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2020 DIGILAW 95 (JK)

Mohd Javid v. Anuradha Gupta Director School Education

2020-02-18

TASHI RABSTAN

body2020
JUDGMENT Tashi Rabstan, J. - Present contempt petition is filed for initiation of contempt proceedings against the respondents for non-compliance and disobedience of judgement dated 10.05.2018 passed in CPSW No. 201/2017 (in SWP No. 17/2016) on the grounds taken therein. 2. It may be noticed that against the directions passed by the learned Single Judge in different writ petitions for considering the claim of the petitioners for their appointment as Class-IV employees in the Education Department, the State-respondents went in appeal, which stood disposed of on 30.07.2009, the operative part of which is reproduced hereunder:- "In the circumstances, for all practical purposes, it must be deemed that by way of a policy decision, the State Government created 417 more posts and in those posts, by the order dated 04.04.2003 those 417 persons, who were permitted to work on temporary basis by the order dated 11.04.2002, were regularized. In consequence thereof, it must be deemed that there are still 417 posts available. The number of writ petitioners is less than 417. Accordingly, all of them can be accommodated. There will, therefore, be no occasion to take recourse to upsetting the orders of the Government dated 11.04.2002 and 04.04.2003. In the circumstances, the exercise to be undertaken in terms of the judgment and order under appeal be completed within a period of six months from today and to that extent the judgment and order under appeal is modified with clarifications." 3. Subsequently, the writ petitioners filed writ petition bearing SWP No.17/2016, which came to be disposed of vide judgment dated 11.01.2016, whereby it is observed as under:- "Mr. M.I.Sherkhan, learned counsel for the petitioners at the very out set made a request that petitioners would feel satisfied, if respondents are directed to treat this writ petition as their representation and pass appropriate orders. Heard. Having record to the grievance of the petitioners, this writ petition is disposed of by providing that the same be treated as a petitioners' representation and the respondents shall accord consideration thereto on merits in accordance with the rules and pass appropriate orders, preferably within six weeks from the date a copy of this order is furnished to the respondents." 4. For implementation of the aforesaid order dated 11.01.2015 passed in SWP No.1004/2015, the writ petitioners preferred contempt petition bearing CPSW No.201/2017, which came to be disposed of vide Order dated 10.05.2018 observing as under:- "In view of the aforesaid submission, the contempt petition is disposed of with the direction to the Chief Education Officer, Poonch to issue the orders of appointments in favour of the petitioners in the light of the order dated 13.05.2010 as well as order dated 18.05.2016. Needless to state that the orders shall be issued subject to the conditions mentioned in the aforesaid orders. Let the aforesaid exercise be carried out within six weeks from today. Accordingly, the contempt petition is disposed of along with connected MP(s)." 5. Writ Petitioners have now filed the present contempt petition seeking implementation of order dated 10.05.2018 passed in CPSW No.201/2017 (in SWP No.17/2016). 6. In this petition, it is contended that names of the some of the petitioners were wrongly typed, so they submitted representation to the respondents, but, the same has not been decided by the respondents. It is also contended that they were petitioners in SWP No. 411/2006 and their names figured at S.No.16 and 02 and S.No. 89 and 32 in Govt. Order No.440-Edu of 2010 dated 13.052010. The Government issued Order No.440-Edu of 2010 dated 13.05.2010 and Director School Education was directed to issue appointment letters after verification so as to implement the judgments passed by this Court. It is further submitted that neither the respondents are verifying the documents of the petitioners nor issuing appointment letters. It is also submitted that names/particulars of the petitioners were wrongly typed in the main writ petitions as shown above, but, they were approved for appointment in the Govt. Order No.440-Edu of 2010 dated 13.05.2010. 7. The statement of facts stands filed on behalf of respondents, wherein it is stated that in compliance to the directions passed by this Court in SWP No. 17/2016 that after considering the record pertaining to the case as well as the report received from the respondent No.2, the case of the petitioners has been examined by the respondent in due deference to the directions of the Court and in this regard, a detailed order being order dated 15.03.2019 has been passed. It is submitted that the petitioners claim that they were petitioners in SWP No. 411/2006 and their names figured at S.No.16 and 2 in the writ petition and at S.No. 89 and 32 in Government order No.440-Edu of 2010 dated 13.05.2010, but, the factual position, however, is that the names of the petitioners do not figure in the said writ petition and the Govt. Order as contended by them at the respective serial numbers and such contention of the petitioners was totally unjustified and wrong as contended. With these submissions, it is prayed that since judgment/order passed by this Court in SWP No.17/2016 & CPSW No.201/2017 stand complied with in letter and spirit, the instant contempt petition may be dismissed. 8. Heard learned counsel for the parties and perused the record. 9. Bare perusal of order dated 15.03.2019 reveals that respondent no.1, vide communication dated 18.05.2016 directed the Chief Education Officer, Poonch, to implement the orders passed in various writ petitions after checking/verifying/authenticating all original documents / qualification, date of birth certificates, state subject and character and antecedents as required under rules of the petitioners, as per sanction accorded in terms of Govt. Order No.440-Edu of 2010 dated 13.05.2010. In response to the communication dated 18.05.2016, respondent No.2, vide his communication dated 13.02.2019, has stated that on perusal of the approved list, it is evidently clear that the names of the petitioners in SWP No.17/2016 and CPSW No.201/2017 do not figure in the approved list of Annexure-A to the Govt. Order No.440-Edu of 2010 darted 13.05.2010. Insofar as the claim of the petitioners that they were petitioners in SWP No.411/2006 and their names figured in the Govt. Order No.440-Edu of 2010 dated 13.05.2010, it is contended on behalf of the respondents that the names of the petitioners do not figure in the said writ petitions and Govt. Order as contended by them at the respective serial numbers. 