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2011 DIGILAW 916 (ALL)

Ajay Kumar Singh v. Prof. B. Hanumeiah and Others

2011-04-07

ANIL KUMAR

body2011
Hon’ble Anil Kumar,J.—Heard Sri Santosh Kumar Yadav, learned counsel for applicant and Sri Akhilesh Kalra, learned counsel appearing on behalf of respondents. 2. Brief facts as submitted by learned counsel for applicant are that petitioner/applicant after completing L.L.M. (Human Right) Course in Hindi Medium in the year 2004 from Baba Saheb Bhimrao Ambedkar University (A Central Unviersity) Vidya Bihar, Raebareli Road, Lucknow (hereinafter referred to as the ‘University’) applied for Ph. D. and submitted his synopsis in Hindi under the supervision of Prof. S.K. Bhatnagar. 3. Thereafter a controversy arose in respect to medium in which L.L.M. Degree and synopsis submitted by petitioner/applicant and matter referred to Board of Post Graduate Studies of Department of Human Right. However, as per version of petitioner thereafter decision was taken by a five member committee in his favour on 17.10.2006 but petitioner not admitted for Ph.D. Degree. 4. Aggrieved by said facts, petitioner for redressal of his grievances approached this Court by filing Writ Petition No. 535 (MS) of 2010, dismissed vide order dated 17.02.2010, challenged by filing Special Appeal No. 221 of 2010 Ajay Kumar Singh Vs. Vice Chancellor Baba Bhimrao Ambedkar University & others and by order dated 24.02.2010, order passed by learned Single Judge set aside, relevant direction given therein is as under:- “In any even, without going into such controversy, we held and say that the candidature of the appellant, once recommended by the DRC, cannot be ignored. Therefore, his case can be considered for the session 2010-2011.” 5. According to petitioner/applicant, his case not considered, so he approached this Court by filing present contempt petition. 6. Notices issued on 30.08.2010. 7. In response to the same, counter affidavit filed by Sri K. Chaudhary, Registrar, Baba Bhimrao Ambedkar University, Lucknow inter alia stating therein that case of petitioner duly considered and rejected vide order dated 31.08.2010, a copy of which is contained as Annexure No. A-3 filed along with counter affidavit. 8. In view of the abvoesaid facts, learned counsel for respondent submits that order passed by this Court in special appeal complied with, so present contempt petition is liable to be dismissed. 9. Sri S.K. Yadav, counsel for applicant submits that order passed by this Court in special appeal has not been complied with in its letter and spirit, so present contempt petition filed by applicant is maintainable and respondents are liable to be punished accordingly. 10. 9. Sri S.K. Yadav, counsel for applicant submits that order passed by this Court in special appeal has not been complied with in its letter and spirit, so present contempt petition filed by applicant is maintainable and respondents are liable to be punished accordingly. 10. I have heard counsel for parties and gone through record. 11. Undisputed facts of the present case are that special appeal filed by petitioner/applicant allowed vide order dated 24.02.2010 with certain direction and in compliance to said direction, case of the petitioner/applicant considered by competent authority and rejected vide order dated 31.08.2010 (Annexure-A3) filed along with counter affidavit of Sri K. Chaudhary, Registrar of the University. 12. In view of abovesaid circumstances, once the direction issued by this Court in special appeal has been complied with and a decision taken then in that circumstances if the applicant/petitioner is still aggrieved by said action then he has remedy to challenge the same before appropriate forum and for the said purpose remedy is not available to him under the provisions of Contempt of Courts Act. 13. The said view is taken by me supported by following decision of the Apex Court and by this Court:- 14. In the case of J.S. Parihar v. Ganpat Duggar and others, AIR 1997 Supreme Court 113 the apex court has held as under: “The question then is: whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the order of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the direction issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act.” 15. In the case of Lalit Mathur v. L. Maheswara Rao, (2000) 10 SCC 285 the Hon’ble Supreme Court held as under: “4. 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. 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.” 