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Rajasthan High Court · body

2016 DIGILAW 1881 (RAJ)

Dilip Kumar v. Hanuman Prasad Khandelwal

2016-12-22

SANDEEP MEHTA

body2016
ORDER : Sandeep Mehta, J. 1. Succinctly stated, facts essential and relevant for disposal of the instant contempt petition are noted hereinbelow: "The petitioner herein, applied for selection as a Teacher Grade III in furtherance of a recruitment notification issued by the respondent Zila Parishad Nagaur way back in the year 1998. He was not selected in the initial merit list. A controversy arose in the recruitment process regarding the application of district-wise reservation. Numerous writ petitions were filed in the High Court and the districtwise reservation was struck down. The controversy was examined by the Apex Court in the case of Kailash Chand Sharma v. State of Rajasthan & Ors., reported in (2002)6 SCC 562 . The Hon'ble Apex Court, directed that the claims of those writ petitioners, who had moved the High Court by invoking writ jurisdiction, should be considered afresh in light of the judgment, vis a vis, the candidates appointed on or after 18.11.1999, observing as below: "1. The claims of the writ petitioners should be considered afresh in the light of this judgment vis a vis the candidates appointed on or after 18.11.1999 or those in the select list who are yet to be appointed. On such consideration, if those writ petitioners are found to have superior merit in case the bonus marks of 10% and/or 5% are excluded, they should be offered appointments, if necessary, by displacing the candidates appointed on or after 18.11.1999. 2. The appointments made upto 17.11.1999 need not be reopened and re-considered in the light of the law laid down in this judgment. 3. Writ Petition No. 542 of 2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time." 2. 3. Writ Petition No. 542 of 2000 filed in this Court under Article 32 is hereby dismissed as it was filed nearly one year after the judgment of the High Court and no explanation has been tendered for not approaching the High Court under Article 226 at an earlier point of time." 2. The petitioner's slumber seems to have been broken after the Supreme Court decision in Kailash Chandra's case, and he filed a writ petition No. 6136/2003 in this Court on 21.10.2003 which was disposed of on 16.04.2008 in the following terms:- "In this view of the matter, this writ petition is disposed of with a direction to the respondents that the claim of the petitioner may be considered afresh at par with the case of respondent No. 5 -Chhotu Ram, who was provided appointment by the respondents on the post of Teacher Grade III and at the time of considering the case of the petitioner afresh, the respondent shall consider the judgment rendered by Hon'ble Apex Court (supra) so also follow the directions issued by Secretary, Panchayati Raj Department dated 10.10.2002 in toto and if upon considering the case of the petitioner afresh, it is found that the petitioners is entitled for appointment then he shall be provided appointment with effect from the date from which the candidate having lesser percentage of marks was provided appointment. The respondents shall decide the matter within a period of three months from the date of receipt of certified copy of this order." 3. The respondents challenged the order dated 16.04.2008 by filing Special Appeal No. 03300/2009 which was rejected by this Court on 16.05.2011 holding that there was nothing wrong in direction given by the learned Single Bench as per which, the authorities were only required to consider the case of the petitioner in terms of the Apex Court decision and they were bound by the dictum thereof. In the meantime, the petitioner, feeling aggrieved by continued non-consideration of his claim for appointment in compliance of the Single Bench Judgment dated 16.04.2008, filed yet another writ petition No. 499/2009 before this Court. It appears that during pendency of the said writ petition, the Chief Executive Officer, Zila Parishad, Nagaur issued a communication dated 16.08.2012 as per which, it was recommended to select the petitioner as a Teacher Grade III in the questioned recruitment process. It appears that during pendency of the said writ petition, the Chief Executive Officer, Zila Parishad, Nagaur issued a communication dated 16.08.2012 as per which, it was recommended to select the petitioner as a Teacher Grade III in the questioned recruitment process. The recommendation so made was forwarded to the State Government to seek guidance on the issue as to whether the appointment had to be treated as retrospective and if so, whether the petitioner was to be extended the benefit of old pension scheme existing before 01.01.2004. While arguing the said writ petition on 08.10.2012, the petitioner's counsel handed over the said communication/recommendation dated 16.08.2012 to the Court and relying thereupon, the writ petition was decided on that very day directing the respondents to comply with the order passed by this Court in the petitioner's earlier writ petition and to give effect to the recommendation made by the Zila Parishad, Nagaur and to provide appointment