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2019 DIGILAW 648 (HP)

Chhavinder Kumar Shandil v. Anil Khachhi, Addl Chief Secretary

2019-05-30

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. Since, all the afore contempt petitions, stand, directed against, the order(s) borne in Annexure A-1, and, when therefrom, rather it is contended, that, the afore Annexure rather intentionally and willfully, hence, disobeying the mandate, recorded by this Court, upon, CWP No.497 of 2013-J, tiled as Shri Chhavinder Kumar Shandil vs. State of H.P., decided on 14th May, 2013, hence, all the contempt petitions, are, amenable, for, rendition(s) thereon, of, hence a common order. 2. The decision rendered, upon, CWP No. 497 of 2013, titled as Chhavinder Kumar Shandil vs. State of H.P., was, anvilled, upon, a decision prior thereto, hence, rendered by a co-ordinate Bench, of, this Court, upon, CWP(T) No. 6785 of 2008, titled as Narender Singh Niak vs. State of H.P., and, the afore verdict also acquired the requisite conclusivity, and, binding force, given, the afore rendition made, by the Hon'ble Single Judge of this Court, also coming to be affirmed, in, a verdict made, on LPA No.271 of 2010, titled as State of H.P. vs. Narender Singh Niak, and others. The benefits/reliefs, as stood bestowed there through, upon, the petitioner(s), in CWP No. 497 of 2013, stand(s) extracted hereinafter:- "3. It is seen that the issue in question is squarely covered by the decision dated 14.9.2010, rendered by learned Single Judge of this Court in CWP(T) No.6785/2008, titled as Narender Singh Naik vs. State of H.P. and others as affirmed in judgment dated 9.4.2013, rendered in LPA No.271 of 2011, titled as State of Himachal Pradesh and others vs. Narender Singh Naik, wherein benefits, in view of ratio of law laid down in Direct Recruits Class II Engineering Officers Association Vs. State of Maharashtra and others, (1990) 2 SCC 715 , were accorded to the petitioner. The said judgment has attained finality. As such, office order dated 16.5.2012 (Annexure P-6) is quashed. Respondents are directed to consider the case of the petitioner for counting the period he has worked on contract basis with effect from his initial date of joining till regularization, with all consequential benefits. Needful be done within a period of three months from the date of production of certified copy of the judgment." 3. Respondents are directed to consider the case of the petitioner for counting the period he has worked on contract basis with effect from his initial date of joining till regularization, with all consequential benefits. Needful be done within a period of three months from the date of production of certified copy of the judgment." 3. Be that as it may, the afore verdict rendered, in CWP No. 497 of 2013, titled as Shri Chhavinder Kumar Shandil vs. State of H.P. and others, and, upon, CWP (T) No.6785 of 2008, titled as Narender Singh Naik vs. State of H.P. and others, came to be assailed by the aggrieved therefrom, before the Hon'ble Apex Court. However, during the pendency of the afore apposite SLPs, before the Hon'ble Apex Court, one Ravi Shankar, and, one Rakesh Sharma, who stood recruited, to the post of Junior Engineers, rather in consonance with the requisite R&P Rules, hence, therein filed an application seeking therethrough, rather their impleadment in the afore SLP(s). The apposite SLP(s), including the afore intervener's applications, preferred therebefore, by Ravi Shankar, and, by Rakesh Kumar, were all under a common verdict, rendered thereon, on 26.04.2017, rather came to be disposed of/dismissed, with, the hereinafter extracted observations:- "Heard learned counsel for the parties. We do not find any ground to interfere with the impugned order. However, we find that the interveners have a grievance that they were not heard and their seniority is affected by the impugned order. If it is so, it will be open to them to move the High Court and the High Court may consider the matter on merits in accordance with law. The special leave petition is disposed of. The application for intervention also stand disposed of. If it is so, it will be open to them to move the High Court and the High Court may consider the matter on merits in accordance with law. The special leave petition is disposed of. The application for intervention also stand disposed of. Pending applications, if any, are also stand disposed of." A reading of the afore extracted, common verdict, made by the Hon'ble Apex Court, upon, the apposite SLPs, and, upon the afore application(s), makes apparent, the trite factum (a) that the Hon'ble Apex Court rather dismissing the SLPs preferred therebefore, by the aggrieved, and, directed against, the pronouncement, rendered by this Court in verdicts supra, (b) and, when, hence, conclusivity, is, assumed by the verdicts, rendered by this Court, in Narender Singh Naik's case supra, (c) thereupon, the learned counsel appearing for the petitioner(s) hence made a vehement submission, before this Court, that the order, borne in Annexure A-1, being contemptuous, as it intentionally or willfully disobeys, the conclusive verdicts rendered, by this Court, in Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra). 4. 