|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2504-2505 OF 2012
1
2 Salauddin Ahmed & Anr. … Appellants
Vs.
2 Samta Andolan … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. These appeals arise out of the common judgment and order dated 23rd
February, 2012, passed by the Division Bench of the Rajasthan High Court in
D.B. Civil Contempt Petition No.941 of 2010 and D.B. Civil Contempt
Petition No.359 of 2011, whereby the alleged contemnors were held to be
guilty of contempt of court for having violated the order passed by the
Division Bench of the Jaipur Bench of the Rajasthan High Court on 5th
February, 2010, in D.B. Civil Writ Petition No.8104 of 2008.
2. From the materials on record it transpires that on 27th November,
1972, the State of Rajasthan issued a Notification providing for
reservation for Scheduled Castes/Scheduled Tribes candidates to the extent
of 15% for Scheduled Castes and 7.5% for Scheduled Tribes. Subsequently, on
and from 3rd October, 1973, such reservation was increased to 16% and 12%
for Scheduled Castes and Scheduled Tribes candidates, respectively. On 29th
January, 1981, the Rules for promotion based on the criteria of seniority-
cum-merit were introduced. In 1992, in the case of Indira Sawhney Vs.
Union of India & Ors. [(1992) Supp.3 SCC 217], this Court had held that
reservation in promotional posts for Scheduled Castes and Scheduled Tribes
candidates was not permissible. The effect of the said decision was
neutralized by the Constitution (Seventy Seventh Amendment) Act, enacted on
17th June, 1995, whereby Article 16(4-A) was inserted in the Constitution
to provide for reservation in respect of Scheduled Castes and Scheduled
Tribes candidates in promotional posts.
3. The aforesaid amendment led to a spurt of litigation. In 1996, while
considering the said issue in the case of Ajit Singh Januja & Ors. Vs.
State of Punjab & Ors. [(1996) 2 SCC 715] (Ajit Singh-I), this Court held
that even if the person in reserved category is promoted earlier than a
general category candidate due to operation of roster, and subsequently,
the general category candidate was also promoted, the candidates in the
general category would regain their seniority as existing in the cadre
prior to promotion. This method of allowing a subsequent promotee to regain
seniority came to be known as the “catch-up” principle. On 30th January,
1997, the Union of India issued a memorandum to all the various departments
asking them to implement the decision rendered by this Court regarding
regaining of seniority pursuant to the said direction. Thereafter, on 1st
April, 1997, the State of Rajasthan followed suit and introduced the “catch-
up” principle. A provisional seniority list of candidates belonging to the
Rajasthan Administrative Services was issued on 26th June, 2000, on the
basis of the Notification dated 1st April, 1997. However, it was never
given effect to and was ultimately quashed by the Rajasthan High Court in
Writ Petition (Civil) Nos.2968 of 2000, 2176 of 2000, 3373 of 2000 and 3385
of 2000.
4. In 2001, the Parliament passed the Constitution (Eighty Fifth
Amendment) Act inserting the words “consequential seniority” for members of
reserved category. Thus the said amendment removed the basis of the
judgment rendered by this Court in Union of India & Ors. Vs. Virpal Singh
Chauhan [(1995) 6 SCC 684] and in Ajit Singh-I’s case (supra). The
provisions of the said amendment were given retrospective effect from
17.6.1995, in order to remove the provision relating to the “catch-up”
principle with retrospective effect.
5. In 2002, a writ petition was filed before this Court by the All India
Equality Forum against the State of Rajasthan, seeking to strike down the
Constitution (Eighty Second Amendment) Act and the Constitution (Eighty
Fifth Amendment) Act of 2001. The writ petitioner claimed similar reliefs
as in M. Nagaraj & Ors. Vs. Union of India & Ors. [(2006) 8 SCC 212].
Thereafter, on 11th November, 2002, the interim order regarding
implementation of Article 16(4-A) of the Constitution was clarified and it
was indicated that if certain candidates from reserved category were
entitled to promotion in terms of the provisions of Article 16(4-A), they
would be promoted. It was, therefore, the stand of the Union of India that
the interim order could not be construed to be a bar to implementation of
the amendment to Article 16(4-A). The order also provided that no person
was to be reverted from their existing placement or standing in the
seniority list.
