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2014 DIGILAW 1082 (PAT)

Rana Pratap Singh v. State of Bihar

2014-10-21

I.A.ANSARI, SAMARENDRA PRATAP SINGH

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ORDER SAMARENDRA PRATAP INGH, J. This batch of contempt applications, made under Article 215 of the Constitution read with Section 12 of the Contempt of Courts Act, seeks initiation of contempt proceedings for alleged willful disobedience and deliberate violation of the order, dated 28.06.2011, passed in C.W.J.C. No. 611 of 2011 (Tej Narayan Pandey v. State of Bihar & Ors) and other analogous cases. 2. These contempt applications have been heard on a number of occasions and as many as 11 (eleven) affidavits have been filed, on behalf of opposite parties, including the Director General of Police, showing how the order, dated 28.06.2011, aforementioned, cannot be said to have been willingly disobeyed or deliberately violated. 3. Before we examine whether opposite party have committed Contempt of Court or not, it would be necessary to notice, in brief, the facts of the case. 4. In the year 2004, an advertisement was published bearing Advertisement No. 01/04, in a Hindi daily “Hindustan”, on 08.02.2004, inviting applications from suitable candidates for filling up 5742 posts of constables in different districts of Bihar. On the same day, advertisement No.02/04 was also published inviting applications for appointment on the posts of Constable, in Bihar Military Police (in short, BMP), as against the total number of as many as 4057 posts. Advertisement No.03/04 was published for filling up of 675 posts of Constables for B.M.P., Jamui. The selection was to be, primarily, on marks obtained in physical test. The candidates were, however, also required to appear in written examination, which was only meant for the purposes of testing their ability to read and write in Hindi and English. The written examination did not carry any marks, though passing, in the written examination of the said two languages, was mandatory. The minimum educational qualification was 10th standard pass. The advertisement provided that policy of State Government, i.e., Bihar Reservation of Posts and Services (Scheduled Casts & Scheduled Tribes and O.B.C.) Act, 1991, would be applicable. The vacancies were advertised district wise and were to be filled up as per the roaster system. 5. A large number of candidates, including the petitioners filed their applications for consideration of appointments to the advertised posts in their respective categories. 6. The case of the petitioners is that though they had passed the written examination as well as qualified in the physical test, yet they have not been selected. 5. A large number of candidates, including the petitioners filed their applications for consideration of appointments to the advertised posts in their respective categories. 6. The case of the petitioners is that though they had passed the written examination as well as qualified in the physical test, yet they have not been selected. With this grievance, a large number of writ petitions came to be filed in this Court. The writ petitioners assailed the selection process on a number of grounds. They alleged that the advertisements were issued without ascertaining the actual number of vacancies; persons, securing lesser marks; were selected ignoring the claims of more meritorious candidates, who secured higher marks; and though the selection process, pursuant to Advertisement Nos. 01/04, 02/04 and 03/04, was still in progress, the Home Special Department published advertisement No.01/09 and 02/09 inviting applications for appointment to the posts of constable by carrying over the unfilled vacancies of the year 2004. 7. The main submission of the petitioners was that many posts were still lying vacant and, hence, the candidates, who were on merit and also waiting list and had successfully completed the physical and written test, ought to have been accommodated against such posts. 8. The respondents, in their counter affidavit, denied the allegations made by the petitioners, the case of the respondents was that the selections were made in accordance with law and as many as 23 Range Selection Boards were constituted in various districts of the State. In one of the affidavits, the DIG (Personnel and Administration) averred that Advertisement Nos. 01/09 and 02/09 prima facie reflected, subject to confirmation, that the remaining vacancies of the 2004 advertisements was clubbed with vacancies of Advertisement Nos. 01/09 and 02/09. 9. After hearing the parties, the Division Bench directed the Chief Secretary, State of Bihar, to issue necessary direction to the Director General of Police to ascertain the actual number of vacancies on the date of publication of advertisement in the year 2004 and also prepare a fresh merit list of the candidates, who were declared eligible after the regular recruitment process, and the same shall be considered in accordance with law. The Division Bench further directed that the entire process shall be completed within six weeks from the date of receipt of a copy of the order aforementioned. The Division Bench further directed that the entire process shall be completed within six weeks from the date of receipt of a copy of the order aforementioned. The relevant extract of the order, dated 28.06.2011, is quoted herein-below: “ In view of the statement made in paragraph-9 of the supplementary counter affidavit, we think it proper to give a direction to the Chief Secretary, State of Bihar, for issuance of a direction to the Director General of Police to ascertain the actual number of vacancies available on the date of publication of Advertisements of the year 2004 and also to prepare a fresh merit list of the candidates who were declared eligible after the regular recruitment process and the same shall be considered in accordance with Rules. The entire process shall be completed within a period of six months from the date of receipt of a copy of this order” (Emphasis is added). 