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2018 DIGILAW 1199 (RAJ)

Surendra Kumar v. Ashim Khurana

2018-05-07

ALOK SHARMA

body2018
JUDGMENT Alok Sharma, J. - Vide order dated 17.05.2017, this court issued the following directions:- (a) That all petitioners shall appear before Secretary, Staff Selection Commission and they shall submit comprehensive detailed representation giving details of the candidates who being less meritorious have been appointed. (b) That the petitioners in the representation to be filed shall be at liberty to demolish the arguments raised by the respondents that less meritorious persons because of belonging to border area or of being more in age or for any other reasons have been given appointment, (c) The petitioners shall also be entitled to raise arguments that wrongly candidates from the State of Rajasthan were diverted to other States even they were less meritorious or qua meritorious persons route of diversion to the other state was not followed. Petitioners shall be also at liberty to ventilate any other grievance they have regarding the recruitment process undertaken by Regional Director, Staff Selection Commission, Northern Region. The Secretary, Staff Selection Commission, shall hold a fact finding inquiry into the allegations leveled against the officials who at the relevant time were posted in the Regional Directorate of Staff Selection Commission, Northern Region. (d) Secretary, Staff Selection Commission, before decision of the representation shall publish a list of all candidates who appeared in the State of Rajasthan for the recruitment to the post of Constable(General Duty) in paramilitary forces in pursuance to impugned advertisement qua all the categories be it General, OBC, SC or ST. In the list so published marks secured by each candidate shall be depicted along with cut off marks, of the category to which candidate belong. (e) In the list, so published, in pursuance of above directions the reasons shall be assigned as to why a particular candidate has been appointed even though he has secured less marks. (f) After publication of the list Secretary, Staff Selection Commission shall afford hearing to the petitioners and shall pass a detailed reasoned speaking order within one month after the conclusion of the hearing. 2. Pursuant to the aforesaid directions, the petitioner filed a representation. Vide order dated 16.02.2018, the Secretary-cum- COE of the Staff Selection Commission has rejected it by the detailed order. 3. Mr.R.B. Sharma counsel for the petitioner submitted that the representation has been mechanically addressed and rejected without due application of mind. 2. Pursuant to the aforesaid directions, the petitioner filed a representation. Vide order dated 16.02.2018, the Secretary-cum- COE of the Staff Selection Commission has rejected it by the detailed order. 3. Mr.R.B. Sharma counsel for the petitioner submitted that the representation has been mechanically addressed and rejected without due application of mind. He submitted that spirit of the court's order dated 17.05.2017 was to ensure that there was no discrimination vis-a-vis the other appointments to the post of Constable (GD) with the Para Military Forces pursuant to the advertisement in issue. He submitted that has not been ensured inasmuch as candidates belonging to the OBC category, to which the petitioner belongs, having lesser marks than the petitioner in the examination have been appointed. It was submitted that this fact by itself indicates that there has been bungling in the appointments to the post of Constable (GD) pursuant to the advertisement dated 05.02.2011. The rejection of the petitioner's representation mechanically despite the court's order on 17.05.2017 to consider it fairly to ensure non-discrimination constitutes contempt. For which the respondents be punished. 4. Mr.R.D. Rastogi, ASG counsel for the respondents submitted that admittedly the representation of the petitioner pursuant to the court's order dated 17.05.2017 was considered. That it was then rejected cannot be contempt in as much the court's order did not entail the representation being necessarily accepted and the petitioner appointed. Even if the decision is erroneous it cannot constitute contempt of the order of this court. In support of the contention reliance was placed on the judgment of the Apex court in the case of J. S. Parihar Vs. Ganpat Duggar and Others reported in (1996) 6 SCC 291 where it was held that the seniority list having been drawn after considering the representation submitted following court's order it would not entail contempt for reason of the petitioner's allegations of it not being as per the court's order. For the petitioner, if yet aggrieved, it constituted a fresh cause of action for which redressal before the appropriate forum was to be sought. Mr.R.D. Rastogi, ASG submitted that representation of the petitioner has been decided by a detailed order and no malafide have been attributed too as the respondents, who in any event have no personal interest in the matter, the contempt proceedings are completely misdirected and the petition be dismissed. Considered. 5. Mr.R.D. Rastogi, ASG submitted that representation of the petitioner has been decided by a detailed order and no malafide have been attributed too as the respondents, who in any event have no personal interest in the matter, the contempt proceedings are completely misdirected and the petition be dismissed. Considered. 5. Mr.R.D. Rastogi, ASG is quite correct in submitting that the scope of the contempt jurisdiction of this court is confined to evaluating as to whether willful disobedience of the court's order has been made out or not. Willful disobedience alleged has to be apparent, it cannot be culled out from evaluation of an order passed on a representation made on liberty granted or even on a direction issued by the court. To so do would entail the contempt court acting as if the appellate authority. That cannot be done. When the court orders an authority to consider a representation, it does not take away the concerned authority's jurisdiction to apply its own mind to the issue before it. The conclusions of the concerned authority may or may not be correct or even legally substantial. But that is not contempt unless it is alleged and established that the decision on the representation made pursuant to the court's order was malafide or so reckless that the intent to defeat the court's order was deliberate and ex facie apparent on that test, neither the contempt petition passes and nor counsel has been able to satisfy this court. Counsel for the petitioner has instead sought to impugn the order rejecting the petitioner's representation on its merits. That exercise is more appropriate to a petition under Article 226 of the Constitution of India and quite impermissible under the court's contempt jurisdiction. 6. The contempt petition is therefore dismissed accordingly. Notices of contempt to the respondent are discharged. The petitioner shall be at liberty to pursue his rights asserted including of challenging the rejection of his representation in accordance with law.