Research › Search › Judgment

Rajasthan High Court · body

2022 DIGILAW 735 (RAJ)

State Of Rajasthan v. Manoj Kumar Tungariya

2022-03-03

ANOOP KUMAR DHAND, MANINDRA MOHAN SHRIVASTAVA

body2022
JUDGMENT 1. This appeal is directed against order dated 20.11.2021 passed by the learned Single Judge in Civil Contempt Petition No. 95/2018, by which the learned Single Judge directed the Director and the Secretary, Primary Education Department to remain present before the Court to explain as to why they should not be punished. 2. Even before formal admission of the appeal, learned counsel for Respondent No. 1/contempt petitioner, in whose contempt petition, the learned Single Judge has passed order on 20.11.2021, have appeared and taken objection to the maintainability of the appeal, therefore, learned Additional Advocate General was heard on the issue of maintainability of the appeal. 3. Learned Additional Advocate General would contend that though present is not a case where contemnors/officers of the State have been punished for contempt, it is a case where the learned Single Judge has issued certain directions deciding the matter independent of the order of which contempt was alleged before the learned Single Judge. He would submit that though there was direction of the Court to accommodate the writ petitioner, since accommodation was not possible for want of vacancy, despite that stand taken before the learned Single Judge, a direction to the authority to accommodate the writ petitioner and direction to the authorities/contemnors to appear before the Court and show cause against punishment, constitutes an independent adjudication through a judgment and therefore, in view of the law laid down by the Hon'ble Supreme Court in the cases of J.S. Parihar Vs. Ganpat Duggar & Others, (1996) 6 SCC 291 and Midnapore Peoples' Co.op. Bank Ltd. & Ors. V. Chunilal Nanda & Ors. AIR 2006 SC 2190 , this appeal, which is directed against an independent adjudication and judgment, would be maintainable. 4. Having given our anxious consideration to the detailed submissions and arguments at length submitted by the learned Additional Advocate General, we find ourselves unable to accept his contentions for reasons which are stated infra. 5. Contempt petition has been filed by Respondent No. 1- contempt petitioner alleging willful disobedience of the order earlier issued by the learned Single Judge on 15.12.2015 in S.B. Civil Writ Petition No. 1743/2005, affirmed by the Division Bench of this Court vide judgment dated 16.12.2016 passed in D.B. Civil Special Appeal (Writ) No. 1262/2016 and batch of appeals. 6. 5. Contempt petition has been filed by Respondent No. 1- contempt petitioner alleging willful disobedience of the order earlier issued by the learned Single Judge on 15.12.2015 in S.B. Civil Writ Petition No. 1743/2005, affirmed by the Division Bench of this Court vide judgment dated 16.12.2016 passed in D.B. Civil Special Appeal (Writ) No. 1262/2016 and batch of appeals. 6. In the writ petition, learned Single Judge holding that non-consideration of the case of the writ petitioner for appointment was not in accordance with law, directed to consider the case of the writ petitioner for appointment in accordance with his respective merit position as indicated by Rajasthan Public Service Commission while forwarding the list of successful candidates with the recommendation for appointment and accord him appointment, if he is otherwise found suitable. It was further directed that the writ petitioner would be accorded placement according to his merit position in the select list forwarded by Rajasthan Public Service Commission. Learned Single Judge, however, in the facts and circumstances of the case, taking into consideration that candidates have already been accorded appointments, directed the State to accommodate the writ petitioner without disturbing selections and appointments already made. 7. When this order was challenged in appeal, the appeal was also dismissed and the order passed by the learned Single Judge was affirmed. 8. It appears that later on, when the writ petitioner was not given any appointment and he was communicated that as the post is not available, he cannot be given appointment, contempt petition came to be filed. In that contempt petition, when the case was heard by the learned Single Judge on 20.11.2021, learned Single Judge taking into consideration the direction issued by the Court and not accepting the defence of there being no post available, directed the Director and the Secretary, Primary Education Department to remain present in the Court to explain as to why they should not be punished. At this stage, though the concerned officers who were directed to remain present have not appealed, but the State has filed the appeal. 9. It appears to us that the learned Single Judge has passed a direction being not satisfied of the stated reasons for non-compliance of the order and it has not decided any independent issue. At this stage, though the concerned officers who were directed to remain present have not appealed, but the State has filed the appeal. 9. It appears to us that the learned Single Judge has passed a direction being not satisfied of the stated reasons for non-compliance of the order and it has not decided any independent issue. To say that the order of the Court could not be complied with for want of vacancy is essentially in the realm of defence. Learned Single Judge has not decided on any other issue, post direction issued by the learned Single Judge and affirmed by the Division Bench, but only in furtherance of non- compliance of the earlier directions issued by the Court. 