Himachal Pradesh High Court
Sh. Ram Swaroop vs Sh. Arun Kumar Sharma on 24 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP No. 1847 of 2022 in COPC No. 256 of 2018
Date of Decision: 24.11.2022
_____________________________________________________________________
Sh. Ram Swaroop
.........Applicant/Petitioner.
Versus
Sh. Arun Kumar Sharma
.......Non-applicant/Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Vikrant Thakur, Advocate.
For the respondent: Mr. Ashok Sharma, Advocate General with Mr.
Sudhir Bhatnagar and Mr. Narender Guleria,
Additional Advocates General, with Ms. Svaneel
Jaswal, Deputy Advocate General and Mr. Sunny
Dhatwalia, Assistant Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant application filed under Section 151 CPC, prayer has been made by the applicant/petitioner for implementation of order dated 7.1.2020 passed in COPC No. 256 of 2018 and order dated 1.9.2021 passed in CMP No. 9689 of 2020 in COPC No. 256 of 2018.
2. Briefly stated facts, which may be relevant for the adjudication of the application at hand are that the applicant/petitioner filed CWP No. ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 2 1406 of 2012, titled Ram Swaroop v. State of HP and Ors, praying therein .
for following substantive reliefs:
"a) for issuance of direction to respondents No. 1 to 3 to release 95% grant-in-aid in respect of the salary/allowances and other consequential benefits to respondent No.4-School, particularly in the case of petitioner.
b) to direct the respondents to pay salary and other allowances to the petitioner at parity with Teachers working in Government Schools from 2.6.2003, till the date of actual payment alongwith interest at the rate of 18% per annum and further directions to the respondents to pay salary and allowances to the petitioner in future at par with Shastri Teachers working in government Schools working in aided Schools."
3. Aforesaid prayers made by the applicant/petitioner came to be opposed by the respondent-State, who in its reply claimed that applicant/petitioner was appointed in gross violation of grant-in-aid rules, however, this Court allowed the petition and directed the respondents to release the grant-in-aid in favour of the applicant/petitioner from the date of grant-in-aid rules were notified and till the time, applicant/petitioner discharges his duty.
4. Being aggrieved and dissatisfied with aforesaid judgment, respondent-State preferred LPA No. 37 of 2019, however, same was dismissed vide judgment dated 15.5.2019. In para-2 of the aforesaid judgment, the Division Bench of this Court categorically observed that the ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 3 petitioner herein was appointed as O.T. (Shastri) on 2.6.2003 in Senior .
Secondary School, Bilaspur, which received more than 95% grant-in-aid from the State Government.
5. Respondent instead of implementing the judgment alleged to have been violated further filed SLP (C) No. 22588 of 2019, the State of Himachal Pradesh and Ors. v. Ram Swaroop and Ors, in the Hon'ble Apex Court, laying therein challenge to judgment dated 15.5.2019, passed by the Division Bench of this Court in LPA No. 37 of 2019, which also came to be dismissed on the ground of limitation. Hon'ble Apex Court while dismissing the aforesaid SLP having been filed by the respondent-State observed that it is always open for the State to recover any financial impact from the officers concerned responsible for the delay.
6. It is pertinent to take note of the fact that prior to filing of SLP by the respondent-State, petitioner had filed COPC No. 256 of 2018, for alleged violation of judgment dated 21.3.2017, passed by this Court, but same was kept pending on the ground that SLP having been filed by the respondent-State is pending adjudication. After dismissal of the SLP, aforesaid contempt proceedings were again listed before this court on 31.10.2019. In those proceedings, Director, Elementary Education came present and stated before the court that though steps to implement the ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 4 judgment in question stand taken, but on account of wrong calculations, .