10. The Division Bench, in its order, noticed that a large number of Interlocutory Applications were filed by interveners on the ground that they had also appeared in the examinations and had undergone the process of selection. By earlier order, dated 05.04.2011, the Interlocutory Applications were directed to be converted into writ petitions on making payment of Court-fees. The Division Bench noticed that some of the interveners had complied with the direction of this Court, whereas some had failed to remove the defects on or before 28th May, 2011. The Court further noticed that in a number of Interlocutory Applications, the interveners did not turn up to convert their Intervener Applications into writ petitions contrary to what had been directed by the order, dated 05.04.2011, aforementioned. The Court granted six weeks’ further time to comply with the order passed by the Court on 05.04.2011, failing which the interveners concerned would not be entitled to any relief as may be granted by the Court. 11. The petitioners, in these contempt applications, also comprise of some of the interveners, whose Interlocutory Applications were converted into writ petitions as per direction of the Division Bench. 12. 11. The petitioners, in these contempt applications, also comprise of some of the interveners, whose Interlocutory Applications were converted into writ petitions as per direction of the Division Bench. 12. The case of the petitioners, in these contempt applications, is that the Opposite Party have yet not ascertained the actual number of vacancies available on the date of publication of the three advertisements of the year 2004 nor have they prepared a fresh merit list of the candidates, who were declared eligible for consideration against vacancies, which were available on the date of publication, but not advertised. In their show cause, which are eleven in numbers, the Opposite Party have submitted that they have highest regards for this Court and they have not disobeyed any of the orders of this Court. They submit that in terms of the directions of this Court, data with respect to remaining vacancies, at the time of publication of the three advertisements, namely, advertisement Nos. 01/04, 02/04 and 03/04, were collected from different districts, units and steps were taken to fill up these vacancies on the basis of merit in their respective categories. On 12.03.2014, a supplementary show cause was filed by the Director General of Police himself, wherein it has been stated, at paragraph-4, that total number of 10,474 vacancies were published through advertisement Nos. 01/04, 02/04 and 03/04 for appointment to the posts of Constable and, out of the said advertised vacancies, 9113 candidates were appointed prior to the order of this Court in L.P.A. No.831 of 2009. In paragraph 5, it has been further stated that no application was received for 51 vacancies of Rail District, Katihar, and 6 vacancies of Mantrimandal Nigrani and, as such, no appointment was made against 57 posts. Further-more, 797 vacancies were carried forward and appointment of these vacancies were made pursuant to fresh advertisement. In paragraph 6 of his affidavit, the Director General of Police has averred that out of remaining 507 vacancies (10474-9113+57+797), 478 candidates were appointed in compliance of the order of this Court constituting 13 Constable Recruitment Boards. However, no candidate was available against 29 posts in their respective categories as per their reservation roaster. A copy of the chart has been annexed as Annexure-R-1/M. 13. However, no candidate was available against 29 posts in their respective categories as per their reservation roaster. A copy of the chart has been annexed as Annexure-R-1/M. 13. Again, in the supplementary show cause, dated 11.6.2014, the Director General of Police brought to the notice of this Court the order, dated 29.04.2013, passed in C.W.J.C. No.126 of 2013, wherein a learned Single Judge has observed that any of 507 vacancies, which could not be filled up on account of non-availability of applicants, would, now, be filled up on the basis of fresh advertisement. 14. Mr. D. K. Sinha, learned Additional Advocate General No.2, appearing on behalf of the State, submits that a large number of contempt applications, wherein the issues, identical as in present contempt cases, all arising from same common order, dated 15.06.2011, have been dismissed by a Division Bench on 14.07.2014. He submits that the instant batch of contempt applications, too, has been filed against alleged willful violation of the order, dated 15.06.2011, passed by a Division Bench. After hearing the parties, the Division Bench has, we notice, observed that the respondents, particularly, Director General of Police, has not failed to carry out the directions issued by this Court and have not deliberately disobeyed the said direction. The relevant extract of the order, dated 14.07.2014, is reproduced below: “We see no substance in these Petitions. Once it is asserted that all available vacancies, 10474 in number, were advertised in 2004, the question of compliance with the aforesaid direction issued on 28th June 2011 does not arise. The said directions can not be read to offer the unfilled vacancies to the present writ petitioners or the candidates empanelled in 2004 selection process. It is the settled policy of the State of Bihar to carry such unfilled vacancies to the next selection process. The said policy has been noticed by the Division Bench of this Court in the matter of Manish Kumar Sahil ( 2008 (4) P.L.J.R. 93 ) and is followed in the matter of Subodh Kumar [ 2012 (2) P.L.J.R. 647 ]. We do not agree with the petitioners that the respondents, particularly the Director General of Police, Bihar, have failed to carry out the direction issued by this Court or have deliberately disobeyed the said directions. No case of contempt of the Court is made out. M.J.Cs. are summarily rejected”. 