Madhya Pradesh High Court
Ram Bahadur Singh Bhadoriya vs Smt. Deepti Gaur Mukarji on 1 November, 2018
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The High Court of Madhya Pradesh
CONC 2068/2017
Ram Bahadur Singh Bhdaoriya vs. Smt. Deepti Gaur
Mukharji & Others
Gwalior, dtd. 01/11/2018
Shri R.D. Jain, Senior Advocate with Shri Prakhar Goyal,
Counsel for petitioner.
Shri Vishal Mishra, Counsel for respondents No.1 to 4.
Shri K.K. Prajapati, Counsel for respondent No.5. Shri Anil Mishra with Shri Yash Sharma, Counsel for the intervenor S.N.Singh.
Shri J.P. Kushwah, Counsel for the intervenor Sachhidanand Singh.
None to press I.A. No. 4028/2018 filed on behalf of the Shri Ramnath Singh Shiksha Prasar Samiti.
This contempt petition under Article 215 of the Constitution of India read with Sections 10 and 12 of the Contempt of Court Act has been filed complaining non- compliance of order dated 13/3/2007 passed by this Court in Writ Petition No.5306/2005 (S).
This case involves a very disturbing fact where the State functionaries in order to avoid the compliance of the order of this Court are trying to shift their burden on the shoulders of other State functionaries on flimsy grounds. 2 Whether this attempt of shifting the burden on the other functionaries is with malafide intention or bonafide intention, will decide the fate of the case and that will be decided only after considering the facts of the case. Unfortunately, knowingfully well that the contemnors are under compulsion to comply the order of this Court, they have stated that with all humanity at their end they are ready and willing to comply the order of this Court, but on flimsy grounds at the very same time they have tried to shift the ball from their court to the court of another contemnor, who are also the functionaries of the State, and have tried to avoid the compliance.
Before considering the facts and circumstances of the case, I.A. No. 4631/2018 and I.A. No.4640/2018 which have been filed by the Contemnors No. 1 to 4 for recall of order dated 4-10-2018 and extension of time and for recall of order dated 4-10-2018 and 12-10-2018, shall be taken into consideration in the light of the strange stand taken by the Contemnors.
The order dated 04/10/2018 passed in the proceedings is reproduced as under:-
"4.10.2018.
Shri R.D. Jain, learned Senior counsel with Shri Prakhar Goyal, learned counsel 3 for the petitioner.
Shri Vishal Mishra, learned counsel for the respondents.
Shri Arvind Dudawat, learned counsel for the intervener.
Admittedly there is no effective compliance of the order passed in W.P.No.5306/2005 (S), whereby following directions were issued:
(i) That, the orders impugned, Annexure P-1 dated 14-11-2005, Annexure P-1/A dated 24-
11- 2004, Annexure P-8 dated 29-7-2002 and Annexure R-17 dated 7-6-2002 with regard to cancellation of taking over of the school by the respondents are hereby quashed;
(ii) The respondent-State is at liberty to pass appropriate orders with regard to absorption of the staff members and teachers of the school in pursuance to the directions issued by the Government as per the circular of the State Government dated 11-11-2003 and 21st March 2002 and other circulars issued by the State Government in this regard, as per law;
(iii) Necessary committee be constituted by the Government to this effect and the orders of absorption of the staff members and teachers be passed within a period of six months from the date of receipt of a certified copy of this order.
(iv) Staff members and teachers appointed as per the orders passed by the Chief Municipal Officer including the petitioner will be permitted to continue in service upto the period when the Government will pass the orders of absorption in pursuance to the aforesaid order and the salary of the petitioner and other staff members and teachers be paid by the Government accordingly. Arrears of salary be also paid by respondents No.1 and 2.
(v) No order as to costs.
Pertinent it is to note that order passed in writ petition has been affirmed by the Hon'ble Supreme Court in Civil Appeal No.2329/2010.
It is borne out that the compliance has not been effected because of some 4 dispute which has cropped up between the State and the Management as to handing over of the immovable property and the infrastructure which apparently has nothing to do with the absorption of Teachers and Non-teaching staff and payment of salary to them as per their entitlement in pursuance to stipulations contained in circular dated 11.11.2003 and 21.3.2002.
Learned counsel appearing for the respondents when is apprised of the said aspect prays for short adjournment to report compliance qua absorption of Teachers and Non- Teaching Staff in furtherance to the order passed in writ petition and payment of regular salary.
Though 15 days time is sought. However, taking into consideration that the order which is not complied with was passed on 13.3.2007, this Court is not inclined to grant such long adjournment. It also transpires during course of hearing that the Teachers and Non-teaching Staff are presently being paid at the rate as is made applicable to skilled labour. Be it noted that the Teachers and Non-Teaching Staff cannot be equated with the skilled labour. Be that as it may. Let this matter be posted during the course of next week to enable the respondents to report compliance of the order passed in W.P.No.5306/2005 (S) regarding absorption of Teachers and Non-Teaching Staff of the School in question and payment of regular salary to them along with arrears.
It is made clear that non-compliance would be seriously viewed and will be treated as a willful disobedience of the order passed in writ petition as well as the order passed today. As regard to controversy qua the management in respect of infrastructure and immovable property the State Government would be free to take action against the members of the Society and other persons who are at the helm thereof."
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It is submitted by Shri Vishal Mishra that while passing the order dated 04/10/2018 and order dated 12/10/2018 certain aspects of the matter, which go to the root of the contempt proceedings, have not been taken into consideration. It is submitted by Shri Vishal Mishra that the entire proceedings are vitiated and null & void because the order of the Writ Court, has been obtained by the petitioner, by playing fraud on the Court. However, it is fairly conceded by Shri Vishal Mishra that on 04/10/2018 he had appeared for the Contemnors and had argued the matter at length and reply dated 28/02/2018 was already on record and all the documents were on record. In the order dated 04/10/2018, it has been mentioned by the Coordinate Bench of this Court that it is borne out that the compliance has not been effected because of some dispute which had cropped up between the State and the Management as to handing over the movable property and it was observed that this dispute has nothing to do with the absorption of teaching and non-teaching staff and payment of salary to them as per their entitlement in pursuance to the stipulation contained in the circular dated 21/3/2002. Thus, it is clear that this Court after hearing the parties had given a finding that the order has not been complied with and the dispute between the Management and 6 the State has no bearing on the absorption of the teachers. Thereafter, on 12/10/2018 when the matter was taken up, IA No.4631/2018 was filed seeking prayer for extension of one month time to make proper compliance in the interest of justice.
Considering the facts and circumstances of the case, this Court observed as under:-
''Suffice it to say that after passing of order on 13/03/2007 in Writ Petition No. 5306/2005, as no effective steps having been taken by the respondents to absorb teaching and non-teaching staff and to pay them regular salary, this Court is not inclined to grant further adjournment. Rather, respondent No.1 is directed to remain present on 22/10/2018 to explain as to why she be not punished for disobedience of order passed in Writ Petition No. 5306/2005."
Thereafter, the case was directed to be listed on 22/10/2018. On 22/10/2018 itself, the counsel for the Contemnors filed an application (IA No.4640/2018) for recalling the orders dated 04/10/2018 and 12/10/2018 and since the said orders were passed by the coordinate Bench of this Court, therefore, this Court directed the office to verify and list the case before the appropriate Bench for consideration of IA Nos.4631/2018 and 4640/2018.
