Patna High Court - Orders
Rajesh Kumar & Ors vs The State Of Bihar & Ors on 21 October, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1159 of 2014
In
Miscellaneous Jurisdiction Case No. 101 of 2005
======================================================
1. 1. Rajesh Kumar s/o Lt. Mahendra Thakur vill. + P.O. Marwa,
Thana Bihpur, Distt. - Bhagalpur
2. Dharmendra Deo S/o Sri Musafir Pd. Yadav vill. - Parmeshwar
Bigha, P.O. Andarwari, P.S. Rajauli, Distt. - Nawadah
3. Arun Kumar S/o Sri Din Dayal Bhagat At + P.O. Tribeniganj,
Distt. Supaul
4. 4. Kumari Vani Singh C/o Umeshwar Pd. Singh, Advocate Babu
Tola, Banka, Distt. - Banka
5. Sunil Kumar S/o Late Kirtinarayan Yadav vill. - Arraha, P.O.
Suhath, Distt. - Saharsa
6. Dharmendra Kumar Singh S/o Bhubneshwar Pd. Singh At + Post
Patay, Via - Singheshwar Distt. - Madhepura
7. Gurucharan Paswan At Hasanpur, P.O. Mahammadganj, Distt. -
Supaul
8. Rupnarayan Yadav S/o Late Tilo Yadav At + P.O. Ranipatty via -
Kumarkhand, Distt. - Madhepura
9. Chandra Shekhar Azad At - Masharma, P.O. Bhura, via
Triveniganj, Supaul
10. Digvijay Narayan Purushotam S/o Late Ram Pyare Ram vill. + Post
Saradih, via Khushrupur, P.S. Harnaut, Distt. - Nalanda Pin -
803202
11. Shashi Bhushan Prasad S/o Late Radha Raman Prasad At + P.O.
Sanaiya, Distt. - Sheikhpura
12. Kamleshwari Ram S/o Late Mangal Ram At Andi Patti, Post Israin
Kala, via Kumarkhand, Distt. - Madhepura, Pin - 852112
13. Jay Prakash Narayan s/o Binod Prasad Yadav At Champanagar,
P.O. Halas Via Raghopur, Distt. - Supaul, Pin - 852111
14. Md. Tahir Hussain Son of Abdul Rajak vill. - Koriyapatti, Post -
Devipur, Via - Ganpatganj, Distt. - Supaul
.... .... Appellants
Versus
1. The State of Bihar
2. The Principal Secretary, Human Resources Development Department,
Government of Bihar, Patna
3. The Director ( Secondary Education ) Human Resource Development
Department, Government of Bihar, Patna
4. Principal Secretary, General Administration Bihar, Patna
5. Principal Secretary, Law Department - cum - Legal Remembrance,
Bihar, Patna
.... .... Respondents
======================================================
WITH
Letters Patent Appeal No.1161 of 2014
IN
Miscellaneous Jurisdiction Case No. 5242 of 2012
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 2
======================================================
1. Ravikant Kumar Saurabh S/o Sri Rajendra Prasad Shanti Kunj, Vidhan
Parisad Colony BHC, Patna 800026
2. Sanjay Kumar Pandey S/o Sri Nagandranath Pandey Nalbandh Toli
Panjabi Market Buxar 802101
3. Birendra Yadav S/o Sri Dukha Yadav r/o vill. - Etahari, P.O.
Gahaumani, P.S. Singhashwar, Madhepura
4. Santosh Kumar S/o Kailash Prasad Yadav At + P.O. Gangapur, P.S.
Murliganj, Madhepura
5. Arun Kumar S/o Late Moti Thakur vill. P.O. Nehalpur, Jehanabad
6. Dharmendra Kumar S/o Lt. Ram Chandra Prasad At + P.O. Dahia, P.S.
Paliganj, Patna
7. Pranav Kanti S/o Kameshwar Pd. Yadav At + P.O. Gangapur, P.S.
Murliganj, Madhepura
8. Manoj Kumar S/o Sri Chhotan Saw vill. - Chero, P.S. Sarmara, Nalanda
9. Abha Kumari w/o Sri Birnarayan Singh At + P.O. Harpur, Distt.
Chhapra
10. Satish Kumar Singh S/o Vidyapati Singh At AND P.O. Harpur, Distt.
- Chhapra
11. Yogendra Sah s/o Dharamnath Sah vill. - Derni, P.O. Sutihar, Distt. -
Saran
12. Kalpana Kumari C/o Ram Ratan Pd. Singh Simri Kothi, Bhawarwar
Pokhar Bagicha Behind Hathua Market, Pirbahaur, Patna, Bankipur, Patna -
800004
13. Rakesh Ranjan S/o Nawal Kishor Prasad At + P.O. Bahpur, Via -
Bihta, Patna 801103
14. Abhay Kumar Yadav S/o Prabhunath Pd. Yadav At + P.O. Lodipur
Chirad, Distt. - Chapra
15. Zeyaul Haque S/o Md. Safik At - Panchmahla, Gillanpur Distt. -
Jehanabad
16. Ashok Kumar S/o Lt. Shyam Sundar Prasad vill. - Sukhdeo Bigha,
P.O. Kaka Nonhi, Distt. - Jehanabad
17. Naresh Kumar Maharana S/o Kishor Singh At + P.O. Baisadh, via -
Kumarkhand, Distt. Madhepura
18. Arun Kumar Yadav S/o Lt. Maharaghi Pd. Yadav At - Kankar, P.O.
Bishanupur Bazar Via - Jadia, Distt. - Madhepura
19. Ashok Kumar S/o Lt. Bindeshwari Pd. Yadav At - Jogwani, P.O.
Sihpur, Via - Gamharia, Madhepura
20. Ram Narayan Yadav S/o Phushyahi Yadav At - P.O. Jhahuri, P.S.
Lakahi, Mahduwani
21. Kabilash Biswas S/o Bharat Biswas At - Dehad, P.O. Sonbarsa, Saharsa
22. Pramod Kumar Biswas S/o Lt. Kushwashwar Prasad Biswas At -
Banchalha, P.O. Basudara, P.S. Ghailath, Distt. - Madhepura 852121
23. Suresh Kumar Gupta S/o Lt. Satyanarayan Pd. Gupta At - Hatsarganj,
Hazipur, Vaishali
24. Parvind Kumar Yadav S/o Jwala Pd. Yadav At + P.O. Latra, P.S.
Gopalpur, Distt. - Bhagalpur
25. Ramesh Chandra Yadav S/o Ganalal Yadav At - Barimakanpur, P.O.
Abhia Bazar Via - Gopalpur, Distt. - Bhagalpur
26. Atardeo Thakur S/o Late Narayan Thakure At - Bhagwatipur, P.O.
Lattipur, Bihpur Distt. - Bhagalpur 853201
27. Kumari Anuradha W/o Bijay Kumar Jamalpur, P.O. Puran Haripur,
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 3
Via, Koelwar, Distt. - Bhojpur
28. Sakuntala Kumari W/o Sashi Bhushan Singh vill. - Sabalpur, P.O.
Marar, Koshi College, Khagaria
29. Satendra Kumar Mishra S/o Haribansh Mishra At - P.O. Sultanpur, Via
- Mahnar, Distt. - Vaishali
30. Sanjay Kumar Thakur S/o Lt. Ramnandan Thakur At + P.O.
Taityabpur, via - Mahnar, Distt. - Vaishali
31. Shamima Khatoon D/o Md. Iliash At - Mahalpur, P.O. Biharsharif,
Distt. - Nalanda
32. Ruhi Bano w/o Dr. Prof. M.A. John G4 - Nashenan Apartment, South
Gandhi Maidan Patna P.O. Kadamkua, Salimpur Ahara P.S. Gandhi Maidan
Patna
33. Kumari Alka Sinha w/o Arun Kumar At - Janakpur, P.O. Buniadganj,
Muffasil, Distt. - Gaya
34. Daulat Prasad S/o Lt. Bhubneshwar Prasad At - P.O. Kajapi, P.S.
Chandauti, Distt. - Gaya
35. Bhola Nath S/o Radheshyam Prasad At - Chiraiya Tand, P.O. Jail
Road, Gaya
36. Sanjay Kumar S/o Lt. Raghubir Prasad At - Harpur Kumarhtoli P.O.
Buniadganj, Distt. Gaya
37. Divya Prakash S/o Arjun Singh Moh. Janakpur, P.O. Buniadganj,
Distt. - Gaya
38. Dhananjay Kumar S/o Bijay Kumar At - Parsamajkala, P.O. Guraua,
Distt. - Gaya
39. Sanjay KUmar S/o Parmeshwar Singh Moh. Godawari, P.O. G.P.O.
Distt. - Gaya
40. Priyaranjan Kumar S/o Parshuram Sharma At - P.O. Bharthua, Distt. -
Jehanabad
41. Binod Kumar S/o Lt. Basudeo Prasad At + P.O. Kajapi, Distt. Gaya
42. Gopal KUmar Chaudhari S/o Mahendra Chaudhari At - Maujaha, via -
Supaul, Distt. - Supaul
43. Sushil Kumar s/o Deo Narayan Mandal At - Pathra, P.O. Pipra, Distt. -
Supaul
44. Gulab Prasad S/o Lt. Jagdish Prasad At - P.O. Kariha, Distt. - Supaul
45. Dinesh Paswan S/o Boku Paswan At + P.O. Jharbita, P.O. Kishanpur,
Distt. - Supaul
46. Sachchidanand Singh S/o Shiv Saran Singh Vill. - Vishanpur, P.O.
Mastiour, Thana - Mohiudidn Nagar, Distt. - Samastipur ( Bihar ) Pin -
848501
47. Chhaya Thakur C/o Mahadeo Thakur vill. Barhi, P.O. Barhi, Distt. -
Hazaribag
48. Sarita Kumari Sinha D/o AWadh Bihari Prasad S.P.M. College,
Udantpuri, P.O. Biharsharif, Distt. - Nalanda
49. Sanjay Kumar S/o S.S. Yadav At - Gangjala, Saharsa
50. Veena Kumari w/o Deoraj Suman At - Gandhi Nagar, P.O. Bariyarpur,
Distt. - Munger, 811211
51. Prema Kumari w/o Subodh Pd. Yadav vill. - Bank, P.O. Bank, Distt.
Munger
52. Indradeo Yadav S/o Sahdeo Yadav vill. P.O. LOshgahre, Distt. -
Lakhisarai
53. Shailendra Kumar Srivastava S/o Surya Narayan Singh vill. - Khanpur,
P.O. Gazipur Manikpur, Distt. - Munger
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 4
54. Bijay Kumar s/o Lt. Santlal Pd. Sah At - Radhakunj, Parpatti, Distt. -
Bhagalpur
55. Arun Kumar S/o Nawal Kishor Kumar At - Dhrubganj, P.O. Kharik
Bazar, Distt. - Bhagalpur
56. Praveen Kumar Purendra S/o Lt. Ram Krishna Prasad At - Dakbangla
Road, Biharsharif, Nalanda
57. Anil Kumar S/o Lt. Shivnandan Prasad At - Janara, P.O. Kazara, P.S.
Ben, Distt. - Nalanda
58. Slok Kumar S/o Shivnandan Thakur At - Chamardih, P.O. Chhalubag,
Distt. - Gaya
59. Ganesh Kumar S/o Late Tulsi Das, At P.O. Rampurdumra, P.S.
Maranchi, Distt. Patna
60. Dayanand Kumar S/o Budheshwar Das At - Sahslampur, P.O. + P.S.
Badh Patna
61. Binay Kr. Singh S/o Ramjee Prasad Singh At - Old Bipass Road,
Petrol Pump, P.O. P.S. Bakhtiyarpur, Distt. - Patna
62. Sanjay Kumar S/o Dharmbir Singh At Alipur, Bihta, P.O. Bihta, Distt.
- Patna
63. Rabindra Kumar Raman S/o Ramdayal Pd. Yadav vill. + P.O.
Utakishuganj, Rawan, Distt. - Madhepura