6. After having introduced the same, the State of Rajasthan by its
Notification dated 28th December, 2002, withdrew the “catch-up” principle
after the introduction of the Constitution (Eighty Fifth Amendment) Act.
From the Notification dated 28th December, 2002, it would be seen that an
attempt was made to preserve the rights of general category candidates, who
had already been promoted vide Notification dated 1st April, 1997. It was
also indicated that persons who had already been promoted vide Notification
dated 1st April, 1997, were not to be reverted.
7. The vires of Article 16(4-A), 16(4-B) and Article 335 of the
Constitution was challenged and in M. Nagaraj’s case (supra) it was
considered by a Constitution Bench of this Court, which upheld the validity
of Articles 16(4-A), 16(4-B) and the amendment to Article 335 of the
Constitution, but imposed certain conditions regarding reservation in
promotion and accelerated promotions. This Court directed that the State
should collect quantifiable data, after which the Committee should also
examine the requirements relating to backwardness, inadequacy in
representation and efficiency for the purpose of grant of reservation in
promotion and accelerated promotions. One of the areas of dispute between
the parties is that the State Government also withdrew the “catch-up”
principle in favour of general category candidates with retrospective
effect, but without following the principles enunciated in M. Nagaraj’s
case (supra). On 24th June, 2008, a seniority list was drawn up without
considering the “catch-up” principle, which also gave effect to the
Notification dated 25th April, 2008.
8. On 22nd August, 2008, D.B. Civil Writ Petition No.8104 of 2008 was
filed by Bajrang Lal Sharma and others, challenging the said Notification
dated 25th April, 2008, and the seniority list drawn up consequent thereto.
While entertaining the writ petition, the Division Bench of the High Court
stayed the said Notification dated 25th April, 2008.
9. On 4th March, 2009, a seniority list was prepared, but the same was
quashed by the learned Single Judge. The Notifications dated 28th December,
2002 and 23rd April, 2008, were challenged before the High Court by several
candidates belonging to the general category and the same were ultimately
quashed by the High Court on 5th February, 2010, on the ground that the
conditions precedent laid down in M. Nagaraj’s case (supra), had not been
followed. The High Court was also of the view that the right which had
vested to the candidates by virtue of the Notification dated 1st April,
1997, and had been protected by Notification dated 28th December, 2002, had
been illegally taken away vide Notification dated 25th April, 2008.
10. On 16th November, 2010, the general category employees filed a
contempt petition against the Chief Secretary for not implementing the
order passed by the High Court on 5th February, 2010, which was registered
as D.B. Civil Contempt Petition No.914 of 2010 in D.B. Civil Contempt
Petition No.8104 of 2009, titled as Samta Andolan Vs. Salauddin Ahmad &
Anr. On an application filed before this Court, this Court vide its order
dated 16th November, 2010, stayed the contempt proceedings pending before
the High Court.
11. The case made out in the Contempt Petition was that despite the
judgment dated 5th February, 2010, and the dismissal of the various Special
Leave Petitions filed by the State of Rajasthan and others on 7th December,
2010, the State authorities were not complying with the said judgment.
According to the Petitioners in the Contempt Petitions, the judgment of the
High Court passed on 5th February, 2010, became final after the dismissal
of the Special Leave Petitions, but despite the same, they were not being
complied with by the concerned authorities of the State. The authorities
were deferring compliance of the judgment dated 5th February, 2010, on the
ground that they were undertaking the exercise of collecting quantifiable
data required to enable the State of Rajasthan to exercise its powers under
Article 16(4-A) of the Constitution. It was the further grievance of the
Contempt Petitioners that the letter issued by the State on 14th February,
2011, was in purported compliance of the judgment dated 7th December, 2010,
passed in SLP(C) No.6385 of 2010, asking all the Departments to give
information with regard to the SC/ST employees from 1.4.1997 onwards on
year-wise basis, which was not contemplated in the M. Nagaraj judgment. It
was also the case of the Contempt Petitioners that Article 16(4-A) is an
enabling provision based on the Government’s information with regard to the
backwardness and inadequate representation of SC/ST employees, which could
not be given retrospective effect.
