Patna High Court - Orders
Yogeshwar Pandey And Ors vs The State Of Bihar And Ors on 1 April, 2019
Bench: Chief Justice, Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Jurisdiction Case No.2847 of 2018
In
Letters Patent Appeal No.1066 of 2015
======================================================
Arbind Kumar and Ors.
... ... Petitioner/s
Versus
The State of Bihar through Sri Deepak Kumar, the Chief Secretary,
Government of Bihar, Patna and Ors.
... ... Opposite Party/s
======================================================
with
Miscellaneous Jurisdiction Case No. 2969 of 2018
In
Letters Patent Appeal No.1066 of 2015
======================================================
Girish Nandan Singh
... ... Petitioner/s
Versus
The State of Bihar & Ors.
... ... Opposite Party/s
======================================================
with
Civil Writ Jurisdiction Case No. 14907 of 2018
======================================================
Yogeshwar Pandey and Ors.
... ... Petitioner/s
Versus
The State of Bihar and Ors.
... ... Respondent/s
======================================================
Appearance :
(In Miscellaneous Jurisdiction Case No. 2847 of 2018)
For the Petitioner/s : Mr. P. K. Shahi, Senior Advocate
Mr. S. B.K. Manglam, Advocate
Mr. Ravi Ranjan, Advocate
Mrs. Anita Kumari, Advocate
For the Opposite Party/s : Mr. P. S. Patwalia, Senior Advocate
Mr. Lalit Kishore - AG
(In Miscellaneous Jurisdiction Case No. 2969 of 2018)
For the Petitioner/s : Mr. Prashant Kishore, Advocate
Mr. Bindhyachal Singh, Advocate
Ms. Smriti Singh, Advocate
Mr. Vipin Kr. Singh, Advocate
Mr .Satya Prakash, Advocate
For the Opposite Party/s : Mr. Prabhat Kumar Verma, AAG-3
(In Civil Writ Jurisdiction Case No. 14907 of 2018)
For the Petitioner/s : Mrs. Anita Kumari, Advocate
For the Respondent/s : Mr. Partha Sarthi -GA 4
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE JUSTICE SMT. ANJANA MISHRA
Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019
2/20
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
12 01-04-2019There are two contempt applications, namely MJC No.2847 of 2018 and MJC No.2969 of 2018 that have been filed alleging disobedience of the judgement of a Division Bench in LPA No.1066 of 2015 decided on 30th July, 2015. The said Letters Patent Appeal affirmed the judgement of the learned Single Judge in CWJC No.19114 of 2012 (Sushil Kumar Singh & Ors. Versus State of Bihar and others) decided on 04.05.2015. MJC No.2969 of 2018 has been filed by Girish Nandan Singh, who is petitioner No.2 in CWJC No.19114 of 2012.
In the two contempt applications, the allegations are that the opposite parties have committed wilful and deliberate disobedience by not complying with the judgements aforesaid and, therefore, they deserve to be proceeded with under the Contempt of Courts Act, 1971. The orders that have been issued and that have been made the basis for alleging contempt are by the opposite party no.2 Amir Subhani and opposite party no.8 Rajendra Ram who have also filed their show cause in the contempt applications.
CWJC No.14907 of 2018 has been filed and was entertained by a learned Single Judge praying for quashing of the Resolution dated 20th July, 2018 contending that the same is Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 3/20 in teeth of the final judgments of this Court, the contempt whereof is alleged. An I.A.No.02 of 2019 has been filed praying for stay of the Office Resolution dated 20th July, 2018 as the same has been issued without undertaking the exercise as directed by the High Court in the judgements referred to hereinabove.
A supplementary affidavit has also been filed bringing on record that the opposite parties have proceeded to convene the Departmental Promotion Committee and steps have also been undertaken by the Bihar Public Service Commission for the purpose of granting promotion. The authorities have actually passed the Resolution and granted promotions which is clearly in teeth of the judgements of this Court. It is, therefore, urged that all promotion orders are being issued in violation and in breach of the judgements of this Court which deserve to be quashed and their operation deserve to be stayed during the pendency of the writ petition.