64. Anmol Kumar s/o Late Harinandan Mandal At - P.O. Jharkala, P.S.
Sankarpur, Distt. - Madhepura
65. Pramod Kr. Prabhat S/o Late Sukhder Prasad Yadav At DARHA, P.O.
BHAWANIPUR, Distt. - Madhepura
66. Madan Mohan Yadav S/o Late Bhuneshwar Yadav At + P.O. Mangar
via Jaduya Distt. Supaul
67. Mahendra Goit S/o Dhanveer Goit, ATP Gonka P.S. Prataganj, Distt.
Supaul
68. Manikchand Yadav S/o Kunjelal Yadav vill. - Kusha, P.O. Bajitpur,
P.O. Tribeniganj, Distt. - Supaul
69. Abdesh Kr. Mehta S/o Late Narayan Mehta Mohalla - Basad Bigha,
P.O. Sohsari, Distt. - Nalanda
70. Swarn Singh S/o Ramnandan Singh, At + P.O. Biralpur, via -
Munguwar, Distt. - Saharsa
71. Mohamad Mohamad Hussan S/o Mohamad Mobizul Hussan At Dhobi,
P.O. Basuna, Thana, P.O. Bangaro, Distt. SAharsa
72. Manoj Kumar S/o Grijanand Prasad Village - Dhanadahart, P.O.
Parbigha, Distt. - Jahanabad
73. Ashok Kumar Das S/o Nirgun Das At + P.O. Jawdaha, P.S. Jawadaha,
Distt. - Vaishali
74. Kumari Madhuri D/o Lt. Jagdish Pd. YAdav At Mahua, P.O. Arraha,
Via Mithahia, Distt. - Madhepura
75. Sendula Kumari D/o Anirudh Pd. Mandal At + P.O. Mahdepura, Distt.
- Madhepura
76. Dr. Satish Kumar S/o Pradi Roy At - Chiraiya, P.O. Bakhitiarpur, Distt.
- Patna
77. Arun Kumar S/o Bhagwat Prasad Yadav At - P.O. Dharahara, P.S.
Raghopur, Distt. - Supaul
78. Sanjay Kumar Singh S/o Lt. Ramnandan Pd. Singh At + P.O. Pakra,
Via - Naugachia, Distt. - Bhagalpur
79. Sanjay Kumar S/o Bindeshwari Singh At + P.O. Gandhi Nagar,
Madhubani, P.S. K. Hat, Distt. - Purnea
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 5
80. Dipak Kumar S/o Lakshami Prasad At P.O. Hulas Via + P.S.
Raghopur, Distt. - Supaul
81. Ramesh Chandar Vidyarthi S/o Saryu Ravidas At Shiogarh, P.O.
Datiyana, via - Bikarm, Distt. - Patna
82. Vinita Roy D/o Shri Surendra Prasad Singh Resident of Mohalla -
Ranghhumi Miadan, P.O. AND P.S. Purnea, District - Purnea
83. Bikramjit Kumar Binod Son of Ranjeet Prasad Singh At AND P.O.
Biratpur, Saharsa
84. Smt. Lalita Kumari Wife of Arun Kumar Patel, Pubjab National Bank,
Khabra Road, P.O. Mahdubani, P.S. K. Hat, District - Purnea
85. Sunita Kumari D/o Indrashan Prasad Singh Resident of F - 148, Sri
Krishnapuri, Boring Road, Patna - 800001
86. Ashok Kumar Mehta S/o Sitaram Mehta At AND P.O. Thumba, P.S.
Pipra, Distt. - Supaul, Pin - 852131
87. Sunil Kumar Son of Ramdas Prasad Village - Raithi, P.O. Kabira, P.S.
Salkhua, Distt. - Saharsa
88. Anil Ranjan Pal Son of Pitambar Pandit Resident of village - Laxmipur,
P.S. Ismailpur, District - Bhagalpur
89. Rahat Bano Wife of Md. Rafiq Mola - Maulabi Tola Jama Masjid, P.S.
K. Hat, Purnea
.... .... Appellants
Versus
1. The State of Bihar
2. The Principal Secretary, Human Resources Development Department,
Government of Bihar, Patna
3. The Director ( Secondary Education ) Human Resources Development
Department, Government of Bihar, Patna
4. Principal Secretary, General Administration Bihar, Patna
5. Principal Secretary, Law Department - cum - Legal Remembrance,
Bihar, Patna
6. Pradip Rajak son of Late Babu Lal Rajak Vill. - Tiun P.S. Manpur,
Distt. Nalanda
.... .... Respondents
======================================================
with
Letters Patent Appeal No.1162 of 2014
IN
Miscellaneous Jurisdiction Case No. 101 of 2005
======================================================
1. Dhananjay Kumar Singh Son of Deonandan Prasad Singh, At Beldar
Bigha, Post Office - Gorror, Police Station - Chabilapur, District -
Nalanda
2. Anupa Sharan Daughter of Late Indra Bihari Sharan, Wife of Late
Sudhir Kumar Sinha, At present resident of H/o Vani Sharan, Sheo
Shakti Nagar, Near Hume Pipe Factory, Bazar Samitee, POlice Station -
Bahadurpur, District - Patna
3. Manoj Kumar Son of Bharat Choudhary At Prasad Bigha Nawada,
Post Office - Nawada, Police Station - Nawada, District - Nawada
4. Vinod Kumar Safi Son of Surendra Safi Resident of village - P.S.
Jamalpur, via - Biraul, District - Darbhanga
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 6
5. Upendra Prasad Yadav Son of Late Kishun Yadav Resident of village -
Balua, Post office - Fatehpur, Via - Narpatganj, District - Araria
6. Smt. Rita Pandit Wife of Sri Madan Lal Kumar Resident of Ward
No.7, Post Office and Via - Chakardharpur, District - West Singh
Bhumi, Jharkhand
7. Umesh Choudhary Son of Nanhku Choudhary Resident of Akal Bigha,
Police Station - Belaganj, District - Gaya
8. Deepak Kumar Son of Laxmi Prasad Resident of village - Ulas, Post
office - Raghopur, District - Supaul
9. Vimla Kumari W/o Sri J.K. Rai R/o Sudhasadan, Shanti Bihar Colony,
Near XTT, P.S. Digha, Patna
10. Sri Subhash Chandra Sah Son of Raghunath Prasad Sah Resident of
Mohalla - Aryan, Nagar Hat, District - Purnia
11. Kozi Quaiser Alam Son of Kazi Ezharal Haque Resident of village -
Varsoi GHat, District - Purnia
12. Arbind Prasad Son of Late Babu Lal Prasad C/o Sri Kailash Singh
Yadav, Resident of Motor Road, Vidhyut Colony, District - Dhanbad
13. Ram Vilas Roy Son of Late Ghuman Roy Resident of village and P.O.
Siswar, via - Phulparas, District - Madhubani
14. Smt. Sangeeta Kumari Wife of Shushant Kumar Road No.2, Rajendra
Nagar, Patna
.... .... Appellants
Versus
1. The State of Bihar
2. Sri Amarjeet Sinha, The Principal Secretary, Department of Education,
Patna
3. Shri Rana Bhujawan Choudhary, The Director Secondary Education,
Bihar
4. The Chairman, Bihar State Staff Selection Commission, Bihar, Patna
.... .... Respondents
======================================================
with
Letters Patent Appeal No.1168 of 2014
IN
Miscellaneous Jurisdiction Case No. 101 of 2005
======================================================
1. Smt. Nutan W/o Sri Chandrashekhar Resident of Village Bhelwa, P.O.
Simraha, Via Mithaie, P.S. + District Madhepura.
2. Pramila Yadav W/o Sri Ram Chandra Prasad Yadav Resident of Village
Bhelwa, P.O. Simraha, Via Mithaie, P.S. + District Madhepura.
3. Ranjan Kumar S/o Late Ramchandra Prasad Yadav Resident of Village
Bhelahi, P.O. Ratanpatti, P.S. Murliganj, District Madhepura (Bihar).
4. Bipin Kumar S/o Sri Rishideo Prasad Yadav Resident of Village + P.O.
Murliganj, P.S. Murliganj, Moh. Kashipur, Ward No. 02, District
Madhepura (Bihar).
5. Sajal Kumar S/o Late Anup Lal Bishwas Resident of Nijhara, p.S.
Kadwa, P.O. Sonali, District Katihar.
6. Kundan Kumar Jha S/o Satyanand Jha Resident of Shastrinagar
Khajanchi Hat, P.S. + P.O. Madhubani, District Purnea.
7. Rajesh Kumar S/o Sri Chandra Kishore Yadav Resident of Mohalla
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 7
Subahpally, P.O. + District Kishanganj.
8. Sanjeev Kumar S/o Prof. Ram Balak Singh Resident of Khasepur,
District Samastipur.
9. Vijay Kumar Upadhyay S/o Janardan Upadhyay Resident of Village
Madanpur, P.S. Narayanpur, District Bhojpur.
10. Rajesh Kumar Singh S/o Ratneshwar Prasad Singh Resident of Village
Mahikhand, P.O. Sirsia, P.S. Barhara Kothi, District Purnea.
11. Sadhna W/o Birendra Narain Singh Resident of Village Murliganj, in
front of Dak Bunglow, P.O. Murliganj, District Madhepura, Presently
East of Purnia College, P.O. Purnia Pradhan Dakghar, District Purnia.
12. Awadhesh Kumar S/o Sri Sajjan Prasad Yadav Resident of Village
Tulsia, P.O. Baijnathpur, Via Bihariganj, District Madhepura.
13. Shiv Kumar Mahto S/o Jagdish Prasad Mahto R/o Village Durga
Asthan, P.O. Kasba, District Purnea (Bihar).
14. Umesh Kumar S/o Sri Jai Krishna Mehta Resident of Bhatta Durga Bari,
District Purnea. Pin Code - 8543301.
15. Md. Arif Alam S/o Late Sri Md. Musa Resident of C/o through Rahi
Medical Hall, Moh. Jalalgarh Bazar, P.O. Jalalgarh, Via Garhbanaily,
District Purnea.
16. Wasim Ahmad S/o Sri Md. Sadrul Alam Resident of Mohalla
Dargipatti, P.O. + Via Banmankhi, District Purnea.
17. Saud Alam S/o Md. Mahmood Alam Resident of Village Shankarpur
Gajwi, P.O. Shankarpur, Via Farbisganj, District Araria.
18. Sri Pradeep Kumar Vernawal S/o Sri Mohit Lal Vernawal Resident of
Village + Post Gerki, Via Araria, District Araria.
19. Md. Nasim Akhtar S/o Abdul Kudus At Khalilabad, Ward No. 25, P.O.
+ District Araria.
20. Md. Moin Akhatar S/o Abdul Rahman Resident of Village + P.O.
Bhuna, Via Garh Banaily, District Araria.
21. Sri Sanjay Kumar Choudhary S/o Late Ramanad Choudhary C/o Sri
Gopal Choudhary, Resident of Village + P.O. Aurahi, Via Banmankhi,
District Purnea, Pin Code- 854202.
