NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (C) No. 421 of 2014
In
CIVIL APPEAL NO. 4831 OF 2014
GAURI SHANKAR PD. RAI .........PETITIONER
Vs.
SAJAL CHAKROBORTY, CHIEF SECRETARY,
GOVT.OF JHARKHAND AND ORS. ......RESPONDENTS
WITH
CONTEMPT PETITION(C)No.428/2014 in C.A. No.4815/2014
CONTEMPT PETITION(C)No.431/2014 in C.A. No.4823/2014
CONTEMPT PETITION(C)No.427/2014 in C.A. No.4836/2014
CONTEMPT PETITION(C)No.424/2014 in C.A. No.4824/2014
CONTEMPT PETITION(C)No.432/2014 in C.A. No.4828/2014
CONTEMPT PETITION(C)No.423/2014 in C.A. No.4822/2014
CONTEMPT PETITION(C)No.425/2014 in C.A. No.4821/2014
CONTEMPT PETITION(C)No.433/2014 in C.A. No.4820/2014
CONTEMPT PETITION(C)No.426/2014 in C.A. No.4817/2014
CONTEMPT PETITION(C)No.430/2014 in C.A. No.4819/2014
CONTEMPT PETITION(C)No.422/2014 in C.A. No.4832/2014
CONTEMPT PETITION(C)No.429/2014 in C.A. No.4830/2014
CONTEMPT PETITION(C)No.502/2014 in C.A. No.4829/2014
CONTEMPT PETITION(C)No.501/2014 in C.A. No.4818/2014
CONTEMPT PETITION(C)No.503/2014 in C.A. No.4812/2014
CONTEMPT PETITION(C)No.350/2014 in C.A. No.4809/2014
CONTEMPT PETITION(C)No.547/2014 in C.A. No.4810/2014
O R D E R
V.GOPALA GOWDA, J.
The above said group of contempt petitions are filed by the
complainant-petitioners requesting this Court to initiate the contempt
proceedings against the respondents for their alleged disobedience in not
complying with the direction issued by this Court in the judgment dated
23.04.2014 passed in Civil Appeal No.4809 of 2014 along with other batch of
Civil Appeals, the operative portion of the order passed in the above
Appeals reads thus:
"...We accordingly direct the appellants to implement the orders of the
Division Bench of the High Court thereby continuing the respondents in
their services and extend all benefits as have been granted by it in the
impugned judgment."
Contempt Petition No. 350 of 2014 in C.A. No. 4809 of 2014 was first taken
up on 11.8.2014, when this Court ordered the issuance of notice.
Subsequently, the other connected contempt petitions were also listed along
with the main contempt petition No.421 of 2014 in C.A. No. 4831 of 2014.
The respondents appeared through their counsel who sought time to comply
with the order and filed their counter affidavit.
Vide letter No. R.C. D-01-CC-12/2011/7030(S), the Government of Jharkhand,
Road Construction Department, issued a Notification dated 15.09.2014 to one
of the complainants, the relevant portion of which reads thus:
"In compliance of the order dated 23.04.2014 of the Hon'ble Supreme Court
in Civil Appeal No. 4809 of 2014 @ SLP (C)No. 266 of 2012, State of
Jharkhand & Ors. Vs. Kamal Prasad & Ors., the cabinet's sanction has been
obtained in the meeting dated 11.09.2014 and vide departmental resolution
No. 6977 (S) WE, dated 15.09.2014, services of Shri Paras Kumar as
Assistant Engineer on ad-hoc basis, are hereby regularised from his date of
joining i.e. 27.06.1987.
By order of Governor of Jharkhand
Sd/-
Principal Secretary to the Government
15.09.2014
Similar notifications were also issued to all the other complainants.
The complainants, on being aggrieved by the partial compliance of the
judgment and order of this Court dated 23.4.2014, have filed these contempt
petitions and produced the Notifications sent by the respondents along with
the affidavits. Mr. J.P. Cama, the learned senior counsel on behalf of the
complainants, has submitted that the respondents have not fully complied
with the judgment and order of this Court dated 23.04.2014 and therefore,
they have wilfully disobeyed the order, which warrants further proceedings
against them. We have heard him as well as Mr.P.P. Rao, the learned senior
counsel appearing on behalf of the respondents.
The learned senior counsel on behalf of the complainants has invited our
attention to the averments made in the writ petitions filed by the
complainants before the High Court of Jharkhand along with the prayer made
by them under clause 'C' of the writ petition No. 2087 of 2010, wherein the
complainants have prayed before the High Court for the regularisation of
their services on the said posts in terms with the conscious policy
decision taken by the Notification No. 10113(s) dated 11.09.2009 by the
Cadre Controlling State of Bihar. The contents of the same read thus:
"(C) Further for direction upon the respondents to treat the petitioners
equally to that of similarly situated 120 persons appointed along with the
petitioners who fortuously remained working in the territory of successor
State of Bihar w.e.f. 15.11.2000 and are still working without any
disturbance and accordingly to consider the petitioners for regularization
along with them in terms with the conscious policy decision taken vide
notification no. 10113 (s) dated 11.09.2009 by the Cadre Controlling State
of Bihar and in pursuance thereof, the petitioners have also applied for
the same and which is in active considerations."
