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2022 DIGILAW 114 (CHH)

Omprakash Shahare S/o Dagoji Shahare v. K. R. Mandavi Principal

2022-03-02

ARUP KUMAR GOSWAMI, GAUTAM CHOURDIYA

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JUDGMENT : Arup Kumar Goswami, J. Heard Mr. Om Prakash Sahare, the appellant in person. 2. We also thought that it would be appropriate to request Ms. Fouzia Mirza, learned senior counsel, to assist the appellant in person by addressing the Court. 3. Ms. Mirza has graciously accepted our request. 4. Registry has pointed out that respondents No. 2 and 3, who are not parties to the writ petition, have been arrayed in this appeal. They are needed to be struck-off. Registry will do the needful. 5. This appeal is preferred against an order dated 06.07.2021 passed by the learned Single Judge in Writ Petition (S) No. 1981 of 2021. 6. The order dated 06.07.2021, reads as follows: “Mr. Om Prakash Sahare, petitioner, in person. Petitioner prays for the disposal of the present Writ Petition with a liberty of permitting him to file a duly constituted Writ Appeal in the proper format as prescribed under the High Court Rules. With the aforesaid liberty, the writ petition stands disposed of.” It is, however, not indicated in the aforesaid order against which order writ appeal was sought to be preferred. 7. The petitioner filed a writ petition, which was registered as Writ Petition (S) No. 7525 of 2017. The proximate cause for filing the aforesaid writ petition is discernible from the order dated 31.07.2018, which was passed in Writ Petition (S) No. 7525 of 2017 alongwith 3 other cases, namely, Writ Petition (S) Nos. 4938 of 2018, 4946 of 2018 and 4953 of 2018. It will be appropriate that the said order is extracted in its entirety: “Mr. Rupesh Shrivastava, Mr. Brindavan Tiwari and Mr. Chandradeep Prasad, Advocates for the petitioners. Mr. Shashank Thakur, Govt. Advocate, Mr. S.S. Rajput, Advocate and Mr. Surendra Dewangan, Advocate for the respective respondents. Heard. Admit. Since Mr. Shashank Thakur, Govt. Advocate accepts notice on behalf of State and Shri Sachin Singh Rajput, Advocate, accepts notice on behalf of respondent-UGC, hence payment of PF stands dispensed with. Let reply be filed within eight weeks. Also heard on I.A. No. 1 and 4 which are applications for grant of stay in respective writ petitions. The contention of the petitioners are that they were recruited by the respondents as per norms of the State Govt. on the post of Guest Faculty. The petitioners are discharging their duties from last one year. Also heard on I.A. No. 1 and 4 which are applications for grant of stay in respective writ petitions. The contention of the petitioners are that they were recruited by the respondents as per norms of the State Govt. on the post of Guest Faculty. The petitioners are discharging their duties from last one year. The respondents now have issued a fresh advertisement, wherein they have also advertised the post in which the petitioners were discharging their duties and thereby, the petitioners would be forced to participate again in the entire selection process for appointment as Guest Faculty and this feature is being maintained by the State continuously for past many years. The counsel for the petitioners further submits that the petitioners who are the Guest Faculty should not be substituted by another set of Guest Faculty unless the petitioners are disqualified or have been removed from service on dis-satisfactory performance. It was further contended that the respondents may continue with the system unless filled up by regular appointee. Thus, prayed for interim order in this regard. The State counsel opposing the interim application submits that the nature of appointment is contractual; the respondents/State never forced the petitioners to apply for the post of Guest Faculty and that the State has all the authorities for continuing with the mode of education being imparted through the Guest Faculty system. Therefore prayed for rejection of the application. He relies upon the decision of the Supreme Court in case of Secretary, State of Karnataka and Others v. Umadevi & Others, 2006 (4) SCC 1 . Taking into consideration the entire factual matrix of the case, as the petitioners are working as Guest Faculty members since previous academic session and that there being no disqualification or dis-satisfactory performance on the part of the petitioners, they shall be permitted to continue as Guest Faculty for the present academic session also. It is further ordered that the State Govt. should ensure that a set of Guest Faculty appointed after undergoing due process of selection should not be normally substituted by another set of Guest Faculty unless the services of the Guest Faculty is discontinued for either misconduct or unsatisfactory work. It is further ordered that the State Govt. should ensure that a set of Guest Faculty appointed after undergoing due process of selection should not be normally substituted by another set of Guest Faculty unless the services of the Guest Faculty is discontinued for either misconduct or unsatisfactory work. The respondents are restrained from filling up the post of Guest Faculty in the subject and institution where the petitioners were working from the previous academic session, thereby, there shall be a stay to the advertisements to the extent of filling up of the post in the subject against which the petitioners were appointed in the previous year. The principle laid down in the case of Umadevi (Supra) would not attract in the present cases at all as the said judgment is passed under entirely different context. Also heard on I.A. No. 3, which is an application for amendment in the WPS No. 7525/2017. On due consideration, I.A. No. 3 stands allowed. Let necessary amendments be carried out within a period of 7 days from today and amended copy of writ petition also be filed. List these cases along with WPS No. 4603/2018.” 