.... .... Appellants
Versus
1. The State of Bihar.
2. The Principal Secretary, Department of Education, Bihar, Patna.
3. The Director, Secondary Education, Bihar, Patna.
4. Dinesh Prasad Singh AND Ors.
.... .... Respondents
======================================================
Appearance :
(In LPA No.1159 of 2014)
For the Appellant/s : Mr. Anil Kr Singh No. 6, Advocate
For the Respondent/s : Mr. S.A. Alam, S.C.-3,
Ms. Anjum Perween, A.C. to S.C.3,
Mr. Rajendra Prasad Singh, Sr. Advocate
Mr. Anil Singh, Advocate
(In LPA No.1161 of 2014)
For the Appellant/s : Mr. Y.V. Giri, Sr. Advocate
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 8
Mr. Anil Kumar Singh no.6, Advocate
Mr. Bindhyachal Singh, Advocate
Mr. Vinod Kumar, Advocate
For the Respondent/s : Mr. S.A. Alam, S.C.-3
Mr. V.K. Kanth, Sr. Advocate
Mr. Rakesh Kumar, Advocate
For the Intervenor : Mr. Gyan Prakash, Advocate
Mr. Sharwan Kumar, Advocate
Mr. S.K. Ghosarvey, Advocate
(In LPA No.1162 of 2014)
For the Appellant/s : Mr. Rakesh Kumar Shrivastava, Advocate
For the Respondent/s : Mr. S.A. Alam, S.C.-3
Mr. Binod Kanth, Sr. Advocate
(In LPA No.1168 of 2014)
For the Appellant/s :Mr. Bindhyachal Singh, Advocate
Mr. Vinod Kumar, Advocate
For the Respondent/s : Mr. S.A. Alam, S.C.-3
======================================================
CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
6 21-10-2014The correct appreciation of the directions given, under the judgment and order, dated 15.02.2001, in a batch of writ petitions, bearing CWJC Nos. 2994, 7732, 8926 and 9259 of 2000 and confirmed by a Division Bench, in its judgment and order, dated 16.12.2004 in L.P.A. Nos. 445, 439, 446 and 447 of 2001 respectively, forms the core issue in the present set of appeals, which have arisen out of the order, dated 16.07.2014, passed by a learned single Judge of this Court in M.J.C. Nos. 101 of 2005 and analogous cases.
2. In order to correctly appreciate the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 9 meaning and import of direction contained in order, dated 15.02.2001, aforementioned, the directions are reproduced below:
"The State is thus required to calculate the number of vacancies and consider the case of the petitioners and other similarly situate for their appointment from the panel against those vacancies in accordance with law".
BACKGROUND FACTS
3. The material facts and various stages, which had led to the passing of the directions, reproduced above, may, in brief, be set out as under: -
(i) Pursuant to the requisition, dated 09.03.1988, of the Director, Secondary Education, Bihar, the Vidyalaya Seva Board ((hereinafter referred to as „the Board‟) published, in the year 1988, an advertisement, bearing No. 1 of 1988, inviting applications for appointment to the posts of Assistant Teacher in as many as 12 subjects including Biology and Mathematics.. The number of vacancies, in the posts of Assistant Teacher, in the subjects of Biology and Mathematics, which concerns us, was about 400 and 200 respectively. A large number of persons, including the petitioners in the writ petitions mentioned hereinbefore and the intervenors in the said writ petitions (who are all hereinafter referred to as Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 10 „private respondents‟) and also „the appellants herein‟, applied for selection and appointment to the said posts of Assistant Teacher in the subjects of Biology and Mathematics.
(ii) On 15.02.1990, a panel of 395 successful candidates was sent to the State Government by the Board. However, the State Government returned the panel of Biology, Mathematics and Physical Education and asked, vide its communication, dated 02.02.1990, the Board to send a fresh panel of the selectees in the said three subjects. As far as the other subjects were concerned, no objections had been raised. In the meanwhile, the State Government‟s reservation policy came into force in the year 1991.
(iii) A fresh advertisement was, then, issued, in the year 1995, in continuance of advertisement No. 1 of 1988 and the intending candidates were asked to apply afresh without paying any examination fee.
(iv) The petitioners, in C.W.J.C. No. 9259 of 2000, had applied in response to the advertisement No. 1 of 1988; whereas the petitioners, in C.W.J.C. Nos. 2994, 7732, 8926 of 2000, had applied in response to the advertisement published in the year 1995. Having held the interview between December, 1997, and June, 1998, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 11 the Board forwarded the State Government a fresh panel of successful candidates on 07.10.1998. The State Government, on 02.11.1998, returned the panel to the Board with a direction to make suitable modifications; but the Board remained adamant and reiterated the same panel without effecting any change or alteration.
(v) No follow up action was, however, taken on the panel so recommended by the Board, whereupon a large number of writ petitions were filed, in the year 2000, with the grievance that though the Board had sent the panel of successful candidates on different dates, including 07.10.1998, no appointment was yet made from the panel.
(vi) While the candidates, seeking appointment against the posts of Assistant Teacher in the subject of Biology, filed C.W.J.C. Nos. 2994, 7732, 8926 and 9259 of 2000, the candidates, who were seeking appointments against the posts of Assistant Teacher in the subject of Mathematics, filed C.W.J.C. Nos. 12625 of 2000, 3920, 3773 and 752 of 2001.
(vii) The first batch of writ petitions, which were in respect of subject of the Biology, were disposed of, on 15.02.2001, with the direction, which we have already reproduced above and which read as follows:-
"The State is thus required Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 12 to calculate the number of vacancies and consider the case of the petitioners and other similarly situate for their appointment from the panel against those vacancies in accordance with law".
(viii) The latter batch of writ petitions, namely, C.W.J.C. No. 12625 of 2000 and C.W.J.C. Nos. 3920, 3773 and 752 of 2001, with respect to Mathematics subject, came to be disposed of, on 19.09.2001, in terms of directions already passed, on 15.02.2001, in C.W.J.C. Nos. 2994, 7732, 8926 and 9259 of 2000, and which, as already indicated above, have already been quoted above.
(ix) Aggrieved by the orders, passed by the learned single Judge, in both the batches of the said writ petitions, L.P.A. Nos. 439, 445, 446, 447, 1347, 1354, 1360 and 1435 of 2001 were filed. While L.P.A. Nos. 439, 445, 446 and 447 of 2001 arose out of C.W.J.C. Nos. 7732, 2994, 8926 and 9259 of 2001, which concerned the posts of Assistant Teacher in the subject of Biology, L.P.A. Nos. 1347, 1354, 1360 and 1435 of 2001, which arose out of C.W.J.C. Nos. 12625, 3920, 752 and 3773 of 2000, concerned the post of Assistant Teacher in the subject of Mathematics.
(x) Having heard the learned counsel appearing for the parties concerned, all the Letters Patent Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 13 Appeals were dismissed on 16.12.2004.
(xi) Aggrieved by the dismissal of the appeals, the State carried the matter, in appeals, to the Supreme Court by way of Special Leave to Appeal, which came to be registered as Special Leave to Appeal Nos. 6369-6376 of 2005. The Special Leave to Appeals, too, were dismissed on 28.08.2012.
(xii) Notwithstanding the fact that the directions given in the writ petitions on 15.02.2001, which were affirmed by the Division Bench on 16.12.2004 and the Special Leave to Appeals stood dismissed by the Supreme Court on 28.08.2012, since the State respondents did not make any appointment to the posts aforementioned, a number of applications, seeking drawing of contempt proceedings, were filed by the writ petitioners as well as the interveners of the said writ petitions involving the posts of Assistant Teacher in the subjects of Biology and Mathematics.
(xiii) The contempt applications, so filed, came to be listed before more than one Bench and though directions were issued to complete the selection process, the nature of directions were, however, different and distinct from each other.
(xiv) A learned single Judge, in some of the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 14 contempt petitions, which had been registered as Miscellaneous Jurisdiction Case Nos. 101 of 2005, 102 of 2005, 4950 of 2012, 5242 of 2012, 5239 of 2012, 2435 of 2013, 3285 of 2013, 2567 of 2013, 6489 of 2012 and 4636 of 2013, directed, on 16.09.2013, that the appointments be made on the basis of the position of the candidates in the merit list. The relevant portion of the order is extracted below:
"It goes without saying that the appointment should be made on the basis of position in the merit list. If the Government feels any obstruction in implementing the order of this Court, it will be in the interest of justice that they should iron out the obstacles comes implementing the order in accordance with law.
Let these cases be listed on 28th October, 2013.
The personal presence of Director, Secondary Education, Govt. of Bihar, is dispensed with for the present."
(Emphasis is supplied)
(xv) Following the directions issued, on 16.09.2013, in the said batch of contempt petitions, a panel of selected candidates for appointment to the post of Assistant Teacher in both the subjects, namely, Biology and Mathematics was published, on 16.07.2014, in a Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 15 daily newspaper, calling the candidates, with requisite documents, for counselling.
(xvi) On the same day, i.e., on 16.07.2014, Contempt Petition, bearing M.J.C. No. 101 of 2005 and other analogous cases, came up for order before another Bench, which observed, "... ... ... such exercise of repeatedly issuing communiqué calling upon all persons who were in the merit list to come for counseling indicates that the State authorities were somehow trying to frustrate the cause of the petitioners who were pursuing the matter from the year 2001 and giving undue premium to those who had chosen not to approach the court".
(xvii) In the order, dated 16.07.2014, aforementioned, passed in M.J.C. No. 101 of 2005 and analogous cases, the learned single Judge further observed that the expression "similarly situate" should not be read by the State authorities to mean that till the time all persons, in the merit list, serially came before it and seek employment, the list cannot move down. The relevant extract of the order, dated 16.07.2014, aforementioned, which stand impugned in these appeals, proceeds as under:
"This Court earlier and even today has no hesitation in holding that such exercise of repeatedly issuing Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 16 communiqués calling upon all the persons who were in the merit list to come for counseling indicates that the State authorities were somehow trying to frustrate the cause of the petitioners who were pursuing the matter right from the year 2001 and giving undue premium to those who had chosen not to approach the Court and only by sheer chance had got some benefit as the Court in its original order had recorded that the exercise must be completed with regard to the petitioners „and similarly situated persons‟. This observation could not have been read by the State authorities to mean that till the time all persons who are in the merit list serially come before it and seek employment, the list cannot move down. Once communiqué calling upon all the persons in the merit list had been issued, the authorities were obliged to move down in the list after the persons interested had appeared and had been appointed and vacancies still remained. Today, again an exercise is sought to be done which this Court has no hesitation in holding to be against the true spirit of the order which is sought to be implemented. The law has also been settled that fence sitters who are waiting for the outcome in the case Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 17 of others cannot come forward and seek their claim on the basis of a judgment passed, may be in the case of similarly situated persons. In the present case, they had got one opportunity by the observation of the Court in its original order and once that indulgence stood exhausted by the offer made to them by the State authorities, the list ought to have moved on and the petitioners who till date have been pursuing their case were necessarily required to have been considered with regard to the remaining vacancies".
(Emphasis is added) (xviii) The learned single Judge, in the operative portion of the order, dated 16.07.2014, passed in M.J.C. No.101 of 2005 and other analogous cases, thus, observed that against the remaining vacancies, the cases of the writ petitioners, including the interveners (i.e., the private respondents) were, now, required to be considered as opportunity to other similarly situate persons had already been granted by the State not once but twice.
(xix) The penultimate direction given by order, so made, on 16.07.2014, in M.J.C. No. 101 of 2005 and analogous cases, reads as under:
"In view of the aforesaid Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 18 discussions, as well as what has been clarified by the Court in its previous orders, it is made clear the State authorities should not have any difficulty in proceeding with the matter relating to appointment on 323 seats which they now earmarked to be clear-cut vacancies and proceed to fill up the same considering the case of the petitioners (including persons whose intervention has been allowed by the Court) as it is they who are only now required to be considered as opportunity of consideration to the other similarly situated persons has already been granted by the State not once but twice. Mr. Tej Bahadur Singh, learned counsel submits that the State should now have no difficulty in taking the process of appointment to its logical end as required by order of this Court dated 15.02.2001 in the light of the Hon‟ble Supreme Court order dated 28th August, 2012".
(Emphasis is supplied)
4. The order, dated 16.07.2014, passed in M.J.C. No.101 of 2005 and analogous cases arising out of C.W.J.C. Nos. 1265 of 2000 and 2994 of 2000 and analogous cases, is under challenge in this batch of Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 19 appeals.
5. It is relevant to note, at this stage, that the orders passed by the two learned single Judges, namely, the order, dated 16.09.2013, and the order, dated 16.07.2014, are ex-facie in conflict with each other so far as the same relate to the true meaning and import of the order passed by the writ Court, on 15.02.2001 and 19.09.2001, affirmed by the Division Bench and not interfered by the Supreme Court in appeals.
6. We have heard learned Counsel for the parties concerned.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
7. The appellants, being conscious of the fact that they were not writ petitioners in any of the writ petitions, namely, C.W.J.C. Nos.12625 of 2000, 2994 of 2000, 7732 of 2000 and/or 9259 of 2000, out of which the contempt applications had arisen, have sought leave of this Court to present their appeals and as the appellants had successfully made out that their interest would be adversely affected if without hearing them the directions, given by the order, dated 16.07.2014, aforementioned were followed, leave, as had been sought for, was granted by this Court to challenge the impugned order, dated 16.07.2014, passed by the learned single Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 20 Judge in the batch of contempt applications aforementioned.
