Smt. Shahnaz Mirza and others v. Miss. Achla Khanna, Secretary, Secondary Education, U . P. , Lucknow
2010-04-12
TARUN AGARWALA
body2010
DigiLaw.ai
Judgment Pursuant to the order of this court dated 15th March, 2010, opposite party no. 10 and 13 are present in person. As per the order of the court, opposite party no. 9 and 10 have filed their affidavits with regard to the proposed imposition of cost. The opposite party no. 13 has filed a supplementary counter affidavit, which is taken on record. 2. Heard Sri Ravi Babulakar, learned counsel for the applicant, Sri Subhash Upadhyay, the learned brief holder for respondents no. 9 and 10 and Sri Ashish Joshi, learned counsel for the respondent no. 12 and 13. 3. The present contempt application has been filed for violation of the order of the writ court dated 29-05-1997 by the opposite parties. This contempt application has a chequered history, and today, hopefully, the curtains would be drawn finally and the matter would come to an end. 4. The facts leading to the filing of the contempt application is, that the applicants filed a writ petition before theAliahabad High Court for the regularization of their services in the Nagar Palika Balika Inter College, Kathgodam, District Nainital. The said writ petition was allowed by a judgment dated 29-05-1997 with the following directions. "( 1) The posts against which the petitioners are working on part-time basis for more than five years should be considered for sanction/creation by the appropriate authority and the management of the institution shall, if the necessity of employment still exists, notify to the proper authority the requirement of sanction of such post and the authority shall, as expeditiously as possible, consider the question of creation of such posts in accordance with law. 2. The services of the petitioners shall not be terminated after the expiry of 58 days or any such limited period and shall continue till the exigency of employment exists and if the posts are permanently sanctioned till a duly selected candidate joins against each respective post. When such a post is created/sanctioned and is advertised, the petitioners shall have the right to apply against the respective post notwithstanding the age bar. 3. Till the petitioners remain in service in terms of the foregoing directions, they will be paid their salary and other benefits at par with the regularly appointed teachers, in case they are performing equal work." 5. This Judgment became final and a contempt application no.
3. Till the petitioners remain in service in terms of the foregoing directions, they will be paid their salary and other benefits at par with the regularly appointed teachers, in case they are performing equal work." 5. This Judgment became final and a contempt application no. 1668 of 1998 was filed before the Allahabad High Court for non-compliance of the order. Upon creation of the State of Uttarakhand on 9th November, 2000, the contempt application was disposed of by the Allahabad High Court by an order dated 29th Octob6r, 2003 directing the applicants to approach the Uttarakhand High Court for appropriate remedy. Based on the aforesaid order, the applicants filed a contempt application 15 of 2004 before the High Court of Uttarakhand, in which notices were issued, which led the State of Uttarakhand to file a Special Leave Petition before the Supreme Court of India. This Special Leave Petition was finally allowed by the Supreme Court by an order dated 12th May, 2008 holding that in view of the State Reorganization Act, 2000, the contempt application could not have been filed directly before the High Court of Uttarakhand and that the Allahabad High Court could not have issued such a direction dated 29th October, 2003. The Supreme Court consequently, quashed the contempt proceedings initiated before the Uttarakhand High Court and also quashed the order of the learned Single Judge of the Allahabad High Court dated 29-10-2003. The Supreme Court restored the contempt application before the Allahabad High Court and directed the Allahabad High Court to continue with the said contempt proceedings or transfer the same to the Uttarakhand High Court. The Supreme Court while allowing the Special Leave Petition also held that the responsibility to comply with the order of the writ court dated 29-05-1997 was upon the State Government of Uttarakhand. The Supreme Court held that: "The State of Uttarakhand is required to comply with the order. The financial burden would be on it. " 6. It transpires that upon the revival of the contempt proceedings no. 1668/1998 before the Allahabad High Court, the Chief Justice of the said High Court issued an order for transferring the contempt proceedings before this court and that is how the present contempt application is being heard and decided by this Court.
" 6. It transpires that upon the revival of the contempt proceedings no. 1668/1998 before the Allahabad High Court, the Chief Justice of the said High Court issued an order for transferring the contempt proceedings before this court and that is how the present contempt application is being heard and decided by this Court. The order sheet of this court indicates that in spite of issuance of notices to the opposite parties, no one appeared nor filed any affidavit of compliance and eventually, bailable warrants were issued to the Director of Education by an order of the court dated 10th February, 2010. Upon bailable warrants being issued, the opposite party no. 9 issued an order dated 19th February, 2010 sanctioning the release of payment of arrears amounting to Rs. 94,71,673/-. This court by an order dated 22-02-2010 directed the opposite parties to file an affidavit as to why there had been such a delay in complying with the order of the writ court. Based on the aforesaid direction, affidavits were filed, which were considered and, by an order dated 15th March, 2010, the court found that the affidavits were unsatisfactory and further directions were issued to the opposite party nos. 9 and 10 to file a better affidavit explaining the delay in the eventual compliance of the order of the writ court. The court also found that full compliance of the order of the writ court was also not made and that the applicants were not getting regular pay scale and instead were getting a consolidated salary. Opposite party no. 13 and 14 were also directed to file their affidavits. 7. Based on the directions issued by this court by an order dated 15th March, 2010, opposite party nos. 9 and 10 have filed their affidavits. The opposite party no. 13 has also filed a supplementary counter affidavit today, which is taken on record. The opposite party no. 13 in its affidavit has submitted that the earlier salary that was being paid and the arrears calculated was done as per the oral instructions issued by the District Education Officer, but subsequently, on the representation being made by the applicants, the matter was reconsidered and, a fresh pay scale was issued, and based on that, further arrears of pay amounting to Rs.