to the petitioner within a period of one month. The recommendation dated 16.08.2012 issued by the CEO, Zila Parishad Nagaur was received by the appropriate authority of the State Government, which advised the CEO that the decision to offer appointment to the petitioner should be considered strictly in light of Kailash Chandra's Judgment. Thereupon, the CEO issued an order dated 09.11.2012 and withdrew the recommendation dated 16.08.2012. The State, preferred a Special Appeal No. 390/2013 against the order dated 08.10.2012 which was dismissed on 07.08.2015 observing that the dismissal of the appeal shall not be treated prejudicial to the application, if any preferred by the respondents for recalling the earlier orders passed in the matter. Being aggrieved by the failure of the respondents to implement the recommendation dated 16.08.2012 and for the deliberate disobedience of repeated orders passed by this Court in the petitioner's writ petitions and the special appeals, the instant contempt petition has been preferred. 4. Shri M.R. Singhvi, learned Sr. Counsel assisted by Shri Bhavit Sharma representing the petitioner vehemently urged that the respondents are guilty of gross and deliberate disobedience of this Court's order. He submitted that the order dated 09.11.2012 withdrawing the earlier recommendation issued in favour of the petitioner was intentionally and fraudulently issued in order to frustrate the petitioner's claim and to circumvent the order dated 08.10.2012 passed by this Court in petitioner's writ petition No. 499/2009. He submitted that the order dated 09.11.2012 withdrawing the earlier recommendation issued in favour of the petitioner was intentionally and fraudulently issued in order to frustrate the petitioner's claim and to circumvent the order dated 08.10.2012 passed by this Court in petitioner's writ petition No. 499/2009. No sooner the writ petition was decided, the respondents acted in high-handed fashion and rescinded the recommendation without any justification whatsoever. The act of the respondents in getting the writ petition decided on the strength of the above recommendation dated 16.08.2012 and then taking an immediate u-turn and cancelling the same amounts to playing fraud with the Court. This Court, while deciding all the writ petitions/appeals filed in the matter, clearly found favour with the petitioner's claim and, in unequivocal terms, held that the petitioner is entitled to be appointed in the questioned recruitment process on his merit. Thus, he urged that the respondents are under an obligation to offer appointment to the petitioner and for their deliberate endeavor to frustrate and deprive the petitioner of his rightful claim under this Court's orders, the concerned officials are liable to be punished for contempt. In support of his contentions, he placed reliance on the following Judgments and urged that the respondent officials should be convicted and sentenced for willful and deliberate disobedience of this Court's order: "(i) Anil Ratan Sarkar and Ors. v. Hirak Ghosh & Ors., (2002) 4 SCC 21 (ii) Prithawi Nth Ram v. State of Jharkhand & Ors., (2004) 7 SCC 261 (iii) Director of Education, Uttaranchal & Ors. v. Ved Prakash Joshi & Ors., (2005) 6 SCC 98 (iv) Union of India & Ors. v. Subedar Devassy PV, (2006) 1 SCC 613 (v) Patel Rajnikant Dhulabhai & Anr. v. Patel Chandrakant Dhlabhai & Ors., (2008) 14 SCC 561 (vi) Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and Ors. v. M. George Ravishekaran and Ors., (2014) 3 SCC 373 (vii) Bhushan Power and Steel Ltd. & Ors. v. Rajesh Verm & Ors., (2014) 5 SCC 551 (viii) State of Uttarakhand and others v. Kanhaya Lal, (2014) 14 SCC 388." 5. Per contra, Dr. P.S. Bhati, learned AAG assisted by Mr. Rishabh Tayal appearing for the respondents contemnors vehemently opposed the submissions advanced by Shri Singhvi. v. Rajesh Verm & Ors., (2014) 5 SCC 551 (viii) State of Uttarakhand and others v. Kanhaya Lal, (2014) 14 SCC 388." 5. Per contra, Dr. P.S. Bhati, learned AAG assisted by Mr. Rishabh Tayal appearing for the respondents contemnors vehemently opposed the submissions advanced by Shri Singhvi. He urged that the recommendation dated 16.08.2012 from which, much water was sought to be drawn by the petitioner's counsel was, as a matter of fact, issued inadvertently and in ignorance of the Supreme Court Judgment in Kailash Chandra's case. The said document was not placed on record by the petitioner with an affidavit. It was informally handed over to the Court on the very day of decision and thereby, the authorities were prevented from filing a counter thereto. As the recommendation dated 16.08.2012 was made by the concerned CEO without considering and realizing true import of the Supreme Court judgment in Kailash Chandra's case, the State Government officials, advised the CEO Zila Parishad Nagaur to reconsider the matter in light of the said Judgment. Soon thereafter, a proper decision compliant with the directions given in the Hon'ble Supreme Court's Judgment was taken and the recommendation was withdrawn on 09.11.2012 and rightly so. He urged that while deciding Kailash Chandra's case, the Hon'ble Supreme Court gave pertinent directions at para No. 46 of the judgment (supra) restricting the relief only to those writ petitioners who had approached the High Court in time. The writ petition filed by one candidate directly before the Supreme Court under Article 32 of the Constitution of India was rejected as being belated. 