Considering the High Court Rules and Orders, it was 7 held that it would not be essential to place the matter before the same Bench, which had passed the orders dated 04/10/2018 and 12/10/2018 and again the case was listed before this Court on 29/10/2018. On 29/10/2018, an application (IA No.4639/2018), which was filed on behalf of the respondent no.1 seeking exemption from personal appearance was considered and for the reasons mentioned in the said order, the application was rejected and the case was directed to be listed today with a direction to the respondent no.1 to remain present. The respondent no.1 is present accordingly.
It is submitted by Shri Vishal Mishra that while passing the order dated 04/10/2018 and the order dated 12/10/2018 certain facts, which go to the root of the dispute, have not been taken into consideration. It is stated that fraud was played on the Court by the petitioner, which has vitiated the entire proceedings and had those facts were considered by the Court, then the conclusion of the Court would have been certainly different and then compliance of the order would not have been effected.
The submissions made by the counsel for the contemnors cannot be accepted for the simple reason that once the matter was argued and the contentions were 8 considered and an interim order was passed pointing out that compliance has not been made, then it would not ipso facto mean that each and every word uttered by the contemnors was required to be reproduced and dealt with by the Coordinate Bench while making a prima facie opinion. However, looking to the submissions made by Shri Vishal Mishra for the contemnors, this Court thinks it appropriate to reconsider the submissions made by the parties so as to wipe out any impression, which the respondents might be carrying in their mind that their contentions have not been considered.
Although this Court is not inclined to accept the submission made by the contemnors that the Coordinate Bench of this Court while passing the orders dated 04/10/2018 and 12/10/2018 has not considered the submissions made by them, but still in order to do complete justice the counsel for the petitioner, counsel for the contemnors as well as counsel for the intervenors were heard at length.
This Court is conscious of the fact about the scope of contempt petition and nobody can be allowed to enlarge the scope of contempt petition, but still considering the allegations made by the contemnors, this Court think it 9 proper that each and every submission made by contemnors as well as intervenors should be dealt with specifically.
It was contended by Shri Vishal Mishra, that the contemnors are ready and willing to comply the order, but as fraud has been played by the petitioner, therefore, even a FIR has been lodged against the petitioner.
The Society, S.N. Singh and his son Sachchidanand Singh have filed applications seeking permission to intervene raising the allegations of fraud. This Court is of the view that before proceeding further, it would be proper to consider the allegation of fraud.
IA No. 4648/2018 has been filed by S. N. Singh seeking permission to intervene.
It is submitted by Shri Anil Mishra, counsel for the intervenor, namely, Shiv Narayan Singh that Shiv Narayan Singh was elected as a Chairman of the Society in the year 2010. On a specific query put by this Court, it was submitted by Shri Anil Mishra that intervenor Shiv Narayan Singh has no personal interest in the property of the School, however, he fairly conceded that his son Sachchidanand Singh is the Bhumiswami of the land, which was let out to the School, on which the School was being run. It is further submitted by Shri Anil Mishra that his son Sachchidanand has filed a civil 10 suit for eviction and recovery of possession against the Society. When it was enquired from Shri Anil Mishra that whether he has filed this application for intervening in the matter in the form of bringing certain facts to the knowledge of this Court in his individual independent capacity or he wants to protect the interest of his son and the land, then it was submitted by Shri Anil Mishra that he has no interest in the land and his son is the Bhumiswami of the land and he has nothing to do with the civil suit, which has been filed by his son Sachchidanand. Accordingly, Shri Anil Mishra was directed to file an affidavit of Shri S.N. Singh, Chairman of Shri Ramnath Singh Shiksha Prasar Samiti. By referring to the application dated 31.12.1991, which has been filed as Annexure A-14 along with I.A. No.4862/2018, it is submitted by Shri Anil Mishra that an application for grant of recognition to the School was filed in the year 1991-1992 and vide Annexure A-15 dated 28/10/1993 permission was granted to start Class 12th. It is submitted by Shri Anil Mishra that on 13.03.2001 the application was filed for grant of recognition for the Academic Session 2001-2002, in which certain details of the students and the teachers were given. Similarly, for subsequent years also, applications were made for grant of recognition. By pointing out certain entries, it was submitted 11 by Shri Anil Mishra that the information given in the said application was incorrect. By referring to the application dated 10.09.2001 Annexure A-17, it is submitted by Shri Anil Mishra that it is clear from the said application that the school was not having any classes from Class I to Class VIII and it was disclosed that only 18 teachers were working.
Certain entries in those documents were pointed out. It is further submitted by Shri Anil Mishra that in fact at the relevant time there were no student and no teacher. It is further submitted that it is clear from the application for grant of recognition, which was made in the year 2004-2005, that it was shown that the students were studying from Class 1st to Class 12th, however, the Society had never run the Classes from Class I to Class 12th.
At this stage, counsel Shri Yash Sharma, who is also representing S.N. Singh, sought permission to make submissions in the matter.
He was permitted.
It is submitted by Shri Yash Sharma that before absorption, the consent of the concerning Society is required and in the present case, all the documents concerning the consent of the Society are forged documents and the Society had never granted any consent for taking over of the school 12 and absorption of the teachers. It was fairly conceded by Shri Sharma that the petitioner took over the charge as a Chairman of the Society in the year 2010 only, whereas the so called forged consent of the Society is of the year 2002. As Shri Anil Mishra has already expressed intervenor's (S.N. Singh) complete disassociation with the interest of his son in respect of the property and since S.N. Singh was not the Chairman of the Society, therefore, S.N. Singh had no business to make any comment on any of the documents, which were allegedly prepared in the year 2002. However, it is not the case of S.N. Singh that he has got those documents examined by the hand writing expert and those documents have been found to be forged. One thing is clear that S.N. Singh may project himself to be completely disassociated with the interest of his son, but one cannot loose sight of the fact that by protecting the interest of his son, S.N. Singh would be protecting his own interest in the property. The contention of S.N. Singh that the consent given by the Society in the year 2002 appears to be forged only because the said documents were not found on the record cannot be accepted for the simple reason that S.N. Singh has an apparent family interest in the property in dispute. According to the circular dated 11.11.2003 and 21.03.2002 13 issued by the State Government for taking over of the school and absorption of the teaching and non-teaching staff, one of the conditions is at the time of absorption of teachers, the property of the school shall also be taken over by the State Government or by the Municipal Council. Thus, S.N. Singh is vitally interested to ensure that the school is not taken over by the State and the teachers are not absorbed because he is apparently interested in protecting his family interest in the property.
So far as the contention of S.N. Singh that certain incorrect information were given to the State immediately after the absorption is concerned, S.N. Singh has no locus to make any such submission because he was not the Chairman of the Society at the relevant time. As he has expressed his complete disassociation with the property in question, therefore, it is clear that whatever allegations he is making today is motivated and in order to create confusion, so that the school may not be taken over by the State and the poor teachers may not be absorbed, as directed by this Court. Thus, the entire conduct of S.N. Singh is to frustrate the order of this Court and this Court cannot enlarge the scope of the contempt petition and cannot travel beyond the directions, which have been issued by this Court. 14
It is submitted by Shri Yash Sharma, counsel for S.N. Singh, that only after taking over the charge as a Chairman of the Society, he came to know about certain mistakes committed by his predecessors and in the writ petition knowingfully well that the Society is the essential and necessary party, the Society was never made a party. Thus, the fraud has been played on the Court.