10. Two decisions, which have been cited at the Bar by the learned Additional Advocate General, would not apply to the facts and circumstances of the present case in view of the nature of order, which has been passed by the learned Single Judge and assailed in the appeal. 11. In the case of J.S. Parihar (supra), in a contempt petition filed seeking action against the authorities for non- compliance of the Court order, the Hon'ble Supreme Court noted that the learned Single Judge had decided the legality and validity of subsequent actions by an independent adjudication on merits and that too in contempt proceedings. In that factual matrix and peculiar circumstances, the Hon'ble Supreme Court held that the order, standalone, would constitute an independent adjudication and, therefore, notwithstanding that appeal under Section 19 of the Ordinance would not be maintainable, held the appeal maintainable under Section 18 provided for letters patent appeal. Therefore, on facts, the aforesaid judgment is distinguishable. 12. The other decision in the case of Midnapore People's Co.op. Bank Ltd. & Others (supra), which has been relied by learned Additional Advocate General, affirms the principle laid down by the Hon'ble Supreme Court in the case of J.S. Parihar (supra). While considering scope and ambit of provision of appeal as provided under Section 19 of the Contempt of Courts Act, 1971, the Hon'ble Supreme Court summarised the legal position as below: '11. While considering scope and ambit of provision of appeal as provided under Section 19 of the Contempt of Courts Act, 1971, the Hon'ble Supreme Court summarised the legal position as below: '11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus : I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and therefore, not appealable under section 19 of CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly. Re : Point No. (ii) :' 13. Such an order is open to challenge in an intra-court appeal (if the order was of a learned single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases). The first point is answered accordingly. Re : Point No. (ii) :' 13. In particular, it was held that if the High Court, for whatsoever reasons decides an issue or makes any direction relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. On that analogy, it was held that such an order is open to challenge in an intra-court appeal provided that there is a provision for intra-court appeal against the order of the learned Single Judge or by seeking special leave to appeal under Article 136 of the Constitution of India where no intra-court appeal is provided under the relevant Acts and Rules governing the field. 14. Therefore, the principle applied in all the cases is that while exercising contempt jurisdiction in contempt proceedings, any independent adjudication takes place on any issue on merits between the parties, though appeal under Section 19 of the Act would not be maintainable, but if there is a provision for intra- court appeal, the appeal would be maintainable against the order of the learned Single Judge. 15. Common thread of reasoning in the aforesaid decisions is that there should be an independent adjudication on the merits of dispute between the parties. 16. Learned Single Judge, as is clear from the order itself, has not gone into or decided any issue on merits between the parties. All that it has ordered is that since there was direction to accommodate, the authorities were bound to accommodate. 17. Even no appeal would lie under Rule 134 of the Rules of the High Court of Rajasthan, 1952, which provides as below: '134. All that it has ordered is that since there was direction to accommodate, the authorities were bound to accommodate. 17. Even no appeal would lie under Rule 134 of the Rules of the High Court of Rajasthan, 1952, which provides as below: '134. (i) Appeal to the High Court from Judgment of Judges of the Court:- An appeal shall lie to the High Court from the Judgment or a final order (not being a Judgment passed in the exercise of appellate Jurisdiction in respect of a decree or order made in the exercise of appellate Jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revisional Jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence or in the exercise of criminal Jurisdiction) of one Judge of the High Court.' 18. Without commenting upon the correctness of the order passed by the learned Single Judge as to whether in the circumstances, such direction was justified or not, we are of the considered view that it does not amount to an independent adjudication of an issue on merits between the parties. It is even not a case of deciding any issue based on fresh cause of action after the order passed by the Court. If such a situation does not exist, in our view, this appeal would not be maintainable because the contempt proceedings are still pending and no punishment order has so far been passed by the learned Single Judge in its contempt jurisdiction. 19. In the result, appeal is held to be not maintainable in law. We leave the aggrieved parties/State to take recourse to such remedy as may be available to them in law. 20. Appeal is dismissed as not maintainable.