4. However, before proceeding to render findings, in the affirmative, vis-a-vis, the afore contention, reared before this Court, by the learned counsel for the petitioners, (i) it is also necessary, to, bear in mind, the afore extracted portion, of the verdict, rendered by the Hon'ble Apex Court, upon, the apposite SLPs, wherein, the interveners therein, who carried, the, capacity of direct recruitees, vis-a-vis, the post, of, Junior Engineers, upon, prior thereto strict compliance, being meted by the recruiting agency, vis-a-vis, the governing mandate thereto, (ii) embodied in the apposite R&P Rules, and, wherein echoings, are, existing, qua liberty being preserved qua the afore, by the Hon'ble Apex Court, by it, rather relegating them to redress their grievance, vis-a-vis, their seniority, being rather affected, upon, strictest compliance, being meted by the respondents/contemners, vis-a-vis, the mandate (supra), recorded by this Court, (iii) and, whereas, for the reasons aforestated, the afore verdicts rather acquiring conclusivity and binding effect, qua hence, in the face, of the, requisite liberty being reserved, qua the direct recruits qua theirs redressing their grievance, qua their seniority being affected, upon, strictest compliance being meted by the respondents, vis-a-vis, the verdicts (supra), rather conspicuously before this Court (iv) rather qua wheher intentional, and, deliberate disobedience(s) thereof, hence, therefrom, generating against the contemners, and, theirs hence inviting action, under, the Contempts of Courts Act. The preservation, of, availments, of, remedy(ies), vis-a-vis, the direct recruits, to the post of JE, for hence theirs espousing therein claim(s) qua their seniority being affected, upon, the strictest compliance insisted to be meted, vis-a-vis, the mandate encapsulated in verdicts (supra), (v) hence, constrained the direct recruits, to the post of JE, to motion this Court, through, CWP No. 1205 of 2017, titled as Ravi Shankar and another vs. State of H.P., CWP whereof stood decided by this Court on 2.6.2017, and, the relevant paragraph No.10 and 11 whereof, stand(s) extracted hereinafter:- "10. To a specific query, we are informed that as on date no seniority list stands prepared, in terms of directions issued by this Court. 11. To a specific query, we are informed that as on date no seniority list stands prepared, in terms of directions issued by this Court. 11. Procedurally, first provisional seniority list is prepared, which obviously is to be finalized after receiving objection, if any, thereto, at which stage petitioners can take resort to remedies in accordance with law." A perusal thereof, disclose qua a direction being made upon the respondents, to, in accordance with, the relevant procedures, hence, prepare a provisional seniority list, after inviting objections, and, thereafter the aggrieved therefrom, being permitted, to, recourse the legally available, vis-a-vis, them hence all remedies. It appears that in pursuance, to, the afore directions rendered by this Court, in, CWP No.1205 of 2017, hence, upon, the respondents, they rather proceeded to make the afore annexures. 5. The learned counsel appearing for the petitioners have contended with much vigour before this Court, that, the conclusive, and, bindings orders recorded, by this Court, in Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra), though rather contain directions "to consider", the case of the petitioners, for counting the period they, worked on contract basis, with effect from their initial date of joining till regularization, with all consequential benefits, hence, thereupon, the afore consideration order, being readable as a peremptory diktat, and, also it operating, as, a mandamus, upon, the respondents, (i) and, the making of Annexure A-1 by the respondents, echoing qua the respondents rather intentionally and, willfully disobeying, the afore verdicts, rendered by this Court. In making the afore submission, the learned counsel appearing for the petitioners, places reliance, upon, a verdict of the Hon'ble Apex Court, rendered in a case titled as A.P.SRTC and others vs. G. Srinivas Reddy and others, (2006) 3 SCC 674 , the relevant paragraphs Nos. 16 and 27 stand extracted hereinafter:- "15. Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/ irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. Where an order or action of the State or an authority is found to be illegal, or in contravention of prescribed procedure, or in breach of the rules of natural justice, or arbitrary/unreasonable/ irrational, or prompted by mala fides or extraneous consideration, or the result of abuse of power, such action is open to judicial review. When the High Court finds that the order or action requires interference and exercises the power of judicial review, thereby resulting in the action/order of the State or authority being quashed, the High Court will not proceed to substitute its own decision in the matter, as that will amount to exercising appellate power, but require the authority to 'consider' and decide the matter again. The power of judicial review under Article 226 concentrates and lays emphasis on the decision making process, rather than the decision itself. 