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2022 DIGILAW 436 (AP)

Boggarapu Neveen Kumar v. B. Rajsekhar

2022-04-21

D.V.S.S.SOMAYAJULU

body2022
JUDGMENT 1. This Court has heard the submissions of the learned counsel in CC.No.673 of 2020. The facts of law are common in both the cases. The order is therefore being dictated. Sri Challa Siva Sankar, learned counsel argued for the petitioner and Sri K.V.Raghuveer, learned counsel argued for the respondents. 2. The order in question passed by the Court is similar in both the contempt cases. A direction was given to the respondents in both the cases to complete the recruitment process as per notification dtd. 24/11/2017 in accordance with G.O.Ms.No.38 dtd. 19/11/2014. In W.P.No.6863 of 2019, a period of 8 weeks is fixed for compliance of the order, but in W.P.No.7918 of 2019, no period is fixed. However, contempts were filed and the matter was argued at length by both the counsel. 3. Sri Challa Siva Sankar, learned counsel, points out that the issues raised by the respondents now are already considered and overruled by the Court and that the respondents had a duty to comply the order passed in the writ petition. He submits that the 8 week period elapsed long ago and that therefore the respondents are guilty of contempt. He points out that the final order in this case was passed on 2/10/2020. Therefore, learned counsel submits that there is clear delay and thus willful default. 4. In reply to this, Sri K.V.Raghuveer argues that the order passed in this Court is impossible of compliance. It is his contention that G.O.Ms.No.38 prescribes certain educational qualifications and "TET" test will be passed by the applicants. It is submitted that neither of the petitioners have qualified in the TET test and that therefore for implementing the order, the respondents will have to act contrary to law. He relies upon Mohd. Iqbal Khanday v. Abdul Majid Rather, (1994) 4 SCC 34 . Gyanichand v. State of Andhra Pradesh, (2016) 15 SCC 164 . and Niaz Mohammad and others v. State of Haryana and others, (1994) 6 SCC 332 . to argue that there is no willful misconduct if the order could not be complied either control law after it would amount to acting the contrary to the law. 5. Despite the long and the lengthy arguments were advanced with great force by the learned counsel for the petitioner, the fact remains that this Court directed the respondents to complete the recruitment in terms of G.O.Ms.No.38. 5. Despite the long and the lengthy arguments were advanced with great force by the learned counsel for the petitioner, the fact remains that this Court directed the respondents to complete the recruitment in terms of G.O.Ms.No.38. This is the prayer of the petitioners also. Admittedly, neither of the two petitioners have qualified in the 'TET' test, which is a necessary test as per G.O.Ms.No.38. The rejoinder affidavit clearly states that the State Government did not conduct the 'TET' test from September, 2013 to November, 2017. 6. Petitioner's counsel argues that for no fault of the petitioners, they are deprived of the recruitment. The sum and substance of the submissions made by the learned counsel for the respondents is that G.O.Ms.No.38 clearly specifies that the candidate apart from having educational qualifications should also have qualified in the 'TET' test. This G.O.Ms.No.38 was issued on 19/11/2014 and the petitioners are relying upon an advertisement published by the school in November, 2017. Therefore, the counsel argument that this G.O. is applicable is also clear. As per him, selection cannot be completed or given to petitioners without passing the 'TET' test. The law on the subject is also very clear and to constitute disobedience and thereafter contempt, the disobedience must be 'willful' and 'intentional'. This Court should come to a conclusion that there is a 'willful and intentional' disobedience. If the disobedience or are the failure to comply is due to some other compelling circumstances, this Court cannot hold that there is a willful disobedience. This is what is the stated in the case of Niaz Mohammad (3 supra). 7. In the case of Mohd. Iqbal Khanday (1 supra), the Hon'ble Supreme Court held as follows: "14. Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associated Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Service Commission and not by the appellant." 8. This would clearly show that if the petitioner did not possess the requisite qualification and if the necessary qualification was mandatory under the rules, granting for promotion would be violative of the rules. 9. In that view of the matter, after considering the submissions made by Sri K.V.Raghuveer while holding that there is a delay in taking the final decision, this Court is of the opinion that in the circumstances, there is no willful disobedience of the Courts order. 10. Therefore, both the contempt cases are dismissed. No order as to costs. 11. As a sequel, the miscellaneous petitions, pending if any, shall stand closed.