same could not be implemented in its letter and spirit. This Court on the request of the aforesaid officer, granted four weeks' time to comply with the judgment in question. However, despite there being aforesaid undertaking, judgment alleged to have been violated was not complied with and as such, matter was again listed on 22.11.2019, whereby again direction was issued to comply with the judgment in letter and spirit. On the next date of hearing, this Court specifically asked that what steps have been taken against the erring officials in compliance to the orders passed by the Hon'ble Apex Court. However, respondent-State took a plea that they do not have any official record of the aforesaid school, wherein the petitioner was working and as such, respondents No. 4 and 5 i.e. Management of the School, were directed to specifically make calculation sheet of the salary, which was to be paid. Respondents No 4 and 5 in compliance to the aforesaid directions placed on record the calculation sheet. Having taken note of the aforesaid calculation sheet, this Court vide order dated 7.1.2020, directed the non-applicant/respondent to pay the amount as reflected in the aforesaid calculation Sheet (Annexure A-2) and matter was again listed on 21.8.2020. On 21.8.2020, this Court again directed the respondents to release 95% grant-in-aid in favour of the petitioner by ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 5 remitting the same directly to his bank account. Interestingly, instead of .
complying with the aforesaid direction, respondents filed CMP No. 9689 of 2020, seeking therein permission of this Court to place on record documents/copies of grant-in-aid claims in respect of the said school alongwith Demand Draft of Rs. 20,05,273/- with the further prayer that amount may not be released to the petitioner till the legal remedies are resorted.
7. Since in the aforesaid application, respondents changed their stand, petitioner herein filed detailed reply to the same. On 1.9.2021, this court dismissed the aforesaid application alongwith costs of Rs. 20,000/-
and in para-25 of the order specifically directed the respondents to release the amount due and calculated to the petitioner within three months by remitting the same in his saving bank account. Astonishingly, respondents despite there being aforesaid clear cut direction issued by this Court failed to deposit the aforesaid in the bank account of the petitioner. Since despite there being undertaking that sum of Rs. 20,05,273/-, shall be remitted in the bank account of the petitioner, respondent failed to deposit the aforesaid amount, applicant/petitioner was compelled to file instant application, seeking therein implementation of orders dated 7.1.2020 and 1.9.2021. Pursuant to notice issued in the instant proceedings, ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 6 respondent-State filed compliance affidavit dated 9.3.2022, wherein it .
claimed that only sum of Rs. 2,20,500/- is payable to the petitioner. In the aforesaid reply, respondent changed its earlier stand by stating that petitioner is to be paid in view of PTA grant-in-aid rules 2006. Being not satisfied with the aforesaid reply filed by the respondent, this Court vide order dated 17.8.2022, directed the Director, Elementary Education to file fresh compliance affidavit. In response to the aforesaid order, respondent filed compliance affidavit appending therewith appointment letter of the petitioner to suggest that pay scale of petitioner is /was Rs. 1500-2700, but such plea is totally contrary to the record because as per appointment letter annexed with the compliance affidavit filed by the respondent, petitioner was appointed at Bilaspur High School with w.e.f 1st June, 2003 in the pay scale of Rs. 5000-8100 with allowance.
8. Perusal of compliance affidavit filed under the signature of Director, Elementary Education on 29.12.2016, clearly reveals that facts as have been taken note herein above are not in dispute, rather pleadings as well as orders passed by this Court from time to time, if perused in its entirety, clearly reveal that respondent-State had been changing its stand frequently. Despite there being repeated assurances given to this court that 95% of the grant-in-aid shall be released in favour of the petitioner, ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 7 respondents have not implemented the judgment till date. In these .
proceedings, respondents themselves filed CMP No. 9689 of 2020, placing on record document/copy of grant in aid in respect of school where petitioner was rendering the services stating therein that the petitioner is entitled to sum of Rs. 20,05,273/-, but thereafter again changed its stand by stating that petitioner is only entitled to Rs. 2,20,500/- on the ground that PTA Grant-in-aid Rules, 1997, are not applicable in the case of the petitioner, whereas specific case of the applicant/petitioner is that since he was engaged in the year, 2006 by PTA, he is to be governed by grant-in-aid Rules, 1997 especially framed to deal with privately managed government aided schools. No doubt, material available on record reveals that PTA Grant-in-aid rules, 2006 came to be framed in the year, 2006, whereby teachers appointed by PTA are to be paid salary in terms of grant-in-aid PTA Rules, 2006, however in the case at hand, petitioner was appointed by the PTA concerned in the year, 2003, by which time, grant-in-aid Rules, 1997 were in vogue. Having taken note of the aforesaid justification, learned Single Judge vide judgment dated 21.3.2017, specifically directed the respondents to release the grant-in-aid in favour of the petitioner from the date the grant in aid Rules, 1997, were notified. Since petitioner was appointed in 2003 and as such, grant-in-aid in terms of the grant-in-aid ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 8 Rules 1997 were to be made applicable in favour of the petitioner w.e.f.
