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2015 DIGILAW 1074 (GUJ)

Kiritbhai Gangaram Solanki v. Prashant K. Parikh

2015-10-19

R.P.DHOLARIA, S.R.BRAHMBHATT

body2015
JUDGMENT : S.R. Brahmbhatt, J. Heard learned advocates for the parties. The petitioner has by way of this petition approached this Court invoking provisions of Contempt of Court's Act with following prayers. "(A) That Your Lordships be pleased to punish Shri Prashant K. Parikh, the Chief Officer, Nadiad Nagar Palika, Nadiad, District Kheda, the respondent herein, for wilful, deliberate contempt of court in not complying with the Order dated 2912014 passed by Division Bench of this Hon'ble Court, in L.P.A. No.1089 of 1999, (B) Be further pleased to direct the respondent to purge contempt by complying with the Order dated 2912014 passed by Division Bench of this Hon'ble Court, in L.P.A. No.1089 of 1999, (C) Any other and further relief as may be deemed fit just and proper may be granted in the interest of justice," 2. The facts in brief, as could be gathered from the memo and the annexures would indicate that the petitioner at the relevant time had moved the concerned Collector for seeking redressal in respect of the orders passed by the Nadiad Nagar Palika in which without following the procedure of law or in ignorance of the relevant rules, it would alleged that the promotions and appointments were made. This resolution of Nagarpalika were subject matter of scrutiny by the concerned District Collector, who issued order under Section - 258 (3) of the Municipality Act, which is said to be assailed by those, who are affected, by way of Special Civil Application No.10751 of 1996, in which this Court vide order dated 23rd July 1999 observed that the Collector's order was not required to be interfered with in any manner, as in case if the Collector's orders were not quashed and set aside, it would amount to perpetuating the illegalities, which were quashed and set aside by the Collector, as two orders of Nagarpalika were stayed. Hence, the petition was dismissed. It would be most appropriate to set out the observations of the learned Single Judge and the final order from the order dated 23rd July 1999, which reads as under : "......8. Learned counsel for the petitioners has only felt contended by raising a too technical contention that the District Collector has no jurisdiction in this matter. It would be most appropriate to set out the observations of the learned Single Judge and the final order from the order dated 23rd July 1999, which reads as under : "......8. Learned counsel for the petitioners has only felt contended by raising a too technical contention that the District Collector has no jurisdiction in this matter. However, I do not consider it to be necessary in this case to go on and decide this question for the reason that where the appointments by promotions of the petitioners were contrary to the rules, this Court only on this ground cannot interfere with the order of the District Collector, Kheda. It is well settled law that this Court will not issue a writ of mandamus or a writ of certiorari where the quashing of the order challenged therein will result in restoration of an illegal order. The promotion which have been given to the petitioners are illegal as being contrary to rules and in case the order of District Collector, Kheda is quashed and set aside, on the ground as what the learned counsel for the petitioners contended, then this court will restore the illegal promotions, that is, it will perpetuate illegality, which cannot be done by this Court. Reference in this respect may have to the decision of the Apex Court in the case of Venkateshwara Rao v. Government of Andhra Pradesh reported in AIR 1966 SC 828 , two decisions of the Rajasthan High Court in the case of Jagan Singh v. State Transport Appellate Tribunal, Rajasthan and Anr. reported in AIR 1980 RAJ. 1 and in the case of Himmat Jain v. State of Rajasthan reported in AIR 1994 RAJ.53, two decisions of the Patna High Court in the case of Devendra Prasad Gupta v. State of Bihar & Ors. reported in AIR 1977 Patna 166 and in the case of Chintamani Sharan Nath v. State of Bihar reported in AIR 1990 Patna 165 and the judgment of the Kerala High Court in the case of A.M. Mani v. State Electricity Board reported in AIR 1963 Kerala 76. 9. In the result, this special civil application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted by this Court stands vacated. No order as to costs." 3. 9. In the result, this special civil application fails and the same is dismissed. Rule discharged. Interim relief, if any, granted by this Court stands vacated. No order as to costs." 