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2020 DIGILAW 364 (UTT)

Khajan Singh v. R. Meenakshi Sundaram

2020-10-05

SHARAD KUMAR SHARMA

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JUDGMENT Sharad Kumar Sharma, J. - The petitioner, who was working with the respondents as a Senior Clerk, was transferred from Govt. Inter College, Swar, District Rampur to Govt. Girls Inter College, Kichha, District Udham Singh Nagar by an order dated 25.07.1996. 2. There had been some controversies raised with regards to an act and conduct of the respondents, by not permitting the petitioner to join his transferred place of services and this stalemate of inability for the petitioner to join the transferred place continued till he filed a writ petition, being Writ Petition No. 1676 of 2001, Khajan Singh Vs. Regional Deputy Director, Education and another, (which was a new number assign to it, after its transfer from Allahabad High Court), and the same was adjudicated by the coordinate Bench of this Court by a judgement dated 01.11.2003. 3. The coordinate Bench of this Court by the judgement dated 01.11.2003, has passed the following directions :- "The petitioner has given the undertaking that he will join at Sitarganj. The petitioner shall report on 7th November 2003 before the respondent No. 1 Regional Deputy Director of Education, Kumaon Region, Nainital, who will pass necessary orders regarding the joining of the petitioner in accordance with the order dated 22.8.96 or subsequent order passed thereon. Liberty is given to the petitioner to approach the authorities for his posting as well as for remuneration. In view of the aforesaid, the writ petition is dismissed. There will be no order as to costs. Registry shall send the copy of the order to the Regional Deputy Director of Education, Kumaon Region, Nainital." 4. In compliance thereto, since there was directions issued for re-approaching the authorities for his posting, the respondent has proceeded to pass yet another orders dated 28.06.2007, as passed by the Additional Director of Education, Kumaun Division, Nainital and the order dated 16.09.2016, which was passed by the Director, Primary Education, Uttarakhand. Apart from other relief, it is these orders, which were also made as a subject matter of challenge by the petitioner in Writ Petition (S/S) No. 2102 of 2016, Khajan Singh Vs. Apart from other relief, it is these orders, which were also made as a subject matter of challenge by the petitioner in Writ Petition (S/S) No. 2102 of 2016, Khajan Singh Vs. State of Uttarakhand and others, and the following relief was sought for by the petitioner:- "It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased:- I. To issue a writ, order or direction in the nature of mandamus, directing the respondents to pay the salary to the petitioner between August 1996 to 19.12.2003 with all consequential benefits of gratuity, increments, enhancement of salary and fixation of salary and pension and gratuity. II. To issue a writ, order or direction in the nature of mandamus, directing the respondent to fix the pension of the petitioner on the basis of the salary which may be enhanced in pursuance to the direction which may be issued by the Hon'ble Court. III. To issue a writ, order or direction in the nature of certiorari quashing the order dated 28.06.2007, passed by Additional Director of Education, Kumaun Division Nainital (Annexure 30 to the writ petition) and the order dated 16.09.2016, passed by Director, Primary Education, Uttarakhand Dehradun (Annexure No. 31 to the writ petition). IV. Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the respondent. V. Award the cost of the petition in favour of the petitioner and against the respondents." 5. The said writ petition was finally considered by another coordinate Bench of this Court, and while disposing of the writ petition by an order dated 12.07.2018, the coordinate Bench of this Court has passed the following directions: - "The petitioner was transferred from Rampur to Kichha. The petitioner went to discharge his duties to Kichha. However, he was not permitted to join his duties. It is these circumstances, the petitioner could not discharged the duties from the year 1999 to year 2003. This aspect has been overlooked by the respondents. Accordingly, the writ petition is disposed of with the direction to the respondents to pay the due and admissible salary to the petitioner by taking into consideration the observation made hereinabove within a period of ten weeks from today." 6. This aspect has been overlooked by the respondents. Accordingly, the writ petition is disposed of with the direction to the respondents to pay the due and admissible salary to the petitioner by taking into consideration the observation made hereinabove within a period of ten weeks from today." 6. Alleging its non-compliance, the petitioner had filed the present contempt petition on 01.04.2019, on which the notices were issued to the respondent herein, and the response affidavit was filed by the respondents on 27.05.2019, annexing therewith the office order No. fo0-iz0- 101/41@20121/416@534@2018&19 fnukad 11 fnlEcj 2018, which was passed by the Director, Primary Education, Uttarakhand, Dehradun. 