12. On account of the inaction of the alleged contemnors on the said
ground, the Contempt Petitioners not only prayed for taking severe action
against the Contemnors, but to also give suitable directions to the said
Respondents/ Contemnors to implement the judgment dated 5th February, 2010,
passed in D.B. Civil Writ Petition No.8104 of 2008 and that the Petitioners
be allowed to regain their accrued and vested seniority.
13. As indicated hereinabove, the Division Bench of the High Court found
the Appellants herein to be guilty of having committed contempt of Court
for deliberate and willful violation of the order passed by the Division
Bench of the Jaipur Bench of the Rajasthan High Court on 5th February,
2010.
14. Thereafter, on 7th December, 2010, the State of Rajasthan filed a
Special Leave Petition against the order passed by the High Court on 5th
February, 2010, by which the Notifications dated 28th December, 2002 and
25th April, 2008, had been quashed. While upholding the judgment of the
High Court, this Court also observed that the claims of the reserved
category candidates could be considered after following the principles laid
down in M. Nagaraj’s case (supra). On 22nd December, 2010, a substantive
writ petition was filed by Captain Gurvinder Singh & Ors. etc. challenging
the vires of the Rajasthan Scheduled Castes, Scheduled Tribes, Backward
Classes, Special Backward Classes & Economically Backward Classes
(Reservation of Seats in Educational Institutions in the State and of
Appointments & Posts in Services under the State) Act of 2008, hereinafter
referred to as “2008 Act”. The main ground of challenge was with regard to
the reservation exceeding the 50% ceiling due to extension of reservation
to Special Backward Classes & Economically Backward classes. The High
Court by its order dated 22nd December, 2010, restrained the State from
giving effect to Sections 3 and 4 of the 2008 Act. It is the case of the
Appellants that the said order was directed against the reservation in
respect of Special Backward Classes & Economically Backward Classes and had
nothing to do with reservation in respect of promotion for Scheduled Castes
and Scheduled Tribes candidates.
15. On 31st March, 2011, the State Government constituted the Bhatnagar
Committee to look into the different aspects relating to reservation in
promotion and consequential seniority in terms of the judgment rendered in
M. Nagaraj’s case (supra). Immediately, thereafter, on 13th April, 2011, a
further contempt petition was filed by Shri Bajrang Lal Sharma. The
Bhatnagar Committee Report was submitted to the State Government on 19th
August, 2011 and on 11th September, 2011, the State Government, in exercise
of its powers under the proviso to Article 309 of the Constitution of India
and on the basis of the Bhatnagar Committee Report, framed a Rule with
retrospective effect from 1st April, 1997, so that the vacuum which had
been created could be filled up. The Rule also provided for roster-based
promotion based on the posts available and also preserved the rights of the
general category candidates who had earned promotions between the period
1st April, 1997 to 28th December, 2002, or the promotions which had
actually been given effect to in terms of the repealed Notification dated
1st April, 1997.
16. Appearing for the Appellants, the learned Attorney General pointed
out that the Notification issued by the State Government on 11th September,
2011, had been declared void by the High Court by holding that the same did
not amount to valid compliance and the Notification dated 1st April, 1997,
should be given effect to. The learned Attorney General submitted that
since by the Notification dated 11th September, 2011, the earlier
Notification dated 1st April, 1997 had been withdrawn, the same could not
be given effect to without first declaring the Notification dated 11th
September, 2011, to be ultra vires.
17. The learned Attorney General submitted that the Notification dated
11th September, 2011, could not have been declared ultra vires in the
absence of a substantive writ petition challenging the same, and, in any
event, it could not be questioned in a contempt proceeding or be declared
ultra vires therein, particularly, when the Bhatnagar Committee had been
appointed in terms of the order passed by this Court in M. Nagaraj’s case
(supra) and the Notification dated 11th September, 2011, was issued in
pursuance of the Report of the said Committee.
18. The learned Attorney General urged that by the order passed by the
Division Bench of the High Court in D.B. Civil Writ Petition No.8104 of
2008, the Notifications dated 28th December, 2002, and 25th April, 2008,
were declared to be ultra vires the Constitution. As a result, the
consequential orders passed by the State, including preparation of the
seniority list of the Super-time Scale Officers and the Selection Scale of
the Rajasthan Administrative Service Officers, passed on the basis of the
aforesaid Notifications, were quashed. Aggrieved by the said order, the
State of Rajasthan and Shri Suraj Bhan Meena filed separate Special Leave
Petitions before this Court which were disposed of on 7th December, 2010.