.
2003.
9. Mr. Ashok Sharma, learned Advocate General, representing the respondent-State while fairly admitting factum with regard to undertaking given to this Court to release sum of Rs. 20 lac contended that aforesaid undertaking was given wrongly on the basis of wrong calculations. While making this Court to peruse judgment dated 21.3.2017, passed by the Coordinate Bench of this Court, Mr. Ashok Sharma, learned Additional Advocate General vehemently argued that otherwise also, there is no mention, if any, with regard to grant-in-aid Rules 1997 and as such, petitioner has been righty covered under the grant-in-aid PTA Rules, 2006.
While referring to the para 20 of the aforesaid judgment, learned Additional Advocate General argued that neither any date has been fixed, from which date petitioner is/was to be granted the aforesaid benefit nor it has been specified under which grant in aid rules, case of the petitioner is to be governed. He further submitted that since the school, where petitioner was appointed in the year, 2003 on PTA basis, was taken over by the government in the year, 2012, he has been rightly covered under the PTA grant-in-aid Rules, 2006. He further submitted that if calculations are to be made on the basis of PTA grant-in-aid Rules, 2006, he is only entitled to ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 9 Rs. 2.00 lac, which already stands released in his favour. While placing .
reliance upon the judgment passed by the Hon'ble Apex Court in case titled Vedic Girls Senior Secondary School, Arya Samaj Mandir, Jhajjar v.
Rajwanti (SMT) and Ors, 2007 (5) SCC 97, learned Advocate General vehemently argued that court executing decree cannot go beyond the decree. He argued that since there is no specific mention with regard to applicability of the grant-in-aid rules, 1997 and only direction is to release the grant-in-aid in favour of the petitioner from the date when grant-in-aid rules were notified, no illegality can be said to have been committed by the respondents while calculating grant-in-aid in favour of the petitioner in terms of grant-in-aid PTA Rules, 2006.
10. Having carefully perused aforesaid judgment passed by the Hon'ble Apex Court, this Court cannot have any quarrel with the proposition of law laid down in the aforesaid judgment that the executing court cannot go beyond the decree, but judgment pressed into service is not applicable in the present facts and circumstances of the case. Otherwise also, petitioner herein is not asking for something, which has not been granted to him rather, his precise claim is that he is entitled to be governed by the grant-in-aid Rules, 1997 because admittedly grant-in-aid PTA Rules, 2006, which are being sought to be applied in the case of the respondent-
::: Downloaded on - 30/11/2022 20:30:59 :::CIS 10State came in force in 2006, whereas petitioner stood appointed on PTA .
basis in the year, 2003 itself. Date relevant for determining the applicability of the grant-in-aid is the date of appointment of the petitioner on PTA basis, not the date on which date, PTA grant-in-aid rules, 2006 were promulgated. Learned Advocate General has not been able to dispute that at the time of the appointment of the petitioner on PTA basis, grant-in-
aid Rules, 1997, which were specially made for privately managed government aided schools were in force. No doubt, record reveals that school concerned was taken over in 2012, but once petitioner stood appointed in the school concerned in the year, 2003, he is to be given grant-in-aid from the date of his appointment not from the date of taking over the school. Moreover, the Division Bench of this Court in LPA No. 37 of 2019, State of H.P. and Ors. v. Ram Swaroop and Ors, preferred by the respondent-State, in paras 2 and 3 of the judgment dated 15.5.2019 has clarified aforesaid aspect of the matter. It would be apt to take note of the aforesaid paras of the judgment passed by the Division Bench of this Court, which has been further upheld by the Hon'ble Apex Court. Paras 2 and 3 judgment passed in LPA read as under:
"2. This intra Court appeal assails judgment dated 21st March, 2017, whereby learned Single Judge allowed the writ petition filed by the respondent and has directed the appellants to release Grant-in-aid in ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 11 his favour from the date when the Grantin-aid Rules were notified .
