Patna High Court - Orders
Mostt.Pavitri Devi vs The State Of Bihar & Ors on 27 February, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
MJC No.1572 of 2007
MOSTT.PAVITRI DEVI
Versus
THE STATE OF BIHAR & ORS
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4 27.02.2009When this contempt application was taken up on 21.1.2009, this Court found that the petitioner's application which was directed by this Court to be decided by the respondents in accordance with law, was rejected by the opposite parties in reference to Government letters dated 25.7.1995 and 23.9.2002. It was noticed that the petitioner had applied for compassionate appointment in 1990 and had filed all requisites in 1991. Therefore, this Court was unable to appreciate how Government letters of 1995 and 2002 were made applicable in the case of the petitioner. In the circumstances, the opposite party no. 5 was directed to file specific show cause explaining the position in compliance to the said order.
A show cause has been filed by
opposite party no. 5 presently posted as
Director, Agriculture. Apart from enclosing
letters of the Government of 2008 and of
October, 1991 a stand has been taken that
2
since application of the petitioner for
compassionate appointment has now been
rejected the only option to this Court is to drop the contempt proceeding with liberty to the petitioner to challenge the order in an appropriate proceeding.
Learned counsel for the opposite parties in this context has refereed to a judgment of the Supreme Court reported in 2006 1 SCC 613 and has particularly referred to paragraph 6 of the judgment and has placed the following part of paragraph 6 before this Court:-
"Rightness or wrongness of the order can not 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 can not traverse beyond the order, non-compliance with which is alleged. In other words, it can not say what should not have been done or what should have been done.
It can not traverse beyond the order. It can not test the correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for 3 initiation of contempt proceedings. The same would be impermissible and indefensible."
From bare reading of the said judgment of the Supreme Court it is clear
that the reliance placed by learned counsel for the opposite parties on it in support of his submissions is highly misconceived. The Supreme Court, before it, had an order of the High Court before it in which the High Court had disposed of the contempt application with further directions, which was held as not permissible. The Supreme Court held that an order passed in a writ matter, rightly or wrongly, had to be complied, if no review or appeal has been preferred.
From the orders passed by the writ Court in the case of the petitioner, it is clear that this Court had directed the opposite parties to consider the case of the petitioner for compassionate appointment and decide the same "in accordance with law".
The expression "in accordance with law" necessitated the opposite parties to consider the application of the petitioner as per law applicable in the case of the 4 petitioner on the date of submission of her application and they were not at liberty to apply a letter or rule of the Government which came into existence almost 10 years after the date of the application of the petitioner, for rejection of the same.
In that view of the matter, this Court is of the view that the direction of this Court in letter and spirit has not been complied with by the opposite parties. In the circumstances, the show cause filed by the opposite party no. 5 is rejected.
After the order was dictated as above, learned counsel for the opposite parties submits that now opposite party no. 5 can not do anything in the matter as he is no more D.M. of the Patna and is holding different post. Therefore, if anything is required to be done in the case of the petitioner afresh that has to be done by the D.M. Patna.
In contempt jurisdiction neither an order passed by an authority, adverse to the petitioner, can be quashed nor any mandamus can be issued. In contempt 5 jurisdiction this Court can only look into as to whether the orders/directions issued by this Court have been complied with or not in letter and spirit by the authority who was responsible for complying with the same at the relevant time. As the opposite party no. 5 was the authority at that point of time responsible for complying with the orders/directions of this Court, the contempt application has to proceed against him to its logical conclusion.
In the circumstances, contempt proceeding is initiated against opposite party no. 5. He shall file his show cause within four weeks as to why he should not be punished for disobedience of the orders of this Court.
Let this matter be listed on 6th of April, 2009 within first ten cases.
Let a copy of this order be handed over to learned GP-V. Arvind/ ( J. N. Singh, J.)