This Court allowed the claim of Suraj Bhan Meena (SC/ST candidates),
subject to the conditions laid down in M. Nagaraj’s case (supra).
19. While the various above-mentioned proceedings were being pursued,
Writ Petition No.13491 of 2009 was filed challenging the vires of the 2008
Act. A prayer was also made to review the ceiling limit in favour of SC,
ST and OBC candidates of 16%, 12% and 21%, respectively. The Notification
dated 25th August, 2009, was also questioned. The subject matter of the
Writ Petition was focussed on reservation to special backward classes and
economically backward classes. By an order dated 22nd December, 2010,
passed in the said Writ Petition, a Division Bench of the Rajasthan High
Court stayed the operation of Sections 3 and 4 of the Act along with
Notification dated 25th August, 2009, and the matter was referred to the
Rajasthan State Backward Classes Commission, before whom the State
Government was directed to place the quantifiable data within a period of
one year. The stay granted was directed to continue till the matter was
decided afresh.
20. Subsequently, contempt proceedings were taken, being No.359 of 2011,
challenging the letter dated 14th February, 2011, issued by the State of
Rajasthan to the Heads of all Departments asking for information regarding
representation of SC/ST employees. Ultimately, by the order impugned in
these appeals, the High Court held the Appellants herein to be guilty of
contempt of Court, inasmuch as, despite sufficient time having been given
to the Respondents to comply with the order dated 5th February, 2010, the
Appellants failed to do so even after a lapse of 14 months after their
Special Leave Petitions were dismissed by this Court. The High Court also
took note of the fact that the Appellant No.1 herein, Shri Salauddin Ahmed,
did not even reply to the show-cause notice issued to him, which the High
Court interpreted to mean that the said Appellant had nothing to say in his
defence regarding the allegation of contempt of Court made against him.
The High Court further noted that on several occasions time was sought for
by the State to comply with the order passed on 5th February, 2010, but
nothing was done in the matter. Giving the Appellants 3 days’ time to purge
themselves of the contempt and to comply with the orders passed by the
Court, the Court further directed the Appellants to be present in person
before the Court for the purpose of sentencing in case of non-compliance.
21. Aggrieved by the order of the Division Bench of the Rajasthan High
Court, the State Government filed Civil Appeal No.2504-2505 of 2011 and on
27th February, 2012, this Court issued notice and stayed further
proceedings before the High Court.
22. The learned Attorney General submitted that the order dated 5th
February, 2010, was in two parts. While one part dealt with quashing of
the Notifications dated 28th December, 2002 and 25th April, 2008, the other
part was with regard to the directions given in M. Nagaraj’s case (supra)
for the collection of quantifiable data. It was further submitted that the
State of Rajasthan had consistently acted as per the directions given in
paragraph 68 of the judgment rendered in Suraj Bhan Meena’s case (supra),
whereby it was directed that the claim of the Petitioners, Suraj Bhan Meena
and Sriram Chordia, in SLP (C) No.6385 of 2010, would be subject to the
conditions laid down in M. Nagaraj’s case (supra).
23. The learned Attorney General submitted that pursuant to the
directions given in Suraj Bhan Meena’s case (supra), the State of Rajasthan
issued a letter to all the Departments on 14th February, 2011, to ensure
compliance of the judgment dated 7th December, 2010. In addition, the
State Government sought information with regard to representation of SC/ST
employees in public employment from 1.4.1997 to 1.4.2010 on a year-wise
basis. The learned Attorney General contended that on 8th March, 2011, one
more contempt petition was filed, viz., Contempt Petition No.359 of 2011,
in relation to the letter dated 14th February, 2011, referred to
hereinabove. It was submitted that the State cannot collect data with
retrospective effect in pursuance of the decision in M. Nagaraj’s case
(supra) and the judgment dated 7th December, 2010. It was also submitted
that the State of Rajasthan was not required to collect the quantifiable
data to comply with the judgment dated 5th February, 2010.
