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2022 DIGILAW 302 (HP)

Rajinder, S/o Shri Jagat Ram v. Sita Ram Mardi

2022-06-17

VIVEK SINGH THAKUR

body2022
ORDER : Present Petition has been preferred with prayer to punish the contemnor/respondent for willfully, knowingly, intentionally, repeatedly defying/disobeying the order dated 31.12.2018, passed by the erstwhile H.P. State Administrative Tribunal in OA No.7650 of 2018, titled as Rajinder v. State of H.P. & others. 2. In the Original Application, claim of the petitioner was that he was entitled for benefit of judgment passed by this High Court in CWP No.2059 of 2010, titled as Hirdye Prakash v. State of H.P. and another and connected matters, decided on 26.7.2011. 3. In response, it was submitted on behalf of the State that in case of finding the petitioner similarly situated, on verification, benefit of aforesaid judgment shall be extended to him. 4. In view of above, Original Application was disposed of with direction to the respondents to extend the benefit of judgment referred supra to the applicant (petitioner herein), within three months, in case he was similarly situated. 5. Petitioner was seeking appointment on the basis of judgment of this Court in Hirdye Prakash’s case, but he was not offered appointment, which led to filing of present petition. 6. In response to this petition, it has been stated in the reply that name of petitioner was sponsored by Ex-servicemen Cell in response to requisition of the Department to fill the vacancy of Constable vacated by Mast Ram, an Ex-serviceman. Thereafter, candidature of petitioner was scrutinized but he was not found eligible for appointment as per criteria notified by the Government vide Notification No.Home-A(3)-4/2011 dated 24.5.2013 and, thus, was not appointed in place of Mast Ram who resigned from service on 12.5.2017. Further that, in Hirdye Prakash’s case, appointment as TGT of Ex-serviceman was made on 20.9.2003, but the petitioner therein was deemed to be appointed w.e.f. 18.12.2002, as he was held entitled for offer of appointment within 15 days of sponsorship by Ex-servicemen Cell. 7. It has been stated on behalf of respondents that in present case, as petitioner was not found eligible for appointment and, therefore, there was no question of considering his entitlement for appointment from 15th day of sponsorship of his name. He was never appointed for want of eligibility and, therefore, Hirdye Prakash’s case was not applicable to him and, thus, his representation was considered and rejected, on 10.2.2020, by passing a speaking order. 8. He was never appointed for want of eligibility and, therefore, Hirdye Prakash’s case was not applicable to him and, thus, his representation was considered and rejected, on 10.2.2020, by passing a speaking order. 8. Claim of the petitioner is that aforesaid Notification dated 24.5.2013 is not applicable to him and, thus, he was entitled for appointment within 15 days of sponsorship of his name by the Ex-servicemen Cell. 9. It is contended on behalf of the petitioner that rule being referred and as interpreted, to reject the claim of the petitioner is neither applicable to the case of petitioner nor is to be interpreted in such manner and, therefore, rejection of claim of the petitioner is in conflict with the order passed by the Court and, thus, respondents are liable to be punished for committing contempt. 10. Learned counsel for the petitioner, in support of contention of the petitioner, has placed reliance upon A.P. SRTC and others v. G. Srinivas Reddy and others, (2006) 3 SCC 674 ; Debendranath Nanda v. Chandra Shekhar Kumar, (2012) 13 SCC 295 ; and Chairman, Life Insurance Corporation of India and others v. A. Masilamani, (2013) 6 SCC 530 . 11. Learned Deputy Advocate General has advocated for dismissal of the petition by placing reliance upon judgment dated 28.10.2020, passed by Division Bench of this Court in CWP No.4729 of 2020, titled as Managing Director, H.P. Electronics Development Corporation v. State of Himachal Pradesh & others. 12. Eligibility as well as entitlement of the petitioner was not adjudicated by the Tribunal on merits, but on the undertaking given on behalf of the State, petition was disposed of with direction to verify the facts and extend the benefit of Hirdye Prakash’s case to the petitioner, in case he was found to be similarly situated. 13. Learned counsel for the petitioner has referred the following paragraphs of G. Srinivas Reddy’s case: “14. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to ’consider’, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. We may, in this context, examine the significance and meaning of a direction given by the court to "consider" a case. When a court directs an authority to ’consider’, it requires the authority to apply its mind to the facts and circumstances of the case and then take a decision thereon in accordance with law. There is a reason for a large number of writ petitions filed in High Courts being disposed of with a direction to "consider" the claim/case/representation of the petitioner/s in the writ petitions. ……… ………. ……… 17. Where the High Court finds the decision-making process erroneous and records its findings as to the manner in which the decision should be made, and then directs the authority to ’consider’ the matter, the authority will have to consider and decide the matter in the light of its findings or observations of the court. But where the High Court without recording any findings, or without expressing any view, merely directs the authority to ’consider’ the matter, the authority will have to consider the matter in accordance with law, with reference to the facts and circumstances of the case, its power not being circumscribed by any observations or findings of the court. ……… ……… ………… 20. Therefore, while disposing of writ petitions with a direction to ’consider’, there is a need for the High Court to make the direction clear and specific. The order should clearly indicate whether the High Court is recording any finding about the entitlement of the petitioner to the relief or whether the petition is being disposed of without examining the claim on merits. The court should also normally fix a time-frame for consideration and decision. If no time-frame is fixed and if the authority does not decide the matter, the direction of the court becomes virtually infructuous as the aggrieved petitioner will have to come again to court with a fresh writ petition or file an application for fixing time for deciding the matter.” 