The submission made by Shri Sharma cannot be accepted for the following two reasons:-
(i) Firstly, S.N. Singh is vitally interested to ensure that the school is not taken over by the State Government and having taken over the charge of the Chairman of the Society, the possibility of destroying the old records by S.N. Singh is not ruled out in order to protect his interest. Thus, whether the predecessor of S.N. Singh had played any fraud or not cannot be adjudicated on the basis of balled statements/allegations of S.N. Singh specifically in the light of the fact that he is vitally interested to ensure that the school is not taken over.
(ii) Secondly, so far as contention of S.N. Singh that he became the Chairman of the Society in the year 2010 and the Society being the necessary party to the writ petition and by not making the Society as a party to the writ petition, the 15 petitioner had played a fraud with the Court is concerned, the said submission cannot be accepted, because even assuming that a party, who claims himself to be a necessary party, is not made party to the proceedings and an adverse order has been passed, then the said person can file an appeal with the leave of the Court. In the present case, after the order was passed by the Single Judge on 13.03.2007 in W.P. No.5306/2005 (s) admittedly a Writ Appeal No.327/2007 was filed. Although that writ appeal was filed in the year 2007, i.e. prior to taking over the charge of Chairman by S.N. Singh, and the said writ appeal was decided on 4/8/2008 and thereafter, the SLP was filed before the Supreme Court and leave was granted and SLP was registered as a Civil Appeal Nos.230/2010, 231/2010, 232/2010, 233/2010, 234/2010, 271/2010, 272/2010, 273/2010, 274/2010, 275/2010 and 276/2010. During this period, S.N. Singh being the Chairman of the Society never made any attempt to get himself impleaded in the civil appeal or to file an application seeking leave to challenge the order passed by the Single Judge as well as in the writ appeal. Thus, it is clear that S.N. Singh was deliberately sleeping over the matter and he did not avail the opportunity, which was available to him at the earliest available stage, and if he was of the view that the Society is 16 the necessary party, then still he wasted five precious years by not getting himself impleaded or by not seeking leave from the Supreme Court. Furthermore, S.N. Singh even after taking over the charge of Chairman of the Society never tried to file a review petition against any order. Thus, under these circumstances, it is clear that the entire conduct of S.N. Singh is motivated with malafide intention in order to protect his family interest, although he is showing himself to be completely disassociated with the interest of his son.
Be that whatever it may.
It is submitted by Shri Anil Mishra and Shri Yash Sharma that petitioner at the relevant time was working in three different schools and, therefore, he had fraudulently filed the writ petition by showing himself to be an employee of the Society. However, it is not disputed by Shri Anil Mishra and Shri Yash Sharma that the petitioner was not working as an employee in the society. It is submitted by Shri Anil Mishra and Shri Yash Sharma that it is apparent from the different letters dated 05/03/2008, 18/08/2008, 05/09/2008, 15/09/2008, 04/10/2008, 06/11/2008, 04/12/2008, 1/11/2008, 16/11/2008, 27/09/2003, 29/09/2003, 23/02/2004 and 11/10/2004 that the petitioner was working in different schools. It is further submitted that since the 17 petitioner was working in different schools, therefore, it is clear that he has played fraud on the Court by filing the writ petition.
The documents, which have been relied upon by Shri Mishra and Shri Sharma, are either of the year 2008 or of the years 2003 or 2004. It is not the case of S. N. Singh had never worked in the school run by the society. When a specific question was put to Shri Anil Mishra and Shri Yash Sharma that how much salary was paid to the petitioner by the society when he was the employee of the society, then it was said that at present they are not in a position to inform this Court and they can inform this Court only after obtaining instructions in the matter.
During arguments, it was submitted by Shri Vishal Mishra that the petitioner is still being paid salary by the State and on query, it was specifically replied that the State is paying Rs.2500 to Rs.4000/- per month to the teachers. Thus, when the State Government itself is making payment of Rs.2500 to Rs.4000/- to the teachers, then we can easily presume the meager amount, which might have been paid by the society to its teachers. Under these compulsive financial circumstances, if the petitioner was compelled to take up any other job for the survival of himself and his family, then 18 without removing the petitioner from services, S. N. Singh cannot say that the petitioner has played any fraud on the Court by filing a writ petition. On the contrary, it shows the hostile attitude of S. N. Singh and his desperate attempt to protect the interest of his family in the land. Thus, it is clear that S. N. Singh has not come to the Court with clean hands and under the garb of public interest has tried to mislead this Court.
Thus, the contention of S.N. Singh that he just wants to intervene in the matter to place the correct facts before this Court cannot be accepted because the contention of S.N. Singh is not above any malafide or personal/family interest, but the application filed by S.N. Singh is motivated and has been filed just in order to protect the interest of his family in the property, therefore, S.N. Singh is not permitted to intervene in the matter.
IA No. 1201/2018 has been filed by Sachchidanand Singh seeking permission to intervene in the matter.
It is submitted that Sachchidanand Singh is the owner of the land in the dispute having purchased the same in the year 1995 and the said land was let out to the society on 15/06/2002 by a rent note on monthly rent of Rs.500/-. It is further submitted that when the society stopped making 19 payment, then he filed a civil suit for eviction and recovery of possession in the year 2011, which is still pending. Thus, it is clear that at the cost of absorption of the teachers, Sachchidanand Singh is trying to establish his personal claim in the matter. It is well established principle of law that in the service matters a person, who is completely stranger to the service jurisprudence, has no locus standi in the matter. If Sachchidanand is aggrieved because of circular issued by the State Government, which provides for taking over of property of the school and absorption of the teachers, then he has a liberty either to challenge that circular or to file a civil suit against the State Government claiming right or title over the property, but he cannot act as a hindrance in the absorption of teachers. Furthermore, Sachchidanand had filed a review petition against the order dated 13/3/2007 passed in the Writ Petition No.5306/2005 (s) and admittedly, it has not been entertained and was dismissed by the Division Bench of this Court by order dated 23/03/2008 passed in Review Petition No.431/2018 with following observations:-
"After hearing learned counsel for the petitioner, we find no error in the order dated 13/03/2007 passed in Writ Petition No.5306/2005 (S). Accordingly, the review petition stands 20 dismissed.
Consequently, the application filed by the petitioner for condonation of delay also stands dismissed.'' Thus, the submission, which is being made by Sachchidanand Singh, has already been taken note of by the Division Bench of this Court while entertaining the review petition filed by Sachchidanand Singh and the contentions raised by Sachchidanand Singh have already been turned down.
It is fairly conceded by Shri J.P. Kushwah, counsel for Sachchidanand Singh, that the order dated 23/03/2018 passed in Review Petition No.431/2018 has attained finality and it has not been challenged by him. Thus, it is clear that Sachchidanand Singh is trying to beat the drums again and again in spite of the fact that his claim has been specifically turned down by this Court in the light of the controversy involved in this case.
Under these circumstances as well as in the light of the order dated 23/03/2018 passed in Review Petition No.431/2018 as well as the fact that Sachchidanand Singh has no locus standi to challenge taking over of the school and absorption of teachers, IA No.1201/2018, which is an 21 application seeking permission to intervene in the matter, is hereby rejected.
Shri K.K. Prajapati, counsel for the respondent No.5- N.L. Karoliya, Chief Municipal Officer, Nagar Panchayat Gormi, District Bhind, appears and submits that since respondent no.5 is of the view that he is a formal party and has no role to play in the entire episode, therefore, he has nothing to say in the matter and, therefore, he has not decided to file even response.
