Allahabad High Court
Saurabh Tripathi And Others vs Sri Mushtaq Ahmad, Engineer-In-Chief / ... on 16 December, 2022
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- CONTEMPT APPLICATION (CIVIL) No. - 2017 of 2022 Applicant :- Saurabh Tripathi And Others Opposite Party :- Sri Mushtaq Ahmad, Engineer-In-Chief / Head Of Deptt. Irrigation And Water Resources Deptt. Lko. Counsel for Applicant :- Meenakshi Singh Parihar Hon'ble Rajeev Singh,J.
On 13.12.2022 notice was issued to the respondent. As per report of the CJM dated 31.10.2022 notice was served on the respondent.
On 15.11.2022 request was made by the State counsel on behalf of the respondent for filing affidavit of compliance and the matter was posted on 28.11.2022. Order dated 15.11.2022 is as under :-
"Heard Shri H.J.S. Parihar, Advocate assisted by Shri Shashank Singh, learned counsel for the applicant and Shri Sunil Bajpayee, learned Additional Chief Standing Counsel for the opposite party.
Shri Sunil Bajpayee, learned Additional Chief Standing Counsel has placed written instruction dated 14.11.2022 and requested for four weeks time to file affidavit of compliance.
The aforesaid prayer is hereby rejected.
List this Case on 28.11.2022.
In the meantime, opposite party shall file affidavit of compliance failing which opposite party shall appear in person before this Court on the date fixed for framing of charge."
On 28.11.2022 it was informed to the Court that fresh order was passed by the respondent on 25.11.2022 by which the earlier decision taken by the then Engineer in Chief was withdrawn and it was decided to conduct fresh examination of the Ziledar and Schedule of examination was also mentioned in the order and after considering the submissions of learned counsel for the respondent on 28.11.2022 following order was passed:-
"In pursuance to the order of this Court, Shri Mushtaq Ahmad, Engineer in Chief/ Head of Department, Irrigation Water Resources Department, Government of U.P., Lucknow, is present in Court.
Compliance affidavit filed today is taken on record.
Heard Shri H.G.S. Parihar, learned Senior Advocate, on behalf of the applicants and Shri Prashant Singh Atal, learned Chief Standing Counsel.
Instant contempt petition reflects sorry state of affairs on the part of the officials of the State Government . The reasons for the same are indicated below :-
Instant contempt petition has been filed alleging non-compliance of the judgment and order dated 05.08.2021 passed in Writ Petition No.20263 (SS) of 2020 in re : Het Ram and Others vs. State of U.P. and Others, a copy of which has been filed as Annexure-1 to the petition. By the said order the writ Court had allowed the writ petition with a direction to the respondents to reconsider the claim of the petitioners and other selected candidates for grant of promotion on the post of Ziledar by holding a fresh full-fledged enquiry to examine merit of each candidate who applied for selection and record specific finding in regard to influence / mal-practice adopted by one of the members of the selection committee and in case the candidates are found involved in such practice an appropriate and speaking order be passed after affording opportunity of hearing to the petitioners and other candidates of the selection proceedings. The said exercise was required to be completed within four months. It was also provided that in case the petitioners are found to be genuine candidates after passing the order as directed by this Court they shall be granted promotion on the post of Ziledar immediately thereafter.
The matter pertained to a promotional examination of Ziledar held in the year 2018 having been cancelled by the respondents.
Admittedly the order of this Court dated 05.8.2021 has attained finality and still continues to hold good.
When the order of this Court dated 05.8.2021 was not complied with, the applicants were constrained to file Contempt Application (Civil) No.804 of 2022 in re : Het Ram and Others vs. Sri Ashok Kumar Singh and Others.
An affidavit of compliance was filed by Sri Ashok Kumar Singh, who is said to be the then Engineer in Chief/ Head of Department, Irrigation Water Resources Department, U.P. Lucknow, whereby it was indicated that in compliance of the order passed by the writ Court dated 05.08.2021 a full fledged enquiry was held and a total number of 335 candidates have been found eligible for promotion which includes all the 31 petitioners. On the basis of the said affidavit, the Contempt Court vide order dated 25.07.2022 was satisfied that the order passed by the Writ Court has been complied with and no further orders were required to be passed and consequently the contempt petition was dismissed. Copy of the order is Annexure 11 to the contempt application.
Incidentally, the orders dated 21.07.2022 passed by the respondents whereby the petitioners along with others had been found eligible have been filed as Annexure Nos.9 and 10 to the petition.