14. In A. Masilamani’s case, the learned counsel has referred the following paragraph: “19. The word “consider”, is of great significance. Its dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. The word “consider”, is of great significance. Its dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Director, Marketing, Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC 147 ; and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., AIR 2008 SC 1771 ).” 15. Referring Debendranath Nanda’s case, it has been contended that for non-compliance with the order passed by the Court, petitioner has been made to suffer and denied appointment for which he was entitled and, therefore, respondents are liable to be punished for committing contempt and in alternative, in addition to extending benefit of direction of Court in favour of the petitioner, petitioner is also entitled for suitable damages from respondents-Department. 16. Learned Deputy Advocate General, in the pronouncement of this Court in Managing Director, H.P. Electronics Development Corporation’s case, has referred the following paragraphs: “5. It is more than settled that contentious issues cannot be decided in contempt petition and here what relief had not even given by the Tribunal, appears to have been granted by the Court exercising its contempt jurisdiction. 6. It is not in dispute that the petitioner had infact considered and decided the case of the private respondents, though belatedly, on 29.02.2020, but that was much prior to the order passed by the Court on 21.8.2020 in the contempt petition. If at all the private respondents were aggrieved by the consideration order, then the only remedy available to them was to file substantive petition, assailing the same. 7. Once the order is passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The order may be wrong or may be right or may not be in conformity with the directions. 7. Once the order is passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The order may be wrong or may be right or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail opportunity by way of judicial review. But that cannot be considered to be the willful violation of the order. 8. In taking this view, we are supported by the judgment passed by three Judges of the Hon’ble Supreme Court in (1996) 6 SCC 291 titled J.S. Parihar Vs. Ganpat Duggar and others, wherein it was observed as under: “6………. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order…..” 9. Section 2(b) of the Contempt of Courts Act, 1971, (for short the ‘Act’) which is relevant for the adjudication of these cases, reads as under: “(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;” 10. There can be no doubt that where there has been an unequivocal, deliberate and willful disobedience to the order of the Court, punishment for contempt of Court is called for and should be unhesitatingly imposed upon the party, if found guilty. But, then it should be remembered that the Court’s power to punish the contemnor in summary proceedings is to be used sparingly and with circumspection. In a contempt petition as indeed, in every other case the decision must necessarily rest on the facts of that case. 17. But, then it should be remembered that the Court’s power to punish the contemnor in summary proceedings is to be used sparingly and with circumspection. In a contempt petition as indeed, in every other case the decision must necessarily rest on the facts of that case. 17. Response of the respondents in the reply as well as reasons given in the order passed by the Department after considering his case is that petitioner is not entitled for appointment for want of eligibility and that in Hirdye Prakash’s case, petitioner was eligible for appointment and, in fact, was offered appointment at a later stage and, therefore, he was directed to be considered to have been appointed within 15 days after sponsorship by the Ex-servicemen Cell. Whereas, in present case, petitioner is not entitled for appointment and, thus, there is no question of offering appointment within 15 days or at later point of time and, therefore, Hirdye Prakash’s case, mandating to consider appointment within 15 days of sponsorship, is not application to the petitioner. 18. In aforesaid circumstances, I am of the opinion that case law cited on behalf of the petitioner is of no help to the petitioner, rather petitioner has to agitate his cause by filing appropriate Writ Petition for adjudication of his eligibility and entitlement for appointment and, in such eventuality, if Court comes to the conclusion that he was entitled for appointment and has been ignored and subjected to unwarranted avoidable litigation, then apart from relief of appointment and consequential benefits, he may be compensated by awarding appropriate relief by the Court, but, in any case, such adjudication is not warranted in present case in the given facts and circumstances. 19. In aforesaid circumstances, present petition is closed and disposed of with liberty to the petitioner to file appropriate comprehensive Writ Petition for adjudication of his claim and redressal of grievance, and in case such petition is preferred by the petitioner, delay and latches shall not come in his way as he was bonafide pursuing his case in present petition. Pending application(s), if any, also stand disposed of.