Whether respondent no.5 is a formal party or not, that shall be decided in the latter paragraphs.
At the cost of repetition, another aspect would also be considered by this Court at the end of the order that whether the entire attempt, which is being made by the authorities not to comply the order is at the behest of any individual person having personal interest or not.
The facts of the case are that the petitioner filed a writ petition challenging the order dated 14/11/2005 (Annexure P/1) and order dated 24.11.2004 (Annexure P/1A) filed along with the writ petition, which was registered as W.P. No.5306/2005 (S). By the aforesaid orders, the earlier orders of the State with regard to taking over the school, namely, Saraswati Girls Higher Secondary School, Gormi, District 22 Bhind were cancelled. The impugned orders were challenged on various grounds and the respondents filed their response after they were duly served. The said writ petition was finally decided by this Court by order dated 13.3.2007 with the following directions:-
''11. Consequently, the petition of the petitioner is disposed of with the following directions:-
(i) That, the orders impugned, Annexure P-
1, dated 14-11-2005 Annexure P-1/A dated 24-11-2004, Annexure P-8 dated 29-07- 2002 and Annexure R-17 dated 7-6-2002 with regard to cancellation of taking over of the school by the respondents are hereby quashed.
(ii) The respondent- State is at liberty to pass appropriate orders with regard to absorption of the staff members and teachers of the school in pursuance to the directions issued by the Government as per the circular of the State Government dated 11-11-2003 and 21st March 2002 and other circulars issued by the State Government with this regard, as per law.
(iii) Necessary committee be constituted by the Government to this effect and the orders of absorption of the staff members and teachers be passed within a period of six months from the date of receipt of a 23 certified copy of this order.
(iv) Staff members and teachers appointed as per the orders passed by the Chief Municipal Officer including the petitioner will be permitted to continue in service upto the period when the Government will pass the orders of absorption in pursuance to the aforesaid order and the salary of the petitioner and other staff members and teachers be paid by the Government accordingly. Arrears of salary be also paid by respondents No. 1 and 2.
(v) No order as to cost.'' Being aggrieved by the order dated 13/3/2007 passed in W.P. No.5306/2005 (S), the State of M.P. and others filed a writ appeal, which was registered as Writ Appeal No.327/2007. In the said writ appeal, it was contended by the counsel for the State that proper procedure for taking over of the institution has not been followed and, therefore, the directions given by the learned Single Judge quashing the orders Annexures P/1 and P/1A were bad. The said contention of the counsel for the appellants was considered in paras 11, 12, 13 and 14 of the order dated 4/8/2008 passed in W.A. No.327/2007, which read as under:-
''11. So far as first contention raised by the learned counsel for the appellants State that proper procedure for taking over of the 24 institution is not followed is concerned, this contention is without any merit. This Court in the writ petition filed by Kumar Kalpana Dixit and other employees has already held that proper procedure was followed.
12. Learned counsel for the appellants State contended that in the case of Kumari Kalpana Dixit, the question was only with regard to payment of salary and therefore, the observations of this Court in that case regarding the procedure are merely observations and not findings and that is why in that case, this Court while allowing the writ petition and directing to pay the salary had granted liberty to the State Government to pass fresh orders after affording opportunity of hearing to the petitioners in that case in accordance with law. This argument raised by learned counsel for the appellants State cannot be accepted. In the case of Kumar Kalpana Dixit, return was filed by the State Government specifically raising a plea that the absorption was not in accordance with the policy and therefore, the employees are not entitled to salary. But this argument was repealed by this Court and said findings have attained finality.
13. So far as the question of granting liberty is concerned, in the aforesaid case of Kumari Kalpana Dixit, the learned Judge 25 in the last paragraph has observed that if for any reason, respondents consider that action taken for taking over of the institute is not in accordance with rules or guidelines, the respondents may take action after giving opportunity of hearing to the petitioners in accordance with law.
Thus, liberty was granted to the State Government to pass appropriate orders for cancellation, if any reasons are available to the State Government for cancellation of taking over of the institute. However, that does not mean that the State Government was at liberty to take action contrary to the findings arrived at by this Court in the case of Kumari Kalpana Dixt (supra). Hence, the question about following procedure for taking over of the institute is concerned, the findings arrived at by this Court which have attained finality upto the Apex Court cannot be reopened and are binding upon the parties.
14. As regards eligibility of the teachers and staff of the institute is concerned, the writ court while allowing the writ petitions by the impugned orders has granted liberty to the State Government to hold screening committee as the writ court has found that the screening committee has not properly scrutinized the cases of the candidates. This finding of the learned 26 Single judge is not challenge din these appeals. Said finding is in favour of the appellants State Government, hence, in the light of those findings, the State Government can, even now, decide the eligibility of the staff of the institute and if on screening it is found that any of the teachers or staff of the institute is not eligible for the post on which he/she is working, the State Government is free to remove such person and, therefore, only on this ground, the order of cancellation of taking over of the institute cannot be held to be legal.'' The next contention made by the counsel for the appellants in the writ appeal was with regard to financial repercussions/burdens on the appellant/State because of taking over of the school and the absorption of the teaching and non-teaching staff. The Writ Court in paras 16, 17, 18 and 19 of its order observed as under:-
''16. Moreover, imparting education is a constitutional mandate to the State. The Apex Court in the case of Chandigarh Administration vs. Ranji Vali, (2002) 2 SCC 42 has held that the Government cannot shirk from its responsibility of providing primary and secondary education and grant-in-aid to private schools for efficient functioning of schools and maintaining the 27 standard of teaching. Government's difficulty in bearing additional financial burden cannot be accepted as a valid ground for denying the pay parity. In para 6 of the judgment, the Apex Court has held that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the society depends.
17. In the case of State of Himachal Pradesh vs. H. P. State Recognized and Aided Schools Managing Committee and Others, (1995) 4 SCC 507 and Apex Court has laid down that it is high time that the State must accept its responsibility to extend free education to the children upto the age of fourteen. Right to education is equally guaranteed to the children who are above above the age of fourteen, but they cannot enforce the same unless the economic capacity and development of the State permits the enforcement of the same.
The State must endeavour to review and increase the budget allocation under the head "Education''. The Union of India must also consider to increase the percentage of allocation of funds for "Education'' out of the Gross National Product.
18. The Apex Court in the case of Mohini 28 Jain (Miss) vs. State of Karnataka and Others (1992) 3 SCC 666 has laid down in para 6 that the the Preamble of the Constitution of India promises to secure to all citizens of India '' justice, social, economic and political'' and ''liberty of though, expression, belief, faith and worship''. It further provides that ''equality of status and of opportunity'' and assures dignity of the individual. In para 7 of the judgment, it is laid that that it is no doubt correct that ''right to education'' as such has not been guaranteed as fundamental right under Para III of the Constitution but reading the provisions of Articles 21, 38, 39, 41 and the framers of the Constitution made it obligatory for the State to provide education for its citizens. The Preamble promises to secure justice ''social, economic and political'' for the citizens. A peculiar feature of the Indian Constitution is that it combines social and economic rights along with political and justiciable legal rights. The Preamble embodies the goal which the State has to achieve in order to establish social justice and to make the masses free in the positive sense. Article 41 in Chapter IV of the Constitution recognizes an individual's right '' to education''. It says that the ''State shall within provision for security the right to 29 education. The directive principles isolated form the fundamental rights guaranteed under Part II of fundamental rights. Hence, the State Government is under constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making ''right to education'' under Article 41 of the Constitution a reality, the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate. The ''right to education'', therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional mandate to provide educational institutions at all levels for the benefit of the citizens.