He has further placed strong reliance upon the judgment and order of the
learned single Judge as well as the Division Bench of the High Court in
support of his contention that the regularisation of the services of the
complainants was sought even in relation to the posts of Junior Engineers
and averments have been made to that effect in the writ petitions. He has
further adverted to the Division Bench judgment of the High Court wherein
it is stated that the complainants have rendered 30 years of service both
in the State Government of Bihar and Jharkhand. The learned senior counsel
has placed reliance upon certain paragraphs from the aforesaid judgment,
which read thus:
"25...............These persons continued in service for almost 30 years by
the State Government (Bihar and Jharkhand both) not under any stay order
passed by any Court and these employees, after 30 years of their service
how can be rendered jobless when not only their life but life of their
entire family is dependent upon this job. It is submitted that these
employees should compete with other eligible persons and may get the job
and in some of the cases Courts directed and the State Governments relaxed
the age."
x x x x x x
29............At the cost of the repetition we may mention here that the
writ petitioners' eligibility at the time of appointment is not in question
nor the conduct of these writ petitioners was questioned for more than 25
years by the State Government then simply because that there is some
indication in the order that competent authorities may pass any order in
relation to the services of the writ petitioners, the State Government
proceeded to issue show-cause notice and then passed the order of
termination of services of these employees, which cannot be justified.
30. The contention of the learned Advocate General that the show-cause
notice is not without jurisdiction or it is not passed by the authority
having no power are absolutely misplaced arguments in as much as that the
State wanted to take a decision to dispense with the services of the writ
petitioners then the State should have applied its mind and should have
looked into all aspects including why their services are sought to be
terminated/dispensed with after 30 years of their services from the time of
their appointment on the post of Junior Engineers and why their services
cannot be regularized and who has created this irrevertible situation?"
He has further contended that with regard to certain factual and legal
aspects urged, the Division Bench of the High Court at para 33 of its
judgment has passed the following order:
"33. In view of the reasons mentioned above, the LPA is allowed and
impugned order dated 25.07.2011 is set aside. Interlocutory Application No.
3223/2011 is allowed and the order of termination of services of the writ
petitioners and the show-cause notice are quashed and the petitioners shall
be entitled to all the consequential benefits also."
The same was sought to be justified by the complainants' senior counsel in
the Civil Appeal No.4809 of 2014, which relevant aspects have been referred
to in the judgment dated 23.04.2014 passed by this Court at paras 4 and 6,
which read thus:.
"4. The respondent-employees (the writ petitioners before the High Court),
were initially appointed in the year 1981 in the posts of Junior Engineers
in the Rural Development Department in the erstwhile State of Bihar in
respect of which the recommendation of the Bihar Public Service Commission
(for short "the BPSC") was not required. It is the case of the respondent
employees that they have continuously discharged their duties in the above
posts honestly and diligently to the satisfaction of their employer. They
were subsequently appointed on ad-hoc temporary basis as Assistant
Engineers in the pay-scales of Rs. 1000-50-1700/- P.Ro-10-1820/-, with
certain conditions on the basis of recommendation made by the BPSC against
temporary posts from the date of notification. Their services as Assistant
Engineers on ad-hoc basis were entrusted to work in the Road Construction
Department where they were required to contribute their work within the
stipulated period. The relevant condition No. 2 in the said notification
No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is extracted hereunder:-
"1. XXX XXX XXX
2. This ad-hoc appointment shall be
dependent on approval of Bihar Public
Service Commission.
3. XXX XXX XXX ......"
It is their further case that they have been working in the said
posts for more than 29 years from the date of first appointment as Junior
Engineers and 23 years from the appointment in the posts of Assistant
Engineers on ad-hoc basis. Neither the BPSC nor Bihar State Government nor
Jharkhand State Government had intention to dispense with the services of
these employees. Therefore, they did not take steps to dispense with their
services from their posts. The employees approached the High Court when
they were issued the show cause notices dated 20.4.2010 by the appellant
No.3. After taking substantial work from the respondent-employees they have
been harassed by issuing show cause notices asking them to show cause as to
why their services should not be terminated on the ground of their
appointment to the posts as illegal/invalid. Their appointments were,
however, not held to be invalid either by the orders of the High Court or
Supreme Court in spite of the fact that 199 posts filled up by
advertisement No.128/1996 issued by the BPSC dated 2.9.1996 as the same
would not affect the respondent-employees who otherwise have been in
continuous service for more than 23 years in the substantial posts of Road
Construction Department and not of Rural Engineering/Rural Works
Department. Therefore, it was pleaded by them that the impugned notices
issued to them was an empty formality with preconceived decision and the
same is also not only discriminatory but also suffers from legal mala
fides, arbitrariness, unreasonableness and is in utter transgression of the
interim order dated 22.3.2010 passed in W.P. (S) No. 1001 of 2010 amounting
to overreaching the majesty of the High Court.
6. Further, direction was sought by the respondent employees from the High
Court in the Writ Petitions to treat them equally at par with similarly
situated 120 persons appointed along with them who fortuitously remained
working in the territory of successor State of Bihar namely, after the
Jharkhand State was formed w.e.f. 15.11.2000 without any disturbance and
consider their claim for regularization along with them in terms with the
conscious Policy decision taken by it vide notification No. 10113(s) dated
11.09.2009 by the Cadre Controlling State of Bihar and in pursuance thereof
the respondent-employees have also applied for the same and which is in
active consideration of the State of Jharkhand and further they sought for
issuance of a writ of prohibition restraining the appellants from
termination of their services from their posts in pursuance of the impugned
show cause notices as they had seriously apprehended in the light of pre-
decisive and prejudicial findings and reasons recorded in the impugned
notices in the garb of order dated 22.3.2010 passed in W.P.(S) No. 1001 of
2010, that their services might be terminated. However, the fact remains
that they are discharging their regular service to the appellants (although
their posts are termed as ad-hoc in nomenclature) for more than 29 years
from the initial appointment as Junior Engineers since the year 1981 after
following due procedure of Advertisement etc. and their services have been
upgraded to the posts of Assistant Engineer again on temporary basis in
1987 pursuant to Cabinet decision of the erstwhile State of Bihar
Government with the permission of BPSC who had recognized their
qualification of degree and experience. Therefore, their appointment to the
posts is legal and valid from their date of inception of their original
appointment as Junior Engineers in the erstwhile State Government of Bihar
stating that the appellants have been discharging their regular services in
the respondent State although they treated them as ad hoc regular service
in the respondent state their posts are termed as ad hoc in nomenclature
for more than 29 years from the initial appointment as Junior Engineers
since the year 1981 and after following the procedure of advertisement etc.