24. It was also contended that the contempt petitioner had misunderstood
the import of the judgment dated 5th February, 2010, passed by the Division
Bench of the High Court in relation to the judgment of this Court dated 7th
December, 2010. The learned Attorney General submitted that it was on
account of the confusion in the mind of the Petitioner that a prayer had
been made in the Contempt Petition for suitable directions upon the
contemnors to implement the judgment dated 5th February, 2010, passed in
D.B. Civil Writ Petition No.8104 of 2008 and to allow the Petitioners to
regain their accrued and vested seniority given to them in pursuance of the
seniority list of 26.6.2000. It was submitted that the seniority list of
26.6.2000 had already been quashed by the High Court in a dispute between
direct recruits and promotees and the said matter is pending in this Court
by way of a Special Leave Petition.
25. The learned Attorney General submitted that the constitution of the
Bhatnagar Committee in pursuance of the order passed by this Court on 7th
December, 2010, was challenged by filing of interlocutory applications,
both before this Court and also before the High Court. All the
interlocutory applications were taken up for consideration and disposed of
by this Court on 20th July, 2011. The learned Attorney General submitted
that in the said order, this Court had recorded the fact that Mr. M.L.
Lahoti, learned counsel appearing for the Respondents, did not challenge
the formation of the Committee, but contended that its findings should have
prospective operation and could not affect the case of the writ
petitioners, Suraj Bhan Meena and others. It was also emphasized that this
Court took cognizance of the constitution of the Bhatnagar Committee, but
did not pass any restraint orders with regard to its functioning. On the
other hand, while disposing of the several interlocutory applications, this
Court also observed that the parties would be free to make their
submissions with regard to the action taken by the State Government in the
matter pending before the High Court. The learned Attorney General urged
that the High Court had noticed the order passed by this Court on 7th
December, 2010, but had not considered the directions contained therein.
26. The learned Attorney General submitted that the Bhatnagar Committee
Report had been submitted on 19th August, 2011, and after due consideration
of the Report, a Notification was issued on 11th September, 2011. However,
it was also noticed by the High Court that the constitution of the
Bhatnagar Committee, as also the Notification issued on 11th September,
2011, was not in conformity with the judgment rendered by the High Court on
5th February, 2010, without noticing that the same was in compliance of the
directions contained in paragraph 68 of the judgment delivered by this
Court on 7th December, 2010. The learned Attorney General submitted that
the directions contained in the aforesaid judgment dated 7th December,
2010, recognizing the rights of the reserved category (Petitioners therein)
and directing the determination of such rights, be undertaken after
completion of the exercise laid down in M. Nagaraj’s case (supra).
27. On maintainability, it was contended that it was beyond the powers of
this Court to declare a law ultra vires in the contempt jurisdiction. It
was also contended that in view of the decision of this Court in State of
U.P. vs. Hirendra Pal Singh [(2011) 5 SCC 305], a judicial order could not
be passed to give effect to a repealed law or a law which was no longer in
existence, as has been done in the instant case. The learned Attorney
General reiterated that the High Court had erroneously declared the
Notification dated 11th September, 2011, to be ultra vires without any
challenge being made to such Notification.
28. The learned Attorney General submitted that the Bhatnagar Committee
had been formed pursuant to the directions given by this Court in Suraj
Bhan Meena’s case (supra) and this Court while disposing of the Special
Leave Petitions filed by Suraj Bhan Meena and others categorically
indicated that the impugned order of the High Court was, in fact, based on
the decision in M. Nagaraj’s case (supra) as no exercise had been
undertaken in terms of Article 16(4-A) to acquire quantifiable data
regarding the inadequacy of representation of the Scheduled Castes and
Scheduled Tribes communities in public service and that the Rajasthan High
Court had rightly quashed the notifications dated 28th December, 2002 and
25th April, 2008, issued by the State of Rajasthan providing for
consequential seniority and promotion to the members of the Scheduled
Castes and Scheduled Tribes communities. The Special Leave Petitions were,
therefore, disposed of by observing that the claim of the Petitioners,
Suraj Bhan Meena and Sriram Chordia in SLP (C) No.6385 of 2010, would be
subject to the conditions laid down in M. Nagaraj’s case (supra). The
Special Leave Petitions filed by the State of Rajasthan were consequently
dismissed. The learned Attorney General urged that this Court had, in
fact, directed that the parties would be free to make their submissions
with regard to the action taken by the State Government in the matter
pending before the High Court.