15,58,715/- was calculated and sanctioned by the competent authority, which has been paid to the applicants by a demand draft dated 26-03-2010. The opposite party no. 13 has submitted that now substantial compliance of the order of the writ court has been made and the applicants have been given the correct pay scale and that full arrears have now been cleared. 8. The opposite party nos. 9 and 10 have filed their respective affidavits and have stated that the delay in the compliance of the order of the writ court was neither intentional nor was willful and that pursuant to the direction of the Supreme Court passed in the year 2008, the matter was taken up and eventually the amount has been paid. The delay, if any, is account of the red tapism, which is involved in the movement of files from one department to another department. The opposite parties, consequently, submitted that there was no intentional delay on their part and substantial compliance of the order of the writ court has now been made and therefore the notices may be discharged and the contempt application may be dismissed and that the opposite parties should be exonerated from imposition of any cost upon them. The opposite party no.10 has submtted that she took over the post of Director of School Education on 6th June, 2008 and soon thereafter, when the matter came before her, she issued necessary directions for compliance. Similarly, opposite party no. 9 in its affidavit has stated that he took charge as Secretary, School Education in the month of November, 2008. 9. Be that as it may. The court finds that the order of the writ court dated 29th May, 1997 was not complied by the opposite parties and eventually compliance has been made, when final arrears of wages was paid by the opposite party no. 13 on 26th March, 2010. It has taken thirteen long years for compliance and, the matter inspite of reaching finality, and inspite of directions being issued by the Supreme Court in the year. 2008 indicating that the State of Uttarakhand was responsible to bear the financial burden, still took almost 20 months for compliance. This compliance was only because of bailable warrants were issued by this court and prior to that the respondents were not bothered even to make appearance or file their affidavits before the court.
2008 indicating that the State of Uttarakhand was responsible to bear the financial burden, still took almost 20 months for compliance. This compliance was only because of bailable warrants were issued by this court and prior to that the respondents were not bothered even to make appearance or file their affidavits before the court. It is only when bailable warrants were issued to respondent no. 10 that the Secretary/respondent no.9 issued the sanctioning order in February, 2010, which was not the correct amount and when respondent no. 13 was directed to appear before this court, he revised the pay scale and arrears were again calculated and paid in the mean while, by a demand draft on 26th March, 2010. Prior to the last order, respondent no. 13 and 14 were not appearing nor were filing any affidavits. 10. From the aforesaid, it is apparent that the opposite parties were adopting a lackadaisical approach. The intention of the opposite parties was apparently clear, namely to prolong the issue as long as possible. This court finds that a prim facia case of willful disobedience has been made out against all the opposite parties and the court could proceed to frame charges against them. But the court finds that no useful purpose would be served in continuing with the contempt proceedings since the court finds that substantial compliance of order of the writ court has now been made by the opposite parties. The court can close these proceedings but before closing, the court finds that cost is required to be imposed for prolonging these proceedings. For this purpose, the court had granted an opportunity to opposite party nos. 9 and 10 to file their affidavits. The court has perused the affidavits and finds that there reply is unsatisfactory and evasive. For such delay the .court imposes a cost of Rs. 10,000/- to be borne by the Education Department of the State of Uttarakhand. This cost is required to be paid through respondent no. 9, namely, the Secretary, Education Uttarakhand within two weeks from today by means of the crossed demand draft in favour of the Registrar General of this court. Similarly, a supplementary counter affidavit of respondent no. 13 filed today makes it apparently clear that a casual approach was being adopted in clearing the arrears and that the arrears were again paid on 26th March, 2010 after respondent no.
Similarly, a supplementary counter affidavit of respondent no. 13 filed today makes it apparently clear that a casual approach was being adopted in clearing the arrears and that the arrears were again paid on 26th March, 2010 after respondent no. 14 was summoned in person. Consequently, Nagar Palika Balika Inter College, Kathgodam, District Nainital is also responsible for the delay in compliance of the order of the writ court. They are also liable to pay the cost, which the court quantifies at Rs. 10,000/-. The said institution through its Principal will ensure payment of cost of Rs. 10,000/- to be deposited in favour of the Registrar General of this court by means of the crossed demand draft within two weeks from today. 11. The amounts so deposited will be deposited by the Registrar General in the Legal Aid Fund maintained by the High Court and would be used for such purpose. 12. In the circumstances of the case, contempt proceedings are consequently, dropped. Notices are discharged and the contempt application is dismissed. 13. The registry is however directed to list this case before this court on 27th April, 2010, on which date the Registry will submit a note as to whether the cost has been deposited by the opposite parties or not.