and their services have been upgraded to the posts of Assistant Engineers
(Civil) again on temporary basis in 1987 pursuant to the Cabinet decision
of the erstwhile Bihar Government the Bihar Public Service Commission
(BPSC) which recognised their qualification of their experience........."
After noting the aforesaid relevant facts, as has been urged in the writ
petition proceedings and civil appeals before this Court, this Court has
passed the judgment and order dated 23.04.2014, the operative portion of
which is extracted above, in which the relief as prayed by the complainants
was granted accordingly by this Court.
Therefore, the learned senior counsel for the complainants has submitted
that the purport of the judgments and orders of the High Court and this
Court are that the complainants are entitled for regularisation in their
posts from 1981, i.e. from the date they have been appointed as Junior
Engineers in the Department of the State Government of Jharkhand and the
said posts of the complainants have been upgraded to Assistant Engineers by
giving them promotion, pursuant to the Cabinet decision.
Therefore, he has prayed that they are entitled for regularisation in
their posts from 1981, i.e. from the year they were initially appointed to
the said posts and not from 1987 as has been notified to them by the
respondents in the above mentioned Notification as the same does not amount
to full compliance of this Court's direction issued in the judgment and
order as has been submitted by the learned senior counsel for the
complainants. Therefore, he has urged that there has not been full
compliance of the operative portion of the judgment and order of this
Court.
On the other hand, Mr. P.P. Rao, the learned senior counsel for the
respondents has sought to justify the compliance affidavit and the
Notifications produced along with the affidavit by contending that the
direction given by the High Court and this Court in the operative portion
of the orders is that regularisation of the complainants' services in the
posts of Assistant Engineers must be done by the respondents and the same
has been complied with by them. He has further contended that there is
neither any specific prayer nor any direction in the judgment of the single
Judge or the Division Bench of the High Court directing the respondents to
regularise their services to the posts of Junior Engineers from the year
1981. In the absence of the same, it cannot be said that there is a wilful
disobedience on the part of the respondents on which these contempt
proceedings could be initiated against them. In support of this contention
he has placed strong reliance upon the judgments of this Court, wherein
this Court has laid down the law that the contempt proceedings can be
maintained and proceedings can be initiated against the respondents by the
complainants only when there is a wilful disobedience of the judgement and
order by them. In support of the above legal submissions he has placed
reliance upon the decision of this Court in the case of All India Anna
Dravida Munnetra Kazhagam vs. L.K. Tripathi and Ors.[1], wherein this Court
has held thus:
"64. In Kapildeo Prasad Sah and Ors. v. State of Bihar and Ors. : (1999)
7 SC 569, the Court outlined the object of its contempt jurisdiction in the
following words:
"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 with. Even negligence and carelessness can amount to
disobedience particularly when the attention of the person is drawn to the
court's orders and its implications. Disobedience of the court's order
strikes at the very root of the 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.
x x x
11. No person can defy the court's order. Wilful would exclude casual
accidental, bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of the
court's order must allege deliberate or contumacious disobedience of the
court's order.""
In the present cases, the regularisation of the services of the
complainants has been made from the respective dates i.e, from the date on
which they were appointed to the post of Assistant Engineers from the posts
Junior Engineers, in the absence of any specific plea or any direction
given in the impugned order by both the Courts to the respondents to
regularise the services of the complainants w.e.f. 1981 in the posts of
junior Engineers. Therefore, it cannot be said that it is a wilful
disobedience of the judgment and order on the part of the respondents and
that they have committed contempt of this Court. Therefore, the learned
senior counsel for the respondents has requested this Court to drop the
said proceedings.
He further contends that if they are aggrieved by the non-grant of the
regularisation of the services of the complainants to the said posts w.e.f.
1981, they are required to initiate appropriate proceedings before a
competent Court of law and get such directions issued to the respondents
and therefore he has prayed to drop the proceedings by accepting the
compliance affidavit.
We have heard the learned senior counsel on behalf of both the parties.
With reference to the aforesaid rival legal contentions urged and after
careful consideration of the averments made along with the prayer made in
the writ petitions and on a perusal of the judgments and orders of both the
High Court and this Court, we pass the following order:
Our attention has been rightly invited by the learned senior counsel
for the complainants, Mr.J.P. Cama, to the pleadings and the prayer at
clause 'C' of the writ petition before the High Court as well as the
operative portion of the orders passed by the Division Bench of the High
Court dated 8.11.2011 and this Court dated 23.04.2014. We have adverted to
certain facts at paras 4 and 6 of the judgment dated 23.04.2014 of this
Court with reference to the claim of the contempt petitioners. Though the
complainants were initially appointed to the services in the erstwhile
State of Bihar, subsequently on the bifurcation of Bihar and Jharkhand
States, the services of these complainants have been transferred to the
State of Jharkhand and they have been functioning as such in the posts of
Assistant Engineers. Therefore, the contention of the learned senior
counsel, Mr. P.P. Rao, that the notification issued by the erstwhile Bihar
State cannot be applied to the complainants who have been transferred and
fall under the jurisdiction of the Jharkhand State is wholly untenable in
law for the reason that prior to their appointment to the posts of
Assistant Engineers in the State of Jharkhand, they have been discharging
their duties similar to that of permanent Junior Engineers from the year
1981 in the erstwhile State of Bihar and therefore, treating their services
as ad hoc, after promoting them to the said posts of Assistant Engineers,
without giving them pay scale payable to the said permanent posts in the
State of Jharkhand is erroneous and contrary to law. Therefore, the
contention urged in this regard by Mr. P.P. Rao cannot be accepted by us.