16. The High Courts also direct authorities to 'consider', in a different category of cases. Where an authority vested with the power to decide a matter, fails to do so in spite of a request, the person aggrieved approaches the High Court, which in exercise of power of judicial review, directs the authority to 'consider' and decide the matter. In such cases, while exercising the power of judicial review, the High Court directs 'consideration' without examining the facts or the legal question(s) involved and without recording any findings on the issues. The High Court may also direct the authority to 'consider' afresh, where the authority had decided a matter without considering the relevant facts and circumstances, or by taking extraneous or irrelevant matters into consideration. In such cases also, High Court may not examine the validity or tenability of the claim on merits, but require the authority to do so." Further thereonwards, the learned counsel appearing for the petitioners, have also placed reliance, upon, a decision of the Hon'ble Apex Court, rendered in a case titled as C. Shakunthala and others v. H.P. Udayakumar and another, (2012) 2 SCC 294 , the relevant paragraph No.21 whereof stands extracted hereinafter:- "21. We have already referred to the stand of the complainant, his specific assertion with reference to earlier orders and the defence of the respondent-accused as well as the prima facie conclusion by the Division Bench that the complainant has made out a case against the accused to proceed further and adjourned the matter for two weeks for framing charges. When such is the position, it is not understandable how another coordinate Bench after two years without any discussion and adverting to the relevant materials relied on by earlier coordinate Bench passed a cryptic order by dismissing the contempt petition. We are satisfied that when the coordinate Bench on earlier occasion, that is, on 9.6.2006, based on the acceptable materials prima facie concluded that charges have to be framed, it is but proper by the present Bench to arrive at and take a final decision in the light of the material formulated by the earlier Bench. We are not saying that the complainant has made out a case for guilty of contempt of courts but the prima facie conclusion arrived at by the earlier Bench in the year 2006, based on the acceptable materials, cannot be ignored by another Bench at the time of the passing of the final order as if it is an appellate court. In view of the same, we have not other option except setting aside the impugned order and remitting the matter to the High Court for passing a fresh order." On the afore anvil, they make submission, that the rendition made by this Court, upon, CWP No. 1205 of 2017, untenably, and, unjustifiably making interferences, and, also scuttling the effect of the conclusive, and, binding verdicts prior thereto rendered in Chhavinder Kumar Shandil's case, and, in Narender Singh Naik's case (supra), (i) and, thereupon, a vociferous submission, is made before this Court, that, yet, the afore intentional and willful disobedience(s), vis-a-vis, the afore conclusive, and, binding verdicts recorded by this court, making loud emergences, and, thereupon, the conscience of this Court, being stirred, to initiate penal action, against, the respondents, under, the Contempt of Courts Act. 6. 6. However, for the reasons to be assigned hereinafter, the afore submission(s) is/are straightway rejected, (a) as, the learned counsel for the petitioners, are, grossly unmindful, to the directions rendered, by this Court, in CWP No. 1205 of 2017, upon, the respondents, (b) wherethrough, a mandate was cast, upon, them, to prepare the provisional seniority list, and, after inviting objections, 14 from, the aggrieved therefrom, hence, thereafter draw a final seniority list. The afore writ petition being constituted, before this Court, by the writ petitioners therein, in pursuance to the apt liberty being preserved qua them by the Hon'ble Apex Court, through orders rendered on 26.4.2017, in the apposite SLPs, and, also upon, their application(s) filed therebefore, wherein, they strived, for, theirs being impleaded therebefore as interveners, given their seniority coming to be likely to be affected, in case strict compliance, is, insisted to be meted by the respondents, vis-a-vis, the decisions, rendered in Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra), (c) thereupon, when in pursuance, to the afore liberty, preserved, vis-a-vis, them, by the Hon'ble Apex Court, this Court in CWP No. 1205 of 2017, hence, proceeded to render the afore extracted directions, upon, the respondents, (d) thereupon, it can be concluded, that, the subsequent judgment, rendered by this Court CWP No. 1205 of 2017, hence permissibly, and, vindicably rather diluting the impact, of, the prior thereto verdicts, recorded by this Court in Narender Singh Naik's case (supra), and, in Chhavinder Singh Shandil's case (supra), (e) also reiteratedly when the afore dilution, is, permitted by the Hon'ble Apex Court, while making renditions, upon, the apposite SLPS on 26.4.2017. (f) AND when visibly, the earlier verdicts rendered by this Court, in, Chhavinder Kumar Shandil's case (supra), and, Narender Singh Naik's case (supra), were made, upon, the interveners, being left outside the array, of, the legal contestants, rather in the afore earlier verdicts, (g) whereas, with