Again when the applicants/ petitioners were not promoted as Ziledar they were constrained to file the instant contempt application in which notices were issued by this Court and vide order dated 15.11.2022 the respondent was required to file affidavit of compliance failing which he shall appear before this Court on the next date of listing for framing of charges. As such, the matter has come up before this Court today.
An affidavit of compliance has been filed by the respondent also annexing the order dated 25.11.2022, a copy of which is Annexure-1 to the compliance affidavit, per which it has been indicated, more specifically in paragraph 4 of the order dated 25.11.2022, that various irregularities and illegalities have been found in the said selection and consequently after taking legal opinion it has been decided to cancel the entire selection and of holding of fresh selection.
The argument of Shri Parihar, learned counsel for the petitioners, is that when the respondent in the earlier contempt petition had filed an affidavit of compliance duly indicating to the contempt court that 335 Seench Paryavekshak have been found eligible for the post of Ziledar including the 31 petitioners as per the result dated 21.07.2022 and on the basis of the said compliance affidavit, including the result dated 21.07.2022, the contempt petition had been dismissed on 25.07.2022, as such, the only thing required to be done by the respondent was the promotion of the petitioners as Ziledar which should not have resulted in the petitioners being constrained to file the instant contempt application. Now, in the instant contempt application, a compliance affidavit is being filed duly bringing on record the order dated 25.11.2022 whereby it has been indicated that various illegalities have been committed and thus the earlier examination held in the year 2018 has been cancelled. The argument is that once the earlier contempt application was dismissed on the basis of the compliance affidavit whereby the result of the petitioners as Ziledar has been declared as such the respondent cannot be allowed to resile from the earlier stand taken before the contempt court and thus the new stand amounts to gross contempt of the order passed by the Writ Court as well as the contempt court dated 25.07.2022. It is also contended that the order dated 21.07.2022, a copy of which is Annexure ? 9 to the petition, only saw the light of the day in pursuance of the direction issued by the Writ Court dated 05.08.2021 whereby it had been indicated that the order was being issued after holding of a full fledged enquiry in which 335 candidates as per the result dated 21.07.2022 were not found involved and as such passing of a subsequent order dated 25.11.2022 cancelling the selection would run contrary to the earlier order passed by the respondent whereby all the petitioners had been found eligible on account of not having indulged in any irregularity which was required to be looked into by the respondent and as such, it is contended that the respondent cannot be allowed to blow hot and cold in one petition after the other.
On the other hand, Shri Prashant Singh Atal, learned Chief Standing Counsel, on the basis of averments contained in the compliance affidavit argues that in pursuance to the order of the Writ Court dated 05.08.2021 the matter had been examined and thereafter a select list of 335 candidates was declared on 21.07.2022 which was also placed on record by means of a compliance affidavit filed in the earlier contempt application by the petitioners namely Contempt Application (Civil) No.804 of 2022. He however contends that it was only the select list which had been issued and the candidates could only be promoted after an interview being held for them. As no such interview was held as such there was no occasion for promotion of any of the person whose name finds place in the said select list. However, subsequent thereto the matter has again been inquired into, a committee has been constituted and a final decision has been taken vide office memo dated 25.11.2022 by which it has been decided to cancel the entire selection which commenced in the year 2018. A reference has also been given to an order passed by this Court at Allahabad to contend that the respondent has no option but to hold a fresh selection.
Having heard learned counsel for the contesting parties and having perused the record, what emerges is that initially the Writ Court vide judgment and order dated 05.08.2021 in Writ Petition No.20263 (SS) of 2020 had passed certain directions which, for the sake of convenience are reproduced below :-
"16. The writ petition succeeds and is allowed with a direction to the respondents to reconsider the claim of the petitioner and other selected candidates for the grant of promotion on the post of Ziledar by holding a fresh full-fledged enquiry to examination and merit of the each and other candidates applied for selection and record specific finding in regard to influence/ mal-practice adopted by one of the members of the selection committee and in case the candidates are found involved in such practice an appropriate and speaking order be passed after affording opportunity of hearing to the petitioners and other candidates within four months from the date of production of a certified copy of this order.
17. Needless to say that in case the petitioners are found to be genuine candidates after passing the order as directed by this Court, they shall be granted promotion on the post of Ziledar immediately thereafter. The selection proceeding directed by this Court shall continue after the exercise as directed by way of this order."