7. There is controversy, which now emanates to be considered by this contempt Court. One, as against the order dated 12.07.2018, which is being sought to be enforced by the petitioner, in the present contempt petition, a Special Appeal, being Special Appeal No. 984 of 2019, had been preferred by the respondents, though at a belated stage, which is still pending consideration before the Division Bench of this Court. Be that as it may. This Court is of the view that in the absence of any stay order in Special Appeal, its pendency will have no affect on consideration of the present contempt petition on its merits. 8. The learned senior counsel for the petitioner has argued that in the light of the directions issued by the coordinate Bench of this Court in the judgement dated 12.07.2018, it would be construed as if it was a positive direction to the respondents to pay the salary of the petitioner for the period from 1996 till 2003, i.e. the period during which the petitioner contends that he was incapacitated to join his services as a consequence of his transfer. The directions contained therein in the judgement dated 12.07.2018, and as interpreted by the learned senior counsel for the petitioner is that rather there was a positive direction for the respondent to make the payment of the salary of the petitioner for the said period w.e.f. 22.08.1996 to 07.11.2003; but I am of the view that since the petitioner has specifically put a challenge to the two orders i.e. dated 28.06.2007 and 16.09.2016, by virtue of which there was a rejection and a denial to the petitioner, to make the payment of salary for the said period, I am of the view that until and unless the said order is interfered with and quashed by the coordinate Bench of this Court, in the judgement of 12.07.2018, it would amount to be a denial of a relief. During the subsistence of the said order and because of its legal existence, the mandamus for the remittance of the salary without determining the controversy on merits could not be made. 9. Be that as it may. Now the State interpretation, which arises for consideration, as argued by respondent counsel, before this Court is as that learned Additional Chief Standing Counsel, has argued that the respondent/Director has already taken a decision and had rejected the claim of the petitioner by an order dated 11.12.2018. He submits that if the findings, which have been recorded by the writ Court in its judgement dated 12.07.20189, which is being sought to be enforced by the petitioner, in the present contempt is considered, it has to be given a splitted interpretation, because the first part, where the Court considers the facts and the circumstances, due to which the petitioner was incapacitated to discharge his duties, the Court has observed that the said aspect has been overlooked by the respondents. This may not be a correct interpretation for the reason being that it was not overlooked, but rather the respondents have taken a positive decision of denying the benefit by the two orders, which were challenged in relief III in the writ petition, which was not granted, hence would be treated to be denied qua relief number III.. 10. The learned Addl. 10. The learned Addl. Chief Standing Counsel for the State submits that the subsequent direction issued, there has been a scope left open for the competent authority to consider the aspect for the payment of salary, for the aforesaid period, and the said determination where the amount payable was to be determined, as to whether it is due and admissible to be paid to the petitioner or not, has been taken into consideration and the order dated 11.12.2018, has been passed by the respondent Director, Elementary Educaiton, hence there is a compliance of the order. 11. I agree with the tenacity of argument as it has been extended by Mr. Ajay Singh Bisht, the learned Addl. Chief Standing Counsel for the State that the judgement sought to be enforced by the petitioner i.e. dated 12.07.2018, is in fact not a positive direction to pay and it is not a positive direction to pay for the reason that in the light of the fact that the quashing of the two orders of denial to grant the salary to the petitioner, was not disturbed by the learned Single Judge and once it was not disturbed and it has been left open for them to consider the payability of an amount and since the direction was to consider the payability of an amount and the decision has been taken by the Director on 11.12.2018, it will amount to be a compliance of the judgement dated 12.07.2018, and hence no contempt, at this stage, is made out. The same is accordingly dismissed. Notices issued to the respondents are hereby discharged. 12. However, the dismissal of this contempt petition would be without prejudice to the rights of the petitioner to put a challenge to the order dated 11.12.2018, as passed by the Director, Elementary Education, rejecting the claim of the petitioner for payment of salary for the period from 22.08.1996 to 07.11.2003. 13. All pending applications stand disposed of accordingly.