8. The appellants have challenged the impugned order, dated 16.07.2014, primarily on the ground that a Court, while exercising jurisdiction in a contempt proceeding, cannot travel beyond the directions contained in the order, the violation of which is alleged, and the Court, exercising the contempt jurisdiction, cannot decide the merit of dispute so as to either extend or limit the scope of the order or judgment, which is alleged to have been violated. The appellants contend that even if an order is fallacious, but becomes final, the same cannot be corrected in contempt jurisdiction. Reliance has been placed upon the decisions in Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha and Others (AIR. 1960 SC 1186) and Golam Abbas vs. State of U.P. (AIR 1981 SC 2198).
9. The appellants submit that the learned single Judge, while exercising jurisdiction in contempt proceeding and issuing directions by the order, dated 16.07.2014, failed to correctly appreciate the true meaning and import of the order, dated 15.02.2001, passed by the writ Court and left undisturbed even by the Supreme Court.
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 21
10. It is the submission of the appellants that the expression „similarly situate‟, appearing in the order, dated 15.02.2001, aforementioned, would include not only the writ petitioners and/or the interveners in the writ petitions, but also all those, who were similarly empanelled as the writ petitioners and the interveners were and whose cases were required to be considered for appointments in accordance with law by adhering to merit position; consequently, the expression „similarly situate‟, must be read, contend the appellants, to include those, such as, the present appellants, who, merit wise, are much above the writ petitioners and the interveners in the panel.
11. It is the contention of the appellants that the merit position, in the panel, ought to be considered if the appointments are to be made in accordance with law, which was the direction given, in the writ petitions aforementioned, by the order, dated 15.02.2001.
12. It is also the case of the appellants that the learned single Judge, who passed the order, dated 16.09.2013, in M.J.C. No. 101 of 2005 and analogous cases, correctly appreciated the meaning and import of the directions issued by the writ Court, violation whereof was the subject matter of determination in the contempt Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 22 proceedings, not only in M.J.C. No. 101 of 2005, but also in the analogous cases, which have been dealt with by the order, dated 16.07.2014, and are, now, under appeal before this Court.
13. The appellants have also raised the issue of maintainability of the contempt applications before the learned single Judge. They contend that the order, dated 15.02.2001, had merged with the order made, on 16.12.2004, in L.P.A. No. 439 of 2001 and analogous appeals, by the Division Bench and, hence, the contempt petitions, if any, could have been maintained only before an appropriate Division Bench and not before a single Bench.
14. Finally, therefore, the appellants contend that the order, dated 16.07.2014, passed by the learned single Judge is wholly without jurisdiction, contrary to law and needs to be interfered with in order to uphold the constitutional guarantee of equality of opportunity in public employment, which had been held to form the basic structure of our Constitution in State of Karnataka and Others v. Uma Devi and Others, reported in 2006 (4) SCC 1.
SUBMISSIONS ON BEHALF OF THE PRIVATE RESPONDENTS
15. The writ petitioners and the interveners, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 23 on the other hand (who are private respondents in these appeals), submit that there is no ambiguity in the order of the writ Court, whereby the State respondents were directed to consider the cases of the writ petitioners and persons "similarly situate". According to them, the expression "similarly situate" has been used with respect to interveners, who were added as parties by the Writ Court or who had filed intervention applications in the writ proceedings. The directions, according to private respondents, are not with respect to all others in the panel or, at any rate, to the exclusion of the writ petitioners and the interveners.
16. The private respondents, however, they submit that they have no objection if the appellants‟ cases are considered once they (private respondents) have been accommodated and vacancies still remain available. The private respondents assert that the Writ Court, in the entire judgment running into 21 pages, nowhere, discussed, or referred to, or interpreted, the panel to mean a panel in order of merit. The Writ Court, rather, directed, according to the private respondents, that the State is required to calculate the number of vacancies and consider the cases of the writ petitioners and „similarly situate‟ persons for appointment from the panel against Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 24 these vacancies in accordance with law.
17. The private respondents also contend that the appellants neither filed any independent writ applications nor did they file any applications for being added as interveners, at any stage, even when the State carried the order of learned single Judge, in appeal, to the Division Bench, but remained fence sitters and when the Division Bench dismissed the appeals and affirmed the order of learned single Judge, the State, being aggrieved, filed appeal in the Supreme Court, some of the appellants herein woke up and tried to intervene, which was not permitted by the Supreme Court, and, eventually, the leave applications, filed by the State, were dismissed.
18. The writ petitioners and interveners, appearing as private respondents, have also raised the issue of very maintainability of these appeals under Clause 10 of Letters Patent Constituting The High Court of Judicature at Patna, by contending that the appropriate course, for the appellants, was to file an appeal under Section 19 of the Contempt of Courts Act, 1971. In support of this contention, the private respondents have relied upon the decision of the Supreme Court, in Midnapore People Cooperative vs Chunnilal (A.I.R. 2006 SC 2190 : (2006)5 SCC 399).
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 25
19. So far as the State respondents are concerned, it has been submitted by Mr. Syed Arshad Alam, learned Standing Counsel No.3, that the State would abide by whatever directions, as may be deemed fit by this Court, are passed.
20. Before proceeding further, we must point out that in response to the query made by this Court, if the appointments of the present appellants by the State Government, against the posts of Assistant Teacher in the subject of Biology and Mathematics, would be in violation of the order, dated 15.02.2001, aforementioned passed by the Writ Court, affirmed by the Division Bench and left undisturbed by the Supreme Court, it has been candidly submitted, on behalf of the private respondents, that the State cannot be held guilty of contempt if the cases of the present appellants, too, are considered and the appellants are appointed; but the appointments of the appellants are possible ▬ hasten to add the learned counsel for the private respondents ▬ subject to the condition that the cases of the writ petitioners and the interveners, in the writ petitions, are first considered and, then, if vacancies still remain available, the same may be offered to the present appellants or to other candidates in accordance with the merit position in the panel.
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 26
21. In effect, therefore, the private respondents do not boldly contend that the directions, which had been given by the learned single Judge in the order, dated 15.02.2001, would be violated, if the present appellants, who are, admittedly, on the panel and above the private respondents in the merit position, are appointed provided, according to the private respondents, any vacancy remains available after considering the cases of the writ petitioners and the interveners aforementioned.
22. Whether the above contention is sustainable in law is the question, which we would answer shortly. The answer to this question would, indeed, determine the fate of these appellants.
23. At this stage, however, we cull out the issues, which have arisen for consideration and determination in this set of appeals.
ISSUES RAISED FOR DETERMINATION :-
24. In the light of the rival submissions, which have been made before us on behalf of the parties concerned, the issues, which arise for determination, in these appeals, are as follows:
(i) Whether the present appeals, which have been preferred against the order, dated 16.07.2014, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 27 passed by the learned single Judge, while exercising jurisdiction in contempt proceedings, could have been appealed against, or are maintainable, under Clause 10 of Letters Patent Constituting The High Court of Judicature at Patna, or whether the order, dated 16.07.2014, aforementioned, is an appealable order under Section 19 of the Contempt of Courts Act, 1971, read with Article 215 of the Constitution of India?
(ii) Whether the present appeals are maintainable at the instance of such persons, who were neither parties in the writ petitions, which gave rise to contempt proceedings, nor were they parties in the contempt proceedings, which gave rise to the impugned order, dated 16.07.2014?
(iii) Whether the learned single Judge, while passing the impugned order, dated 16.07.2014, in the contempt proceedings, decided the merit of the issue and, thus, travelled beyond what a Court, exercising contempt jurisdiction, must keep itself confined to?
(iv) In view of the principle of merger, whether the applications, seeking drawing of the proceedings of contempt, were maintainable before the learned single Judge, when the order, dated 15.01.2001, passed by the learned single Bench had been affirmed, in Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 28 Letters Patent Appeals, by a Division Bench on 16.12.2004, and Special Leave to Appeals, preferred by the State, were dismissed by the Supreme Court on 28.08.2012?
25. We find that the appellants as well as the private respondents have raised the preliminary objections with regard to the maintainability of each other‟s proceedings. While the appellants have raised the question of maintainability of the contempt proceedings before a single Bench, the latter (i.e., the private respondents) have raised the question of maintainability of the present set of Letters Patent Appeals.
26. As the appeals have been resisted, at the very threshold, by posing challenge to their maintainability, we are left with no option, but to, first, determine whether these appeals are maintainable. WHAT ORDERS, PASSED UNDER THE CONTEMPT OF COURTS ACT, 1971, ARE APPEALABLE? IF NO APPEAL LIES, WHAT REMEDY, IF ANY, IS AVAILABLE TO THE AGGRIEVED PARTY?
27. While answering the issue with regard to the maintainability of the present appeals, it is necessary to take notice of the relevant provisions of law. Section 11 of the Contempt of Courts Act, 1971, as well as Article 215 of the Constitution of India confer powers on High Court to inquire into or try contempt of itself or of any Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 29 court subordinate to it. It will not make any difference, on the power of the Court, whether the contempt is alleged to have been committed within or outside the local limit of its territorial jurisdiction and whether the person, alleged to be guilty of contempt, is within or outside such limits. Section 12 of the Contempt of Courts Act, 1971, provides punishment for contempt of court.
28. Coupled with the above, Section 19 of the Contempt of Courts Act, 1971, confers right of appeal against any order or decision of the High Court in exercise of its jurisdiction to punish for contempt under Section 12 of the Contempt of Courts Act, 1971. As per Section 19(1)(a) of the Contempt of Courts Act, 1971, against an order or decision of a single Judge passed in exercise of its contempt jurisdiction, appeal will lie to a Bench of not less than two Judges of the Court. Similarly, Section 19(1)(b) of the Contempt of Courts Act, 1971, provides that against order or decision of a Bench of not less than two Judges, appeal will lie to the Supreme Court.
29. From a conjoint reading of Section 12 and Section 19(1)(a) of Contempt of Court Act, 1971, it is evident that against an order of punishment passed by a single Judge, an appeal would lie before a Bench of not less than two Judges of the High Court. The converse Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 30 would be that no appeal would lie, under Section 19(1)
(a) of the Contempt of Courts Act, 1971, to a Bench of two Judges or more against an order if the „order‟ is not an order made under Section 12 of the Contempt of Courts Act, 1971.
30. What would be the necessary tests, for determining whether an order has been passed in exercise of power under contempt jurisdiction or not, remain no longer res integra inasmuch as it is well explained in the case of Midnapore Peoples‟ Cooperative Bank Ltd. (supra). Laying down as to which of the directions or decisions will, or will not, be regarded to have been passed in exercise of jurisdiction to punish for contempt and which of the directions or decisions would attract provisions of appeal under Section 19 of the Contempt of Courts Act, 1971, if a party is aggrieved by such an order or decision, the Supreme Court, in paragraph 11 of its decision, in Midnapore Peoples‟ Cooperative Bank Ltd. (supra), observed as under:
"11. (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
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 31
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 the 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 Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 32 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)".
31. We, thus, find that the Supreme Court, in Midnapore Peoples‟ Cooperative Bank Ltd. (supra), has laid down that an appeal, under Section 19 of the Contempt of Courts Act, 1971, would be maintainable either against an order imposing punishment for contempt or where such a direction or decision is incidental to, or inextricably connected with, the order punishing for contempt. The Supreme Court has clarified, in Midnapore Peoples‟ Cooperative Bank Ltd. (supra), that neither an order declining to initiate a proceeding for contempt nor an order acquitting or exonerating the contemnor is appealable under Section 19 of the Contempt of Courts Act, 1971, though such an order, in special circumstances, can be challenged under Article 136 of the Constitution.