3. This order of learned Single Judge dated 23rd July 1999 was assailed in the L.P.A. being L.P.A. No.1089 of 1999 in which this Court concurring with the findings recorded by the learned Single Judge, rejected the appeal. However, it was further required to be observed by the Court that the protection was granted to the appellants, who were 11 in number by the order of maintaining status quo, therefore the Court had made observations. The observations of the Court in the order dated 29th January 2014 in the L.P.A. No.1089 of 1999 deserved to be set out as under :" 12. One of the contentions of Mr. Chauhan was that as the appellants were not made a party before the Collector, they could not challenge the order passed by the Collector by filing appeal. This contention too has no force. The appellants could have either challenged the order of the Collector by filing revision application under Section 264 of the Municipalities Act or by making an application for being joined as party respondents before the Director of Municipalities in the appeal as though they were not impleaded as parties, the Collector had passed the order after hearing them. Therefore, the order of the Collector was well within their knowledge. Further, the Director has not passed any order against the appellants, but he has only confirmed the order of the Collector. The appellants have done neither of the things and were sitting on the fence and therefore they should not be given any premium for their own wrong. 13. For the foregoing reasons, we are in complete agreement with the findings recorded by the learned Single Judge. The appeal has no merits. Hence, the same is dismissed. No order as to costs. 14. While admitting the present appeal, this Court has granted protection to the appellants by directing maintenance of status quo. The same has continued till now and now most of the appellants have retired from service. Therefore, no recovery of salary will be made by the Municipality from the appellants. Hence, the same is dismissed. No order as to costs. 14. While admitting the present appeal, this Court has granted protection to the appellants by directing maintenance of status quo. The same has continued till now and now most of the appellants have retired from service. Therefore, no recovery of salary will be made by the Municipality from the appellants. Those appellants who are still in service are at liberty to make a representation for consideration of regularisation of their promotion and those employees who have retired from service are at liberty to make a representation for not reducing their pension. If and when such representations are made by the concerned appellants, appropriate orders will be passed by the respondent Municipality." (emphasis supplied) 4. Learned advocate for the petitioner invited this Court's attention to page no.79 in this compilation and submitted that as it was a case of blatant nepotism and favouritism by Nagarpalika to choose the employees for promotion, who were unable to work in other capacity and therefore, all alone of the Chief Officer's right, if the orders rendered by learned Single Judge were reluctant in terminating and/or implementing the services or reverting the concerned employees, as otherwise it was duty cast upon the officer to abide by the order of Collector in which the Nagarpalika orders dated 16th March 1995, 29th April 1995, 22nd May 1995 and 27th May 1995 were stayed by exercising the powers under Section - 258 (1) of the Municipality Act. 5. It was further contended on behalf of the petitioner that this Court even on 8th December 2014, while admitting this matter and issuing Rule, has also observed that there appears to be wilful disobedience of the Court's order and therefore, the rule was issued. 6. Learned advocate for the petitioner, relying upon these factors and facts contended that the concerned respondent is liable to be punished, as the Court's orders have remained to be complied with so far. 7. Learned advocate for the respondent, submitted that the prayer clause of this petition would indicate that the petitioner was concerned with the direction contained in the last para of the order dated 29th January 2014 and close reading thereof would clearly indicate that there existed no direction so far as terminating of services of employees are concerned. 7. Learned advocate for the respondent, submitted that the prayer clause of this petition would indicate that the petitioner was concerned with the direction contained in the last para of the order dated 29th January 2014 and close reading thereof would clearly indicate that there existed no direction so far as terminating of services of employees are concerned. It was urged to this Court that there were 11 appellants and all 11 employees were protected as per condition maintained on account of status quo existing in L.P.A., as could be seen from the order dated 29th January 2014 passed in L.P.A. No.1089 of 1999 and therefore, the only direction, which was issued by the Court in L.P.A. No.1089 of 2014 was also in favour of those employees, who were protected to that extent. In case, those who were retired, no recovery were required to be effected and those who are still in service, opportunity was granted to them to make representation for seeking regularisation of their promotion, meaning thereby there existed no direction as sought to be made out by the learned counsel for the petitioner in this petition so as to bring in action of contempt of Court. 