We have considered the submissions raised and we find that the entire exercise commenced long back, the litigative history whereof has been traced out in the judgement of the learned Single Judge dated 04.05.2015. A Resolution was passed by the State Government on 21st August, 2012 for Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 4/20 extending benefits of promotion to the Scheduled Castes and Scheduled Tribes which, according to the petitioners, was in teeth of the directions issued in the case of M. Nagraj Versus Union of India, (2006) 8 SCC 212 and, therefore, the parameters therein have been violated, as also explained in the case of Suraj Bhan Meena Versus State of Rajasthan, (2011) 1 SCC 467. The Resolution dated 21st August, 2012 deserved to be quashed. The learned Single Judge found favour with the petitioners and the writ petition was allowed on 4th of May, 2015 quashing the Resolution dated 21st August, 2012 with liberty to the State Government to grant benefit of reservation in promotion to the Scheduled Castes and Scheduled Tribes candidates after strictly complying with the requirements of Article 16 (4-A) of the Constitution of India as well as the parameters and conditions laid down by the Constitution Bench in the case of M. Nagraj (supra).
The State of Bihar and its authorities preferred LPA No.1066 of 2015 and a Division Bench of this Court vide judgement dated 30.07.2015 after having appreciated the arguments on both sides came to the conclusion that the State Government did not pay attention to the guidelines and parameters laid down for the assessment that was required to be Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 5/20 undergone which included a genuine exercise to collect data of backwardness, inadequacy of representation and overall administrative efficiency and consequently on the facts it was found that the State Government having failed to carry out the exercise in correct perspective, the judgement of the learned Single Judge did not require any interference.
Assailing the judgement of the learned Single Judge dated 04.05.2015 and the Division Bench of this Court dated 30th July, 2015, Civil Appeal No.4880 of 2017 has been preferred by the State of Bihar and is pending consideration before the Apex Court. No interim orders have been passed in the said Civil Appeal (State of Bihar and others Versus Sushil Kumar Singh and others), but the same has been tagged along with the other matters that have been referred to the Larger Bench.
An additional argument has been raised to contend that the exercise undertaken by the State Government is not in conformity with the law and, therefore, apart from being the breach of the judgement of this Court, the same is also not in conformity with the law declared by the Apex Curt in the case of Jarnail Singh & others Versus Lachhmi Narain Gupta & others, (2018) 10 SCC 396 where the reference has been Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 6/20 answered on 26th September, 2018. It is urged that the said five Judges decision have ruled that the judgement in the case of M. Nagraj (supra) does not require any further reference to a Larger Bench and that further the collection of quantifiable data by the State on the parameters as stipulated in M. Nagaraj's case (supra) on the inadequacy of representation can be tested by the Courts. It has further been clarified that the data would be relatable to a cadre concerned. Consequently, applying the law in the case of Indra Sawhney Versus Union of India, 1992 Supp. (3) SCC 217, the law in the case of M. Nagraj (supra) that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and Scheduled Tribes is invalid. However, the quantifiable data in respect of inadequacy of representation has to be collected which can be subject to test by the Court. It is, therefore, submitted that the State of Bihar did not re-visit the matter in accordance with the said observations of five Judges Bench that has answered the reference and has hurriedly proceeded with the promotions under the garb of earlier directions issued by the Apex Court prior to the opinion expressed in Jarnail Singh's case (supra) as indicated above.
It is in this background that the learned counsel for the Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 7/20 applicants urged that there is a clear wilful and deliberate obedience of the order of the High Court which has not been interfered by the Apex Court nor any interim order is pending and, therefore, a mere pendency of Special Leave to Appeal does not allow the State of Bihar to proceed to make promotions in the teeth of the said judgements as has now been dealt with under the Resolution dated 20th July, 2018. It is, therefore, submitted that the breach of the judgements of this Court is established and therefore, the opposite parties deserve to be summoned for answering the charges of wilful and deliberate disobedience.
In the writ petition, the prayer is to quash the said Resolution dated 20th July, 2018 and also the entire consequential action taken and the promotions made thereafter be quashed.