19. Thus, the Apex Court has held that imparting education to the citizens is a constitutional mandate and the State Government cannot shirk its responsibility only on the ground that it has no funds for meeting that mandate in the light of the aforesaid principles enunciated by the Apex Court.'' Thus, it was held that imparting education to the citizens is the constitutional mandate and the State Government cannot shift its responsibility on the ground that 30 it has no funds for meeting out that mandate in the light of the aforesaid principles enunciated by the Apex Court. Thus, the stand taken by the State/appellants that they have no funds to take over the school and absorbing the services of teaching and non-teaching staff was also specifically taken note of and was dealt with by the Division Bench of this Court.
So far as the eligibility of the teachers and staff of the school is concerned, the learned Single Judge had granted liberty to the State to hold a screening committee afresh and this fact was also approved by the Division Bench of this Court and consequently, the writ appeal filed by the State was dismissed.
Being aggrieved by the order passed by the Writ Court in the Writ Petition and by the Division Bench in the Writ Appeal, the State Government and others filed a SLP (Civil) before the Supreme Court and leave was granted and the Civil Appeal was decided by the Supreme Court by order dated 25/2/2015 passed in civil appeals, which were filed against various identical orders including the order passed in the present case. The Civil Appeal filed by the State was dismissed. It is the case of the petitioner that in spite of dismissal of the civil appeal by the Supreme Court, the 31 contemnors have not complied with the order dated 13/3/2007 passed in W.P. No.5306/2005 (S), therefore, a contempt petition No.445/2015 was filed. Once again, several contentions were raised by the contemnors in the Contempt Petition and the contentions made by the contemnors were rejected by order dated 15/5/2007. It is mentioned in the order dated 15/5/2007 that vide order dated 12/5/2017, which was placed on record by the respondents/contemnors, it was accepted by them that teaching and non-teaching staff of the petitioner's institution shall be absorbed in respective local bodies in terms of order dated 21/3/2002 issued by the State Government and the benefit of absorption including pay fixation and revision of pay made from time to time shall be applicable from 21/3/2002.
It was contended by the counsel for the petitioners therein that the petitioners have been absorbed in the local bodies, whereas the order dated 21/3/2002 required them to be taken by the State Government and the said contention was rejected by this Court. It was next contended that the cut off date for payment of wages to the teaching and non- teaching staff has been arbitrarily fixed and considering the submissions made by the petitioners therein, the following order was passed :
32
''4(1) As has been admitted by the respondents, the date of absorption of both the teaching and non-teaching staff will be 21.3.2002; and (2) Non-teaching staff will be entitled to payment of wages as are applicable to all the contract employees from time to time w.e.f. 21.3.2002 and the revisions so made thereafter.
(3) Shri Prashant Sharma, learned counsel submits that this is only an order on papers to avoid contempt, and benefits have not yet been extended to the concerned employees. Nonetheless it is expected that once the orders have been passed in principle and the respondents' counsel has admitted that the very date of absorption has been treated as 21.3.2002, then all the consequential benefits along with arrears will follow within a reasonable time, which this Court hopes and trusts that the same will be paid within three months from today, if not already paid, including pay fixation on the post of Adhyapak to the teaching faculty.
6. Accordingly, contempt proceedings are dropped in terms of the undertaking of Shri Vishal Mishra, Advocate.
Certified copy as per rules."
Under the hope and belief that the contemnors would 33 comply the order dated 13/3/2007 passed in Writ Petition No.5306/2005 (s), the contempt proceedings were dropped in the light of the undertaking given by Shri Vishal Mishra, Advocate, but unfortunately the hope and belief expressed by this Court has fallen on deaf ears and the respondents have tried to play with the hope and belief expressed by the Court. It was alleged by the counsel for the petitioner that in spite of the undertaking given by the respondents before this Court, they have not taken any action in the matter and thus, they have committed deliberate and willful act of contempt making themselves liable for punishment. It is further submitted that now it has become the tendency of the Government Officials to somehow circumvent the orders of the Court trying to take recourse to one justification or the other. The notices were issued and accordingly, on 20/2/2018 reply to the contempt petition was filed.
When a specific question was put to Shri Vishal Mishra, counsel for respondents No.1 to 4, that whether this reply has been filed on behalf of respondents no.1 to 4 or not, then it was fairly conceded by him that it has been filed on behalf of all the respondents. In the reply, it is mentioned that as per the circular dated 21/3/2002 taking over of the property of the school is a sine qua non for absorption of the teaching 34 and non-teaching staff. Thus, as per the requirement of the circular, respondent no.4 sent a proposal for taking over of the institution along with the staff vide proposal dated 23/09/2017. A letter was written by the Commissioner, Public Instructions to the Collector, District Bhind dated 25/09/2017 asking for sending the proposal after completing necessary enquiry in the matter and thereafter, a letter was also written by the Deputy Secretary, School Education Department dated 27th January, 2018 asking the Collector, Bhind to send the information regarding taking over of the property of the school and recording the name in the revenue record. It was also mentioned that only after the property is taken over and the name of local body is recorded in the revenue record, the procedure for absorption of teaching and non-teaching staffs would begin. It is also mentioned that the proceedings regarding deletion of the name of the society in the revenue record and mutation of the name of State Government in the revenue record is still pending before the Tahsildar, Gormi, District Bhind and an objection was filed in those proceedings by filing a complaint by the President, Shri Ramnath Singh Shisksha Prasar Samiti, District Bhind on 30/12/2017 alleging that the previous resolution dated 30/06/2002 issued by Samiti giving consent for taking over of the property of the 35 school in pursuance to the orders passed by this Court is false and frivolous and the President has not signed the aforesaid proceedings at any point of time and Rambahadur Singh had no authority to pass the aforesaid resolution on behalf of the Samiti.
It is not out of place to mention here that on 30/12/2017 S.N. Singh was the President of Shri Ramnath Shisksha Prasar Samiti, Bhind and on 30/06/2002, admittedly, said S.N. Singh was not the President of Shri Ramnath Shisksha Prasar Samiti, Bhind. Thus, the allegations made by the present Chairman that the resolution dated 30/06/2002 was not signed by him has no value.
Be that whatever it may.
It is further mentioned in the return that a FIR has also been registered at Police Station EOW, Bhopal in Crime No.05/2014 for offence under Sections 420, 467, 468, 471, 120-B of IPC and under Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act against certain private persons. Copy of FIR is Annexure R/4.
So far as the contention of the counsel for the contemnors that the FIR has been registered by EOW against the private persons for different offence under IPC as well as under Prevention of Corruption Act is concerned, this Court 36 enquired from Shri Vishal Mishra that whether any public servant has been arrayed as an accused in the said FIR or not? After going through the FIR, it is fairly conceded by Shri Vishal Mishra that no public servant has been arrayed as an accused in the said FIR, which has also been registered for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Thereafter, it was enquired from Shri Vishal Mishra that whether ''in absence of any public servant", a private person can be prosecuted and tried for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act or not, it was fairly conceded by Shri Vishal Mishra that the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act can only be registered against public servant and if a public servant is an accused, then private person can also be prosecuted under the different provisions of Prevention of Corruption Act, but in absence of any public servant no private person can be prosecuted for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Thus, it is clear that the private respondents have exercised their influence on EOW also, compelling it to register the FIR against the private persons for offence under Section 13(1)(d) read with Section 13(2) of 37 the Prevention of Corruption Act. The competency of EOW for investigating the allegations for commission of offence in different provisions of IPC is not being considered, but one thing is clear that by bypassing the local police, the FIR has been got lodged at Bhopal in the police station of EOW.