When the order of the Writ Court was not complied with, the petitioners were constrained to file Contempt Applications (Civil) No.804 of 2022 wherein a compliance affidavit was filed by Sri Ashok Kumar Singh , Engineer in Chief/ Head of Department, Irrigation Water Resources Department, Government of U.P., Lucknow, duly bringing on record the order the orders dated 21.07.2022 whereby it was indicated that an enquiry has been held and a list of 335 candidates was issued who had been found eligible for promotion to the post of Ziledar. On the basis of the said affidavit and the orders dated 21.07.2022, the contempt court was satisfied that the order passed by the Writ Court has been complied with and no further orders were required to be passed and accordingly the contempt application was dismissed. Again when the petitioners were not promoted, they were constrained to file instant contempt application in which notice was issued. The respondent was directed to file compliance affidavit vide order dated 15.11.2022 which has now resulted in a compliance affidavit being filed today.
In the compliance affidavit it has been contended that in pursuance to the directions issued by the Writ Court dated 05.08.2021, a committee has been constituted and a final decision has been taken whereby it has been decided to cancel the entire selection which commenced in the year 2018 for the post of Ziledar.
The question which arises is that in the earlier contempt application the respondent had filed an affidavit of compliance of a very senior officer namely Engineer in Chief/ Head of Department duly bringing on record the select list dated 21.07.2022 including the order dated 21.07.2022 whereby it was indicated that after holding of an enquiry in terms of the directions issued by the Writ Court dated 05.8.2021 a list of 335 candidates including the petitioners was being issued and thus the only thing which remained was issuance of the consequential promotion order and the contempt court was satisfied with the compliance affidavit filed by the respondent and dismissed the contempt application. Again when the petitioners were not promoted, instant contempt application has been filed in which the respondent now has done a volte face and taken a different stand from what had been taken in the earlier round of contempt proceedings between the parties namely an order dated 25.11.2022 being passed by the respondent whereby it has been indicated that in compliance of the order of the Writ Court dated 05.08.2021, a committee has been formed and the examination of Ziledar held in the year 2018 has been cancelled.
The volte face and contradiction in both the orders dated 21.07.2022 filed by means of compliance affidavit in the earlier contempt proceedings and the order dated 25.11.2022 now brought on record by means of compliance affidavit is apparent on record. The earlier contempt proceedings were dismissed on the basis of the compliance affidavit whereby it was indicated that the compliance has been done by issuing a list of selected candidates and now in the second round of contempt proceedings, another order dated 25.11.2022 has been passed indicating that the examination itself has been cancelled. This volte face on the part of respondent and that too a senior official of the State Government cannot be countenanced in any manner. It is also not the case of the respondents in the compliance affidavit filed today that the earlier order passed by them dated 21.7.2022 was passed by an officer who not competent to do so. Shifting the stand from one contempt application to other with respect to the same order passed by the Writ Court and that too by a senior officer of the State Government rather the Head of the Department and that too before the highest Court of the State itself reflects the sorry state of affairs on the part of the officials of the State government, as already observed at the very beginning of this order.
Keeping in view the aforesaid discussion, the apparent contradiction between two orders dated 21.07.2022 and 25.11.2022 passed by the respondent read with order of the contempt Court dated 25.07.2022 more particularly when it is the Head of the Department, who was required to pass order in pursuance to the order passed by the Writ Court dated 05.08.2021, this Court has no option but to require the Chief Secretary of the State to file his personal affidavit indicating the contradictions in both the orders and the manner in which the earlier contempt application was dismissed on 25.07.2022 believing the version on the part of the respondent of the order of the Writ Court dated 05.08.2021 having been complied with.
Let the personal affidavit be filed by the Chief Secretary within two weeks. List this case on 16.12.2022.
In case the compliance affidavit is not filed then the Chief Secretary of the State shall appear in person along with records to assist the Court.
Officer preset in Court today shall remain present on the next date of listing."
As it is evident from the record that in compliance of the order dated 28.11.2022, affidavit of Chief Secretary, State of U.P. Shri Durga Shankar Mishra is available on record and today supplementary affidavit is filed by the respondent and submitted that the order dated 25.11.2022 is already challenged in Writ A No.8335 of 2022 in which statement was given by Mr. Jaideep Narain Mathur, learned Senior Advocate on behalf of State.
Time for submission of the form has been extended till 17.01.2023 and in the meantime examination of Ziledar will not be conducted. An objection to the affidavit of compliance filed by Shri Durga Shankar Mishra, Chief Secretary, State of U.P. is also taken on record.
List this case on 19.12.2022 at 10:15 AM. On the next date complete record related to the selection of Ziledar Examination, 2018 as well as inquiry report dated 24.01.2019, 15.02.2019 and 08.7.2022 as well as the decision of the respondent dated 25.11.2022 be placed before this Court.
Officer present today shall appear again on the next date in compliance of the earlier order.
Order Date :- 16.12.2022 mks