Himachal Pradesh High Court
Ms.Sunita Kumari vs Sh.P.C. Dhiman & & Another on 4 August, 2016
Author: Sandeep Sharma
Bench: Mansoor Ahmad Mir, Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
COPC No.804 of 2015
.
Judgment Reserved on: 28.07.2016
Date of decision: 04.08.2016
Ms.Sunita Kumari ....Petitioner
Versus
Sh.P.C. Dhiman & & Another ....Respondents
of
Coram
The Hon'ble Mr.Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
rt
Whether approved for reporting ?1.
For the Petitioners:
Yes.
Mr.Onkar Jairath, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General
with Mr.Anup Rattan, Additional
Advocate General with Mr.J.K. Verma
and Mr.Kush Sharma, Deputy Advocate
Generals.
Sandeep Sharma,J.
By way of present Contempt Petition filed under Article 215 of the Constitution of India read with Section 10 of the Contempt of Courts Act, 1971, petitioner has prayed for initiation of contempt proceedings against the respondents for willful disobedience of judgment dated 18.9.2012 passed by Division Bench of this Court in CWP No.7865/2012-G, titled: Ms.Sunita Kumari vs. State of H.P. & Others (for short `judgment).
1Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 22. Brief facts, as emerged from the record, are that the petitioner was appointed as Language Teacher against .
sanctioned post on Parents Teacher Association basis (for short `PTA') at Government Middle School, Chokia, Tehsil Chopal, District Shimla, U/c Government Senior Secondary School, Chopal (for short GSSS, Chokia) at salary of of Rs.1000/- per month by PTA Committee. It further emerged from the record that her services were lateron terminated vide order dated 17.11.2006 by the Principal of GSSS, Chokia, on rt the ground that she was not possessing required qualification for the post of `Shastri' at the time of her engagement.
3. Being aggrieved with her termination, petitioner by way of OA No.3469/2006, approached the learned HP State Administrative Tribunal, who vide order dated 5.12.2006, while issuing notices to the respondents, stayed the operation of order dated 17.11.2006, whereby services of the petitioner were terminated. Accordingly, petitioner was allowed to work in the School. However, vide communication dated 3.4.2009, Principal of the aforesaid School intimated Deputy Director, Elementary Education, Shimla (for short `DDEE') that the petitioner engaged on PTA basis as `Shastri' was willfully absent from her duty w.e.f. 16.3.2009 to 6.3.2012 and rejoined her duty on 7.3.2012 (FN), as ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 3 intimated by the Headmaster of Government Middle School, Chokia vide his letter dated 7.3.2012. Subsequently vide .
CWP No.7865 of 2012-G, the petitioner approached this Court seeking following relief:-
"(a) That the Writ in the nature of Mandamus or any other appropriate writ or direction may kindly be issued directing the respondents to release the of grants-in-aid from the date of initial appointment i.e. 20.10.2006 till date alongwith interest @ 9% as has been paid to the similarly situated rt incumbents."
4. Division Bench of this Court vide judgment dated 18.9.2012 directed respondent No.1 to look into the case of the petitioner and take appropriate action thereon, in accordance with law, within a period of three months from the date of production of copies of the judgment and the writ petition. It was also ordered that while taking action as above, order dated 23.11.2010, passed by the Government, and other available documents shall be taken into consideration.
5. As per petitioner, after passing of the judgment, she made several requests to respondent-competent authority to release her Grant-in-Aid but all in vain.
