are well within their rights to allow the selected candidates including defendant No.5 to resume their duties with a condition that their appointment shall remain subject to the outcome of the civil suit. 15. Revision petition is accordingly dismissed. 16. Parties to appear before the trial court on 11th May 2009.