10. More so, from perusal of Order dated 15.03.2019 issued by respondent No.1 and annexed with statement of facts, it comes to fore that petitioners in the present contempt petition, i.e., CPSW No.735/2018 (in SWP No.17/2016) do not figure in the approved list attached with Government Order No.440-Edu of 2010 dated 13.05.2010. 10. More so, from perusal of Order dated 15.03.2019 issued by respondent No.1 and annexed with statement of facts, it comes to fore that petitioners in the present contempt petition, i.e., CPSW No.735/2018 (in SWP No.17/2016) do not figure in the approved list attached with Government Order No.440-Edu of 2010 dated 13.05.2010. The case of the petitioners was examined/considered strictly as per the rules governing the field, and it has been found that the names of the petitioners in the writ petition do not figure in the approved list attached with the GO No.440-Edu of 2010 dated 13.05.2010. Therefore, after consideration/examination, their case was found to be not in consonance with the rules and also devoid of any merit, and, thus, the claim of the petitioners was rejected by the respondents. 11. In the above backdrop, it is pertinent to mention here that to hold respondents or anyone of them liable for contempt, this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of this Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts. Reference in this regard may be made to Noor Saba Vs. Anoop Mishra & another,2013 0 Supp (SC) 809 . 12. In Noor Saba Vs. Anoop Mishra & another,2013 0 Supp (SC) 809 , the Hon'ble Supreme Court held as under:- "12.To hold the respondents or anyone of them liable for contempt this Court has to arrive at a conclusion that the respondents have wilfully disobeyed the order of the Court. The exercise of contempt jurisdiction is summary in nature and an adjudication of the liability of the alleged contemnor for wilful disobedience of the Court is normally made on admitted and undisputed facts. In the present case not only there has been a shift in the stand of the petitioner with regard to the basic facts on which commission of contempt has been alleged even the said new/altered facts do not permit an adjudication in consonance with the established principles of exercise of contempt jurisdiction so as to enable the Court to come to a conclusion that any of the respondents have wilfully disobeyed the order of this Court dated 1.9.2010. We, accordingly, hold that no case of commission of any contempt of this Court's order dated 1.9.2010 is made out. Consequently, Contempt Petition No. 3/2012 is dismissed. For reasons already recorded, Contempt Petition Nos. 6/2009 and 7/2009 shall also stand closed." 13. In Kapildeo Prasad Sah & Ors. Vs. State of Bihar & Ors.,1999 0 Supp (SC) 926 , it is held as under:- "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. Even negligence and carelessness can amount to disobedience particularly when attention of the person is drawn to the court's orders and its implication. Disobedience of court's order strikes at the very root of 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." 14. In Suresh Estate Pvt. Ltd. & others Vs. Municipal Corporation of Greater Mumbai and others,2008 0 Supp (SC) 1852 , it is held as under:- "12.The above discussion makes it very clear that there is no wilful disobedience of any of the directions issued by this Court while disposing of the appeal filed by the petitioners. This Court does not find that the respondents are guilty of wilful disobedience to the judgment rendered by this Court. As no case for initiating proceedings for civil contempt is made out by the petitioners against the respondents, the instant application cannot be entertained and is liable to be dismissed." 15. In M/s Ashok Paper Kamgar Union and others Vs. Dharam Godha & others,2003 0 Supp (SC) 856 , it is held as under:- "17. As no case for initiating proceedings for civil contempt is made out by the petitioners against the respondents, the instant application cannot be entertained and is liable to be dismissed." 15. In M/s Ashok Paper Kamgar Union and others Vs. Dharam Godha & others,2003 0 Supp (SC) 856 , it is held as under:- "17. Section 2(b) of Contempt of Courts Act defines civil contempt and it means wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court or wilful breach of undertaking given to a Court. Wilful means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extra ordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case." 16. In view of above discussion and after applying the ratio of aforementioned judgments handed down by Hon'ble Supreme Court, this Court is of the firm view that liability for contempt petition arises only on wilful disobedience and can be made only on the basis of admitted and undisputed facts. Contempt petitioners changing stand and raising fresh dispute, adjudication of such disputes is not permissible in contempt jurisdiction. It is made clear that the Court in contempt jurisdiction has to consider only whether the direction or judgment of the Court passed in regular proceedings has been complied with or not. Since the respondents have considered the case of the petitioners in terms of the directions issued by this Court, therefore, the only remedy available to the petitioners is to throw challenge to the said consideration order. This Court cannot go beyond the directions contained in the order, disobedience whereof is complained of. 17. For the forgoing reasons, the contempt petition is closed. This Court cannot go beyond the directions contained in the order, disobedience whereof is complained of. 17. For the forgoing reasons, the contempt petition is closed. Rule, if any, issued is hereby discharged. However, the petitioners are at liberty to challenge the consideration order if they so advised.