Petitioner further averred that vide communication dated ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 4 16.12.2014, `DDEE' called for details of the petitioner from the office of Principal, GSSS, Chopal, District Shimla, which .
was duly submitted to him vide communication dated 21.12.2014. Petitioner further averred that her case was duly forwarded by the `DDEE' to respondent No.1 vide letter dated 31.12.2014, but despite being fully qualified to be of appointed as Language Teacher, steps have not been taken by the respondents to release Grant-in-Aid. It has also been contended on behalf of the petitioner that `DDEE' further rt reminded respondent No.2 vide communication dated 16.5.2015 with regard to passing of the judgment and requested him to examine the case being appointing authority and send detailed para-wise comments alongwith record to the Secretary(Education) to the Government of Himachal Pradesh without further delay. It also emerges from the averments contained in the petition that `DDEE' vide communication dated 23.5.2015 forwarded the case of the petitioner to the Secretary(Education) to the Government of Himachal Pradesh. However, no action, whatsoever, has been taken despite their being specific direction in the the judgment.
6. In the aforesaid background, petitioner prayed that the respondents have willfully and intentionally ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 5 disobeyed the judgment and as such they deserve to be punished in accordance with the provisions contained in the .
7. On taking cognizance of the averments contained in the Contempt Petition, this Court issued notices to the respondents on 29.10.2015, which were duly waived by of learned Advocate General and was disposed of by directing the respondents to comply with the directions made in the said judgment, within a period of six weeks, if not already rt complied with and report compliance before the Registrar(Judicial), in default, show cause.
8. Since respondents had failed to comply with the aforesaid order dated 29.10.2015, passed in instant Contempt Petition, the matter was again placed before this Court by Registrar(Judicial). Thereafter, the matter was listed on 14.6.2016 and on that day compliance report was filed on behalf of the respondents in the Court itself. However, learned counsel representing the petitioner, after perusing the compliance report, stated at Bar that the respondents are in breach as they have not complied with the directions passed by this Court within the stipulated period, constraining the petitioner to file two Contempt Petitions.
However, time was granted to him to go through the ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 6 compliance report and file response, if any. The matter was again listed on 28.7.2016, but on that day learned counsel .
representing the petitioner stated that he does not intend to file response to the compliance report filed by the respondents in terms of order dated 29.10.2015 and insisted that matter may be decided on merits.
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9. Mr.Onkar Jairath, learned counsel appearing for the petitioner, vehemently argued that no action, whatsoever, has been taken by the respondents after passing of the rt judgment dated 18.9.2012 because till date the respondents have not released Grant-in-Aid from the date of initial appointment i.e. 20.10.2006 till date with interest @ 9% per annum. With a view to substantiate his arguments, he made this Court to travel through the judgment, wherein direction was issued to the respondents to look into the matter and take appropriate action within a period of three months and communications dated 21.12.2014, 31.12.2014, 16.5.2015 and 23.5.2015 (Annexures C-2 to C-5), whereby Principal, GSSS, Chopal as well as `DDEE' furnished para-
wise comments to respondent No.1 for taking appropriate action in the matter in terms of the judgment.
10. Mr.Jairath strenuously argued that despite issuance of notices by this Court in contempt proceedings, no ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 7 steps, whatsoever, have been taken by the respondents to comply with the directions contained in the judgment dated .
18.9.2012, which shows that how dis-respectful/callous attitude have been shown by the respondents towards the judgment as well as various orders passed by this Court in Civil Writ Petition and in this Contempt Petition. While of concluding his arguments, Mr.Jairath forcefully contended that bare perusal of the compliance order passed during the pendency of the present Contempt Petition, purportedly filed rt in compliance to order dated 29.10.2015, itself speaks volumes with regard to the conduct and callous/contemptuous attitude of the respondents and who have repeatedly disobeyed the directions passed by this Court willfully and intentionally and as such they deserve to be punished in accordance with the provisions of Contempt of Courts Act.
11. On the other hand, Mr.Shrawan Dogra, learned Advocate General, submitted that the judgment dated 18.9.2016, wherein direction was issued to look into the case of the petitioner and take appropriate action, has been duly complied with by the respondents. He also invited the attention of this Court to the order dated 25.5.2016 passed by respondent No.1, in compliance to the judgment dated ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 8 18.9.2012. Mr.Dogra vehemently argued that the judgment nowhere suggests that there was any specific direction to .
release Grant-in-Aid in favour of the petitioner from the date of initial appointment, rather, Hon'ble Division Bench, taking cognizance of the averments contained in the petition only directed the respondents to look into the case of the of petitioner and take appropriate action thereon. Mr.Dogra vehemently argued that there is no illegality and infirmity in the order dated 25.5.2016 passed by respondent No.1 rt because the same has been passed after perusing the record.