6. He urged that it was clearly expounded by the Hon'ble Supreme Court that relief was being confined only to those petitioners who moved timely to the High Court and such litigants who did not challenge the selection process at the earliest point of time were not entitled to any relief whatsoever. He submitted that in the order dated 16.04.2008 passed in the petitioner's writ petition No. 6136/2003 as well as the order dated 16.05.2011 passed by the Hon'ble Division Bench in writ petition No. 03300/2009, the authorities were expressly directed to consider the petitioner's case in terms of the Apex Court judgment in Kailash Chandra's case. He submitted that in the order dated 16.04.2008 passed in the petitioner's writ petition No. 6136/2003 as well as the order dated 16.05.2011 passed by the Hon'ble Division Bench in writ petition No. 03300/2009, the authorities were expressly directed to consider the petitioner's case in terms of the Apex Court judgment in Kailash Chandra's case. As per him, as the petitioner approached the High Court by invoking the writ jurisdiction after a significant delay and well after the Supreme Court had decided the controversy, the directions given in Kailash Chandra's case, clearly excluded him from the category of persons entitled to equitable relief which was to be restricted only to those persons who had approached the High Court at the earliest point of time. He further drew the Court's attention towards the Judgment dated 01.04.2014 passed by the Hon'ble Supreme Court in a bunch of civil appeals led by Civil Appeal No. 4294/2014 (Manmohan Sharma v. State of Rajasthan & Ors.) arising from the very same recruitment process and urged that a crystal clear analysis of the entire controversy was made by the Supreme Court and viewed in light thereof, the contempt petition is liable to be rejected outright. He relied upon the following observations made by the Hon'ble Supreme Court and urged that had the respondents contemnors, given appointment to the petitioner, then they would definitely have been hauled up for gross contempt of the Supreme Court Judgment in Kailash Chandra's case:- "19. Judged in the above backdrop the present appeals can be classified into two categories, namely, Category I comprising writ petitions that were filed after 18th November, 1999 and before 30th July, 2002 as was the position in Writ Petition No. 542 of 2000 filed under Article 32 and dismissed by this Court and Category II comprising writ petitions that were filed after 30th July, 2002. While there is nothing that could be logically argued in regard to Category II cases for extending the benefit of the judgment in Kailash Chand Sharma's case (supra) to those cases, even in regard to Category I cases the judgment of this Court holds no hope for the appellants. While there is nothing that could be logically argued in regard to Category II cases for extending the benefit of the judgment in Kailash Chand Sharma's case (supra) to those cases, even in regard to Category I cases the judgment of this Court holds no hope for the appellants. All that was contended by learned counsel for the appellants in Category I cases was that writ petition in Naval Kishore Sharma's batch was filed after the pronouncement of the Full Bench judgment of the High Court in Kailash Chand Sharma's case (supra). Grant of benefit to appellants in Naval Kishore Sharma's batch of writ petitions and refusal of a similar treatment to the writ-petitioners who had similarly filed their petitions no matter later in point of time would be unfair and inequitable. They contended that the relief given by this Court to Naval Kishore Sharma and others (supra) ought to be extended even to other similarly situated writ petitioners by construing the directions of this Court in Kailash Chand Sharma's case (supra) liberally. 20. There is, in our opinion, no merit in that contention either. In Category I cases none of the writ petitions were filed earlier than the date on which writ petition in Naval Kishore Sharma's case (supra) was filed. At any rate, the argument that some writ petitions had been filed around the same time when Naval Kishore Sharma's case (supra) was decided may be no reason for us to enlarge the s cope of the direction issued in Kailash Chand Sharma's case (supra) which is on true and proper construction limited to the writ-petitioners who had moved the High Court in those cases. We need to remind ourselves that we are not hearing a review petition in Kailash Chand Sharma's case (supra) nor can we modify the order passed in that case. What cannot be done directly by us, cannot also be done indirectly by placing what is described as a liberal interpretation by learned counsel for the appellants. 21. Mr. We need to remind ourselves that we are not hearing a review petition in Kailash Chand Sharma's case (supra) nor can we modify the order passed in that case. What cannot be done directly by us, cannot also be done indirectly by placing what is described as a liberal interpretation by learned counsel for the appellants. 