Satyanarayan Jena v. Asit Tripathy, IAS, Commissioner-cum-Secretary to Government of Orissa, Home Department
2017-12-05
B.K.NAYAK, D.P.CHOUDHURY
body2017
DigiLaw.ai
JUDGMENT : D.P. Choudhury, J. Heard Mr. P. Ray, Mr. A. Das and Mr. K.P. Mishra, learned counsel for the petitioners in all these contempt petitions, Mr. Subhakanta Dash, the petitioner in person in CONTC No.421 of 2013 and Mr. B.P. Tripathy, learned Additional Government Advocate for the opposite parties. 2. Since the captioned contempt petitions arise out of the common order dated 15.12.2011 passed by this Court in W.P.(C) Nos.20249 and 14936 of 2009, W.P.(C) Nos.6426, 5503 and 27197 of 2011, they are being disposed of by this common judgment. 3. On going through the concerned writ petitions, it appears that on 15.12.2011, this Court passed an order quashing the direction of the learned Orissa Administrative Tribunal (hereinafter called “the Tribunal”) as contained in Paragraph 21(ii) and (vi) of the common order passed in O.A. No.2915 of 2006 and 135 other O.As. For better reference, the relevant paragraph of the order passed by the Tribunal in those batch of original applications is reproduced hereunder : “21. In order o facilitate the process of implementation of these orders we consider it our duty to leave behind a set of directions to respondent No.1, as follows: (i) Respondent No.1 is directed to constitute an empowered committee consisting of representatives of the Department of Home, Department of SC & ST Development Department, Department of Law and DG & IG of Police who would scrutinize the result sheets of the recruitment of Sepoys and Constables and prepare select list in accordance with the rules ignoring 15.12.2006 clarification of the Home Department which has already been set aside. The appropriate authorities would then proceed with the issue of appointment orders on the basis of the redrawn select list. (ii) Those findings no place in this redrawn select list but who have already been appointed, would be issued with orders treating their appointment as adhoc with a clear stipulation that they would be adjusted prospectively in the regular vacancies relating to the categories to which they belong in the order of their position in the category-wise merit list and that they would not be entitled to seniority in increments for the adhoc period. (iii) The applicants would also have no claim to appointment because of our quashing the impugned clarification. As we said, their position would be determined by the re-worked select list.
(iii) The applicants would also have no claim to appointment because of our quashing the impugned clarification. As we said, their position would be determined by the re-worked select list. (iv) Those who have already been appointed and are also included in the re-worked select list will not be affected by this order in as much as their appointment would be treated as regular and continuous from the date of appointment. Their interse seniority with those entering as a result of operation of the reworked select list would be considered by the respondents in the light of the rules governing determination of inter se seniority. (v) Those general candidates who would enter the re-worked select list would be given the notional benefit of appointment from the date of appointment of their junior, if any, already appointed and continuing on the basis of earlier list and who is also included in the present re-worked select list. (vi) The entire exercise would be completed within a period of three months from the date of receipt of copy of these orders. No fresh recruitment of Sepoys and Constables would be notified until the adhoc appointees are regularized against prospective vacancies.” 4. The relevant paragraph of the common order dated 15.12.2011 passed by this Court in W.P.(C) No.20249 of 2009 and other batch of cases is quoted below for better appreciation : “In view of such, we have no hesitation to quash the directions of the learned Tribunal in paragraph 21(ii)(vi) of the common order passed in O.A. No.2915 of 2006 and 135 other cases. As the selection process is on going process, the State Government is at liberty to make fresh recruitment of Constables and we further direct the opposite party-State to redraw the select lists in terms of the judgment eliminating those who are the beneficiaries under Clause (ii) and (vi) of paragraph-21 of the judgment of the learned Tribunal. xx xx xx xx’’ 5. Thus from a perusal of the above order passed by this Court, it appears that this Court has turned down the order of the learned Tribunal at paragraph 21(ii)(vi) but directed for re-drawal of the select list as per the observations of this Court.