32. Similarly, holds the Supreme Court, in Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 33 Midnapore Peoples‟ Cooperative Bank Ltd. (supra), that it is not appropriate for a High Court to adjudicate or decide any issue relating to the merit of the dispute of the case and that a direction or decision by the High Court, on the merit of a dispute, will not be treated as a direction or order made in exercise of jurisdiction to punish for contempt except when a direction or decision is incidental to, or inextricably connected with, the order of punishment.
33. The Supreme Court further holds, in Midnapore Peoples‟ Cooperative Bank Ltd. (supra), that if a High Court decides an issue or makes any direction relating to the merit of the dispute, the aggrieved person is not remediless and can challenge the same not by way of an appeal under Section 19 of the Contempt of Courts Act, 1971, but by means of intra court appeal if there is a provision of such an appeal and, in absence of any such provision, the aggrieved party can seek Special Leave to Appeal under Article 136 of the Constitution of India.
WHETHER THE IMPUGNED ORDER IS AN APPEALABLE ORDER UNDER THE CONTEMPT OF COURTS ACT, 1971?
34. In the context of what has been indicated above, we are, now, required to examine whether the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 34 impugned order passed by the learned single Judge can be said to be an order under Section 12 of the Contempt of Courts Act, 1971, or not?
35. In the case at hand, when one reads the order, dated 16.07.2014, which stands impugned in these appeals, and which we have already extracted above, it would transpire that the impugned order, dated 16.07.2014, is neither an order imposing punishment on the alleged contemnor nor a direction, which can be described as incidental to, or inextricably connected with, the order punishing for contempt.
36. Moreover, the learned singe Judge, while explaining as to what the decision and the directions, contained in the order, dated 15.02.2001 (passed by the Writ Court) conveyed, issued further directions to the State respondents commanding them how the directions, contained in the order dated, 15.02.2001, shall be complied with and why the Government shall not take into account the interest of those, whose names found place, in the panel, prepared by the Board, and who were placed, in the panel above the persons, who were writ petitioners and/or intervenors in the writ proceedings.
37. Situated thus, it becomes abundantly clear, and we do hold, that the impugned order, dated Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 35 16.07.2014, is not an order, which is contemplated by Section 12 of the Contempt of Courts Act, 1971, and would not, therefore, attract the provisions of appeal embodied in Section 19 of the Contempt of Court Act, 1971.The remedy in a case, such as the present one, lies in preferring intra court appeal inasmuch as the provisions for intra court appeal are available to the aggrieved party. WHETHER THE PRESENT SET OF INTRA COURT APEALS IS MAINTAINABLE?
38. In view of the fact that we have concluded that the impugned order, dated 16.07.2014, was not an order, which falls under Section 12 of the Contempt of Courts Act, 1971, and was, thus, not appealable under Section 19(1)(a) thereof, the other issue, which falls for consideration, is:
Whether the present intra court appeal would be maintainable at the instance of the present appellants, who were not parties to the writ petitioners, wherein the order, dated 15.02.2001, was made, nor were they (i.e., the present appellants) parties to the letters patent appeals, which were decided by the Division Bench, on 16.12.2004, and left undisturbed even before the Supreme Court?
39. From the decision in Midnapore Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 36 Peoples‟ Cooperative Bank Ltd. (supra), it is clear, as we have already indicated above, that if a High Court decides an issue or makes any direction relating to merits of the dispute, such an order is open to challenge in an intra court appeal. It would, therefore, necessitate examination of the issue as to whether the learned single Judge, while making the impugned order, dated 16.07.2014, issued directions, which run contrary to, or deviate from, the directions, which the Writ Court had passed, and whether, in such a situation, these appeals, at the instance of the appellants, are maintainable.
40. The appellants contend that while exercising contempt jurisdiction, the learned single Judge has, in the present case, decided the merits of the issue and travelled beyond the scope of contempt jurisdiction by making observations and issuing directions under the impugned order, dated 16.07.2014, which run contrary to, and deviate from, the directions given by the Writ Court in its order, dated 15.02.2001, aforementioned. The course of action, so adopted by the learned single Judge, while making the order, dated 16.07.2014, is, submits the appellants, impermissible in law and may not, therefore, be sustained.
41. On the other hand, learned counsel for Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 37 the private respondents (i.e., the writ petitioners and intervenors in the writ petitions) submit that the order, passed by the learned single Judge, is in conformity with the directions given by the Writ Court and the learned single Judge, while making the impugned order, dated 16.07.2014, has not touched upon the merit of the case nor has the learned single Judge, while making the order, dated 16.07.2014, deviated from the directions given by the Writ Court on 15.02.2001.
42. While considering the rival submissions, which we have noted above, it needs to be noted that the exercise of power under the Contempt of Courts Act, 1971, is limited to punishing a person, who has committed contempt of the order of the High Court or of any subordinate court; For this purpose, the High Court can, indeed, proceed to examine whether any contempt has been committed or not or whether there is willful disobedience of the order passed by High Court and if so, what would be the appropriate punishment.
43. The Contempt of Court is a special jurisdiction to be exercised sparingly and with caution, when an act adversely affects the administration of justice or tends to impede its course or tends to shake public confidence in the fairness and impartiality of the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 38 administration of justice. This jurisdiction can be exercised to uphold the majesty of law or dignity of Court. A reference may be made to the case of Supreme Court Bar Association v. Union of India and Another, reported in (1998) 4 SCC 409, wherein the Supreme Court, in paragraph 42, observed as follows:
"42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining "the jury, the Judge and the hangman' and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual Judge but to protect administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperiled Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 39 and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemnor and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice".
(Emphasis is added)
44. Situated thus, what becomes abundantly clear is that while exercising contempt jurisdiction, a High Court cannot, in the light of the decision in Midnapore Peoples‟ Cooperative Bank Ltd. (supra), issue any direction or give any decision on the merits of a dispute between the parties. The Court, sitting in contempt jurisdiction, would not travel beyond the scope of the order, which is alleged to have been violated or disobeyed, nor would the Court concern itself whether the original order has been rightly or wrongly passed by the Court. The Court cannot take a different view and travel beyond the original order. It would not, ordinarily, give, while exercising contempt jurisdiction, any Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 40 additional direction or delete a direction. The Court should also refrain from doing anything, which would amount to exercise of its power under review jurisdiction.
45. Elucidating the extent and scope of the power of the Courts in contempt jurisdiction, the Supreme Court, in of Prithawi Nath Ram v. State of Jharkhand, reported in (2004) 7 SCC 261, observed, at paragraph 8, as follows:
"8. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 41 order to give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside and the matter is remitted for fresh consideration. It shall deal with the application in its proper perspective in accordance with law afresh. We make it clear that we have not expressed any opinion regarding acceptability or otherwise of the application for initiation of contempt proceedings".
(Emphasis is supplied)
46. Reiterating the same very principles, as have been laid down in Prithawi Nath Ram (supra), the Supreme Court, in Bihar Finance Service House Construction Coop. Society Ltd. V. Gautam Goswami, reported in (2008) 5 SCC 339, at paragraph 32, observed as follows:
"32. While exercising the said jurisdiction this Court does not intend to reopen the issues which could have been raised in the original proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in the original Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 42 proceedings. The Court is not take a different view or traverse beyond the same. It cannot ordinarily given an additional direction or delete a direction issued. In short, it will not do anything, which would amount to exercise of its review jurisdiction".
(Emphasis is added)
47. In the backdrop of the provisions of law noticed in the foregoing paragraphs, we would, now, examine whether the learned single Judge, while making the order, dated 16.07.2014, aforementioned, has failed to appreciate the true meaning and import of the direction issued by the learned Writ Court in its order, dated 15.02.2001, and whether the learned singe Judge, in issuing the impugned directions, has, thus, decided the merit of the dispute and traversed beyond the scope and ambit of contempt jurisdiction.
48. The parties broadly agree that a court, exercising contempt jurisdiction, is prohibited from deciding an issue or from making any direction relating to merit of the dispute between the parties concerned. However, the writ petitioners and the intervenors in the writ petitions, who are private respondents herein, dispute the contention of appellants that the learned single Judge, while making the order, dated Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 43 16.07.2014, traversed beyond the directions of the Writ Court passed on 15.02.2001.
49. In order to appreciate the issue, we have to revert to the facts of the case, in brief, again, to the extent relevant for the decision of the issue at hand.
50. A panel of successful candidates for appointment to the posts of Assistant Teacher in the subject of Biology and Mathematics (with which we are concerned) was recommended by the Board way back, in the year 1988, pursuant to the advertisement No.1 of 1988. For some reasons of irregularity committed in the selection, the panel was cancelled by the Government. A fresh advertisement was, then, issued by the Board, in the year 1995, in continuance of the Advertisement No.1 of 1988. Interview for the eligible candidates was held between December, 1997, and June, 1998. The Board, thereafter, forwarded, on 07.10.1998, a fresh panel of successful candidates for appointment in nationalized High Schools and Project Schools. The panel was, again, returned by the State Government to the Board with a direction to make suitable amendments; but the Board reiterated the same panel. In the meanwhile, a large number of writ petitions were filed by some of the candidates, whose names had figured in the panel, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 44 seeking directions to be issued to the State to complete the process of appointment. The Writ Court, upon hearing the parties, directed, by its order, dated 15.02.2001, the State to calculate the number of vacancies and consider the cases of the petitioners and other similarly situate for their appointment „from the panel‟ against those vacancies „in accordance with law‟.
51. The private respondents (i.e., the writ petitioners and the intervenors) submit that the expression "similarly situate", used by the Writ Court, refers to the intervenors. According to them, the Writ Court directed the State to consider, at the first instance, the cases of the writ petitioners and intervenors for appointments, who were similarly situated, against available vacancies irrespective of their merit position in the panel.
52. In other words, according to the learned counsel for the private respondents herein, even if the writ petitioners and the intervenors are lower in merit in the panel, when compared to the appellants, the writ petitioners and the intervenors are to be accommodated, first, against the available vacancies, which are 323 in number, as calculated by the State Government, and, thereafter, whatever vacancies remain available can be Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 45 given to other candidates in order of merit.
53. While making the above submissions, the learned counsel for the private respondents herein agree, on a pointed query made by this Court, that the State Government cannot be held responsible for Contempt of Court if the State Government, even after the direction issued by the order, dated 16.07.2014, gives appointment to the candidates, who are higher in the merit list, in the panel, than the writ petitioners and the intervenors.
54. Having candidly so conceded, the learned counsel for the private respondents, however, reiterate that before the selectees, who are, on merit, above the writ petitioners and the intervenors in the panel, are accommodated against the available vacancies, the writ petitioners and the intervenors are the ones, who shall be accommodated ignoring thereby the case of more meritorious candidates.
55. On the other hand, learned counsel for the appellants contend that the direction of the Writ Court to the State ▬ to consider the cases of the petitioners and other similarly situate „from the panel‟ against those vacancies „in accordance with law ▬ would mean consideration of the cases of all the candidates similarly Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 46 situated as the appellants herein, whose names figured in the panel prepared by the Board.
56. We have carefully considered the rival submissions made before us and we notice that it is the understanding of the order, dated 15.02.2001, which is the core of the dispute in the present appeals.
57. While considering the meaning and import of the order, dated 15.02.2001, the background facts, giving rise to the writ petitions and the order, dated 15.02.2001, passed therein need to be borne in mind.
58. Reverting to the order, dated 16.07.2014, which stands impugned before us, it needs to be pointed out that a close perusal of the order, dated 15.02.2001, shows that the learned single Judge, while dealing with the writ petitions, noticed that a panel of successful candidates had been prepared, for the second time in the year 1998, and yet no appointments had been made and, therefore, some of the candidates, who were in the panel, moved this Court (in the year 2001), by way of writ petitions, with their grievance that despite preparation of the panel of selected candidates, no appointments had been made. The Writ Court, upon taking into account the noticeable features, which we have indicated hereinbefore, directed the State to Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 47 calculate the number of vacancies and consider the cases of the petitioners and other similarly situate for their appointment „from the panel‟ against those vacancies „in accordance with law.