16. Further in the case of Ashok Kumar Pandey v. Ashok Kumar Singh, D.I.O.S., Ballia and others, 2003 (5) AWC 4393 this court has held as under: “Para 8.” The D.I.O.S. considered the report and the matter of appointment of the applicant in great detail. Further in the case of Ashok Kumar Pandey v. Ashok Kumar Singh, D.I.O.S., Ballia and others, 2003 (5) AWC 4393 this court has held as under: “Para 8.” The D.I.O.S. considered the report and the matter of appointment of the applicant in great detail. He observed in the previous writ petition the applicant claimed his appointment under Section 18 of the U.P. Secondary Education Service Commission Act, 1982. However, in the second writ petition, he claimed his appointment under Removal of Difficulties II Order. Both these matters were considered and it was held that the appointment is not according to the rules either under Section 18 of the U.P. Secondary Education Service Commission Act, 1982, or under Removal of Difficulties Order (Second). therefore, the appointment was disapproved. “Para 9.” It is further contended that previous approval in compliance of the order passed in the writ petition was passed by the Sub-Divisional Magistrate, who was holding the charge of D.I.O.S. without considering the provisions of the Act. “Para 10.” Therefore, the direction of this Court has been complied with. If the applicant is aggrieved by the order of the D.I.O.S. deciding the matter and is of the view that the decision is not correct, he may challenge the same in the appropriate writ or in other proper proceedings. “Para 11.” There is no ground to proceed with the contempt. The petition for contempt is accordingly dismissed.” 17. In the case of Brahma Deo Tiwari v. Alok Tandon, District Magistrate, Allahabad, 2004 (1) AWC 543 this Court has held as under: “As already noted hereinabove, this contempt petition has been filed alleging violation of the order of the writ court dated 10.12.1997 by which the writ court had directed to consider the case of the applicant with regard to his appointment. The contempt court after perusing the order dated 11.7.1997, though had disapproved the decision taken by the opposite party, had directed vide order dated 10.12.1997, to reconsider the case of the applicant after taking into consideration different aspect which are mentioned in the order itself. By the order dated 17.12.2002, the opposite party has considered all the aspects mentioned in the order dated 10.12.1997. Counsel for the applicant has urged that the order dated 17.12.2002 is neither legally nor factually correct. By the order dated 17.12.2002, the opposite party has considered all the aspects mentioned in the order dated 10.12.1997. Counsel for the applicant has urged that the order dated 17.12.2002 is neither legally nor factually correct. It may be so, but it is well settled that the contempt court can neither sit in appeal nor examine the correctness of a resultant order. The Apex Court in Lalith Mathur v. L. Maheshwara Rao, (2000) 10 SCC 285 and J.S. Parihar Vs. Ganpat Duggar, (1996) 6 SCC 29), has held that correctness of an order passed by a statutory authority on the directions of the writ court cannot be examined under the contempt jurisdiction. No doubt the resultant order may give rise to a fresh cause of action.” 18. In the case of Shail Raj Kishore v. Secretary, Education Basic, U.P. Lucknow and others, 2004 (3) AWC 2444 this Court has held as under: “Para 5 ........ If the applicants feel that the order passed by the opposite party is not in accordance to the intent or desire of the Court or otherwise illegal and arbitrary, the same can only be challenged before the appropriate forum. In various cases, Apex Court has held that the Contempt Court cannot go into the merit of the order. Various grounds raised by the learned for the applicant to submit that the order is bad in law required consideration and adjudication, which can only be done by the appropriate Court and not by this Court.” 19. In the case of Anil Kumar Shahi (2) v. Prof. Ram Sevak Yadav, (2008) 14 Supreme Court Cases 115 the Apex Court has held that when the court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding of an authority to whom direction is given, therefore, mere error of judgment with regard to legal position does not constitute contempt of Court. There is no willful disobedience if the best efforts are made to comply with the court order. 20. For the foregoing reasons, present contempt petition filed by petitioner/applicant is dismissed. 21. Notices issued are discharged with. 22. However, as prayed, if applicant so advised, he challenge order dated 31.08.2010 before appropriate forum. _____________