xx xx xx xx’’ 5. Thus from a perusal of the above order passed by this Court, it appears that this Court has turned down the order of the learned Tribunal at paragraph 21(ii)(vi) but directed for re-drawal of the select list as per the observations of this Court. It further appears that against the order of this Court, a review petition was filed vide RVWPET No.221 of 2012 and this Court, on 05.11.2012, disposed of the said review petition by passing the following order : “Heard learned counsel for the petitioners. This review application has been filed by the petitioners for review of the common judgment dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and batch of connected writ petitions. In our order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 after hearing the petitioners, we have expressed our opinion that it would be appropriate for the State Government not to dispense with the services of the petitioners who have admittedly worked for 5-6 years on their appointment for no fault of theirs Termination of their services at this stage would result in great hardship to them and their families. Therefore, it would be appropriate for the State Government to create a separate cadre for them or their continuance on ad hoc basis, as a one time measure and to adjust them against future vacancies of their. respective categories. Recruitment to the future vacancies by way of new/fresh advertisement should take care of the adjustment of the petitioners and similarly situated persons and the vacancies so advertised shall be reduced to the extent of such adjustments/ regularization of the petitioners category-wise. So, we have also directed to comply the order dated 15.12.2011 for re-drawl of fresh select list of unreserved candidates for filling up the 773 posts in accordance with merit from the select list shall be made without any further delay. Now in the review application ultimately we reiterating the aforesaid order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 confirm the same. Accordingly, the review application and the batch of connected writ applications are disposed of in terms of the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 and our judgment and order dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and the connected writ petitions stands modified accordingly.” 6.
Accordingly, the review application and the batch of connected writ applications are disposed of in terms of the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 and our judgment and order dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and the connected writ petitions stands modified accordingly.” 6. This Court, vide order dated 5.11.2012 passed in the review petition confirmed the order dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and other connected writ petitions. As the orders were not complied, petitioners have filed CONTC No.976 of 2012 whereunder this Court passed following order on 05.11.2012 : “05.11.2012 Heard learned counsel for the parties. This contempt application has been filed on the allegation that the order dated 15.12.2011 passed by this Court in W.P.(C) No.14936 of 2009 and batch of connected writ applications has not been complied with. In view of the order passed today in RVWPET No.221 of 2012, the present contempt is dropped. The State-respondent was directed as per order passed in the writ petition to re-draw a fresh select list of unreserved candidates for filling up the 773 posts in accordance with merit from the select list without any further delay. It is stated that the State-respondent has started the process of re-drawing fresh select list of unreserved candidates for filling up the 773 posts in accordance with merit from the select list. We direct the State-respondent to complete the process of re-drawing fresh list of unreserved candidates for filling up the 773 posts in accordance with merit from the select list within a period of two months. The contempt application is disposed of. xx xx xx” 7. It also appears that the State Government and other parties to the case approached the Hon’ble Supreme Court in S.L.P.(C) Nos.19979-19981 of 2013 against aforesaid order and the Hon’ble Supreme Court have passed the following order on 14.01.2016 : “Heard learned counsel for the parties at length. We see no ground to interfere with the orders impugned herein. The Special Leave Petitions are dismissed. No orders are called for on the application for impleadment.” 8. After dismissal of the Special Leave Petitions filed by the State, they have preferred Review Petitions vide R.P.(C) Nos.1971-1973 of 2016 before the Hon’ble Supreme Court and vide order dated 12.04.2016, said review petitions have also been dismissed. 9.