59. It is of great relevance to note that the right of the writ petitioners, to seek issuance of a writ in the nature of mandamus commanding the State- respondents to take follow-up action of making appointments pursuant to the panel, emanated from the panel of selected candidates. The Writ Court had noticed that a panel of successful candidates, in accordance with their merit position, had been prepared, which contained more persons, in number, than the available vacancies. Thus, by the order, dated 15.02.2001, the Writ Court directed the State to consider the cases of the petitioners and other similarly situate from the panel against vacancies in accordance with law. The order of Writ Court is, in our view, clear and unambiguous.
60. There are two noticeable and underlying expressions in the directions of the learned single Judge made on 15.02.2001, namely, (a) to consider the cases of the petitioners and other similarly situate from the panel against vacancies and (b) to consider the same in accordance with law.
Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 48
61. The first limb of the direction, so given by the Writ Court in the order, dated 15.02.2001, was to consider the cases of not only the writ petitioners, but similarly situated persons from the panel of selected candidates. This direction made the intent of the direction more than patently clear. Obviously, therefore, the expression "petitioners and other similarly situate"
would mean all those candidates, whose names figured in the panel and these persons would obviously include not only the writ petitioners and the intervenors, but all others, who were, in the panel, above the writ petitioners and intervenors on merit; though not represented before the Court.
62. The second limb of the expression, namely, "from the panel against vacancies in accordance with law", reiterates the well-established principle of service jurisprudence that the candidates, in a select panel, are to be considered in accordance with their merit position subject to reservation policy, if any.
63. The term "in accordance with law", appearing in the order, dated 15.02.2001, cannot visualize appointing persons from the panel lower down, in the merit position, to the exclusion of others on the merit list, placed higher in merit, for, such a direction Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 49 would negate the very concept of guarantee of equality enshrined in Article 14 and would amount to violating Article 16 of the Constitution of India, which guarantees equality of opportunity in matters of public employment and forms part of the basic structure of our Constitution. [See, Uma Devi (supra)]
64. While considering the present appeals, one has to also bear in mind that jurisprudence is the science of law. The law regulates and brings to order the society so as to enable the mankind to live in peace, harmony and prosperity. The concept of law is, thus, inter-woven with the conditions of the society. When the society changes, the concept of law may also change. At times, even when the text of law, i.e. the words of statute, remain unaltered, interpretation of the concept of the statute may change depending upon the change in the attitude and conditions of the society. CONCEPT OF NECESSARY PARTY IN CIVIL SUIT AND WHETHER THE SAME CONCEPT CAN INVARIABLY BE APPLIED TO WRIT JURISIDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA:-
65. While considering the case at hand, it is of paramount importance to note that there is a marked, though subtle, distinction between the concept of necessary party in a civil suit and the concept of Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 50 necessary party in a writ petition. This distinction has become a little more pronounced with the passage of time, for, writ courts, under Article 226 of the Constitution of India, have been required, as the time passed by, to interfere on numerous occasions, when, during discharge of public duty, the State or an authority established by the State, its instrumentalities and even individuals, both natural as well as juristic persons, infringe fundamental or legal rights of a citizen or even of a foreigner.
66. It is Order 1 of the Code of Civil Procedure, which deals with parties, in general, as well as necessary parties. In a civil suit or proceeding, the Court considers the question of necessary party keeping in view the litigation before it and the litigants appearing before it or available on the record : Whereas a writ Court takes a bird's eye view of the whole matter and, in such a process, its vision embraces not only those, who are litigating before it, but also those, who are likely to be affected by the decision in the litigation.
67. In a civil suit, therefore, so long as the question of granting of relief, sought for, can be decided in the presence of the parties appearing before the Court, the Civil Court will not consider anyone other than Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 51 such a litigant as a necessary party; but a decision emanating from a writ Court reverberates, at times, far beyond the litigants and affects a large section of the people.
68. Hence, the writ Court cannot keep itself confined merely to the litigants appearing before it or on the record nor will it keep itself confined only to the lis before it, but will also take into account the consequences or the effect, which its decision will have or is likely to have on the interest of others, who may not be wholly necessary for decision of the issue at hand, but whose interest is likely to be adversely affected in consequence of the decision to be rendered in the writ petition.
69. Considered thus, the concept of necessary party in a purely civil suit and a writ petition cannot be one and the same. Far from this, the scope of necessary party, in a wit petition, will be much wider than in the civil suits.
70. It is of utmost importance to note that the decision in Deputy Commissioner, Hardoi v. Rama Krishna Narain (AIR 1953 SC 521) is a decision, which rests on a civil suit. The law laid down, in Rama Krishna Narain (supra), is undoubtedly, binding on all Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 52 the Courts, in India, yet the fact remains that the law, enunciated therein, was in respect of civil suits. In Rama Krishna (supra), the Supreme Court has observed thus:
". . . . . . . . . . . The majority judgment was delivered by Pathak J. He enunciated two tests for deciding whether certain person was a necessary party in a proceeding. (1) that there must be a right to some relief against such a party in respect of the matter involved in the proceedings, in question, and (2) that it should not be possible to pass an effective decree in the absence of such a party and proceed to observed that the creditors of a landlord who have claimed relief under the Encumbered estates Act are necessary parties to the object of the Act is to compel the landlord to surrender his entire property for the benefit of his creditors and to liquidate the debts of all the creditors in accordance with and to the extent permitted by the Act. There can be no question that these are the true tests for determining whether a person is a necessary party to certain proceeding.. "
(Emphasis is added) Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 53
71. In Rama Krishna Narain (supra), two tests have really been laid down for determining the question as to who can be regarded as a necessary party in a civil suit, the tests being (i) that there must be a right to some relief against such a party in respect of the matter involved in the proceedings, in question, and (ii) that it should not be possible to pass an effective decree in the absence of such a party.
72. When the scope of necessary party falls for consideration in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar (AIR 1963 SC 786), the Supreme Court was really dealing with the scope of necessary party in a writ petition under Article 226 of the Constitution of India. In this case, the Supreme Court observed:
"7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled. It is enough if we state the principle. A necessary party is one without whom no order can be made effectively, a proper party is one in whose absence an effectively: a proper party is one in whose absence an effective order can be made but whose presence is Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 54 necessary for a complete and final decision on the question involved in the proceeding. "
8. xx xx xx
9. The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari. the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it :
without the presence of the successful party, the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 55 of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interest are directly affected, is. therefore, a necessary party. "
(Emphasis is supplied)
73. The above observations clearly show that leaving the narrow confines of determining the question of necessary parties from the standpoint of giving of reliefs to the parties concerned in a civil litigation, as had been considered in Rama Krishna Narain (supra), the Supreme Court considered even those persons as necessary parties, whose rights were to be directly affected by the order that would be passed in the writ petition. The Supreme Court made it clear that behind the back of such a party, no order shall be passed by a writ Court.
74. A new dimension was, thus, added to the concept of necessary party by laying down, in effect, in Udit Narain Singh Malpaharia (supra), that while considering the question of necessary party in a Writ application, the principles of natural justice are required to be maintained. The High Court, fundamentally speaking, seeks to "preserve", "protect" and "defend"
the Constitution. The Constitution enjoins upon the High Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 56 Court the duty to interfere, whenever the fundamental or legal rights of a citizen is sought to be infringed.
75. For the purpose of civil suit, it is enough for the civil Court to bring on record only those persons or parties, whose presence is necessary for effective disposal of the dispute or for granting of the decree as sought for. But the High Court, sitting as a writ Court, looks beyond the parties appearing before them and must ensure that not only the persons, who are essential for the purpose of the disposal of the case, but also those, who will be vitally affected by the order to be passed, are made parties so that nothing is decided behind their back.
76. When the question of necessary party was considered in Prabodh Verma and Ors.
Vs. State of Uttar Pradesh and Ors. (AIR 1985 SC
167), the Supreme Court broadened the scope of the necessary party, in the writ petition, by further laying down as follows:
"28. . . . . .A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or, at least, by some of them being before Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 57 it as respondents in a representative capacity if their number is too large, and, therefore, the Alahabad High Court ought not to have proceeded to hear and dispose of the Singh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary party. "
(Emphasis is supplied)
77. From the observations made in Udit Narain Singh Malpaharia (supra) read with what has been observed and laid down in Prabodh Verma (supra), it clearly follows that it would be against the principles of natural justice to make an adverse remark behind the back of the persons, who are to be directly affected by the decision, sought for, in the writ petition. In other words, if the decision of a writ Court is likely to adversely affect even the reputation of a person, such a person must be regarded as a necessary party.
78. This, in turn, indicates that in a writ court, while considering the question of necessary party, the Court has to bear in mind the principles of natural Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 58 justice and should be conscious of the fact that no decision be reached behind the back of the party, whose interest will be vitally affected by the decision that may be delivered or pronounced in the writ petition, though no relief, in the writ petition, may have been sought for against such persons. In short, in view of the fact that such persons are likely to be affected by the decision that may be reached by the Writ Court, principles of natural justice demand that they be heard before the decision is taken and in this context, such a party will be regarded as a necessary party for disposal of an application under Article 226 of the Constitution of India.
79. We may also point out that in the context of the facts of a given case, a person may become a necessary party in a writ petition, though he may not be an authority or a person within the meaning of Article 226 of the Constitution of India. Supposing an employee of an Association approaches the High Court for invoking its jurisdiction under Article 226 of the Constitution of India on the ground of arbitrary dismissal from service. If the court comes to take the view that the association, in question, is not an authority within the meaning of Article 12 and/or an authority or person within the meaning of Article 226 of the Constitution of India, the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 59 consequence would be that the writ application would not be maintainable. Now, let us, look into this problem from a different angle. Assuming that the District Collector of the district, where the Association is located, settles a plot of land in favour of the Association. A person, who has been in occupation and use of the plot of the land, approaches High Court with an application, under Article 226 of the Constitution of India, for quashing of the order of settlement on the ground that he had been in occupation and use of the land for more than 50 years and had been repeatedly applying, in accordance with law, to the authorities concerned to settle the land in his favour, but arbitrarily and without considering his case at all, the land has been settled in favour of the Association, in question.
80. Strictly speaking, for the purpose of giving relief to such an applicant, making of the Association, in question, a party to the writ petition is not necessary; but in view of the fact that the interest of the Association, in question, can be directly and vitally affected by the order, the Association becomes a necessary party. At the same time, however, though the Association, in question, becomes a necessary party, it may not be an authority within the meaning of Article 12 Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 60 and/or an authority or a person within the ambit of Article 226 of the Constitution of India.
81. The conclusion, therefore, which we safely reach, is that for considering as to whether a person is or is not a necessary party in a Writ application under Article 226, there can be no condition precedent that the person concerned must be an authority or a person under Article 226 of the Constitution of India. In other words, even if a person is not an authority or a person within the meaning of Article 226 of the Constitution of India, yet in the given set of facts and circumstances, impleading of such a person may become necessary and such a person has to be, then, regarded and treated as a necessary party. In such a case, it will be immaterial as to whether the writ petitioner has asked for any relief against such a party or from such a party or not.
82. In the context of the principle of law as indicated above, it needs to be recalled that Article 226 of the Constitution of India is essentially a public law remedy and, hence, exercise of power under Article 226 of the Constitution of India is not merely inter-parte, but may have serious ramification on others in the Society and, hence, all those, who may be adversely affected by Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 61 an order to be passed in a writ proceedings under Article 226 of the Constitution of India, need to be notified so that they could take care of their interest or else, it would become the duty of the Court to ensure that the interest of those, who may not be before the Court, is not adversely affected or injured.
83. In the light of the position of law, which we have pointed out above, when we turn to the case of State of Karnataka v. C. Lalitha, reported in (2006) 2 SCC 747, we notice that the Supreme Court has clarified, while dealing with service jurisprudence, that justice demands that a person should not be allowed to derive any undue advantage so as to cause heart- burning to more meritorious candidates.
84. The relevant observations, made in, C. Lalitha (supra), at paragraph 32, read as under:
32." Justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-
burning to more meritorious candidates..............."
(Emphasis is added) Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 62
85. The Supreme Court, in C. Lalitha (supra), pointedly observed that service jurisprudence, evolved by the Courts, postulates that all persons, similarly situated, should be treated similarly. The relevant observations, appearing in paragraph 29 of the decision, in C. Lalitha (supra), read as under:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only in case one person has approached the Court that would not mean that persons similarly situated should be treated differently..........."