It is also the submission of the learned counsel for the applicants and the petitioners that the Apex Court has nowhere authorized the State Government to proceed with the promotion and if the State Government wanted to do so it could have sought a clarification from the Apex Court and could not have proceeded with the promotion on the basis of Office Memorandum of the Union of India dated 15th June, 2018. Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 8/20 Responding to the aforesaid submissions, Sri P.S. Patwalia, learned Senior Counsel for the State of Bihar as well as Shri Lalit Kishore, learned Advocate General have urged that in view of the matter pending before the Apex Court and in the light of the orders passed from time to time in relation to the same subject matter in different cases, that is likely to be assessed by a Larger Bench, the State Government has rightly proceeded to act upon the Office Memorandum of the Union of India dated 15th June, 2018 and the interim arrangements made by the Apex Court that also deserve to be followed by the State of Bihar and in this background, there is neither any wilful or deliberate disobedience nor does the order dated 20th July, 2018 require a quashing, as the appeal filed by the State of Bihar against the judgements of this Court is also tagged along and is being heard with the aforesaid bunch matters with regard to which orders have been passed from time to time by the Apex Court that have been placed before this Court through a compilation.
Shri Patwalia therefore, contends that even otherwise on merits, the opinion expressed in Jarnail Singh's case (supra) in no way alters the situation as in the instant case, the State of Bihar had undertaken an exercise in terms of the decision in the Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 9/20 case of M. Nagraj (supra) which has been quashed, but the appeal filed against the same is still pending before the Apex Court and is to be heard on the issues so raised along with other matters. He, therefore, submits that in this background, there is no wilful and deliberate disobedience and consequently this Court having adequately protected the interest of the applicants and the writ petitioners by making all such promotions subject to the outcome of the decision of the Apex Court as well as this Court, no further orders are required to be passed. In effect, the learned Senior Counsel further suggests that the matter can await the outcome of the litigation before the Supreme Court for which these cases may be adjourned for the time being.
Having heard learned counsel for the parties, we find that an anomalous situation has arisen where the judgements of this Court have been clearly breached. The Civil Appeal filed against the said judgements even though has been tagged and is pending along with the other matters, there is no specific interim order staying operation of the judgements of this Court. In such a situation, the mere pendency of an appeal cannot absolve the opposite parties of their duty to comply with the judgements. On the other hand, the opposite parties are also under an obligation not to act in breach thereof. They have, however, done so, but Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 10/20 the shelter taken is of the pendency of the appeal and also the interim orders passed from time to time by the Apex Court in this regard.
Shri Patwalia has invited the attention of the Court to the order dated 14.11.2017 in the matter relating to the State of Tripura & Ors. Versus Jayanta Chakraborty & Ors (Civil Appeal No.(s) 4562-4564 of 2017) where a two Judges Bench opined that having regard to the questions involved, the matter should be placed before the Hon'ble the Chief Justice of India for passing appropriate orders to constitute a Constitution Bench and further any request for interim relief also requires to be considered by the same Bench.
Another matter which arose from the State of Maharashtra in Special Leave to Appeal (C) No. 28306 of 2017 (The State of Maharashtra and Anr Vs. Versus Vijay Ghogre & Ors.) was taken up by a three Judges Bench where it was observed that it was appropriate to constitute a Constitution Bench only to examine the issue as to whether the decision in the case of M. Nagraj (supra) requires reconsideration or not.
During the pendency of these cases, it appears that since the Constitution Bench could not convene, in a matter relating to Punjab and Haryana in the case of Jarnail Singh & Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 11/20 Ors. Versus Lachhmi Narain Gupta & Ors (Special Leave to Appeal (C) No.30621 of 2011), a mention was made for an interim arrangement. A two Judges Bench on 17 th May, 2018 directed that during pendency of the Special Leave Petition, the same shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' category and also in the matter of promotion on merits. The order is extracted hereinunder:-
"It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' and also in the matter of promotion on merits.
Post for further orders after summer vacation."
This was again reiterated in the Maharashtra matter, namely, the State of Maharashtra & Anr Vs. Vijay Ghogre & Ors. (Special Leave to Appeal (C) No.28306 of 2017) by another two Judges Bench on 5th June, 2018. The order is extracted hereinunder:-
"Heard learned counsel for the parties.
Learned ASG has referred to order dated 17.05.2018 in SLP (C) No.30621 of 2011.
Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 12/20 It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter.
Tag to SLP (C) No.30621 of 2011."