Be that whatever it may. As the investigation is pending and, therefore, this Court is refraining itself from commenting on the correctness and competence of EOW in investigating the said matter, but the above-mentioned aspect has been taken into consideration to find out that whether there is any malafide intention on the part of the contemnors to avoid compliance of the order of this Court. It is clear that taking advantage of certain facts, which have no sanctity in the law the contemnors have avoided the compliance of the order passed by this Court in Writ Petition No.5306/2005 (s) on 13/03/2007.
It is further mentioned in the reply that the Principal of the school was arrested and subsequently he was granted bail. The proceedings, which have been undertaken by the revenue authorities for correction of revenue records, are pending in which the objections have been filed. The order dated 19/01/2018 passed by the Naib Tahsildar, Gormi, District Bhind in Case No.29/A-6A/2016-17 is relevant. In 38 the said order, it is specifically mentioned by the Naib Tahsildar that although the objector is claiming his title over the land in dispute on the basis of registered sale deed dated 21/10/1994 and 07/02/1995, but on the instructions sought from the office of Sub-Registrar, Mehgaon, District Bhind, it was informed that all the records of prior to the year 2005 have been sent to the Office of District Registrar, Bhind, therefore, the information with regard to sale deed can be obtained from the Office of District Registrar, Bhind. Accordingly, a notice was issued to the District Registrar, Bhind, but the District Registrar, Bhind did not respond to the notice issued by Naib Tahsildar. It is also mentioned by Naib Tahsidlar in his order dated 19/01/2018 that the objector has not filed the copy of registered sale deed dated 21/10/1994, whereas the mutation has been sought on the basis of registered sale deed dated 07/02/1995, which is suspicious. However, as the matter was already pending in the Court of Collector, Bhind, therefore, the Naib Tahsildar, Gormi, District Bhind dropped the proceedings. It is also mentioned in the return that one Sachchidanand Singh the son of the President of the Society had filed a writ petition No.1002/2017, which has been decided by order dated 10/02/2017 with a direction to the petitioner to approach the 39 Collector being the Executive Head of the District. The said order has not been placed on record. However, it is the case of Sachchidanand Singh that he had merely filed a review petition, which was dismissed.
Thus, it was submitted by Shri Vishal Mishra that further time may be granted to the respondents authorities for complying with the order awaiting the decision on the title of the property. Surprisingly, the deponent forgot one important aspect that the Collector has also been arrayed as one of the contemnors in the present case and at the same time, the Collector by filing the present reply dated 28/02/2018 has tried to say that since he is in seisin of the matter, therefore, till final decision taken by him, the respondents should be granted time to comply the order. It is fairly conceded by Shri Vishal Mishra that no final order has been passed by the Collector so far. Thus, a very interesting situation has arisen in the present case that where one contemnor is trying to shift her responsibility by saying that the another contemnor is in seisin of the matter and another contemnor, i.e. Collector himself has tried to avoid the compliance of the order of the High Court by saying that he is in seisin of the mutation proceedings, therefore, the order of the High Court could not be complied. 40 If the Collector had any regard for the order passed by the High Court, then he should have decided the matter as early as possible, but nothing has been stated by the Collector that as to why the matter has been kept pending by him for such a long time. Furthermore, when a specific question was put to Shri Vishal Mishra that whether under the garb of deciding the mutation proceedings, the Collector can decide the question of title or not, then it was fairly and rightly conceded by Shri Vishal Mishra that the Collector has no right and jurisdiction to decide the question of title of the parties. It was also fairly and rightly conceded by Shri Vishal Mishra that the revenue entries are not the documents of title, although they attach presumption of correctness and that presumption is rebuttal. Once the revenue entries are not the documents of title, then Shri Vishal Mishra is right in contending that the Collector under the garb of mutation proceedings cannot decide the question of title.
It is further submitted by Shri Vishal Mishra that as certain disputes have been raised by S.N. Singh, the present President of the Society, alleging that initially a resolution was passed by the Society giving consent for taking over of the school by the Government, which is a forged document, therefore, before deciding the question of mutation, the 41 Collector has to decide that whether the name of local body/State Government can be recorded in the revenue record or not. Thus, the another objection, which has been raised by the President of the Society, is with regard to correctness and genuineness of the resolution as well as the consent given by the Society to the State Government for taking over of the school. Again, Shri Vishal Mishra was asked that whether under the garb of mutation proceedings the Collector can decide the question of genuineness or correctness of the resolution passed by the Society in the year 2002 or not, then he rightly conceded that the correctness and genuineness of the document, which affects the title of a party, has to be adjudicated by the Civil Court of competent jurisdiction and by holding that the document is a forged document, the Collector cannot directly or indirectly decide the question of title of a party.
The entire controversy revolves around one thing that whether the society has given its consent for taking over of the school by the State or not.
S.N. Singh has taken over the charge of President of the Society in the year 2010 and only S.N. Singh and his son Sachchidanand Singh have raised a dispute with regard to the property on which this school is being run by the society 42 and that dispute has been raised preferably only because of the circular issued by the State providing for taking over the entire movable and immovable property of the school at the time of absorption. Thus, S.N. Singh and his son Sachchidanand Singh, who are claiming title over the land, started taking objections, so that the school may not be taken over and, their property may be saved and that objection is at the cost of absorption of the teaching and non-teaching staff.
IA No.4631/2018 has been filed for recalling the order dated 04/10/2018 as well as extension of time.
IA No.4631/2018, is also titled as ''Application for recalling the order dated 04/10/2018 and for extension of time'', but the following prayer has been made:-
"It is, therefore, most humbly prayed that the application may kindly be allowed and further one month time may kindly be granted to the respondent authorities for making proper compliance in the interest of justice."
This application has been filed on behalf of the respondents no.1 to 4, which includes the Collector, Bhind also and surprisingly, the Collector, Bhind himself is dealing with the matter pertaining to mutation proceedings and the respondent no.1 has expressed her inability to proceed 43 further and to comply the order of this Court on the ground that unless and until the name of the State Government/ local body is mutated in the revenue record, nothing can be done in the matter. Thus, one contemnor is sitting over the matter and another contemnor has expressed her inability and the petitioner is under the hope and belief that on one day or another during his lifetime he would get justice. When a question was put to Shri Vishal Mishra that the petitioner and the similarly situated employees must be adversely affected due to non-absorption, then it was submitted by Shri Vishal Mishra that they are not facing any adverse circumstance, as they are getting salary. A specific question was put to Shri Vishal Mishra that as to how much amount of salary the teachers are getting, it was replied that they are getting salary of Rs.2500 to 4000/- per month, which was in accordance with the order dated 13/03/2007.
The submission made by Shri Vishal Mishra although appears to be very honest one, but it reflects on the working of the contemnors. By complying Clause (iv) of the order dated 13/03/2007 passed in Writ Petition No. 5306/2005 (s), the State Government is inclined to pay meager amount to the petitioner for an unlimited period and for making payment of such meager amount, they are trying to allege 44 that the Court had directed the respondents to allow the petitioner to continue in service upto the period when the Government will pass the order of absorption and in pursuance to the aforesaid order, the salary of the petitioner and other staff members and teachers shall be paid by the Government accordingly.
