Gujarat High Court
Sushilkumar Gopikant Jha vs Manoj Aggarwal, Secretary on 18 January, 2023
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/MCA/707/2022 JUDGMENT DATED: 18/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 707 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 5082 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
==========================================================
SUSHILKUMAR GOPIKANT JHA
Versus
MANOJ AGGARWAL, SECRETARY
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1,2
MS MANISHA LAVKUMAR, GP with MS SHRUTI PATHAK AGP, with MR
KRUTIK PARIKH, AGP for the Opponent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 18/01/2023
ORAL JUDGMENT
Page 1 of 14
Downloaded on : Mon Jan 23 20:37:42 IST 2023
C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) The contempt jurisdiction of the court is a disciplined jurisdiction.
2. This Miscellaneous Civil Application is filed by the applicant invoking the jurisdiction of this court under the Contempt of Courts Act, 1971. What is complained of is about non-compliance of order and direction in judgment dated 15.3.2022 in Special Civil Application No.5082 of 2022.
2.1 At the outset it may be stated, as also reflected in the order dated 22.9.2022 that the grievance regarding non-compliance of the directions of learned single Judge with regard of applicant No.1- original petitioner No.1 no more survived. However, according to learned advocate for the petitioners Ms.Kruti Shah, the order was not complied with in its entirety for second applicant, therefore on that score only the present proceedings would survive. As the case about non-compliance survives only in respect of applicant No.2, the facts hereinbelow are focused accordingly,
3. The moot question is whether the respondents could be said to have committed contempt of court and flouted the directions of learned single Judge by not applying to applicant- petitioner No.2 Resolution dated 15.9.2022 and by not granting benefit to him thereunder.
3.1 While noticing the background which culminated into aforesaid directions, the Special Civil Application was filed with the prayer to direct the respondent Nos.1 and 2 to treat the Page 2 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 period of service from the date of first appointment and further to treat the service of the petitioner as continuous from the first date of appointment. The Special Civil Application came to be allowed by learned single Judge by his judgment and order dated 15.3.2022.
3.2 The directions of learned single Judge in paragraph No.6 of the aforementioned judgment read as under.
"Admittedly therefore in view of the undisputed position of the petitioners being pre 01.04.2005 appointees, the respondents are directed to consider the period of ad-hoc services rendered in case of both the petitioners viz. of the petitioner no.1 from 31.07.2000 to 24.04.2006 and that of the petitioner no.2 from 12.08.1998 to 02.10.2003 as regular for all purposes in accordance with the resolution dated 16.05.2021. The decision shall be taken and the same shall be granted to the petitioners for all purposes as envisaged in the resolution dated 16.05.2021 within a period of 10 weeks from the date of receipt of copy of this order."
3.3 With regard to petitioner No.2- the applicant No.2 herein- Dr. Komal Samir Shah, it was the case that she was appointed as ad hoc tutor Class-II in Anesthesiology by order dated 4.8.1998 passed by respondent No.2- the Commissioner of Health and Medical Services. The Government College, Bhavnagar passed order dated 18.8.1998 appointing her with effect from 12.8.1998. After serving as ad hoc tutor- the petitioner No.2 came to be appointed as ad hoc Sah Adhyapak Class-I by order dated 2.10.2003. The College gave her the appointment on 3.10.2003 by order dated 8.10.2003. Having served as ad hoc tutor and ad hoc Assistant Professor for the respective duration, Page 3 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 the petitioner No.2 participated in selection process for the post of Sah Adhyapak with effect from 3.12.2008 and came to be appointed by order dated 11.12.2008, subsequently she came to be appointed as ad hoc Sah Adhyapak with effect from 8.1.2011. The petitioner made representation seeking regularization of her service on the post of first appointment on ad hoc basis and pursuance to such representation, the college forwarded the representation to the respondent Nos.1 and 2.
3.4 It was in context of the above grievance that the Special Civil Application was filed which culminated into aforementioned judgment dated 15.3.2022 of learned single Judge. The directions issued therein were brought under the contempt jurisdiction of this court by filing this Miscellaneous Civil Application, complaining of non-compliance thereof.