The learned senior counsel on behalf of the respondents has contended
that there are neither any pleadings nor any specific prayer in the writ
petitions filed by the complainants nor any specific directions were given
in the judgments and orders of both the High Court as well as this Court to
the respondents to regularize the services of the complainants with effect
from 1981. The said contention cannot be accepted by this Court for the
reason that it is contrary to the record and therefore, the same is wholly
untenable in law. The purport of the judgments and orders of the High Court
as well as this Court makes it amply clear that the respondents shall
regularize the services of the complainants with effect from 1981 in the
posts of Junior Engineers also.
However, in our considered view, the reliance placed upon the judgments
and orders of the High Court as well as this Court do support the
contention of the complainants for the reason that there is wilful
disobedience on the part of the respondents as they have partially
fulfilled the direction given by this Court as well as the High Court with
regard to the regularization of the services of the complainants from the
year 1987.
However, further direction is issued to the respondents to regularise the
services of the complainants from the date of their initial appointment as
Junior Engineers i.e. from the year 1981. Not complying with the directions
issued by this Court from the above mentioned year would amount to
deprivation of the legitimate rights of the complainants as determined by
the High Court and this Court in the judgments and orders.
After taking the entire litigation, pleadings, documents on record and
the rival legal contentions urged on behalf of the parties into
consideration, we direct the respondents to comply with the above said
direction after properly understanding the purport of the judgments and
orders of the High Court as well as this Court.
For the aforesaid reasons, we give one more opportunity to the
respondents to comply with the judgments and orders in toto for the
regularization of the services of the complainants from the year 1981. The
same cannot be treated as a fresh direction issued in the contempt
petitions to the respondents as we have indicated the purport of the
operative portion of the judgments and orders of the High Court as well as
this Court. The respondents shall comply with the order as indicated above
and submit their compliance report within four weeks from today.
..................................................................J.
[V. GOPALA GOWDA]
..................................................................J.
[C. NAGAPPAN]
New Delhi,
April 9, 2015
ITEM NO.1A-For JUDGMENT COURT NO.11 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CONMT.PET.(C) No. 421/2014 In C.A. No. 4831/2014
GAURI SHANKAR PD RAI Petitioner(s)
VERSUS
SAJAL CHAKROBORTY CHIEF SECRETARY,
GOVT. OF JHARKHAND AND ORS Respondent(s)
WITH
CONMT.PET.(C) No. 428/2014 In C.A. No. 4815/2014
CONMT.PET.(C) No. 431/2014 In C.A. No. 4823/2014
CONMT.PET.(C) No. 427/2014 In C.A. No. 4836/2014
CONMT.PET.(C) No. 424/2014 In C.A. No. 4824/2014
CONMT.PET.(C) No. 432/2014 In C.A. No. 4828/2014
CONMT.PET.(C) No. 423/2014 In C.A. No. 4822/2014
CONMT.PET.(C) No. 425/2014 In C.A. No. 4821/2014
CONMT.PET.(C) No. 433/2014 In C.A. No. 4820/2014
CONMT.PET.(C) No. 426/2014 In C.A. No. 4817/2014
CONMT.PET.(C) No. 430/2014 In C.A. No. 4819/2014
CONMT.PET.(C) No. 422/2014 In C.A. No. 4832/2014
CONMT.PET.(C) No. 429/2014 In C.A. No. 4830/2014
CONMT.PET.(C) No. 502/2014 In C.A. No. 4829/2014
CONMT.PET.(C) No. 501/2014 In C.A. No. 4818/2014
CONMT.PET.(C) No. 503/2014 In C.A. No. 4812/2014
CONMT.PET.(C) No. 350/2014 IN C.A. No. 4809/2014
CONMT.PET.(C) No. 547/2014 In C.A. No. 4810/2014
Date : 09/04/2015 These petitions were called on for pronouncement of
JUDGMENT today.
For Petitioner(s)
Mr. Mohit Kumar Shah,Adv.
Mr. Akhilesh Kumar Pandey,Adv.
For Respondent(s)
Mr. Tapesh Kumar Singh,Adv.
Mr. Jayesh Gaurav, Adv.
Md. Waquas, Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C.Nagappan.
We give one more opportunity to the respondents to comply with
the judgments and orders in toto for the regularization of the services of
the complainants from the year 1981. The same cannot be treated as a fresh
direction issued in the contempt petitions to the respondents as we have
indicated the purport of the operative portion of the judgments and orders
of the High Court as well as this Court. The respondents shall comply with
the order as indicated above and submit their compliance report within four
weeks from today, in terms of the signed Non-Reportable Judgment.
List the matters after four weeks.
(VINOD KR.JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1] (2009) 5 SCC 417
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONTEMPT PETITION (C) No. 421 of 2014
In
CIVIL APPEAL NO. 4831 OF 2014
GAURI SHANKAR PD. RAI .........PETITIONER
Vs.