(Emphasis is supplied)
86. To the same effect, as had been observed in C. Lalitha (supra), the Supreme Court, in K.T. Veerappa and Others vs. State of Karnataka & Ors, reported in (2006) 9 SCC 406, held as under:
"16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent-
university to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 63 revised pay scales in the year 1992- 94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor of Mysore. The benefits having been given to 23 employees of the University is compliance with the decision dated 21.6.1989 recorded by the learned Single Judge in WP Nos.21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time."
(Emphasis is added)
87. The observations made and law laid down in C. Lalitha (supra) and K.T. Veerappa (supra), that the service jurisdiction, as stands evolved by the Courts, postulates that all persons, similarly situated, should be treated similarly and if only one person approaches the Court, it would not mean that all those, who are Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 64 otherwise similarly situated, should be considered differently, meaning thereby that out of several similarly situated persons in a recruitment process, if one person approaches the Court and if a relief is granted to him, similarly relief shall not be denied to those, who were similarly situated, by differently treating the one, in whose favour the order is sought to be made, and that the Writ Court‟s anxiety to do justice cannot be stretched to such an extent as to cause heart burning to the candidates, who are more meritorious.
88. Unquestionably, therefore, when several persons figure in a merit list, then, merely because one of such persons, who may be low in the merit list, has approached the High Court, the High Court shall not make any order in favour of such a person without giving an opportunity to the others in the panel and even if the Court decides to pass an order in favour of the person approaching it, it must not ignore, or ought not to ignore, the interest of others in the merit list and even if the Court passes an order for consideration of such a person‟s case, the case of such a person would not be, therefore, different from others in the merit list, more particularly, in a case of present nature, where specific direction given, on 15.02.2001, was to consider Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 65 the cases of the petitioners and similarly situate from the panel against the vacancies in accordance with law. In K.T. Veerappa (supra), the Supreme Court has made it clear that the State cannot take the defence that except the persons, who had approached the Court, other similarly situate cannot be entitled to similar relief, because they had not approached the Court.
89. No wonder, therefore, that conscious of the scope of a Writ Court, while considering issuance of a writ, in the nature of mandamus, the Writ Court, on 15.02.2001, (which is the subject matter of interpretation in these appeals) directed to consider, in no uncertain words, the cases of the petitioners and similarly situate from the panel against the vacancies in accordance with law.
90. The writ petitioners and the intervenors, who are being described as private respondents herein, have claimed that as they were the only ones, who had moved this Court, the State is duty bound to consider only their cases for appointment to the exclusion of others in the merit list and if any vacancy remains thereafter, the cases of others, whose names may have figured, in the merit list, above the private respondents herein, shall be considered. The submissions, so made Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 66 by the writ petitioners and the intervenors, are wholly fallacious.
91. When a panel, on the basis of merit of the successful candidates, is prepared, it would be patently illegal and wholly unreasonable to say that the cases of the writ petitioners and the intervenors are required to be considered irrespective of their merit position in the panel merely because of the fact that they were the ones, who had moved the Court. We cannot lose sight of the fact that the order, which the writ petitioners and the intervenors have relied upon, directed, in no uncertain words, the Government to act in accordance with law. Nothing mentioned in the order, dated 15.02.2001, can be read to mean that the cases of the writ petitioners and the intervenors were only required to be considered to the exclusion of the others in the panel or the cases of the writ petitioners and the intervenors were required to be considered as a class different from the ones, who were also present in the panel above the writ petitioners and the intervenors.
92. If one can read into the order, dated 15.02.2001, that the cases of the writ petitioners and intervenors were only required to be considered by keeping others, in the panel, excluded, the directions, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 67 given by the presently impugned order, could not have been sustained. The said order, dated 15.02.2001, must be treated as an order made in accordance with law.
93. The expression "in accordance with law", appearing in the order, dated 15.02.2001, is loaded with meaning and requires the Government to consider not only the cases of the writ petitioner and the intevenors, but also of all the persons similarly situate in accordance with their merit position.
94. The mandamus, which had been issued by the order, dated 15.02.2001, was merely for consideration of the cases of the private respondents herein and not a mandamus for their appointment. Therefore, in terms of the order, dated 15.02.2001, the requirement, on the part of the State Government, was to consider the cases of the writ petitioners along with all others, whose names figured in the merit list in the panel, in accordance with their merit position. Consequently, more meritorious candidates, in the panel, cannot be ignored by issuing orders of appointment in favour of the writ petitioners and/or the intervenors merely on the ground that the writ petitioners and the intervenors were the ones, who had Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 68 approached the Court by way of writ petitions. If such becomes the construction of the directions contained in the order, dated 15.02.2001, aforementioned, the expression "similarly situate from the panel" and the expression "in accordance with law" would become redundant and otiose.
95. Situated thus, it becomes crystal clear that the learned single Judge, while making the impugned order, dated 16.07.2014, in contempt proceedings, incorrectly described the appellants as fence sitters; more so, when it is not the case of the writ petitioners and the intervenors that the persons, lower in the merit than the writ petitioners and the intervenors, have been appointed or have been considered for appointment.
96. In view of the factual background of this case and the provisions of the law relevant thereto, which we have discussed in the preceding paragraphs of this decision, we are of the considered view that the learned single Judge, while directing the state respondents, under the impugned order, dated 16.07.2014, to consider the cases of the writ petitioners and the intervenors to the exclusion of those, who are higher in the merit list (including the appellants Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 69 herein), has seriously erred in construing the meaning and import of the order, dated 15.02.2001, aforementioned.
97. The writ petitioners and the interveners, in the writ petitions, have lastly submitted that since it is on their writ petitions that the order, dated 15.02.2001, was passed, which has remained without any change or alteration or stay, should they not question as to whether all the exercise, which they had undertaken, and the orders, which were passed, should be of no avail to them?
98. In answer to the questions, so raised, suffice it to point out that the writ petitioners and the interveners never questioned or disputed the correctness of the directions given by the order, dated 15.02.2001, which, as already indicated above, warranted the consideration not only of the cases of the writ petitioners and the interveners, but also of the other candidates, who figured in the panel, the consideration being in accordance with law. The expression, "in accordance with law" would, in the context of the facts of the present case, mean consideration for appointment in accordance with the merit position of the candidates subject to policy, if any, of reservation, more Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 70 particularly, when the panel contained more names than the number of vacancies. If, therefore, the writ petitioners and the interveners came within the merit position, they would be considered for appointment in preference to the appellants provided the appellants are lower in merit in the panel, which they are not. WHETHER THE PRINCIPLE OF MERGER APPLIES TO CONTEMPT JURISDICTION?
99. This takes us to the third and last issue:
whether in view of the principle of merger, the applications, seeking drawing of contempt proceeding, were maintainable before a learned single Judge?
100. The case of the appellants is that the order of learned single Judge, passed on 15.02.2001, merged with the order of Division Bench, passed on 16.12.2004, and, hence, because of the principles of merger, the contempt applications were not maintainable before the learned single Judge.
101. On the other hand, learned counsel for the writ petitioners and interveners submit that the order of the learned single Judge, passed in the writ petitions, on 15.02.2001, was not varied, modified or altered by the Division Bench and, thus, where an order is affirmed by a Division Bench, in appeal, the doctrine of merger would not apply so far as contempt Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 71 jurisdiction is concerned. According to the writ petitioners and the interveners, only if a direction, given by a single Bench, in a writ petition, is modified or set aside or varied by a Division Bench, then and then only the contempt petition would lie before a Division Bench and not in the cases, where orders are affirmed. They submit that this is the reason that even when a Special Leave Petition is dismissed, no application for contempt is filed before the Supreme Court.
102. The dictionary meaning of the term "merger" is to "cause to be swallowed up" or "absorbed in something greater or superior". According to Black‟s Law Dictionary, Eighth Edition, the word „merger‟ means the act or an instance of combining or uniting. Accordingly to the Chambers Dictionary (New Edition), the word „to merge‟ is to cause to coalesce, to combine or amalgamate; to lose identity in something else; to combine or amalgamated.
103. The doctrine of merger was elaborately dealt with, and considered by, the Supreme Court, in Kunhayammed and Others vs State of Kerala and Another, reported in (2000) 6 SCC 359, wherein the Supreme Court explained, at paragraph 42, the term „merger‟ thus:
"42. "To merge" means to Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 72 sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality (See Corpus Juris Secundum, Vol. VII, pp.1067-68.)
104. The principle of merger is one of common law doctrines based on the principle of proprietary in hierarchy in judicial system. It is neither doctrine of constitutional law nor a doctrine statutorily recognized. It postulates merger of decision of subordinate forum into the decision of the appellate or revisional forum affirming, modifying or reversing such decisions or direction. In other words, the order of a Subordinate Court merges into the order of the Higher Court in order to give finality to the order; otherwise, at one common point of time, two orders or two decrees may operate, which may give rise to anomalous situation.
105. As an illustration, we may point out that if a decree is passed in favour of a plaintiff and the defendant carries the decree to appeal and the Appellate Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 73 Court dismisses the appeal by affirming the decree of the Trial Court, the Appellate Court‟s decree would subsume the decree passed by the Trial Court. No wonder, therefore, in such a case, it is the decree of the Appellate Court, which would be executed and not the decree of the Trial Court inasmuch as the decree, granted by the Trial Court, would be, in principle, treated to have merged into the decree of the Appellate Court. There would, thus, not any independent existence of the Trial Court‟s decree, when the same has been subsumed by the Appellate Court‟s decree.
106. The Supreme Court, in the case of C.I.T. vs Amritlal Bhogilal and Co. (AIR 1958 SC 868), has observed that if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law, the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority, the original decision merges into the appellate decision and it is the appellate Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 74 decision alone, which subsists, is operative and shall remain capable of enforcement.
107. The above principle of merger, as indicated in Amritlal Bhogilal and Co. (supra), was reiterated in the case of M/s Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh (AIR 1974 SC 1380). Again, in the case of S. S. Rathore v. State of M.P., reported in (1989) 4 SCC 582, a Seven Judge Bench, reviewing the available decisions, on the doctrine of merger, held that the distinction between the courts and tribunals as regards the applicability of doctrine of merger is without any legal justification.
108. The private respondents herein (i.e., the writ petitioners) and the interveners do not dispute the aforesaid proposition of law. They, however, submit that the principle of merger would not apply in contempt jurisdiction, where the order of learned Single Judge has been affirmed by the Division Bench.
109. On the other hand, learned counsel for the appellants submits that once the order of learned Single Judge has merged into the order of the Division Bench, the contempt, if any, would be of the Division Bench and not be of the Single Bench.
110. Though the private respondents herein Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 75 have not given any reference of any case law in support of their contention, it would be only fair, on our part, to take note of one such decision rendered in the case of Monnet Ispat & Energy Limited vs Bihar State Mineral Development Corporation, reported in 2014 (2) PLJR 584, wherein a learned Judge of this Court has held that if an order of single Judge is affirmed by a Division Bench, the contempt would lie before a single Judge and not before a Division Bench. The learned single Judge, in paragraphs 13 to 16 of the decision, in Monnet Ispat & Energy Limited (supra), observed that the doctrine of merger was not of universal or unlimited application and contempt jurisdiction is completely unaffected by the doctrine of merger. In coming to this conclusion, the learned single Judge, in Monnet Ispat & Energy Limited (supra), relied upon the decision in Kunhayammed (supra). The relevant observations, appearing in paragraph Nos. 13 to 16 of the decision, in Monnet Ispat & Energy Limited (supra), read as follows:
"13. Considering the averments made by learned counsel for the parties and the materials on record it is undisputed fact that the order in question dated 25.6.2012 passed by this Court in CWJC No.9625 of 2010 has not Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 76 been complied by the opposite parties. The only defence of the opposite parties in the aforesaid situation is technical in nature that such MJC petition is not maintainable before the Single Judge, rather it would be maintainable only before a Division Bench as the order in question passed by the Single Judge had been affirmed by a Division Bench in Letters Patent Appeal and that the MJC petition is premature as the order of the Single Judge and the order of the Division Bench had not attained finality because the respondents have filed Civil Review petitions which are pending before a Division Bench of this Court.