29. The learned Attorney General concluded on the note that as recently
observed by this Court in Dinesh Kumar Gupta Vs. United India Insurance Co.
Ltd. [(2010) 12 SCC 770], in order to establish that a civil contempt had
been committed, it would have to be shown that the concerned authority had
willfully and deliberately disobeyed the orders passed by the High Court
without any reasonable or rational interpretation of the order. It was
also observed that it would not also be correct to hold that a contempt had
been committed when the disobedience was neither deliberate nor willful,
but the steps taken were on account of the ignorance of the correct legal
position and the action taken was in good faith without any malafide motive
to defeat or defy the Court’s order.
30. The learned Attorney General submitted that in this case, in
compliance with the decision in Suraj Bhan Meena’s case (supra) and the
directions given both in M. Nagaraj’s case (supra)and in Suraj Bhan Meena’s
case (supra), the concerned authorities had appointed the Bhatnagar
Committee to enter into a fact finding exercise in accordance with the
provisions of Article 16(4-A) of the Constitution. It could not be said
that there was any willful or deliberate intention or malafide motive on
the part of the concerned authorities in not complying with the directions
contained in the judgment of the High Court dated 5th February, 2010. The
Contempt Petition was, therefore, liable to be dismissed.
31. Mr. C.S. Vaidyanathan, learned Senior Advocate, who had appeared for
the second contemnor, Khemraj Chaudhary, while adopting the submissions
made by the learned Attorney General, submitted that the steps taken by the
Respondents were in keeping with the directions given both in M. Nagaraj’s
case (supra)and in Suraj Bhan Meena’s case (supra), for identifying such
members of the SC/ST communities who would be entitled to the benefits
provided under Article 16(4-A) of the Constitution. Mr. Vaidyanathan
reiterated the submissions made before the High Court that the Contempt
Petitions were, in fact, not maintainable as the orders out of which the
same had arisen had merged in the order of this Court when the Special
Leave Petitions were dismissed by a reasoned judgment. Accordingly, by
virtue of the doctrine of merger, the said orders do not exist and, if any
contempt is alleged, it would be with regard to the orders passed by this
Court and the High Court had no jurisdiction to entertain the matter.
32. Mr. Vaidyanathan further submitted that on account of non-compliance
with the three requirements indicated in M. Nagaraj’s case (supra), the
notification dated 28th December, 2002, stood vitiated. However, with the
quashing of the said notification dated 28th December, 2002, the
notification dated 1st April, 1997, which stood deleted by notification
dated 28th December, 2002, stood revived and continued to be in operation.
33. Mr. Harish Salve, learned Senior Advocate, who also appeared for the
Respondents, contended that Civil Appeal No.171 of 2002, filed by the State
of Rajasthan against Hanuman Singh Bhati & Ors., was pending before this
Court, but this Court had not stayed the operation of the orders either of
the Single Bench or the Division Bench. As a result, even by sheer
inaction in carrying out the directions contained in the judgment of this
Court dated 7th December, 2010, the contemnors had violated the orders of
this Court, as there was no justification for the contemnors not to give
effect to the directions contained in the said order. Mr. Salve submitted
that in Maninderjit Singh Bitta Vs. Union of India & Ors. [(2012) 1 SCC
273], this Court had held that even inaction to implement the orders of the
Court amounts to disobedience within the meaning of civil contempt. Mr.
Salve urged that in the absence of any stay, the contemnors ought not to
have sat over the matter, but should have taken steps to implement the
directions contained in the said order. Mr. Salve submitted that so long
as the catch up principle in terms of the Notification dated 1st April,
1997, continued to be in existence, no change could be made in matters of
promotion, unless the requirements set out in M. Nagaraj’s case were fully
satisfied. Mr. Salve urged that in the facts and circumstances of this
case, contempt was writ large on account of inaction of the contemnors in
giving effect to the directions contained in the judgment dated 5th
February, 2010.
34. Dr. Rajeev Dhawan, learned Senior Advocate, who also appeared for the
Respondents, approached the matter from a slightly different angle.