SAJAL CHAKROBORTY, CHIEF SECRETARY,
GOVT.OF JHARKHAND AND ORS. ......RESPONDENTS
WITH
CONTEMPT PETITION(C)No.428/2014 in C.A. No.4815/2014
CONTEMPT PETITION(C)No.431/2014 in C.A. No.4823/2014
CONTEMPT PETITION(C)No.427/2014 in C.A. No.4836/2014
CONTEMPT PETITION(C)No.424/2014 in C.A. No.4824/2014
CONTEMPT PETITION(C)No.432/2014 in C.A. No.4828/2014
CONTEMPT PETITION(C)No.423/2014 in C.A. No.4822/2014
CONTEMPT PETITION(C)No.425/2014 in C.A. No.4821/2014
CONTEMPT PETITION(C)No.433/2014 in C.A. No.4820/2014
CONTEMPT PETITION(C)No.426/2014 in C.A. No.4817/2014
CONTEMPT PETITION(C)No.430/2014 in C.A. No.4819/2014
CONTEMPT PETITION(C)No.422/2014 in C.A. No.4832/2014
CONTEMPT PETITION(C)No.429/2014 in C.A. No.4830/2014
CONTEMPT PETITION(C)No.502/2014 in C.A. No.4829/2014
CONTEMPT PETITION(C)No.501/2014 in C.A. No.4818/2014
CONTEMPT PETITION(C)No.503/2014 in C.A. No.4812/2014
CONTEMPT PETITION(C)No.350/2014 in C.A. No.4809/2014
CONTEMPT PETITION(C)No.547/2014 in C.A. No.4810/2014
O R D E R
V.GOPALA GOWDA, J.
The above said group of contempt petitions are filed by the
complainant-petitioners requesting this Court to initiate the contempt
proceedings against the respondents for their alleged disobedience in not
complying with the direction issued by this Court in the judgment dated
23.04.2014 passed in Civil Appeal No.4809 of 2014 along with other batch of
Civil Appeals, the operative portion of the order passed in the above
Appeals reads thus:
"...We accordingly direct the appellants to implement the orders of the
Division Bench of the High Court thereby continuing the respondents in
their services and extend all benefits as have been granted by it in the
impugned judgment."
Contempt Petition No. 350 of 2014 in C.A. No. 4809 of 2014 was first taken
up on 11.8.2014, when this Court ordered the issuance of notice.
Subsequently, the other connected contempt petitions were also listed along
with the main contempt petition No.421 of 2014 in C.A. No. 4831 of 2014.
The respondents appeared through their counsel who sought time to comply
with the order and filed their counter affidavit.
Vide letter No. R.C. D-01-CC-12/2011/7030(S), the Government of Jharkhand,
Road Construction Department, issued a Notification dated 15.09.2014 to one
of the complainants, the relevant portion of which reads thus:
"In compliance of the order dated 23.04.2014 of the Hon'ble Supreme Court
in Civil Appeal No. 4809 of 2014 @ SLP (C)No. 266 of 2012, State of
Jharkhand & Ors. Vs. Kamal Prasad & Ors., the cabinet's sanction has been
obtained in the meeting dated 11.09.2014 and vide departmental resolution
No. 6977 (S) WE, dated 15.09.2014, services of Shri Paras Kumar as
Assistant Engineer on ad-hoc basis, are hereby regularised from his date of
joining i.e. 27.06.1987.
By order of Governor of Jharkhand
Sd/-
Principal Secretary to the Government
15.09.2014
Similar notifications were also issued to all the other complainants.
The complainants, on being aggrieved by the partial compliance of the
judgment and order of this Court dated 23.4.2014, have filed these contempt
petitions and produced the Notifications sent by the respondents along with
the affidavits. Mr. J.P. Cama, the learned senior counsel on behalf of the
complainants, has submitted that the respondents have not fully complied
with the judgment and order of this Court dated 23.04.2014 and therefore,
they have wilfully disobeyed the order, which warrants further proceedings
against them. We have heard him as well as Mr.P.P. Rao, the learned senior
counsel appearing on behalf of the respondents.
The learned senior counsel on behalf of the complainants has invited our
attention to the averments made in the writ petitions filed by the
complainants before the High Court of Jharkhand along with the prayer made
by them under clause 'C' of the writ petition No. 2087 of 2010, wherein the
complainants have prayed before the High Court for the regularisation of
their services on the said posts in terms with the conscious policy
decision taken by the Notification No. 10113(s) dated 11.09.2009 by the
Cadre Controlling State of Bihar. The contents of the same read thus:
"(C) Further for direction upon the respondents to treat the petitioners
equally to that of similarly situated 120 persons appointed along with the
petitioners who fortuously remained working in the territory of successor
State of Bihar w.e.f. 15.11.2000 and are still working without any
disturbance and accordingly to consider the petitioners for regularization
along with them in terms with the conscious policy decision taken vide
notification no. 10113 (s) dated 11.09.2009 by the Cadre Controlling State
of Bihar and in pursuance thereof, the petitioners have also applied for
the same and which is in active considerations."