It is submitted by Shri Vishal Mishra that unless and until the petitioner and other staffs members are absorbed in the Government service, they are not entitled for regular pay scale and they have been continued in service in compliance of the order as contained in paragraph 4, therefore, they are getting meager salary, as per the circular of the State Government. On a further query, it was fairly conceded by Shri Vishal Mishra that after their absorption, they will be absorbed in the cadre of Adhyapak and they would be entitled to get the salary of more than Rs.25,000/- per month. Thus, it appears that the whole attempt of the respondents is not only to show favour to the private litigant, but not to pay regular pay scale to the teachers after their absorption, therefore, under one pretext or another they are shifting their responsibility from one shoulder to another.
In IA No.4631/2018 itself, a prayer has been made for recalling the order dated 04/10/2018, but in view of the 45 subsequent application, i.e. IA No.4640/2018, in which the similar prayer has been made, this Court does not find it appropriate to consider the prayer for recalling the order dated 04/10/2018 made in IA No.4631/2018 in order to avoid repetition. But, one thing is clear that by filing IA No.4631/2018 the contemnors themselves have sought for further time to comply the order. The contemnors are in fact trying to play the game of hide and seek. Thus, one thing is clear that on one hand they are pleading that they are ready and willing to comply the order dated 13/3/2007 being obedient to law, law fearing and law abiding citizens, however, at the same time by shifting the burden from one contemnor to another, they are trying to delay the proceedings.
Be that whatever it may.
Considering the facts and circumstances of the case, this Court is of the considered opinion that the contentions of the contemnors that the order dated 13/03/2007 passed by this Court in WP No.5306/2005(s) was obtained by the petitioner by playing fraud with the Court as well as the resolution and the consent so-called given by the society for taking over of the institution by the State Government, is forged, cannot be accepted.
46
At this stage, it is submitted by Shri Vishal Mishra, Advocate for respondent no.1, and the respondent No.1 Smt. Deepti Gaur Mukharji, who is present in the Court, that fifteen days time may be granted to comply the order in its letter and spirit without taking objection of any sort. It is submitted by respondent No.1 that she will ensure that the order is complied with by local bodies.
Shri Vishal Mishra is right in making the submission that although the writ petition was decided in the year 2007, but the civil appeal was decided by the Supreme Court on 25 th February, 2015, therefore, this intervening period of eight years may not be considered as delay on the part of the respondents in making compliance of the order passed in the writ petition and since the matter was subjudice, therefore, the submission made by Shri Vishal Mishra is accepted and for the purposes of contempt, this intervening period of eight years is ignored. However, the another aspect of the matter is that the civil appeal was decided by the Supreme Court by order dated 25/02/2015 and thus, more than two years and eight months have passed and still the petitioner is running from pillar to post for getting his genuine claim, which has already been affirmed by the Supreme Court, and thus, the delay of two years and eight months cannot be ignored in the 47 light of the fact that this Court has prima facie come to a conclusion that the contemnors have tried to shift the ball from the court of one contemnor to another contemnor in order to avoid compliance of the order of this Court. However, in the fitness of things, a week's time is granted to the respondents to comply the order dated 13/03/2007 passed in Writ Petition No.5306/2005 (s) in its letter and spirit without taking any sort of objection with regard to the private dispute going on between Sachchidanand Singh/S.N. Singh and State. It is further made clear that the State has nothing to do with the individual claim and counterclaim of Sachchidanand Singh and S.N. Singh vis-a-vis the absorption of teaching and non-teaching staffs.
Shri Vishal Mishra further, submitted that since the matter is pending before the Collector Bhind, therefore, awaiting the outcome of those proceedings, respondent no.1 under the bonafide belief did not take any action in the matter. Since Shri Vishal Mishra is also representing the Collector Bhind, therefore, he was requested to argue on the steps taken by the Collector Bhind in this matter. This Court has gone through the reply dated 28/2/2018 alongwith Shri Vishal Mishra and it is found that there is not a single whisper about the proceedings which are pending before the Collector 48 Bhind and the steps taken by the Collector in those proceedings. It is mentioned in the reply dated 28/2/2018 that this Court in order dated 10/2/2018 passed in Writ Petition No.1002/2017 had directed Sachchidanand Singh to approach the Collector for redressal of his grievance. Although the order dated 10/2/2017 passed in Writ Petition No.1002/2017 has not been placed on record, but this Court has got it downloaded from internet and it appears that a petition was filed by Sachchidanand Singh complaining that he has filed an application for mutation of his name in the revenue records in the year 2012, which is pending before the SDO, Gormi, District Bhind and the SDO is not passing any order, therefore, a prayer was made for early disposal of the application. While deciding the petition it was held that since the Collector is the head of the revenue district, therefore, the petitioner Sachchidanand Singh should approach the Collector drawing his attention to the proceedings pending before the SDO in case No.21/13-14 on his application dated 29/8/2012. Thus, it is clear that this Court had nowhere directed that the Collector should withdraw all the proceedings and to decide all the proceedings on his own. Once a person has complained before this Court by filing a writ petition that his application 49 for mutation of his name is pending for the last five years and the SDO is not taking any action in the matter, then if the petitioner Sachchidanand was directed to approach the Collector for bringing to his notice about the pendency of this application, then it does not mean that the Collector was competent to withdraw the proceedings from the Court of SDO and to entertain the same, although nothing has been mentioned in reply dated 28/2/2018 that for what purposes the proceedings before the Collector were pending. If the Collector was of the view that necessary instructions are required to be issued to the SDO, Gormi, District Bhind for early disposal of the application, then he could have done so on the administrative side also. Since this Court is dealing with the contempt proceedings, therefore, this Court does not want to speculate any factual aspect, however, one thing is clear that the contemnors have taken the contempt proceedings in such a casual manner that they have not even cared to file a specific reply pointing out the actions taken by them in this matter. Under these circumstances, in absence of any explanation given by the Collector, Bhind that as to how he was entertaining the proceedings with regard to the mutation of the name of a person in the revenue records, this Court is competent enough to draw an inference that the 50 Collector Bhind had shown some personal interest in the matter by withdrawing the proceedings from the Court of SDO, Gormi, District Bhind.
My view is fortified by the order passed by the Naib Tahsildar on 19/1/2018 on which date Sachchidanand had made a request to the Naib Tahsildar that the Collector is proceeding further in the matter in the light of the direction given by this Court, therefore, Naib Tahsildar should also transfer the proceedings to the Collector Bhind.