15. On the other hand, Mr. We do not agree with the petitioners that the respondents, particularly the Director General of Police, Bihar, have failed to carry out the direction issued by this Court or have deliberately disobeyed the said directions. No case of contempt of the Court is made out. M.J.Cs. are summarily rejected”. 15. On the other hand, Mr. Rajeev Kumar Verma, learned Senior Counsel, making the lead argument, on behalf of the petitioners, submits that the posts, which remained vacant of the year 2004 selection process, should have been offered to the writ petitioners or to the candidates as per their merit position or from waiting list. He further submits, with all due respect to the learned counsel appearing in the cases, which were dismissed by a Division Bench, as indicated hereinbefore, on 14.07.2014, that all relevant facts had not been brought to the notice of the Division Bench, which has dismissed the contempt applications. Mr. Verma, learned Senior Counsel, submits that if a counsel does not place all the relevant submissions for consideration of Court, a litigant should not suffer on that account. In support of his submissions, Mr. Verma has relied upon decisions, reported in AIR 1981 SC 1400 , para-3; and 2012(4) PLJR (Supreme Court) 25, paras 19 and 20. 16. Mr. Verma next submits that the Court, in contempt applications, cannot examine the correctness of an order. In support of his submissions, he has relied upon the decision reported in (2006) 2 SCC 73. 17. The petitioners, thus, in these applications, reiterate that the Opposite Party, including the Director General of Police, did not carry out the directions of this Court passed on 28.06.2011. 18. We find that the direction of the Division Bench were two fold; the first direction was that the Director General of Police would ascertain the actual number of vacancies available on the date of publication of the three advertisements of the year 2004 and the second direction was to prepare a fresh merit list of the candidates, who would be declared eligible by regular recruitment process, and the same should be considered in accordance with law. 19. 19. As the petitioners were insistent that all facts may not have been brought before the earlier Division Bench, which heard the contempt petitions, we, for their satisfaction, relented and proceeded to consider whether the Opposite Party, particularly, the Director General of Police can be held to have willfully disobeyed the direction of this Court passed on 28.06.2011, though the issue has already been decided by a Coordinate Bench vide order, dated 14.07.2014. 20. We would first address the second direction issued by the Division Bench in its order, dated 15.06.2011. We find from the show cause, filed on behalf of the Director General of Police, that in total 10,174 vacancies were advertised, in the year 2004, for recruitment to the post of Constables in various services. Out of these vacancies, 797 vacancies were carried forward to the year 2009 advertisement. No applications were received for 51 vacancies of Rail District, Katihar, and 6 vacancies in Matrimandal Nigrani. 797 vacancies were carried forward and appointments to these posts were made through fresh advertisement made in the year 2009. In his affidavit, dated 12.03.2014, in paragraph-6 the Director General of Police has stated that out of 10,474 vacancies, only 507 posts remained vacant and out of the said 507 vacant posts, 478 candidates were appointed in compliance of the direction of this Court by constituting 13 new Constable Recruitment Boards; whereas candidates were not available against 29 posts in their respective categories as per the reservation roster. 21. We, thus, find that out of the remaining vacancies, vacancies of 797 posts were carried forward and appointment to these posts have been made through the advertisement published in the year 2009 and that these posts were advertised prior to the issuance of the direction of Division Bench passed on 28.06.2011. 22. Thus, we are in agreement with the conclusions of the Division Bench of this Court arrived at, on 14.07.2014, dismissing the contempt petitions on the ground that there was no willful disobedience of the order of this Court. 23. The Opposite Parties, in their affidavit, have stated that 10,474 posts were available on the date of publication of the three advertisements in the year 2004. No material has been produced by the petitioners to take any contrary view. 23. The Opposite Parties, in their affidavit, have stated that 10,474 posts were available on the date of publication of the three advertisements in the year 2004. No material has been produced by the petitioners to take any contrary view. In this view of the matter, we do not find any reason to take a different view that the Opposite Party, particularly, the Director General of Police, did not carry out the directions of this Court or willfully disobeyed or violated the same. 24. In the result, these contempt applications are dismissed. I. A. Ansari, J. - I agree.