He has further placed strong reliance upon the judgment and order of the
learned single Judge as well as the Division Bench of the High Court in
support of his contention that the regularisation of the services of the
complainants was sought even in relation to the posts of Junior Engineers
and averments have been made to that effect in the writ petitions. He has
further adverted to the Division Bench judgment of the High Court wherein
it is stated that the complainants have rendered 30 years of service both
in the State Government of Bihar and Jharkhand. The learned senior counsel
has placed reliance upon certain paragraphs from the aforesaid judgment,
which read thus:
"25...............These persons continued in service for almost 30 years by
the State Government (Bihar and Jharkhand both) not under any stay order
passed by any Court and these employees, after 30 years of their service
how can be rendered jobless when not only their life but life of their
entire family is dependent upon this job. It is submitted that these
employees should compete with other eligible persons and may get the job
and in some of the cases Courts directed and the State Governments relaxed
the age."
x x x x x x
29............At the cost of the repetition we may mention here that the
writ petitioners' eligibility at the time of appointment is not in question
nor the conduct of these writ petitioners was questioned for more than 25
years by the State Government then simply because that there is some
indication in the order that competent authorities may pass any order in
relation to the services of the writ petitioners, the State Government
proceeded to issue show-cause notice and then passed the order of
termination of services of these employees, which cannot be justified.
30. The contention of the learned Advocate General that the show-cause
notice is not without jurisdiction or it is not passed by the authority
having no power are absolutely misplaced arguments in as much as that the
State wanted to take a decision to dispense with the services of the writ
petitioners then the State should have applied its mind and should have
looked into all aspects including why their services are sought to be
terminated/dispensed with after 30 years of their services from the time of
their appointment on the post of Junior Engineers and why their services
cannot be regularized and who has created this irrevertible situation?"
He has further contended that with regard to certain factual and legal
aspects urged, the Division Bench of the High Court at para 33 of its
judgment has passed the following order:
"33. In view of the reasons mentioned above, the LPA is allowed and
impugned order dated 25.07.2011 is set aside. Interlocutory Application No.
3223/2011 is allowed and the order of termination of services of the writ
petitioners and the show-cause notice are quashed and the petitioners shall
be entitled to all the consequential benefits also."
The same was sought to be justified by the complainants' senior counsel in
the Civil Appeal No.4809 of 2014, which relevant aspects have been referred
to in the judgment dated 23.04.2014 passed by this Court at paras 4 and 6,
which read thus:.
"4. The respondent-employees (the writ petitioners before the High Court),
were initially appointed in the year 1981 in the posts of Junior Engineers
in the Rural Development Department in the erstwhile State of Bihar in
respect of which the recommendation of the Bihar Public Service Commission
(for short "the BPSC") was not required. It is the case of the respondent
employees that they have continuously discharged their duties in the above
posts honestly and diligently to the satisfaction of their employer. They
were subsequently appointed on ad-hoc temporary basis as Assistant
Engineers in the pay-scales of Rs. 1000-50-1700/- P.Ro-10-1820/-, with
certain conditions on the basis of recommendation made by the BPSC against
temporary posts from the date of notification. Their services as Assistant
Engineers on ad-hoc basis were entrusted to work in the Road Construction
Department where they were required to contribute their work within the
stipulated period. The relevant condition No. 2 in the said notification
No. Work/G/1-402/87,248/(S) Patna dated 27.6.1987 is extracted hereunder:-
"1. XXX XXX XXX
2. This ad-hoc appointment shall be
dependent on approval of Bihar Public
Service Commission.
3. XXX XXX XXX ......"
It is their further case that they have been working in the said
posts for more than 29 years from the date of first appointment as Junior
Engineers and 23 years from the appointment in the posts of Assistant
Engineers on ad-hoc basis. Neither the BPSC nor Bihar State Government nor
Jharkhand State Government had intention to dispense with the services of
these employees. Therefore, they did not take steps to dispense with their
services from their posts. The employees approached the High Court when
they were issued the show cause notices dated 20.4.2010 by the appellant
No.3. After taking substantial work from the respondent-employees they have
been harassed by issuing show cause notices asking them to show cause as to
why their services should not be terminated on the ground of their
appointment to the posts as illegal/invalid. Their appointments were,
however, not held to be invalid either by the orders of the High Court or
Supreme Court in spite of the fact that 199 posts filled up by
advertisement No.128/1996 issued by the BPSC dated 2.9.1996 as the same
would not affect the respondent-employees who otherwise have been in
continuous service for more than 23 years in the substantial posts of Road
Construction Department and not of Rural Engineering/Rural Works
Department. Therefore, it was pleaded by them that the impugned notices
issued to them was an empty formality with preconceived decision and the
same is also not only discriminatory but also suffers from legal mala
fides, arbitrariness, unreasonableness and is in utter transgression of the
interim order dated 22.3.2010 passed in W.P. (S) No. 1001 of 2010 amounting
to overreaching the majesty of the High Court.
6. Further, direction was sought by the respondent employees from the High
Court in the Writ Petitions to treat them equally at par with similarly
situated 120 persons appointed along with them who fortuitously remained
working in the territory of successor State of Bihar namely, after the
Jharkhand State was formed w.e.f. 15.11.2000 without any disturbance and
consider their claim for regularization along with them in terms with the
conscious Policy decision taken by it vide notification No. 10113(s) dated
11.09.2009 by the Cadre Controlling State of Bihar and in pursuance thereof
the respondent-employees have also applied for the same and which is in
active consideration of the State of Jharkhand and further they sought for
issuance of a writ of prohibition restraining the appellants from
termination of their services from their posts in pursuance of the impugned
show cause notices as they had seriously apprehended in the light of pre-
decisive and prejudicial findings and reasons recorded in the impugned
notices in the garb of order dated 22.3.2010 passed in W.P.(S) No. 1001 of
2010, that their services might be terminated. However, the fact remains
that they are discharging their regular service to the appellants (although
their posts are termed as ad-hoc in nomenclature) for more than 29 years
from the initial appointment as Junior Engineers since the year 1981 after
following due procedure of Advertisement etc. and their services have been
upgraded to the posts of Assistant Engineer again on temporary basis in
1987 pursuant to Cabinet decision of the erstwhile State of Bihar
Government with the permission of BPSC who had recognized their
qualification of degree and experience. Therefore, their appointment to the
posts is legal and valid from their date of inception of their original
appointment as Junior Engineers in the erstwhile State Government of Bihar
stating that the appellants have been discharging their regular services in
the respondent State although they treated them as ad hoc regular service
in the respondent state their posts are termed as ad hoc in nomenclature
for more than 29 years from the initial appointment as Junior Engineers
since the year 1981 and after following the procedure of advertisement etc.