The Special Leave Petitions are dismissed. No orders are called for on the application for impleadment.” 8. After dismissal of the Special Leave Petitions filed by the State, they have preferred Review Petitions vide R.P.(C) Nos.1971-1973 of 2016 before the Hon’ble Supreme Court and vide order dated 12.04.2016, said review petitions have also been dismissed. 9. In spite of the direction from this Court, which was duly confirmed by the Hon’ble Supreme Court and also order passed by this Court in CONTC No.976 of 2012, the orders were not complied for which the present contempt petitions have been filed by the petitioners. 10. Learned counsel for the petitioners vehemently urged that the order of this Court have not been complied in its letter and spirit because 773 candidates of unreserved category should have been only general class candidates, but the redrawn list includes candidates of reserved categories, like SC, ST and SEBC who were already there in the list drawn in 2006. Their main contention is about interpretation of the word “UNRESERVED” as appears in the order of this Court to be complied. So, they challenge the redrawn list of 773 candidates, as not being in consonance with the order. 11. Mr. B.P. Tripathy, learned Additional Government Advocate submits that the Court has directed for re-drawal of list of 773 candidates in the unreserved category by keeping in view the observation made in the orders of the Tribunal and this Court. His main thrust of argument is that “unreserved candidates” does not mean only candidates of general class but shall also include candidates of reserved categories like SC, ST, SEBC, etc. who can compete with general class candidates judged in the same standard and come out more meritorious than the general class, and that the redrawn list as per order of this Court has been prepared accordingly. In support of his submissions, he relied on the decisions of the Hon’ble Supreme Court passed in the case of Indra Sawhney and others Vs. Union of India and others; AIR 1993 SC 477 , R.K. Sabharwal and others Vs. State of Punjab and others; (1995) 2 SCC 745 , Union of India Vs. Virpal Singh Chauhan; (1993) 6 SCC 684, State of Bihar Vs. M. Neethi Chandra; 1992 Supp. (3) SCC 217, Ritesh R. Sah Vs. Dr. Y.L. Yamul and Others; (1996) 3 SCC 253 , Anurag Patel Vs.
State of Punjab and others; (1995) 2 SCC 745 , Union of India Vs. Virpal Singh Chauhan; (1993) 6 SCC 684, State of Bihar Vs. M. Neethi Chandra; 1992 Supp. (3) SCC 217, Ritesh R. Sah Vs. Dr. Y.L. Yamul and Others; (1996) 3 SCC 253 , Anurag Patel Vs. U.P. Public Service Commission and others; (2005) 9 SCC 742 , Union of India and another Vs. Satya Prakash and others; AIR 2006 SC 3409 and Union of India Vs. Ramesh Ram and others; (2010) 7 SCC 234 . 12. Learned counsel for the petitioners, in reply, made contention by stating that the unreserved candidates means no reserved category candidates can be accommodated in that list. In support of their submissions, they relied on the decision of the Hon’ble Supreme Court in the case of Union of India and others Vs. Dalbir Singh and another; 2009 AIR SCW 4552 and Deepa E.V. Vs. Union of India and others (Civil Appeal No.3609 of 2017). 13. On examination of the order-sheet of the case record, it appears that on 16.05.2013, this Court was not satisfied with the show case, as there was no proper compliance of the order. Therefore, the Court directed the opposite parties to remain personally present on 27.06.2013. Subsequently, the Director General and Inspector General of Police filed show cause. On 13.07.2016, this Court directed the Additional D.G. of Police, Personnel, Odisha, Cuttack to convene a meeting of the concerned officers to redraw the select list and submit the fresh redrawn list of unreserved candidates for filling up 773 posts, as directed. Thereafter, the opposite parties finally filed a redrawn list of 773 candidates from the select list. 14. Due to the objections raised by the learned counsel for the petitioners, officers, who are involved in redrawal list of 773 candidates, were asked to remain present during hearing to assist the State Counsel in the Court. 15. We have considered the submission of the learned counsel for the parties at length. After perusal of the redrawal list of 773 candidates of different stations, we find that the opposite parties have followed the principles as propounded by the Hon’ble Supreme Court in the cases of Indra Sawhney and others Vs. Union of India and others (Supra), R.K. Sabharwal Vs. State of Punjab (Supra), Union of India Vs.