21. Mr. Bali, learned counsel appearing for some of the appellants in Category II strenuously argued that although the appellants in those cases were not writ-petitioners at any point of time before the pronouncement of the judgment of this Court in Kailash Chand Sharma's case (supra) some of the appellants could and were indeed appointed as teachers upon consideration of their inter se merit vis-à-vis candidates who had been appointed after 18th November, 1999. It was submitted that the right of such candidates to make a grievance against appointment of persons lower in merit with bonus marks awarded to them was not and could not be taken away by the judgment of this Court in Kailash Chand Sharma's case (supra). This would imply that even independent of the said judgment if the writ-petitioners were higher in merit than those appointed at any time after 18th November, 1999, the appellants could make a grievance and seek redress from the Government. Inasmuch as such appointments have been made in a few cases falling under Category II, the same could not be faulted only because the writ petitions were filed after the judgment in the Kailash Chand Sharma's case (supra) was pronounced. 22. On behalf of the respondents Mr. Shiv Mangal Sharma, Additional Advocate General for the State of Rajasthan submitted that the appointment of Category II cases was clearly illegal and impermissible in the light of the judgment of this Court in Kailash Chand Sharma's case (supra). The contention that some of the appellants in Category II were better in merit even without deletion of bonus marks was wholly unsustainable and without any basis whatsoever. No such case has been made out by the appellants in their respective writ petitions. An affidavit filed by the State has, in that regard, clarified the position that candidates falling in Category II not yet appointed are lower in merit with bonus marks loaded to their merit than the last candidate appointed under the open general category to which the appellants also belonged. 23. An affidavit filed by the State has, in that regard, clarified the position that candidates falling in Category II not yet appointed are lower in merit with bonus marks loaded to their merit than the last candidate appointed under the open general category to which the appellants also belonged. 23. There is considerable merit in the contention urged by Mr. Sharma. The case sought to be argued at the Bar was never set up in the writ petitions filed by the appellants before the High Court. It was not even remotely suggested that the appellants were appointed on account of their superior merit without deletion of the bonus marks. Indeed if anyone with lesser merit had been appointed writ-petitions challenging such appointment should have been filed quickly thereafter and not belatedly as was the position in the instant case. That apart, the affidavit filed by the respondents satisfactorily refutes the contention urged at the Bar by Mr. Bali. The merit position without deletion of bonus marks did not justify the appointment of anyone falling under Category II as they were all lesser in merit than the last candidate appointed in the open general category. We have, therefore, no hesitation in rejecting the contention that the appointments of those falling under Category II were justifiable on any ground independent of the directions issued by this Court in Kailash Chand Sharma's case (supra). It is noteworthy that some of those appointed had even filed affidavits stating that they were parties before this Court which in fact was not the true position." (Emphasis supplied). 7. He buttressed that even if for sake of arguments, it is momentarily accepted that the respondents were required to give effect to the recommendation letter dated 16.08.2012 issued by the CEO, Zila Parishad Nagaur then too, it was virtually impossible for them to do so for the simple reason that the Supreme Court Judgment prohibited them from acting in that manner. It was thus prayed that the contempt petition being devoid of merit should be rejected. 8. I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on the record. 9. There cannot be any quarrel with the principles enunciated in the judgments relied upon by M.R. Singhvi, learned Sr. Counsel representing the petitioner. 8. I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on the record. 