8. Learned advocate for the respondent invited this Court's attention to the fact that the representation was preferred by 6 employees and the appellants, who were in service and who do not retired. The Court rendered the order dated 29th January 2014 and this representation turned out and reverted by implementing the Collector's order and those employees have in fact preferred two petitions as submitted by the learned advocate for the respondent, in which also initial stay order was granted, which was sought to be vacated by the petitioner Nagarpalika by preferring application, which came to be rejected, which is also subject matter of appeal, wherein the Court stayed the learned Single Judge's order and as a result whereof all the employees, who were facing reversion, were placed in services in the wages and emoluments, which they were receiving in the year 1996. 9. We are of the considered view that unfortunately the petitioner has proceeded on a premise as if there was a direction in the order passed by Division Bench in L.P.A. No.1089 of 1999, while dismissing the appeal. 9. We are of the considered view that unfortunately the petitioner has proceeded on a premise as if there was a direction in the order passed by Division Bench in L.P.A. No.1089 of 1999, while dismissing the appeal. The learned advocate for the respondent Nagarpalika is justified in submitting that even as per the prayers contained in this petition, there is no reference to any other direction of either the Single Judge or any other authority and the direction referred to in paragraph no.9 (A) of the prayer clause is in respect of the order dated 29th January 2014 in which while disposing of the L.P.A. No.1089 of 1999, the Court took the note of the fact that on account of the status quo, interim order enuring in favour of the appellants, and those who were retired by then were not to be disturbed by ordering recovery and those, who are in service were permitted to takeout representation for seeking regulation of the service. In other words, it can well be said that to that extent, the learned Single Judge's order was whittled down by the Division Bench. 10. There appears to be justification on the part of learned advocate for the petitioner to contend that the learned Single Judge's order was absolutely clear qua illegality perpetuated by the Nagarpalika and therefore, Nagarpalika's orders, which were set at naught by the Collector under exercise of powers of Section 258 (3) of the Municipality Act, should have acted in right earnest and implemented the order of the Collector. But, unfortunate it is that petitioner did not seek to chose any positive direction nor did he go for any remedy available to him, though of course now as learned advocate for the petitioner has also chosen to move this Court by preferring proceedings, but that in itself would not be sufficient to say that there exists a wilful disobedience on the part of the respondents, so far as order dated 29th January 2014 is concerned. The non action or rather omission to act after the order of learned Single Judge rendered on 23rd July 1999, which was in fact a duty cast upon the Nagarpalika to act in the spirit of the order, unfortunate it is that Nagarpalika has chosen blatant stand and acted more blatantly in undoing the things, which were done or were ordered to be undone on account of Collector's order. It was definitely a matter of concerned for all the persons, but to say the least, same cannot be stretched to encompass omission as wilful disobedience in absence of any specific direction. The Court hastened to add here that even assuming for the sake of examining that there was a clear direction or there was implied direction in the order by the learned Single Judge in the year 1999, but unfortunately in the petition, the prayer clause, as could be seen from the prayer made in this petition, is not even make any reference thereof, which would indicate that there exists no ground for holding that there was any contempt of Court. By not entertaining this petition and rejecting the same would not may anyway construed and countenancing the act of Nagarpalika in any manner. We are rather of the clear opinion that it was a duty cast upon the Nagarpalika to act upon the order of the Collector, when the same was upheld in unequivocal terms of the learned Single Judge of this Court. There was no other choice or option left to Nagarpalika to implement the order of Collector, non implementation has given rise to this proceedings and created unsepary situation, which would have been avoided, but that in itself would not be sufficient for exercise the contempt jurisdiction. 11. In the aforesaid extent, the petition being bereft of merits, deserves rejection and accordingly the same is rejected. No order as to costs. Rule discharged. Petition Rejected.