After perusal of the redrawal list of 773 candidates of different stations, we find that the opposite parties have followed the principles as propounded by the Hon’ble Supreme Court in the cases of Indra Sawhney and others Vs. Union of India and others (Supra), R.K. Sabharwal Vs. State of Punjab (Supra), Union of India Vs. Virpal Singh Chauhan (Supra) and other decisions of the Hon’ble Supreme Court as cited by the learned State Counsel where Their Lordships have categorically held that in case a candidate belonging to reserved category get selected in the open competition field on the basis of his own merit, he would be treated as open competition candidate. The candidates of reserved category if have a level playing with the general category candidates, they would not be denied to remain in select list for unreserved candidates. During course of hearing, Mr. Tripathy, learned Additional Government Advocate produced the Resolution of the Home Department dated 07.10.2006 published in the Orissa Gazette wherein the manner of selection and adjustment of mark for the reserved candidates to make them selected in the unreserved candidates have been prescribed. As per the principle, after going through the redrawn list of G.R.P., Cuttack, 4th OSAP (SSBN), Malkangiri and others as test cases, it appears that the opposite parties followed the same principle and method and prepared the redrawn list of 773 unreserved candidates in which reserved category candidates without availing any exemption of relaxation have been continued in a level playing field. 16. Learned counsel for the petitioners, however, insisted for interpretation of the word “UNRESERVED” to mean only general class candidates, which is unacceptable. After going through the entire order and compliance, we find that 773 unreserved candidates from the select list as understood in the aforesaid Resolution of the Home Department have been prepared. No doubt, on going through the orders of this Court sought to be complied, it appears that the order to redraw the select list of 773 unreserved candidates have been made keeping in view the ratio decidendi as propounded by the Constitution Bench of the Hon’ble Supreme Court in the cases relied by the learned State Counsel. Since we are dealing with contempt applications, we are not required to pass any fresh judgment other than the judgment in the writ petitions to be complied by the opposite parties. 17. It is reported in Gyani Chand Vs.
Since we are dealing with contempt applications, we are not required to pass any fresh judgment other than the judgment in the writ petitions to be complied by the opposite parties. 17. It is reported in Gyani Chand Vs. State of Andhra Pradesh; JT 2016 (9) SC 233 decided on 20.09.2016 where Hon’ble Supreme Court at paragraph-11 observed to understand the Civil Contempt as it appears in Section 2(b) of the Contempt of Courts Act, 1971 and the said paragraph is placed as under : “11. Upon perusal of the above mentioned definition of “civil contempt”, it is very clear that so as to hold somebody guilty of contempt of court, the concerned person must have willfully disobeyed any judgment, decree, direction, order, writ or any other process of a court or should have willfully committed breach of an undertaking given to a Court.” 18. In the case of Kapildeo Prasad Sah and others Vs. State of Bihar and others; (1999) 7 SCC 569 , Hon’ble Supreme Court, at paragraphs-9 and 11, have observed in the following manner : "9. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since notice of contempt and punishment for contempt is of far-reaching consequence, these powers should be invoked only when a clear case of wilful disobedience of the court's order has been made out. Whether disobedience is wilful in a particular case depends on the facts and circumstances of that case. Judicial orders are to be properly understood and complied with. Even negligence and carelessness can amount to disobedience particularly when the attention of the person is drawn to the court's orders and its implications. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. 11. No person can defy the court's order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order.
Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. 11. No person can defy the court's order. Wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of the court's order must allege deliberate or contumacious disobedience of the court's order." With due regard to the aforesaid decisions, it appears that if contemnor has not violated the order of the Court willfully or negligently or carelessly, the same cannot be treated as Civil Contempt. Thus, the contemnors if complied the orders to the best of their ability bereft of any intention and in accordance with the principle governing the filed that compliance cannot be said to be contemptuous. Thus, the Court in a contempt proceeding is limited to the extent of complying the order passed against the opposite parties. But, it cannot travel beyond the scope of the order sought to be complied. If the parties try to interprete the order by making a different case, the Court sitting over the contempt proceeding would not adjudicate the same. 19. Keeping in mind the above principle, again adverting to the present facts of the case, it appears that the learned counsels for the petitioners have tried to interprete the word “UNRESERVED” in accordance with the decision reported in Deepa E.V. Vs. Union of India and others (Civil Appeal No.3609 of 2017 and Union of India and others Vs. Dalbir Singh and another; 2009 AIR SCW 4552. On perusal of said decisions, it appears that the Hon’ble Supreme Court have disposed of the case according to the facts and circumstances of those cases without denouncing the settled general principle as decided by the Hon’ble Supreme Court in the decisions referred to by the learned State Counsel. 20. In terms of the above discussion, we are of the view that the redrawn list of 773 unreserved candidates in pursuance of the order passed by this Court cannot be said to have been prepared by the opposite parties in disregard to the order of this Court and as such the show-cause filed by the opposite parties are accepted. Since there is compliance of the order, the contempt proceedings are dropped.