9. There cannot be any quarrel with the principles enunciated in the judgments relied upon by M.R. Singhvi, learned Sr. Counsel representing the petitioner. The Judgments passed by the Courts have to be unquestionably complied without any deviation from the spirit thereof. However, it remains to be seen as to whether the respondents, by not offering appointment to the petitioner, can be held guilty for willful disobedience of any of the orders passed by this Court in relation to the litigation at hand. It cannot be gainsaid that the entire controversy hinges around the directions given by the Hon'ble Supreme Court in Kailash Chandra's case. It is an admitted position from record that the petitioner filed his first writ petition No. 6136/2003 in this Court on 21.10.2003 i.e. well after the Supreme Court had delivered the Judgment in Kailash Chandra's case. The Hon'ble Supreme Court, in the above quoted paras of the Judgment, held in no unequivocal terms, that relief was being extended only to those writ petitioners who had approached the High Court for balancing equities. One litigant directly approached the Supreme Court under Article 32 of the Constitution of India and his writ was rejected on the ground of delay. Law is well settled that a litigant who desires to agitate his rights in the courts of law is required to approach the court diligently and promptly. A delayed claim can be dismissed as suffering from bar of limitation. Equities never favour a litigant who approaches the court after significant delay. The questioned recruitment process was initiated in the year 1988. The process was challenged before the Division Bench of this Court which decided the controversy on 18.11.1999 whereafter, the entire select list had to be reshuffled. Thereupon, numerous SLPs came to be filed before the Supreme Court including that of Kailash Chandra. While deciding the controversy, Hon'ble Supreme Court specifically ordered that relief was being confined only to such petitioners who had moved the High Court in writ jurisdiction. Thereupon, numerous SLPs came to be filed before the Supreme Court including that of Kailash Chandra. While deciding the controversy, Hon'ble Supreme Court specifically ordered that relief was being confined only to such petitioners who had moved the High Court in writ jurisdiction. Thus, it is evident that even though the ratio of the Judgments passed by the High Court as well as Supreme Court in relation to the questioned recruitment process had a bearing on the entire select list, but despite that, in order to ensure that the process is not disturbed by such persons who chose not to approach the Courts in time, equitable relief was confined only to the persons who filed timely writ petitions in the High Court. Aspirants alike the petitioner who did not timely challenge the action of the authorities, were automatically excluded from zone of consideration for equitable relief. The matter was finally laid to rest by the Hon'ble Supreme Court while deciding a bunch of civil appeals led by Manmohan Sharma's case wherein, it has clearly been expounded that the category II of such aspirants who filed writ petitions after 30.07.2002, are not entitled to any relief in light of Kailash Chandra's Judgment. 10. It is crystal clear that had the respondents, offered appointment to the petitioner then they would have certainly acted in gross contempt of the Supreme Court Judgment in Kailash Chandra's case. 11. In view of the facts noted hereinabove, it is evident that it was well neigh impossible for the respondents to have complied with the order dated 08.10.2012 passed by this Court in the petitioner's writ petition No. 499/2009. There is yet another aspect to the matter. The order dated 08.10.2012 appears to have been passed in SBCWP No. 499/2009 on the basis of a document (the recommendation dated 16.08.2012 issued by the Zila Parishad, Nagaur) which was not filed on the record but was rather passed on to the Court during the course of arguments on the very day the matter was decided. Thus, the respondents had no opportunity to file a response to such document. Thus, the respondents had no opportunity to file a response to such document. The questioned recommendation made by the CEO was forwarded to the State Government authorities who, in turn, advised the CEO to reconsider the matter in light of the directions given by the Hon'ble Supreme Court in Kailash Chandra's Judgment and the CEO, after re-examining the matter, withdrew the recommendation by order dated 09.11.2012 and rightly so in this Court's opinion. The clear ratio of Kailash Chandra's case left no scope for extending relief to such persons who did not approach the High Court prior to 18.11.1999. In the judgments passed by this Court in petitioner's own writ petitions and the special appeal, it was clearly directed that his case shall be considered in light of Kailash Chandra's Judgment. Consideration was made and the petitioner's claim was rejected by communication dated 09.11.2012 and rightly so. Thus, there remains hardly any doubt in the proposition that the petitioner having failed to file a writ petition before the High Court when the entire controversy was being examined, could not claim appointment in the questioned recruitment on the basis of belated writ petition filed on 21.10.2003. 12. In wake of the discussion made hereinabove, this Court has no hesitation in holding that the respondents, by not refusing to offer appointment to the petitioner pursuant to the order dated 08.10.2012 passed in the petitioner's writ petition, acted purely in compliance of the Supreme Court Judgment in Kailash Chandra's case governing the very recruitment process and cannot be held guilty for willful disobedience of this Court's order. 13. Consequently, the instant contempt petition being devoid of merit is hereby dismissed. Rule is discharged.