and till the time the respondent discharged his duties as O.T. (Shastri).
3. There is no quarrel on facts that the respondent was appointed as O.T. (Shastri) on 2.6.2003 in Bilasa Senior Secondary School, Bilaspur which received more than 95% grant- 2 in-aid from the State Government. He, however, was denied the benefit of Grant-in- aid Scheme on the plea that he was appointed by the School Management Committee without following due procedure and that the appointment was made without wide publicity of the post. The objection has been repelled by the learned Single Judge after taking notice of the fact that no such condition was contemplated under the Scheme and that the respondent was working for more than a decade."
11. While placing reliance upon judgment passed by the Hon'ble Apex Court in K. Ananda Rao and Ors v. S.S. Rawat, IAS and Ors, 2019 (13) SCC 24, learned Advocate General, argued that when there is no discussion, if any, with regard to applicability of grant-in-aid Rules, 1997, it cannot be construed that petitioner is to be released grant-in-aid taking into consideration grant-in-aid Rules, 1997. He specifically invited attention of this court to paras 15 and 16, which read as under:
"15. Since all these issues were not canvased before this Court and were not gone into by this Court on 09.08.2017, the question that arises is whether the expression "consequential benefits" occurring in the order dated 09.08.2017 Cont..Pet..(Civil)1045-1055/2018 in CA No.10276 of 2017 etc. etc. 32 K. Ananda Rao v. Sri S.S. Rawat, IAS ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 12 and Ors. must be given the interpretation that the employees were .
entitled to all salaries and emoluments for the period that they had not even worked in their respective organisations? The order dated 09.08.2017 does not indicate that any such aspect of the matter was in contemplation of this Court or the matter was addressed from this stand point. In the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. Those policy documents were not overridden or in way found to be inoperative. As a matter of fact, they were not even referred to.
16. In this background we need to consider the expression "consequential benefits" in said order dated 09.8.2017. The contempt petitioners submit that going by the law laid down by this Court in B. Prabhakar Rao and particularly direction No.2 therein the financial benefits in the nature of salary and other emoluments must be given to the employees even for the period that the employees had not worked. But the situation in B. Prabhakar Rao2 was completely different. There, the issue was only regarding raising of age of retirement from 55 years to 58 years. In the present case the decision of raising the age of superannuation was more or less contemporaneous with bifurcation Cont..Pet..(Civil)1045-1055/2018 in CA No.10276 of 2017 etc. etc. 33 K. Ananda Rao v. Sri S.S. Rawat, IAS and Ors. of the erstwhile State of Andhra Pradesh. The division of assets and liabilities was still to be undertaken. The issue of allocation of employees in various institutions in the erstwhile State was also to be finalized. And lastly, there was a clear direction issued by this Court invoking powers under 142 of the Constitution of India.::: Downloaded on - 30/11/2022 20:30:59 :::CIS 13
No such power was invoked or exercised while passing the order .
dated on 09.08.2017.
