Gauhati High Court
Marami Saud vs Ajay Kumar And Anr on 2 March, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/4
GAHC010277542019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Cont.Cas(C)/683/2019
MARAMI SAUD
W/O- LT. AJOY KUMAR SAUD, R/O- SATGAON, P.O. UDAYAN VIHAR, DIST.-
KAMRUP(M), ASSAM.
VERSUS
AJAY KUMAR AND ANR.
SECRETARY, MINISTRY OF DEFENCE, SENA BHAWAN, NEW DELHI- 110001.
2:MAJ GEN JARKEN GAMLIN
COMMANDING OFFICER
HQ 51 SUB AREA
PIN 908651
C/O 99 APO
Advocate for the Petitioner : MR. A R TAHBILDAR
Advocate for the Respondent : MR. S C KEYAL (R2)
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA JUDGMENT AND ORDER (CAV) Date : 02-03-2021 Heard Mr. A.R. Tahbildar, learned counsel for the petitioner and Mr. S.C. Keyal, learned counsel Page No.# 2/4 appearing for the respondents.
2. This is an application under section 11 of the Contempt of Courts Act, 1972 read with Article 215 of the Constitution of India, by which it is projected that the order dated 28.02.2019 passed by this Court in WP(C) 3678/2018 was deliberately and willfully violated.
3. For the purpose of this order, it would suffice to indicate that the petitioner, who was temporarily allowed to serve as a Messenger on contract basis in the Indian Army in the HQ 51 Sub Area, had applied for compassionate appointment vide letter dated 27.03.2018. However, the prayer was rejected and the aggrieved petitioner had assailed the order of rejection dated 27.03.2018 passed by the competent authority by filing WP(C) 3678/2018 and this Court by order dated 28.02.2019, disposed of the writ petition with a direction to the respondent authorities to reconsider the case of the petitioner under the scheme for compassionate appointment as applicable by examining as to whether the petitioner's husband at the time of his service was found unfit for civil employment and if that is so, the petitioner's appointment should be considered as her age can also be relaxed in terms of para-6 of the aforesaid scheme, moreso, when she has been serving as a Messenger since 2007. It is alleged that the respondents have not acted in accordance with the direction issued by this Court.
4. Per contra, the learned counsel for the respondents has submitted that although there was some delay in compliance, but the delay was not intentional and moreover, no time limit was prescribed by this Court to reconsider the case of the petitioner. However, in the meanwhile, the competent authority under General Officer Commanding, HQ 51 Sub Area has complied with the direction issued by this Court by passing a speaking order dated 11.02.2020 which was duly served on the petitioner on 14.01.2020, who had acknowledged receipt of the same under her signature and in this regard, the learned counsel for the respondents has referred to Annexure-A appended to the affidavit-in-opposition. It is submitted that on considering the case of the petitioner, as the husband of the petitioner was superannuated from service after completing his tenure and not boarded out as medically unfit, the claim for compassionate appointment as made by the petitioner was rejected.
5. The learned counsel for the petitioner has submitted that the authority who had rejected the claim of the petitioner by his letter dated 11.01.2020 had disregarded the order of this Court and the order was contrary to the finding recorded by this Court. It is submitted that the said authority has given his own explanation which is contumacious because as against the finding recorded by the Court, the respondents had not preferred any appeal.
6. At the outset it is noted that in the order dated 28.02.2019 passed by this Court in WP(C) 3678/2018, no time limit was prescribed to reconsider the case of the petitioner, the relevant Page No.# 3/4 paragraph 12 of the said order is quoted below:
"Accordingly, the present petition is disposed of with direction to the respondent authorities to reconsider the case of the petitioner under the scheme for compassionate appointment as applicable by examining as to whether the petitioner's husband at the time of his service, was found unfit for civil employment and if that is so, the petitioner's appointment should be considered as her age can also be relaxed in terms of the paragraph 6 of the aforesaid scheme, more so, when she has been serving as a Messenger since 2007.
However, this direction is subject to availability of vacancy. In case, vacancy is not available at present as stated by the learned ASGI, the same may be adjusted in any vacancy that may arise in future."
7. Moreover, it is seen that although with some delay, but the claim of the petitioner for reconsidering her case for compassionate appointment was considered by the competent authority but it culminated in rejection of the claim. Therefore, it is held that no case of deliberate and willful violation of the order dated 28.02.2019 is made out.
8. While exercising contempt jurisdiction, this Court is not sitting in appeal or exercising power of judicial review in respect of the letter dated 11.01.2020 by the competent authority of HQ 51 Sub Area. However, in order to appreciate the submissions made by the learned counsel for the petitioner that by the said order, contradictory finding has been returned by the competent authority, for that limited purpose all records have been perused. From Annexure-B of WP(C) 3678/2018, it is seen that although the husband of the petitioner was found to have medical condition for which he was diagnosed of not being able to do any physical hard work and undertake mental strain but it is recorded that the husband of the petitioner was retired from service on 31.10.2003. The petitioner has relied on Annexure-D to the said writ petition, which is a certificate dated 30.06.2007 by the Director, Sainik Welfare, Assam, Guwahati to the effect that the husband of the petitioner was operated for coronary disease on 06.09.2001 and 20.06.2002 and he was subsequently fitted with pace maker on 24.02.2006 and that as per his medical condition he cannot do physical hard work and cannot undertake mental strain and, as such, his wife i.e. the petitioner be given preference in getting employment in any government job considering her husband's disability. The said certificate is not a proof that the husband of the petitioner was boarded out of service on medical condition before his actual tenure of service. There is no document on record in the said writ petition to show that the husband of the petitioner was entitled to serve for a period more than 31.10.2003. From a copy of order dated 22.04.2016 passed by this Court in WP(C) 2797/2015 (Annexure-F of writ petition), it is seen that this Court had recorded as follows:- " Case of the petitioner is that her husband was a Havildar in the Army. He retired from service on 31.10.2003. Because of heart complications, he died on 27.09.2003. It appears that petitioner's husband suffered from heart disease while in service since Page No.# 4/4 September, 2001. Petitioner had submitted an application on 29.08.2003 seeking appointment on compassionate ground. By the impugned communication, such claim was rejected on the ground of over-age."
9. It is deemed appropriate that nothing more is to be said at this stage, because as indicated above, the records of WP(C) 3678/2018 was perused only for a limited purpose to examine whether or not by the rejection order dated 11.01.2020, the respondents had attempted to over reach the order dated 28.02.2019 passed by this Court. In that context, it may be mentioned that in the order dated 28.02.2019, this Court had not issued any direction that the claim of the petitioner be reconsidered under the scheme for compassionate appointment in terms of any observations contained in the said order and this Court had merely directed the authorities to reconsider the case of the petitioner under the scheme of the compassionate appointment as applicable by examining as to whether the petitioner's husband, at the time of his service, was found unfit for civil employment. Therefore, the Court is not inclined to examine whether or not by the rejection order dated 11.01.2020, the respondents and/ or the competent authority of HQ 51 Sub Area had returned a contradictory finding than the finding returned by this Court in the order dated 28.02.2019 as such examination is not within the scope of the present contempt case.
10. Accordingly, no case of deliberate or willful non-compliance of order dated 28.02.2018 passed by this Court in WP(C) 3678/2018 has been made out against the respondents. Accordingly, this contempt proceeding stands closed.
JUDGE Comparing Assistant