He especially invited the attention of this Court to para-9 of the order date 25.5.2016, passed by respondent No.1, which is reproduced here-in-below.
"9. As per the record produced by the Department there was a ban on appointment of teachers through PTA(GIA) during the period 06-11-2006 to 13-07-2007 and as such her appointment by PTA was made during the period of this ban. It is also seen that while appointing her neither the vacancy was advertised nor opportunity by any other mean was given to other aspirants."
12. Careful perusal of the aforesaid para of the compliance report suggests that at the time of initial appointment of petitioner as `Shastri' on 16.10.2006 through PTA(GIA), during the period 6.11.2006 to 13.7.2007 there was ban on the appointment of teachers through PTA(GIA) ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 9 and as such her appointment made by PTA was in violation of the ban imposed by the Government. It is also discussed .
in the letter referred to hereinabove that at the time of appointing the petitioner on PTA basis, there was neither any vacancy advertised nor opportunity, if any, was afforded to other aspirants.
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13. Apart from above, this Court had an occasion to peruse order dated 25.5.2016, wherein it emerges from para-
4 that at the time of her appointment, petitioner did not fulfill rt educational qualification for the post of `Shastri' and as such her services were terminated by Principal, GSSS, Chokia, Tehsil Chopal. However, her termination was stayed by learned HPSAT in Original Application preferred by her. This Court, after perusing the order dated 25.5.2016, passed by respondent No.1 in compliance to judgment dated 18.9.2012, passed in CWP No.7865 of 2012 as well as order dated 29.10.2015, passed by this Court in COPC No.804 of 2015, has no hesitation to conclude that respondents have duly complied with the judgment as well orders passed by this Court in Civil Writ Petition and in this Contempt Petition.
Same Division Bench of this Court vide judgment dated 18.9.2012 had directed respondent No.1 to look into the case of the petitioner and take appropriate action, this Court after ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 10 perusing the material placed on record by the petitioner in shape of Annexures C-2 to C-5 and thereafter order dated .
25.5.2016, passed by respondent No.1, sees no willful intention and disobedience on the part of the respondents.
Record suggests that immediately after passing of the judgment by the Division Bench, matter was taken up and of comments were called from the office of `DDEE' with regard to the service details of the petitioner. Moreover, perusal of Annexures C-2 to C-5 nowhere suggests that the `DDEE' and rt the Principal, GSSS, Chokia, Tehsil Chopal, District Shimla, had recommended the case of the petitioner.
14. Viewed this, we see no reason, whatsoever, to initiate any contempt proceedings on the basis of averments contained in the Contempt Petition. Rather, this Court is of the view that if the petitioner is still aggrieved by the order dated 23.11.2010, she is at liberty to seek appropriate remedy.
15. In R.N.Dey and Others vs. Bhagyabati Pramanik and Others, (2000) 4 SCC 400, the Hon'ble Apex Court has held as under:-
"7. The weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be ::: Downloaded on - 15/04/2017 20:58:01 :::HCHP 11 exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and .
the Court. It is true that in the present case, the High Court has kept the matter pending and has ordered that it should be heard along with the first appeal. But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that the claimants were not the owners of the of property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the rt amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity. In such a situation, as there was no willful or deliberate disobedience of the order, the initiation of contempt proceedings was wholly unjustified."
(p.404)
16. Consequently, in view of the aforesaid discussion, we do not see any reason to interfere in this Contempt Petition and accordingly same is dismissed being devoid of any merit.
(Mansoor Ahmad Mir)
Chief Justice
August 04, 2016 (Sandeep Sharma)
(aks) Judge
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