and their services have been upgraded to the posts of Assistant Engineers
(Civil) again on temporary basis in 1987 pursuant to the Cabinet decision
of the erstwhile Bihar Government the Bihar Public Service Commission
(BPSC) which recognised their qualification of their experience........."
After noting the aforesaid relevant facts, as has been urged in the writ
petition proceedings and civil appeals before this Court, this Court has
passed the judgment and order dated 23.04.2014, the operative portion of
which is extracted above, in which the relief as prayed by the complainants
was granted accordingly by this Court.
Therefore, the learned senior counsel for the complainants has submitted
that the purport of the judgments and orders of the High Court and this
Court are that the complainants are entitled for regularisation in their
posts from 1981, i.e. from the date they have been appointed as Junior
Engineers in the Department of the State Government of Jharkhand and the
said posts of the complainants have been upgraded to Assistant Engineers by
giving them promotion, pursuant to the Cabinet decision.
Therefore, he has prayed that they are entitled for regularisation in
their posts from 1981, i.e. from the year they were initially appointed to
the said posts and not from 1987 as has been notified to them by the
respondents in the above mentioned Notification as the same does not amount
to full compliance of this Court's direction issued in the judgment and
order as has been submitted by the learned senior counsel for the
complainants. Therefore, he has urged that there has not been full
compliance of the operative portion of the judgment and order of this
Court.
On the other hand, Mr. P.P. Rao, the learned senior counsel for the
respondents has sought to justify the compliance affidavit and the
Notifications produced along with the affidavit by contending that the
direction given by the High Court and this Court in the operative portion
of the orders is that regularisation of the complainants' services in the
posts of Assistant Engineers must be done by the respondents and the same
has been complied with by them. He has further contended that there is
neither any specific prayer nor any direction in the judgment of the single
Judge or the Division Bench of the High Court directing the respondents to
regularise their services to the posts of Junior Engineers from the year
1981. In the absence of the same, it cannot be said that there is a wilful
disobedience on the part of the respondents on which these contempt
proceedings could be initiated against them. In support of this contention
he has placed strong reliance upon the judgments of this Court, wherein
this Court has laid down the law that the contempt proceedings can be
maintained and proceedings can be initiated against the respondents by the
complainants only when there is a wilful disobedience of the judgement and
order by them. In support of the above legal submissions he has placed
reliance upon the decision of this Court in the case of All India Anna
Dravida Munnetra Kazhagam vs. L.K. Tripathi and Ors.[1], wherein this Court
has held thus:
"64. In Kapildeo Prasad Sah and Ors. v. State of Bihar and Ors. : (1999)
7 SC 569, the Court outlined the object of its contempt jurisdiction in the
following words:
"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 with. Even negligence and carelessness can amount to
disobedience particularly when the attention of the person is drawn to the
court's orders and its implications. Disobedience of the court's order
strikes at the very root of the 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.
x x x
11. No person can defy the court's order. Wilful would exclude casual
accidental, bona fide or unintentional acts or genuine inability to comply
with the terms of the order. A petitioner who complains breach of the
court's order must allege deliberate or contumacious disobedience of the
court's order.""
In the present cases, the regularisation of the services of the
complainants has been made from the respective dates i.e, from the date on
which they were appointed to the post of Assistant Engineers from the posts
Junior Engineers, in the absence of any specific plea or any direction
given in the impugned order by both the Courts to the respondents to
regularise the services of the complainants w.e.f. 1981 in the posts of
junior Engineers. Therefore, it cannot be said that it is a wilful
disobedience of the judgment and order on the part of the respondents and
that they have committed contempt of this Court. Therefore, the learned
senior counsel for the respondents has requested this Court to drop the
said proceedings.
He further contends that if they are aggrieved by the non-grant of the
regularisation of the services of the complainants to the said posts w.e.f.
1981, they are required to initiate appropriate proceedings before a
competent Court of law and get such directions issued to the respondents
and therefore he has prayed to drop the proceedings by accepting the
compliance affidavit.
We have heard the learned senior counsel on behalf of both the parties.