The Union of India referring to the aforesaid two orders issued an Office Memorandum on 15th June, 2018 which contains an advisory to the State Governments as well which is to the following effect:-
"OFFICE MEMORANDUM Subject: Implementation of interim Orders/directions in Special Leave to Appeal (C) No.30621/2011 arising out of final judgment and order dated 15.07.2011 in CWP No.13218/2009 passed by the Hon'ble High Court of Punjab and Haryana and Special Leave to Appeal (C) No.31288/2017 arising out of Hon'ble Delhi High Court judgment dated 23.08.2017 and other related court cases- regarding ***** The Hon'ble Supreme Court vide its order dated 15.11.2017 in SLP (C) No.28306/2017 has decided to refer to a Constitution Bench to examine whether its earlier decision in M. Nagraj and others Versus Union of India and others requires reconsideration or not, inter alia, on the issue as to whether test of backwardness would, at all, apply in case of SC and ST.
Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 13/20
2. The Hon'ble Supreme Court in SLP (C) No.30621/2011 has passed the following Order on 17.05.2018:
" It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' and also in the matter of promotion on merits......"
3. Further, in the matter related to SLP (C) No.31288/2017, connected to Special Leave to Appeal (C) No.28306/2017, the Hon'ble Supreme Court held as under on 05.06.2018:
"Heard learned counsel for the parties. Learned ASG has referred to order dated 17.05.2018 in SLP (C) No.30621 of 2011. It is made clear that the Union of India is not debarred from making promotions in accordance with law, subject to further orders, pending further consideration of the matter. Tag to SLP (C) No.30621 of 2011."
4. The cadre controlling authorities of Central Government Ministries, Departments and Union Territories are to carry out promotions in accordance with the directions of the Hon'ble Supreme Court mentioned in paragraphs 2 and 3 above based on existing seniority/select lists.
5. Every promotion order must clearly mention the stipulation that the promotion shall be subject to further orders which may be passed by the Hon'ble Supreme court.
6. All Ministries/Departments are requested to Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 14/20 bring this to the notice of all concerned for information/compliance.
7. State Governments are also advised to take necessary action in accordance with the abovementioned orders passed by the Hon'ble Supreme Court.
Sd/ (G. Srinivasan) Deputy Secretary to the Government of India Tel: 23093074"
The State Governments, therefore, were also advised to take necessary action, but again it will be apt to mention here that no interim order was passed in the appeal filed by the State of Bihar referred to hereinabove.
The Government of Bihar on 20th of July, 2018 proceeded to issue its order in compliance of the aforesaid office Memorandum and the orders passed by the Apex Court that has become subject matter of challenge in CWJC No.14907 of 2018 and which has been made the basis for alleging contempt in the other two applications.
The question, therefore, is: can it be said that there is a wilful and deliberate disobedience on the part of the officers of the State Government of the State of Bihar in not complying with the judgements of this Court? For this it can be easily inferred from the facts narrated above that since the appeal filed Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 15/20 by the State of Bihar has been tagged along and the orders were passed in relation to the State of Punjab and the State of Maharashtra, then in that event, the advisory issued through the office Memorandum dated 15th June, 2018 did give a shelter to the State Government to proceed with the matter.
However, the situation changes thereafter when the reference made to the five Judges Bench came to be answered in the case of Jarnail Singh (supra) on 26th September, 2018. The question is as to whether the State of Bihar ought to have revisited the matter in the light of the answer given by five Judges Bench in the reference before it or it should have proceeded to make the promotions under the umbrella of the orders referred to hereinabove that were not in the appeal filed by the State of Bihar. In our opinion, the State of Bihar ought to have taken notice of the same, more so, when they have now in 2019 undertaken the exercise of proceeding to make appointments through promotions without complying with the judgements of this Court that have not been set aside or stayed so far. It was the obligation of the State to seek any such clarification from the Apex Court before having proceeded to undertake the promotions under its Resolution dated 20 th July, 2018 after the decision in the reference made in the case of Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 16/20 Jarnail Singh (supra). This obviously was a short fall in the conduct of the Government of Bihar in not taking any steps in this regard. Shri Patwalia, however, submits that an application has already been moved and there is every likelihood that the case of Jarnail Singh (supra) being also taken up for consideration of the matter and it may raise further issues relating to the correct ratio of the decision of the Apex Court and its applicability in matters of promotion of Scheduled Castes and Scheduled Tribes.