It is submitted by Shri Vishal Mishra appearing for respondent no.1 that since the matter was pending before the Collector Bhind and, therefore, the respondent no.1 was unable to pass any order with regard to compliance of the order dated 13/3/2007. Unfortunately and fortunately Shri Vishal Mishra is also representing the Collector Bhind. In view of the submissions made by Shri Vishal Mishra on behalf of respondent no.1 when a specific question was put to him that as to what steps were taken by the Collector Bhind, then he was unable to make any submission for the simple reason that not a single word has been mentioned in the reply dated 28/2/2018 with regard to the steps taken by the Collector. The said reply has been filed on behalf of the contemnors 51 no.1 to 4 including the Collector Bhind. Even it is not clear from any of the subsequent applications filed on behalf of contemnors no.1 to 4 that as to what steps were taken by the Collector Bhind in the matter. Shri Vishal Mishra has read out the order dated 25/4/2018 passed by the Naib Tahsildar, Gormi, District Bhind in which it is mentioned that the matter was forwarded by the Collector on 22/6/2017 with a direction to decide the application within a period of 30 days. From order dated 25/4/2018, which is not on record, it is clear that Sachchidanand had filed an application for correction of the revenue entries in respect of Khasra No.1845 area 0.105 hectare and for deleting the name of Ramnath Siksha Prasar Samiti, Gormi, District Bhind. These proceedings were concluded by the Naib Tahsildar by order dated 25/4/2018, and the name of the Society was deleted from the Revenue Record, however, the appeal filed against the order of the Naib Tahsildar has been allowed by the S.D.O., and the name of the Society has been restored in the revenue record. However, from the proceedings of the revenue case No.0029/A-6(A) 2016-17, it appears that Sachchidanand Singh filed an application on 1/9/2017 before the Naib Tahsildar for correction of the revenue record. It is really surprising that if the application for correction of revenue 52 record was already pending, then why an another application was filed by Sachchidanand for seeking the same relief.
Be that whatever it may.
It is apparent from order dated 19/1/2018 passed by the Naib Tahsildar in the said proceedings, that a reply was filed by Sachchidanand mentioning therein that certain proceedings are already pending before the Collector, Bhind in compliance of the order of the High Court, therefore, the matter may be closed. In the same order it has also been mentioned by the Naib Tahsildar that the District Registrar Bhind has not responded to the letter issued by the Naib Tahsildar with regard to the execution of the sale deed. However, in view of the fact that one more proceeding of similar nature was pending before the Collector, therefore, the Naib Tahsildar by order dated 19/1/2018 dropped the proceedings. Again a very confusing situation has been created. On the one hand on 19/1/2018 the Naib Tahsildar was informed that certain proceedings with regard to the same dispute are pending before the Collector Bhind, but on the other hand in order dated 25/4/2018 it is clearly mentioned by the Naib Tahsildar that the Collector by order dated 22/6/2017 passed in case No.33/16-17/B121 had already forwarded the matter to the Naib Tahsildar for 53 deciding the same within a period of 30 days. If the Collector had already forwarded the matter to the Naib Tahsildar on 22/6/2017, then why another application was filed by Sachchidanand before the same court, i.e. Naib Tahsildar, Gormi, District Bhind, on 1/9/2017. If the Naib Tahsildar had already received the records from the court of Collector as per the order dated 22/6/2017, then it is still surprising that why the Naib Tahsildar entertained the application filed by Sachchidanand on 1/9/2017. In the entire reply it has not been mentioned that as to what proceeding was pending before the Collector Bhind on 19/1/2018, because the matter was already forwarded to the Naib Tahsildar by the Collector by order dated 22/6/2017. These are very confusing facts, which have not been clarified either by Sachchidanand or even the Collector Bhind has not cared to clarify these facts and have thought that mere by filing a vague reply their duty would come to an end.
Be that whatever it may.
The crux of the matter is that the Collector Bhind in spite of the fact that some proceedings were pending before him, has kept those proceedings pending for an unlimited period thereby facilitating respondent no.1 and other contemnors not to comply the order passed by this Court. 54 Accordingly, prima facie it appears that the Collector Bhind is also responsible for the delay in compliance of the order passed by this Court.
It is further submitted by Shri Vishal Mishra that contemnors no.1 to 4 shall comply the order at their end within one week, but then it would be the duty of respondent no.5 to implement the order of this court by absorbing the services of petitioners.
Shri K.K. Prajapati, counsel for respondent no.5, has stated at the outset that respondent no.5 is a formal respondent and has nothing to do with the matter and, therefore, he has not filed any reply. At this stage, Shri Prajapati, counsel for respondent no.5, submitted that in case if the order is communicated to respondent no.5, then the same shall be implemented on the same day. After some time, Shri Prajapati submitted that he would require at least seven days to implement the order. It is submitted by counsel for respondent no.5 that the moment the salary of the teaching staff and non-teaching staff as well as the movable and immovable property is received by the corporation, then immediately he would implement the order of the State Government. This is again an another attempt made by respondent no.5 to avoid compliance of the order of 55 this Court by shifting the burden on the other contemnors that too when this Court has already come to a prima facie opinion that respondent no.1 had remained silent by shifting the responsibility on the shoulder of respondent no.3 and with great difficulty if respondents no.1 to 4 have decided to pass a final order in compliance of order of this court, then respondent no.5 is trying to once again shifting the responsibility on the shoulders of respondents no.1 to 4. This Court by order dated 4/10/2018 had already held that so far as the dispute between the management and the State is concerned, it has nothing to do with absorption of teaching and non-teaching staff. Today also, this Court has considered each and every aspect argued by the contemnors as well as the intervenors and has prima facie come to a conclusion that in fact taking shelter of the so called objections raised by the intervenors, the respondents by saying that a fraud has been played have tried to avoid compliance of the order. Once it has already been held by this Court by order 4/10/2018 that the dispute between the Management and the State has nothing to do with the absorption, then the respondent No.5 cannot be allowed to reopen the said issue by saying that he would comply the order or implement the order only after receiving the payment and property from the State 56 Government. Once again, the arrogant attitude of the respondent No.5 is writ large and they are still not interested in complying the order of this Court.
Again and again, this Court has observed about the preliminary finding given by this Court. The Court was not inclined to give any preliminary finding. The Court was in the process of dictating the order in the open Court and it is already 07:25 PM and the dictation of the order had started at 03:30 PM, but in the mid of the order, prayer was made by the counsel for the respondents no. 1 to 4 as well as the respondent no.1 herself, that the order of the High Court dated 13/03/2007 passed in WP 5306/2005(S) shall be complied with within two weeks (However, this Court has granted time of one week), therefore, this Court stopped giving findings with regard to the responsibility and culpability of each and every respondents and that is why the Court has used the words "preliminary or prima facie findings" with regard to non-compliance of the order dated 13/03/2007. Although the counsel for respondent No.5 has heard the entire order as well as the preliminary findings already recorded by the Court, but still he is trying to delay the proceedings by saying that unless and until every facility in the form of property of the school as well as the salary of 57 the teachers is received from the State Government, he would not comply the order of this Court and he would comply the same only after receipt of the property of the school as well as the salary from the State Government. The Highhandedness of the respondent No.5 cannot be tolerated.
At this stage, an unconditional apology has been tendered by Shri KK Parajapati, the counsel for the respondent no.5, and he has submitted that as soon as the order from the respondents/State is received, he shall ensure the compliance of the said order immediately without any delay. For the time being, the apology tendered by Shri KK Prajapati, counsel for the respondent No.5, is accepted. However, in view of the earlier stand taken by Shri KK Prajapati, the counsel for the respondent no.5, this Court thinks it proper to direct the respondent No.5 also to remain present before this Court on 12th November, 2018, so that if any order is passed by the State or respondents, then copy of the same may be handed over to the respondent No.5 then and there in order to avoid any further delay in compliance of the order.
List the matter on 12th November, 2018 at the top of the list and the respondent nos, 1, 3 and 5 shall remain present before this Court on the aforesaid date.
(G.S.Ahluwalia)
MKB * Judge
Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.11.02 22:14:55 +05'30'