If the aforesaid paras of the judgment are read in conjunction, Hon'ble Apex Court while dealing with special consequential benefits observed that in the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. r
12. Having perused aforesaid judgment in its entirety, this Court finds no application of the same in the instant case because in that case, question was with regard to consequential benefits, if any, pursuant to direction issued by the Hon'ble Apex Court in the judgment alleged to have been violated. Though in the instant case, in para-20 of the judgment dated 21.3.2017, Coordinate Bench of this Court has not only directed to release grant-in-aid in favour of the petitioner in terms of grant-in-aid Rules 1997, but it has been specifically added that grant-in-aid in favour of the petitioner be released from the date grant-in-aid rules were notified and till the time petitioner discharges his duties as OT Shastri. Aforesaid direction passed by this court cannot be read in isolation, rather same is to be read in continuity of entire judgment, wherein court having taken note of the fact that petitioner was appointed in the year, 2003 on PTA basis, by which ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 14 time, grant-in-aid Rules, 1997, were in vogue, directed the respondent to .
release the grain in aid in favour of the petitioner from the date when grant-
in-aid rules were notified. Though respondent-state attempted to carve out a case that grant-in-aid rules were notified in the year, 2006, but as has been observed herein above, at no point of time, learned Advocate General was able to dispute that at the time of appointment of the petitioner on PTA basis, grant-in-aid Rules, 1997 specifically meant for privately managed government aided school were in vogue and as such, case of the petitioner is/was required to be considered in terms of those rules only. Moreover, aforesaid plea attempted to be set up by the learned Advocate General in these proceedings, was never taken in the reply filed to the writ petition. In writ petition, specific case of the respondent-state was that petitioner was appointed in gross-violation of PTA grant-in-aid Rules. Interestingly, in the case at hand, respondents had been changing their stand frequently; at one point of time, they claimed that petitioner was appointed in gross violation of grant-in-aid Rules to privately managed government aided schools; and thereafter, in contempt proceedings, CMP No. 9689 of 2020, they claimed that petitioner has never worked as OT Shastri. Thereafter as been taken note herein above, they themselves gave undertaking to this court that as per calculations, approximately sum of Rs. 20.00 lac is payable. At one ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 15 point of time, they expressed their intention to deposit the aforesaid .
amount in the bank account of the petitioner, but yet not complied with the order dated 17.1.2022 and again changed its stand by filing fresh affidavit, stating therein that petitioner was appointed on PTA basis in terms of PTA Grant-in-aid Rules, 2006, which plea is totally contrary to the record. It is not in dispute that petitioner was appointed in the year, 2003 on PTA basis in the school concerned and at that time, PTA Grant-in-aid Rules, 1997, specifically made for privately managed government aided schools, were in vogue.
13. Learned Advocate General also pressed into service judgment passed by Hon'ble Apex Court in A. Veerraju and Ors v. State of Andhra Pradesh and Ors, 2019 (17) SCC 364, but perusal of the same also reveals that same has no application in the present case.
14. In the case at hand, judgment alleged to have been violated has attained finality up the Hon'ble Apex Court. Hon'ble Apex Court while dismissing the SLP filed by the respondent-State specifically observed that if state government cannot handle its legal affairs and file the appeals in time then it must suffer the consequences. It is always open for the State to recover any financial impact from the officers concerned responsible for the delay. Despite there being aforesaid hard hitting observation made by ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 16 the Hon'ble Apex Court, respondent-State has audacity to claim before this .
Court in contempt proceedings that there is no violation and judgment has been duly complied with. As has been taken note herein above, repeatedly, respondents changed their stand to defeat the mandate given by this Court, which has been upheld uptill Hon'ble Apex Court. Repeatedly, officers gave assurances to this court that judgment alleged to have been violated shall be complied with in its letter and spirit, but thereafter, they not intentionally failed to honour the commitment given to this court, but also attempted to suggest that judgment alleged to have been violated is not based upon the proper appreciation of facts as well as law. Learned Advocate General made serious attempt to persuade this court to agree with his contention that since no specific direction with regard to applicability of grant-in-aid Rules, 1997, ever came to be made in the case of the petitioner, he is not entitled to the same, but such plea of him appears to be another feeble attempt on behalf of the respondent-State to divert the main issue so that respondents are saved in the instant proceedings. On 31.10.2019, this Court passed following order:
"The Special Leave to Appeal preferred by the respondents-State in this case has been dismissed by the Hon'ble Supreme Court by making certain observations which need to be circulated throughout the State of Himachal Pradesh and read as under: "::: Downloaded on - 30/11/2022 20:30:59 :::CIS 17
UPON hearing the counsel the Court made the following O R D .