8. The appellant herein filed a contempt case being Contempt Case No. 179 of 2019, alleging violation of the order dated 31.07.2018 passed in Writ Petition (S) No. 7525 of 2017. 9. In the aforesaid contempt proceedings, an order dated 01.05.2018 was brought on record by the respondent in contempt case, which would go to show that the service of the petitioner was terminated w.e.f. 01.05.2018. 10. By an order dated 07.01.2020, the aforesaid contempt case was disposed of observing that no case of contempt was made out but reserving the right of the petitioner (appellant herein) to challenge the order of termination, if he so chooses, or challenge any subsequent development. 11. In paragraphs 2 and 3 of the said order dated 07.01.2020, it is observed as follows : “2. The Counsel for the respondent on notice has entered appearance along with response, they have filed document dated 01.05.2018, the said document clearly reflects that the petitioner services were terminated w.e.f. 01.05.2018. Further document also in the reply shows that the services of the petitioner were discontinued on account of unsatisfactory work. The Counsel for the respondent on notice has entered appearance along with response, they have filed document dated 01.05.2018, the said document clearly reflects that the petitioner services were terminated w.e.f. 01.05.2018. Further document also in the reply shows that the services of the petitioner were discontinued on account of unsatisfactory work. The interim order was obtained by the petitioner much after the order of termination is passed and the writ petition itself was filed much after the issuance of the order dated 01.05.2018. 3. The contention of the Learned Counsel for the Petitioner that the said order is an anti dated order is a question which needs to be adjudicated upon and which can not be done in exercise of contempt jurisdiction of this Court. This Court in the interim order itself has specifically held that the services of Guest Faculty should not be substituted by another set of Guest Faculty unless the services of the Guest Faculty are discontinued either for misconduct or for unsatisfactory work. If the petitioner services have been discontinued on his unsatisfactory work which from the order of termination it reflects, this Court is of the opinion that there is no Act of contempt as such made out against the respondent.” 12. The appellant filed a review petition being Review Petition No. 72 of 2020, seeking review of the order dated 07.01.2020 passed in Contempt Case No. 179 of 2019. The review petition was rejected by an order dated 04.01.2021, observing as follows: “1. The present review petition has been filed seeking review of an order dated 07.01.2020 passed in contempt case No. 179/2019. 2. The review petition has been preferred on the ground of certain facts have not been appreciated by this Court nor have they been properly placed by the respondents or their counsels and therefore the order needs to be reviewed. 3. Perusal of the contents of the order dated 07.01.2020, review of which is being sought clearly shows that in the course of proceedings, it was reflected that the services of the petitioner were discontinued w.e.f. 01.05.2018 which fact was not brought to the notice of the Writ Court when the interim order was granted on 31.07.2018 in WP(S) No. 7525 of 2017. 4. 4. This Court in the given factual matrix of the case had disposed of the contempt petition, reserving the right of the petitioner to challenge the order of discontinuance/termination. 5. This Court was of the firm view that the contention which was brought before the Court made it evident that it does not amount to a Contempt. Now the option available for the petitioner was to challenge the alleged discontinuance, if any, by way of a fresh writ petition or if he was not satisfied with the order passed in the contempt petition, the petitioner should have challenged the same before the Higher Court. 6. Review of an order can only be on an error apparent on the face of records. The pleadings enclosed along with the review petition do not reflect any error apparent on the face of records. The order seems to have been passed purely based upon the submission made by counsel appearing on either side to the writ petition. 7. The review petition therefore would not be maintainable and the same deserved to be rejected and is accordingly rejected. Reserving the right of the petitioner still to avail other remedies available to him as has been mentioned in the order passed in the Contempt Petition.” 13. Challenging the said order dated 04.01.2021, the appellant has filed the writ petition, registered as Writ Petition (S) No. 1981 of 2021, out of which, the present appeal arises. 14. The appellant himself prayed for disposal of the writ petition with a liberty of permitting him to file a duly constituted writ appeal. In such circumstance, the appeal will not be maintainable against the order dated 06.07.2021. 15. It appears to us that the appellant has some grievance against the order passed in contempt case. 16. In D.N. Taneja v. Bhajan Lal, reported in (1988) 3 SCC 26 , the Hon’ble Supreme Court had observed that under Section 19(1) of the Contempt of Courts Act, 1971 (for short, ‘the Act’), an appeal can be filed only by the contemnor, who had been punished for contempt of the Court. It is also observed that in a contempt proceeding, there are only two parties, namely, the Court and the contemnor and this might be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. 17. It is also observed that in a contempt proceeding, there are only two parties, namely, the Court and the contemnor and this might be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. 17. In that view of the matter, we are of the considered opinion that the present appeal deserves to be dismissed and is hereby dismissed. However, we reserve liberty to the petitioner to assail the order dated 01.05.2018, if so advised. 18. We record our appreciation to Ms. Fouzia Mirza, learned senior counsel, for rendering assistance to the Court.