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2014 DIGILAW 1619 (ALL)

GIRIJA SHANKAR YADAV v. PRADEEP KUMAR PANDEY

2014-05-19

RAN VIJAI SINGH

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JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Purushottam Mani Tripathi, learned counsel for the applicant. The present contempt application has been filed for punishing the Opposite Party for willful disobedience of the judgment and order dated 4.8.2006 passed by this Court in Writ Petition No. 41902 of 2006 (Girija Shankar Yadav v. State of U.P. and others), by which the writ petition was disposed of with the following observation : Without entering into the merits of the claim set up by the petitioner, it is provided that the petitioner may make a detailed representation in respect of his claim within two weeks from today alongwith a certified copy of this order before the District Basic Education Officer. On such a representation being made the District Basic Education Officer shall examine the following facts: (a) Whether the appointment of the petitioner has been made against dully sanctioned post ? (b) Whether the appointment is in accordance with the statutory rules which regulate such appointment applicable to the institution concerned? (c) Whether the petitioner is possessed of all the prescribed minimum qualifications? In case all these three issues are answered in favour of petitioner, the District Basic Education Officer shall take appropriate action for payment of salary to the petitoner. With the aforesaid directions/observations, the present writ petition is disposed of finally. 2. Learned counsel for the applicant contends that after the aforesaid decision, a detailed inquiry was made and in the inquiry, it was found that all the conditions as enumerated in the order dated 4.8.2006 are satisfied. Even then while passing the order, the applicant has been non-suited on the ground that his name is not mentioned in the managerial return sent to the office of opposite party and it was also observed that after 21 years, there is no occasion to pay salary.Learned counsel for the applicant contends that action of the opposite party is in teeth of the direction given by this Court. 3. The Apex Court in number of cases has held that if the decision has been taken by the authority concerned, its illegality or impropriety or defect in decision making process will not fall in the domain of contempt Court as it gives fresh cause of action and that can be challenged before appropriate Court. 3. The Apex Court in number of cases has held that if the decision has been taken by the authority concerned, its illegality or impropriety or defect in decision making process will not fall in the domain of contempt Court as it gives fresh cause of action and that can be challenged before appropriate Court. In the case of J.S. Parihar v. Ganpat Duggar and others, AIR 1997 SC 113 , the Apex Court has held as under: “............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.” 4. In Lalit Mathur v. L. Maheswara Rao, (2000) 10 SCC 285 , Hon’ble Supreme Court has observed 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.” 5. The same view has again been taken by the Apex Court in Anil Kumar Shahi (2) v. Prof. The same view has again been taken by the Apex Court in Anil Kumar Shahi (2) v. Prof. Ram Sevak Yadav, (2008) 14 SCC 115, wherein the Apex Court has observed as under : 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 wilful disobedience if the best efforts are made to comply with the Court order. 6. 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 also taken the same view by observing 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.” 7. 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.” 7. Again in Brahma Deo Tiwari v. Alok Tandon, District Magaistrate, 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. 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 v. 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. This Court has reiterated the same view in Shail Raj Kishore, Secretary, Education Basic, U.P. Lucknow and others, 2004 (3) AWC 2444 , wherein this Court has observed 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. 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.” 8. After hearing learned counsel for the applicant and perusing the record, I find that pursuant to the order dated 4.8.2006 passed by this Court in Writ Petition No. 41902 of 2006 (Girija Shankar Yadav v. State of U.P. and others), decision has already been taken by the District Basic Education Officer, Kushinagar, copy of which has been brought on record as Annexure 9 to the affidavit filed in support of the contempt application. 9. I am of the opinion that illegality or impropriety or defect in decision making process or the decision itself cannot be subject-matter of the present contempt application and the same can only be tested in the appropriate proceedings. In view of foregoing discussions, I find that no case for punishing the opposite party for willful disobedience of the judgment and order dated 4.8.2006 passed by this Court in Writ Petition No. 41902 of 2006 (Girija Shankar Yadav v. State of U.P. and others) is made out. The contempt application is dismissed.