ER The Division Bench dismissed the appeal on the ground of limitation and we are in complete agreement with the view taken. If the State Government cannot handle its legal affairs and file the appeals in time then it must suffer the consequences. It is always open for them to recover any financial impact from the officers concerned responsible for the delay.
The Special Leave Petition is dismissed.
Pending application, if any, stands disposed of."
2. Therefore, let a copy of this order be circulated by the Chief Secretary to the Government of Himachal Pradesh to all the concerned Departments to ensure strict compliance of the said order in order to avoid embarrassment in future.
3 It is expected that the observations made by the Hon'ble Supreme Court would act as an eye-opener for the State Government and its Officers/officials in dealing with the legal affairs of the State.
4. As regards the implementation of the judgment in question, Shri Rohit Jamwal, Director, Elementary Education, who is present in person, states that even though steps to implement the judgment in question had been taken, however, because of wrong calculations, the same could not be implemented in letter and spirit. He prays for and is granted four weeks' time to comply with the judgment in question.
5. List on 22.11.2019 on which date it be ensured that the orders passed by this Court are complied with in letter and spirit. The personal presence of Mr. Jamwal is dispensed with for the time being. On the next date, it be also informed as to what steps have ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 18 been taken against the erring officials in compliance to the orders .
passed by the Hon'ble Supreme Court."
15. This Court while directing the respondents to circulate the copy of the aforesaid order to all the departments specifically directed the respondents to ensure implementation of the judgment in question, but it appears that respondents have no respect for the orders passed by the Constitutional Court. On 21.8.2020, respondent stated before this court they are under misconception that this amount is to be deposited in the account of Parents Teacher Association or in the account of the petitioner.
This Court vide aforesaid order clarified and directed the respondent to release 95% grant-in-aid of pay by remitting the same directly in the bank account of the petitioner. Though pursuant to aforesaid order, petitioner furnished his bank account details, but respondents took u-turn and claimed that petitioner is not governed by the grant-in-aid Rules, 1997.
Though respondents filed application for recalling of order dated 7.1.2020, but same was dismissed with costs of Rs. 20,000/-. Despite there being repeated directions issued by this court as well as undertaking given by the officer concerned, judgment alleged to have been violated is not being complied with on one pretext or the other. It is not in dispute that judgment alleged to have been violated has attained finality and as such, ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 19 respondents have no option, but to comply with the same in its letter and .
spirit. Clarification has been already issued by this Court with regard to mode and manner in which judgment alleged to have been violated is to be implemented, but yet respondent is not leaving no stone unturned to defeat the genuine claim of the petitioner by raising frivolous pleas.
16. Having taken note of the callous and in-different attitude of the respondent, this court has no hesitation to record that officers responsible for violation of the judgment alleged to have been violated have no respect for rule of law and they instead of becoming helping hand in implementing law laid down by the constitutional court are trying to destabilize the entire system by raising such pleas, if permitted to be raised, would result in complete Anarchy. Respondents herein appeared to be high headed having no respect for law and as such, deserves to be dealt with strictly in accordance with the contempt of courts Act. Though prima-facie, this court is convinced and satisfied that respondent has committed contempt of court by disobeying the directions contained in the judgment alleged to have been violated and they need to be punished for the same, but before passing any harsh order, this Court deems it fit to issue show cause notice on the prescribed format upon the respondent to show cause that whey ::: Downloaded on - 30/11/2022 20:30:59 :::CIS 20 they be not punished under the contempt of court for their having willfully .
and deliberately violated the mandate given in the judgment.
17. Accordingly, Registry is directed to issue show cause notice in a prescribed format to Mr. Virender Kumar Sharma, Director, Elementary Education, who despite there being given undertaking failed to comply with order, returnable for 8.12.2022, with further direction to him to remain present before this court.
November 24, 2022 (Sandeep Sharma),
Judge
(manjit)
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