14. So far as the first objection raised by learned counsel for the opposite parties with respect to doctrine of merger and non-
maintainability of this petition against the order of the Single Judge is concerned, learned counsel for the opposite parties have relied upon a decision of the Apex Court in case of Kunhayammed and Others (supra). In the said decision itself it has been clearly held that doctrine of merger was not of universal or unlimited application and its applicability has to be determined keeping in view the nature of jurisdiction exercised by the forum and the content and subject matter of challenge. It has Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 77 been further held in the said order that when an order is affirmed by the appellate forum, in such situation application, if filed for review, will have to be filed before the appellate forum as the decision of the appellate forum existed for that purpose. However, the contempt is completely a different matter and the court derives its jurisdiction for the said purpose under the Contempt of Courts Act and as such it is completely unaffected by the doctrine of merger.
15. The Apex Court in exactly similar matter has decided Contempt Petition (Civil) No.43 of 2009 in Civil Appeal No.6694 of 2000 (Jayabrata Bhattacharjee vs. Ashok Kumar and Ors) vide order dated 30.3.2009 and held that as it had dismissed the appeal preferred by the D.D.A. against the judgment and order dated 23.7.1999 passed by the Delhi High Court, the contempt petition would be maintainable before the High Court and the petitioner may, therefore, file an appropriate contempt petition before the High Court whose order had been affirmed by the Apex Court.
16. In this case, it is quite apparent that the claim of the petitioner had been decided by a Single Judge of this Court vide order dated 25.6.2012 Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 78 passed in C.W.J.C. No.9625 of 2010 which had been fully affirmed even by the Division Bench and hence the petitioner was quite justified in filing this MJC petition for contempt before the Single Judge".
111. In reaching the conclusion that contempt would lie before a single Bench and not before a Division Bench if an order, passed in a writ petition, is affirmed by Division Bench, the learned single Judge, in Monnet Ispat & Energy Limited (supra), has, as already indicated above, relied upon Kunhayammed (supra).
112. It needs to be pointed out that the Supreme Court, in Kunhayammed (supra), was considering legal implication and impact of an order rejecting a petition seeking grant of Special Leave to Appeal under Article 136 of the Constitution of India and also as to whether the order of the Division Bench merges into the order of the Supreme Court if Special Leave to Appeal, under Article 136 of the Constitution, stands rejected. Upon considering the issue of merger in the case of Special Leave to Appeal under Article 136 of the Constitution of India, a three Judge Bench, in Kunhayammed (supra), in paragraph 44, summed up its conclusions.
113. It appears that the learned single Judge, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 79 in coming to his conclusion, in Monnet Ispat & Energy Limited (supra), relied upon the conclusion arrived at by the Supreme Court in clause (iii) of paragraph 44 in Kunhayammed (supra), wherein it was observed by the Supreme Court that the doctrine of merger is not a doctrine of universal or unlimited application. On the aforesaid basis, the learned single Judge has observed, in Monnet Ispat & Energy Limited (supra), that the exercise of contempt jurisdiction is a completely different matter and, hence, it is completely unaffected by the doctrine of merger.
114. In our view, the learned Judge misconstrued the context in which the Supreme Court, in Kunhayammed (supra), has observed that the doctrine of merger is not a doctrine of universal or unlimited application.
115. The observation that the doctrine of merger is not a doctrine of universal or unlimited application was made as we have already indicated above, in the context of an application seeking Special Leave to Appeal, under Article 136 of the Constitution of India.
116. While considering the doctrine of merger, in the context of Article 136 of the Constitution Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 80 of India, one has to bear in mind that there does exist a distinction between an appeal and a leave to apply for appeal. When an appeal is provided and the appeal is preferred, the appeal stands instituted; but when a leave for appeal is applied, then, until the leave is, in such a situation, granted, there is really no appeal. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the petition or leave to appeal arose, for, with the rejection of the petition for leave, no appeal survived.
117. Article 136 of the Constitution of India deals with 'special leave to appeal', which may or may not be granted by the Supreme Court. When a petition or application seeking special leave to appeal is dismissed by the Supreme Court with or without a speaking order, the order from which the appeal arose does not merge into such an order, for, as already indicated hereinabove, with the dismissal of the special leave petition, no appeal can be said to have been instituted and no appeal would, therefore, survive.
118. In fact, when the special leave to appeal is declined, there is no appeal. Hence, question of the merger of an order into the order declining to grant special leave to appeal does not arise at all. One may, in Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 81 this regard, refer to Punjab State Electricity Board, Patiala v. Ashok Kumar Sehgal (AIR 1990 P & H 117 (FB), wherein it has been observed thus:
"Article 136(1) of the Constitution of India provides that
notwithstanding anything in Chapter IV, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. If the Supreme Court, in its discretion, refuses to grant Special Leave to Appeal, then there is no appeal. The doctrine of merger or fusing the judgment of the lower Court in that of the appellate Court does not apply to such a situation. Thus, in our view, we can proceed with these matters despite the Special Leave Petition in Kuldip Singh's case having been dismissed."
119. The above aspect of the law has been succinctly and authoritatively laid down by the Supreme Court, in Kunhayammed (supra), in the following words:-
"42. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 82
matter at a given point of time. When tribunal or authority was subjected to remedy available under the law before superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality to put in jeopardy. Once the superior Court has disposed of the lis before it either way whether the decree or order under appeal is set aside or modified or simply confirmed. It is the decree or order of the superior Court, tribunal or authority which is the final binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or submitted application. The nature of jurisdiction exercised by the superior forum and content or subject latter of challenge which could have been laid shall have to be kept in view.
43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal.
What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 83 jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage."
44. To sum up our conclusions are:-
(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it; the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 84 of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment- decree or order appealed against while exercising it appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise it discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 85 other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C."
(Emphasis is supplied) Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 86
120. What emerges from the law, laid down in Kunhayammed (supra), is that where an appeal is provided against an order passed by a Court and the appeal is preferred, then, the decision of the lower Court forum merges into the decision of the appellate Court and it is the latter's decision, which subsists, remains operative and is capable of enforcement in the eyes of law. The position of the special leave applications, made under Article 136 of the Constitution of India, is somewhat different. The jurisdiction, conferred by Article 136 of the Constitution of India, is divisible into two stages. The first stage is up to the disposal of the prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
121. Considered from the above standpoint, the doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of the doctrine of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 87 put in issue before it. Under Article 136 of the Constitution of India, the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against only when it exercises appellate jurisdiction (i.e., after the leave to appeal is granted) and not while it exercises the discretionary jurisdiction on the question as to whether the petition for special leave to appeal shall be granted or not.
122. The doctrine of merger, therefore, in such cases, comes into play if the special leave to appeal is granted and not when the question as to whether the leave would be granted or not is considered and decided. It is, in this context, that the Supreme Court held in Kunhayammed (supra), that the doctrine of merger is not the doctrine of universal or unlimited application.
123. An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. What such an order implies is that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal to be instituted. If the order refusing special leave to appeal is a speaking order, i.e. when reasons Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 88 are assigned for refusing the grant of special leave, then, the order has two implications. Firstly, the statement of law, contained in such an order, is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution of India. Secondly, other than the declaration of law, whatever are stated in the order are the findings recorded by the Supreme Court, which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country; but it does not mean that the order of the Court, tribunal or authority below has stood merged into the order of the Supreme Court rejecting special leave petition. Once leave to appeal has been granted and the appellate jurisdiction of Supreme Court has been invoked or exercised, the order passed, in appeal, would attract the doctrine of merge. On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court and on the decision of the Supreme Court, in exercise of its appellate jurisdiction, a High Court's order does not remain open for review by the order inasmuch as the order of the High Court, in such a case, shall stand Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 89 merged into the appellate order of the Supreme Court
124. We may, however, hasten to add and clarify that though on the refusal to grant special leave to appeal under Article 136 of the Constitution of India, the order of the High Court does not merge into the order of the Supreme Court, the order of the Supreme Court remains binding on the subordinate Courts.
125. What crystallizes from the above discussion is that when an order is passed in a writ petition and the same is challenged in appeal, the dismissal of the appeal will debar the Court, which had passed the order in the writ petition, to review its own order, for, the order passed in the writ petition, on preferring of the appeal and the dismissal thereof, will merge into the appellate order and cannot survive for consideration, independent of, and/or distinct from, the appellate order. Similarly, if an order, passed in a writ petition by a Single Bench, is challenged in appeal, and the appeal is dismissed, as a whole, fully confirming the orders passed in the writ petition, the order passed in the writ petition merges into the order of the Division Bench and does not survive for the purpose of compliance or obedience thereof. Contempt, if any, in such a case, shall be of the orders of the Division Bench Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 90 and not of the Single Bench. Application, seeking initiation for contempt proceedings, would, therefore, ordinarily, lie before appropriate Division Bench against the appellate order of the Division Bench and not before Single Bench. By its rules, if a High Court makes a particular set of contempt proceedings amenable to Single Bench even against an appellate order of Division Bench, the situation would, perhaps, be a little different. In our case, there is, admittedly, no such rules framed by the Patna High Court.
CONCLUSIONS AND RELIEF(S)
126. In the light of principles of law as noticed above, we would, now, examine whether the decision, in Monnet Ispat & Energy Limited (supra), correctly lays down that in contempt application, the doctrine of merger would not apply and that the application, seeking drawing of contempt proceeding would, lie before the Single Judge and not before a Division Bench if the order of Single Bench is affirmed, in an intra court appeal, by a Division Bench. We find that in the case of Monnet Ispat & Energy Limited (supra), the order of the writ court was affirmed, in appeal, by a Division Bench of this Court. It is not in dispute that the subject matter before the learned Single Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 91 Judge and before the Appellate Court were no different and, as such, the circumstances in which the Supreme Court had observed, in Kunhayammed (supra), that the doctrine of merger is not a doctrine of rigid or universal application, were different from the case of Monnet Ispat & Energy Limited (supra). In this view of the matter, we hold that the decision, in Monnet Ispat & Energy Limited (supra), does not correctly lay down the law on the application of doctrine of merger in a contempt proceeding.
127. The writ petitioners have argued that even where a petition, seeking Special Leave to Appeal, is dismissed, still contempt petitions are filed in the High Court. In this regard, it would be suffice to observe that the conclusion, arrived at by the Supreme Court in clause (iv) of paragraph 44, in the case of Kunhayammed (supra), would more than meet the query of the writ petitioners that principle of doctrine of merger is not attracted, when the Supreme Court dismisses a special leave to appeal, as the order only means that the Supreme Court was not inclined to exercise its discretion so as to allow the appeal being filed.
128. In the present case, the order of the Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 92 learned Writ Court, dated 15.02.2001, passed in C.W.J.C. Nos. 2994, 7732, 8926 and 9259 of 2000 and other writ petitions, merged into the appellate order made by the Division Bench on 16.12.2004. The Special Leave to Appeal, carried to the Supreme Court, in the present appeals, was dismissed at the threshold without admitting the appeal. In view of the law laid down by the Supreme Court, in Kunhayammed (supra), as the appeal has not been admitted, the order of the High Court did not merge into the order of the Supreme Court.
129. For the reasons aforementioned, the order of writ Court, dated 15.02.2001, merged with the order, dated 16.12.2004, of the Division Bench. The contempt petitions were, thus, maintainable only before the Division Bench and not before the learned single Judge. Had contempt, in the circumstances of the present case, been established, the contempt would have been of the Division Bench and not of the single Bench. The learned single Judge was, therefore, in error in entertaining the contempt applications.
130. We accordingly allow these appeals. The order, dated 16.07.2014, passed in M.J.C. No.101 of 2005 and analogous cases, are, therefore, set aside. Patna High Court LPA No.1159 of 2014 (6) dt.21-10-2014 93
The orders, passed in contempt applications from time to time by learned single Judge, are hereby held as non est in law.
(I. A. Ansari, J.)
S. P. Singh, J. : I agree.
(Samarendra Pratap Singh, J.)
Prabhakar Anand/AFR
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