In our opinion, the breach does exist inasmuch as if the State of Bihar has undertaken the process of promotion now in the year 2019, then once the order of the five Judges Bench in the case of Jarnail Singh (supra) had emerged, it should have passed another resolution in the light of whatever was laid down therein and then ought to have proceeded with the matter or it ought to have sought a clarification from the Apex Court itself in these changed circumstances. The exercise for collection of quantifiable data regarding inadequacy of representation has to be undertaken by the State so long as the judgements of this Court stand. To that extent, the State of Bihar does not appear to have taken appropriate steps in order to avoid any situation of contempt. We may mention that nothing has been brought to our Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 17/20 notice which may indicate that the Union of India has issued any further clarifications or undertaken any exercise pursuant to the five Judges pronouncement dated 26th of September, 2018.
There are a couple of more developments thereafter which have been pointed out by Shri Patwalia and deserve to be taken notice of. The Apex Court in the case of B. K. Pavitra & Ors Vs. Union of India & Ors. (MA No.1151 of 2018 in CA No.2368 of 2011) passed an order on 12th of October, 2018 taking notice of the decision in the case of Jarnail Singh (supra) and directed the matter to be placed for final hearing on a particular date. The said case arose out of a legislation that was framed in the State of Karnataka and was subjected to challenge on the ground that the same was in order to avoid the earlier decision of the Apex Court. It appears that the said appeal was of the year 2011 and was finally heard on 6 th of March, 2019 when orders were reserved after concluding the hearing. It is stated that the judgement in the said case is still awaited.
The matters which had been clubbed together after the reference had been answered in the case of Jarnail Singh (supra), were directed to be posted for hearing vide order dated 2nd of November, 2018 and it is informed that the appropriate Bench might be hearing the matter in the near future.
Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 18/20 We have considered the aforesaid aspects as well and what we find is that insofar as the implementation of the Resolution of the Government of Bihar dated 20th July, 2018 is concerned, the same initially had the capacity to survive keeping in view the office memorandum issued by the Govt. of India and the orders passed in the case of Punjab and Haryana and Maharashtra, but its application after the answer given by the five Judges Bench on 26th September, 2018 is definitely questionable.
To avoid this, the learned Advocate General informs that all promotion orders which have been issued thereafter contain a recital that they shall be subject to the outcome of the judgement in the case of State of Bihar Versus Sushil Kumar Singh & Ors. In the absence of any interim order in that appeal, such a recital in the promotion orders appears to be inadequate and the State of Bihar ought to have clarified that the same would be subject to the final outcome of the judgments of the Apex Court in this regard for which the State of Bihar had to necessarily take notice of the five Judges order dated 26 th of September, 2018. The State of Bihar, therefore, having avoided to take notice thereof has proceeded to make promotions which are in violation of the judgements of this Court, the appeal Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 19/20 whereof is pending before the Apex Court. In the given circumstances, the State of Bihar has been gradually proceeding with the promotions which were carried out preceding the declaration of the Code of Conduct for the ensuing Parliamentary elections.
In the above background, the issue of wilful and deliberate disobedience will have to be examined in the light of above for which we put to notice Shri Amir Subhani and Shri Rajendra Ram, who are opposite parties no.2 and 8 in MJC No.2847 of 2018 to submit their response as to why this Court should not proceed to call upon them to answer this contempt application in the light of the fact that the State and its authorities including them have deliberately omitted to consider the impact of the order of the Apex Court dated 26 th of September, 2018 in Jarnail Singh's case (supra) and have proceeded to make promotions in the breach of the orders of this Court dated 30th of July, 2015 and 4th of May, 2015.
We are not framing charges at the moment keeping in view the background of the litigation, but if the Court does not find a valid explanation by the next date fixed, then in that event, the matter may have to proceed with the framing of charges depending upon the satisfaction to be recorded after an Patna High Court MJC No.2847 of 2018(12) dt.01-04-2019 20/20 affidavit is filed by the aforesaid two officers.
Having come to that conclusion that the disobedience does persist and that the State of Bihar has not taken stock of the order dated 26th of September, 2018 of the Apex Court nor any action was undertaken in the light thereof we further direct that in view of the enforcement of the Code of Conduct by the Election Commission of India and in view of the background of the litigation where the State of Bihar has proceeded to make promotions, any promotions made up till now shall be subject to the outcome of CWJC No.14907 of 2018 and these two applications or any orders of the Apex Court, but the State of Bihar if it desires to proceed with any further promotions, it will have to seek prior orders either from the Apex Court or seek leave of this Court.
Let the matters come up on 1st of July, 2019.
(Amreshwar Pratap Sahi, CJ) ( Anjana Mishra, J) Sunil/-
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