With reference to the aforesaid rival legal contentions urged and after
careful consideration of the averments made along with the prayer made in
the writ petitions and on a perusal of the judgments and orders of both the
High Court and this Court, we pass the following order:
Our attention has been rightly invited by the learned senior counsel
for the complainants, Mr.J.P. Cama, to the pleadings and the prayer at
clause 'C' of the writ petition before the High Court as well as the
operative portion of the orders passed by the Division Bench of the High
Court dated 8.11.2011 and this Court dated 23.04.2014. We have adverted to
certain facts at paras 4 and 6 of the judgment dated 23.04.2014 of this
Court with reference to the claim of the contempt petitioners. Though the
complainants were initially appointed to the services in the erstwhile
State of Bihar, subsequently on the bifurcation of Bihar and Jharkhand
States, the services of these complainants have been transferred to the
State of Jharkhand and they have been functioning as such in the posts of
Assistant Engineers. Therefore, the contention of the learned senior
counsel, Mr. P.P. Rao, that the notification issued by the erstwhile Bihar
State cannot be applied to the complainants who have been transferred and
fall under the jurisdiction of the Jharkhand State is wholly untenable in
law for the reason that prior to their appointment to the posts of
Assistant Engineers in the State of Jharkhand, they have been discharging
their duties similar to that of permanent Junior Engineers from the year
1981 in the erstwhile State of Bihar and therefore, treating their services
as ad hoc, after promoting them to the said posts of Assistant Engineers,
without giving them pay scale payable to the said permanent posts in the
State of Jharkhand is erroneous and contrary to law. Therefore, the
contention urged in this regard by Mr. P.P. Rao cannot be accepted by us.
The learned senior counsel on behalf of the respondents has contended
that there are neither any pleadings nor any specific prayer in the writ
petitions filed by the complainants nor any specific directions were given
in the judgments and orders of both the High Court as well as this Court to
the respondents to regularize the services of the complainants with effect
from 1981. The said contention cannot be accepted by this Court for the
reason that it is contrary to the record and therefore, the same is wholly
untenable in law. The purport of the judgments and orders of the High Court
as well as this Court makes it amply clear that the respondents shall
regularize the services of the complainants with effect from 1981 in the
posts of Junior Engineers also.
However, in our considered view, the reliance placed upon the judgments
and orders of the High Court as well as this Court do support the
contention of the complainants for the reason that there is wilful
disobedience on the part of the respondents as they have partially
fulfilled the direction given by this Court as well as the High Court with
regard to the regularization of the services of the complainants from the
year 1987.
However, further direction is issued to the respondents to regularise the
services of the complainants from the date of their initial appointment as
Junior Engineers i.e. from the year 1981. Not complying with the directions
issued by this Court from the above mentioned year would amount to
deprivation of the legitimate rights of the complainants as determined by
the High Court and this Court in the judgments and orders.
After taking the entire litigation, pleadings, documents on record and
the rival legal contentions urged on behalf of the parties into
consideration, we direct the respondents to comply with the above said
direction after properly understanding the purport of the judgments and
orders of the High Court as well as this Court.
For the aforesaid reasons, we give one more opportunity to the
respondents to comply with the judgments and orders in toto for the
regularization of the services of the complainants from the year 1981. The
same cannot be treated as a fresh direction issued in the contempt
petitions to the respondents as we have indicated the purport of the
operative portion of the judgments and orders of the High Court as well as
this Court. The respondents shall comply with the order as indicated above
and submit their compliance report within four weeks from today.
..................................................................J.
[V. GOPALA GOWDA]
..................................................................J.
[C. NAGAPPAN]
New Delhi,
April 9, 2015
ITEM NO.1A-For JUDGMENT COURT NO.11 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CONMT.PET.(C) No. 421/2014 In C.A. No. 4831/2014
GAURI SHANKAR PD RAI Petitioner(s)
VERSUS
SAJAL CHAKROBORTY CHIEF SECRETARY,
GOVT. OF JHARKHAND AND ORS Respondent(s)
WITH
CONMT.PET.(C) No. 428/2014 In C.A. No. 4815/2014
CONMT.PET.(C) No. 431/2014 In C.A. No. 4823/2014
CONMT.PET.(C) No. 427/2014 In C.A. No. 4836/2014
CONMT.PET.(C) No. 424/2014 In C.A. No. 4824/2014
CONMT.PET.(C) No. 432/2014 In C.A. No. 4828/2014
CONMT.PET.(C) No. 423/2014 In C.A. No. 4822/2014
CONMT.PET.(C) No. 425/2014 In C.A. No. 4821/2014
CONMT.PET.(C) No. 433/2014 In C.A. No. 4820/2014
CONMT.PET.(C) No. 426/2014 In C.A. No. 4817/2014
CONMT.PET.(C) No. 430/2014 In C.A. No. 4819/2014
CONMT.PET.(C) No. 422/2014 In C.A. No. 4832/2014
CONMT.PET.(C) No. 429/2014 In C.A. No. 4830/2014
CONMT.PET.(C) No. 502/2014 In C.A. No. 4829/2014
CONMT.PET.(C) No. 501/2014 In C.A. No. 4818/2014
CONMT.PET.(C) No. 503/2014 In C.A. No. 4812/2014
CONMT.PET.(C) No. 350/2014 IN C.A. No. 4809/2014
CONMT.PET.(C) No. 547/2014 In C.A. No. 4810/2014
Date : 09/04/2015 These petitions were called on for pronouncement of
JUDGMENT today.
For Petitioner(s)
Mr. Mohit Kumar Shah,Adv.
Mr. Akhilesh Kumar Pandey,Adv.
For Respondent(s)
Mr. Tapesh Kumar Singh,Adv.
Mr. Jayesh Gaurav, Adv.
Md. Waquas, Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C.Nagappan.
We give one more opportunity to the respondents to comply with
the judgments and orders in toto for the regularization of the services of
the complainants from the year 1981. The same cannot be treated as a fresh
direction issued in the contempt petitions to the respondents as we have
indicated the purport of the operative portion of the judgments and orders
of the High Court as well as this Court. The respondents shall comply with
the order as indicated above and submit their compliance report within four
weeks from today, in terms of the signed Non-Reportable Judgment.
List the matters after four weeks.
(VINOD KR.JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable Judgment is placed on the file)
-----------------------
[1] (2009) 5 SCC 417