theirs, being recruited directly to the apposite post of JE and, after strict compliance being meted, vis-a-vis, the apposite R&P Rules rather governing recruitments thereto, (h) and, when the petitioners herein, were, contrarily therewith, were, initially recruited, on a contractual basis, against the post of JE, and, though the period w.e.f. initial date of their joining in service, even on a contractual basis, till regularization, (i) were, both, in the Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra), rather stood directed to be reckoned, and, computed, vis-a-vis, for all consequential benefits, (j) thereupon, the order for consideration, rendered in the afore verdicts, does, in view of the afore preserved rights, vis-a-vis, the direct recruits by the Hon'ble Apex Court, vis-a-vis, their afore rights/grievances being redressable, by theirs filing writ petition(s), (k) and, whereafter, the direct recruits, in pursuance thereto, constituted hence writ petition CWP No.1205 of 2017, (l) wherein directions, were rendered, for preparation of a provisional seniority list, and, upon objections thereto being invited, from the aggrieved therefrom, rather a further direction stood rendered hence for preparation, of a final seniority list. (m) Naturally, and, reemphassisingly, hence, render, the, order borne in Annexure A-1, rather being construable, to be neither willfully and intentionally disobeying, the verdicts rendered in Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra). 7. (m) Naturally, and, reemphassisingly, hence, render, the, order borne in Annexure A-1, rather being construable, to be neither willfully and intentionally disobeying, the verdicts rendered in Narender Singh Naik's case (supra), and, in Chhavinder Kumar Shandil's case (supra). 7. Be that as it may, the decision, hence purportedly contemptuous, as, borne in Annexure A-1, when reiteratedly stands generated, by the orders recorded by this Court, in CWP No. 1205 of 2017, and, with the afore orders, being rendered in pursuance, to the directions rendered by the Hon'ble Apex Court, and, also when they are rendered in consonance, with the requisite R&P Rules, (i) thereupon, the orders for consideration, rendered in Chhavinder's case (supra), and, Narender Singh Naik's case (supra), vis-a-vis, all the consequential benefits, arising, from counting of the period, of, service of the petitioners, rendered on a contractual basis, with effect from their initial date of joining till regularization, (ii) is/are not readable, as, working towards hence any inference qua rather, the, respondents/contemners, concomitantly also proceeding to infringe, the purported seniority, of, direct recruits, vis-a-vis, the contractual appointees, and, appertaining, to, the contentious post, (iii) and, conspicuously when the afore right is/ maybe preserved, through, the apposite rules, vis-a-vis, the afore direct recruitees, vis-a-vis, the post of JE, and, nor is readable, as purveying to the petitioners, any indefeasible right, to beyond the ambit of the relevant rules, governing, the incidental thereto, pecuniary benefits, rather stake any claim, for theirs being bestowed, all the afore claims, (iv) and, obviously when hence the afore renditions, would bring infractions of rules, and, of rights preserved, vis-a-vis, the direct recruitees, in the contentious seniority list, conspicuously rather by the Hon'ble Apex Court, (vi) hence, the respondents/contemners, cannot be inferred, to, in the making, of, Annexure A-1, hence, intentionally or willfully hence disobey the orders rendered by this Court. Contrarily, a right is vested in the petitioners herein, to, through a newly constituted writ petition, hence challenge the afore Annexure A-1. 8. Contrarily, a right is vested in the petitioners herein, to, through a newly constituted writ petition, hence challenge the afore Annexure A-1. 8. Dehors the above, the mere purported disobedience of an order rendered by this Court, would not, per se tantamount, to an act of contempt nor any penal action can be initiated against the purported contemners, unless, the orders contended, to be purportedly infringed, is/are not amenable, for, two interpretations being made thereon, and, when hereat the purportedly willfully or intentionally infringed order(s), are, rather open, for, two interpretations, (i) thereupon, when, one, of, the interpretation, as, made thereon by the purported contemners, is/are both a justifiable, and, a vindicable interpretation, hence, thereof, (ii) thereupon, the respondents/ contemners, would not invite any penal action, for, contempt, rather being initiated against them. In taking the afore view, this Court finds support from a verdict rendered by the Hon'ble Apex Court in a case titled as Anil Ratan Sarkar vs. Hirak Ghosh, (2002) AIR SC 1405. Furthermore, a reading of the Annexure A-1 also bolsters, an inference that prima facie, it is within the domain of law, and, the rules governing the rights, of all the affected, hence, the conscience of this Court is not stirred, to hence initiate, any penal action for contempt, against, the respondents. 9. For the foregoing reasons, the instant contempt petitions are dismissed, and, the respondents herein are discharged. All pending applications also stand disposed of.