Arguing that the doctrine of merger could not be applied to a contempt
proceeding, Dr. Dhawan referred to Kunhayammed & Ors. Vs. State of Kerala &
Anr. [(2000) 6 SCC 359]. Dr. Dhawan urged that the doctrine of merger
depends on the facts of each case. Dr. Dhawan submitted that even in Suraj
Bhan Meena’s case (supra), this Court upheld the judgment of the High Court
dated 5th February, 2010, without making any changes, which could have
altered the purport of the said judgment. Dr. Dhawan also contended that
so long as the “catch-up” doctrine continued to be in force under the
Notification dated 1st April, 1997, which stood revived on account of the
quashing of the Notifications dated 28th December, 2002 and 25th February,
2008, it could not be contended that by appointing the Bhatnagar Committee,
the alleged contemnors had not willfully violated the directions given by
this Court in Suraj Bhan Meena’s case (supra).
35. Dr. Dhawan fairly conceded that an order may be violated without any
willful intent to disobey the same. Referring to paragraph 459 of
Halsbury’s Laws of England, dealing with “unintentional disabilities”, Dr.
Dhawan pointed out that sometimes it may so happen that an order of Court
is breached without any intention on the part of the offender to do so.
Dr. Dhawan submitted that this could be such a case and, accordingly, the
contemnors could be directed to purge themselves of the contempt by
withdrawing all the Notifications, including the Notification dated 11th
September, 2011, and implementing the order dated 5th February, 2010, and
also to punish the contemnors without sentence.
36. In order to establish that a person had deliberately and willfully
committed contempt of Court, two essential ingredients have to be proved.
Firstly, it has to be established that an order has been passed by the
Court which either directs certain things to be done by a person or to
restrain such person or persons from doing certain acts and that the person
or persons had knowledge of the said order. Secondly, it has to be
established that despite having knowledge of such order, the person
concerned deliberately and willfully violated the same with the intention
of lowering the dignity and image of the Court. We have to see whether in
the facts of this case the said two tests are satisfied.
37. Admittedly, Civil Writ Petition No.8104 of 2008, along with several
other writ petitions, were disposed of by the Division Bench by its
judgment and order dated 5th February, 2010, by quashing the Notifications
dated 25th April, 2008 and 28th December, 2002, issued by the State
Government without following the exercise indicated in M. Nagaraj’s case
(supra). As has been mentioned hereinbefore, by its Notification dated
25th April, 2008, the Government of Rajasthan in exercise of its powers
conferred by the proviso to Article 309 of the Constitution of India,
amended the Rajasthan Various Service Rules, as mentioned in the Schedule
appended therewith, with effect from 28th December 2002. By such
amendment, the existing proviso to the Rule providing that a candidate, who
had got the benefit of the proviso inserted vide Notification dated 1st
April, 1997, on promotion to an immediate higher post, would not be
reverted and his seniority would remain unaffected, subject to the final
decision of this Court in Writ Petition (C) No.234/2002, was deleted. For
the sake of record, it may be indicated that before the Division Bench of
the High Court it had been conceded by the learned Advocate General that
the exercise as contemplated in M. Nagaraj’s case (supra), had not been
undertaken by the State before issuing the Notifications dated 25th April,
2008 and 28th December, 2002. It is on that basis that the said two
Notifications and all consequential orders or actions taken by the
Respondent State, including preparation of seniority list of Super Time
Scale and Selection Scale Officers of the Rajasthan Administrative Service,
on the basis thereof, were also quashed and set aside. While quashing the
said Notifications, the Division Bench took note of the observations made
in M. Nagaraj’s case (supra) that Clause (4-A) of Article 16 was only an
enabling provision and the State was not bound to make reservations of
Scheduled Castes and Scheduled Tribes in the matter of promotion, but if
they did wish to exercise their discretion in that regard, the State had to
collect quantifiable data showing backwardness of the class and inadequacy
of representation of that class in public employment, in addition to
compliance with Article 335. The same not having been done, the said
Notifications were quashed.
38. Inasmuch as, no further action was taken by the State and its
authorities after the said Notifications were quashed, the contempt
petition was filed mainly on the ground that the State and its authorities
had by their inaction in complying with the requirements set out in M.
Nagaraj’s case (supra), committed contempt of Court and the same was
accepted and the Appellants herein were found guilty of having committed
contempt of Court by such inaction.
39. The next thing that we are required to consider is whether such
inaction was on account of any circumstances which prevented the State
Government and its authorities from taking action in terms of the
observations made by the Division Bench of the High Court in its judgment
dated 5th February, 2010, or whether such inaction was on account of the
deliberate intention of the State and its authorities not to give effect to
the same.
40. The learned Attorney General, who had appeared for the State of
Rajasthan and its authorities, had submitted that the Order dated 5th
February, 2010, was in two parts. While one part dealt with the quashing
of the two Notifications, the other was with regard to the observations
made in the said order with regard to the directions given in M. Nagaraj’s
case (supra) for collection of the quantifiable data before giving effect
to the provisions of Article 16(4-A) of the Constitution. The learned
Attorney General has also emphasized that in order to give effect to the
second part of the judgment and order of the Division Bench of the
Rajasthan High Court and the directions given in paragraph 68 of the
judgment in Suraj Bhan Meena’s case (supra), the Government of Rajasthan
had appointed the Bhatnagar Committee to obtain the quantifiable data to
comply with the directions given in the two aforesaid judgments. The
learned Attorney General has also pointed out that directions have been
given to all the different departments on 14th February, 2011, to ensure
compliance with the directions contained in Suraj Bhan Meena’s case
(supra).
41. Although, it has been urged on behalf of the Respondents that there
was a restraint order on the State and its authorities from giving effect
to the observations made in the order passed by the Division Bench of the
High Court on dated 5th February, 2010, or even in the order passed in
Suraj Bhan Meena’s case (supra), the State and its authorities remained
inactive on the plea that it had appointed the Bhatnagar Committee to
collect the data necessary in terms of the judgment and order passed in M.
Nagaraj’s case, which had been reiterated by this Court in Suraj Bhan
Meena’s case (supra).
42. The explanation given on behalf of the State and its authorities
cannot be discounted, since in order to act in terms of the sentiments
expressed by the High Court and this Court, it was necessary to collect the
quantifiable data in respect of Scheduled Castes and Scheduled Tribes
candidates. For collection of such data, the State appointed the Bhatnagar
Committee which was entrusted with the work of obtaining such quantifiable
data so that the provisions of the amended Clause (4-A) included in Article
16 of the Constitution could be given effect to in terms of the directions
given in M. Nagaraj’s case subsequently reiterated in Suraj Bhan Meena’s
case.
43. The various submissions advanced by Mr. Salve, Dr. Dhawan and Mr.
Sanjeev Prakash Sharma in support of the decision of the Division Bench of
the High Court, holding the Appellants guilty of contempt of Court and, in
particular, the alleged inaction to implement the judgment and orders in M.
Nagaraj’s case and Suraj Bhan Meena’s case are not very convincing, since
in order to comply with the findings in M. Nagaraj’s case and Suraj Bhan
Meena’s case, necessary data was required to be collected, in the absence
of which it was not possible for the State and its authorities to act in
terms of the observations made in M. Nagaraj’s case and in Suraj Bhan
Meena’s case (supra).
44. Accordingly, we are of the view that despite the fact that there has
been delay on the part of the State and its authorities in giving effect to
the observations made in the two aforesaid cases, there was no willful or
deliberate intention on their part to defy the orders of this Court. The
very fact that the Bhatnagar Committee was appointed indicates that the
State and its authorities had every intention to implement the aforesaid
observations, though the progress of such implementation has been tardy.
Accordingly, we are unable to sustain the impugned judgment and order of
the Division Bench of the High Court holding the Appellants guilty of
contempt of Court for purported violation of the order passed by the
Division Bench of the Jaipur Bench of the Rajasthan High Court on 5th
February, 2010, while disposing of the Civil Writ Petition No.8410 of 2008.
Consequently, the judgment and order under appeal has to be set aside.
45. We, accordingly, allow the appeals and set aside the aforesaid
judgment, but with the further direction that the State and its authorities
act in terms of the Report of the Bhatnagar Committee, in accordance with
the decision rendered in M. Nagaraj’s case and in Suraj Bhan Meena’s case
(supra), within two months from the date of communication of this judgment
and order.
46. There will be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated:29.08.2012.