3.5 In response to the notice, respondent No.1- the Under Secretary, Health and Family Welfare Department filed affidavit- in-reply to submit that the learned single Judge had directed to consider the services of the applicant as regular from 12.8.1998 to 2.10.2003 for all purposes, in accordance with Resolution dated 16.5.2021. In compliance of the directions and to act in accordance with the said Resolution dated 16.5.2021, the competent authority passed another Resolution dated 13.9.2022 whereby the services of the applicant were regularized for the aforesaid period from 12.8.1998 to 2.10.2003, it was stated. The same was the period during which the applicant served as tutor of Anesthesiology on ad hoc basis. While the compliance was done as above by the respondents, it appears that Resolution dated 15.9.2022 was introduced.
Page 4 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023C/MCA/707/2022 JUDGMENT DATED: 18/01/2023
4. It was the submission of learned advocate for the applicant that the Resolution dated 15.9.2022, the benefit which was not given to the applicant, as per his case, had the genesis in Resolution dated 16.5.2021. Learned single Judge had directed to give benefit of Resolution dated 16.5.2021, it was submitted that therefore to abide by what was contemplated in Resolution dated 15.9.2022 was a consequential step to be taken by the authorities, then only it could be said that the total compliance of order of learned single Judge was obtained. In other words, it was the submission on behalf of the applicant that Resolution dated 15.9.2022 was in connection with and in continuity of Resolution dated 16.5.2021, required to be read together for extending benefits to the applicant.
4.1 As against the above, it was contended by learned Government Pleader Ms.Manisha Lavkumar Shah assisted by learned Assistant Government Pleader Ms.Shruti Pathak as well as learned Assistant Government Pleader Mr.Krutik Parikh for the respondents and it is the case on behalf of the respondent authorities that the prayer of the applicant with regard to grant of benefit under the said Resolution dated 15.9.2022 was premature and beyond the scope of contempt proceedings. It was submitted that at this stage even otherwise, the petitioner did not became entitled to be considered under the said Resolution.
5. Looking at Resolution dated 16.5.2021, which was referred to in the directions of learned single Judge and in accordance with which the services of the applicant were to be regularized, Page 5 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 provided inter alia for regularizing the ad hoc services of medical teachers and grant of other benefits to them. It was provided therein that the ad hoc services of such medical teachers discharging duties under the educational institutions under the Medical Education Department, working as ad hoc, would be regularized from the date of their appointment as ad hoc till the date they stand appointed pursuant to regular selection process.
5.1 It was further contemplated in the said Resolution that those teachers who have been recruited regularly or given promotion in regular way and working in the higher cadre as ad hoc, the services of such ad hoc teacher shall also be regularized until the time they are regularly recruited or promoted. The Resolution further provided to treat as regular the entire period of ad hoc services prior to their regular recruitment or promotion and by treating them continuous.
5.2 There is no dispute that the aforesaid providences in Resolution dated 16.5.2021 have been acted upon by the respondents to the benefit of the petitioner in compliance of the directions of learned single Judge. The said Resolution in its paragraph No.11 further provided that a proposal was pending for treating continuous more than one ad hoc services and when such policy decision shall be accepted. It appears that in pursuance of said stipulation in Resolution dated 15.9.2022 came to be passed.
5.3 Since the contention was raised by the petitioners that they were entitled to the benefit of Resolution dated 15.9.2022, Page 6 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 the court passed order on 7.11.2022 requiring the respondents to file affidavit-in-reply and explain whether the applicant was entitled relief as per the said Resolution. It appears that on 7.12.2022 order was passed by the competent authority of the Health and Family Welfare Department that the benefit of Resolution dated 15.9.2022 was not liable to be extended to the applicant pursuant to the order of learned single Judge since it was a premature request on part of the applicant. It was observed that what the applicant pointed was to regularize her services which were ad hoc on the post of Sah Adhyapak. However, until she is appointed in the higher cadre on regular basis, ad hoc services could not be regularized. It was the stand that the ad hoc services of the applicant on the post of Sah Adhyapak could be considered for regularization only after she secures for herself regular appointment on the post.
5.4 Issued subsequent to the order of learned single Judge, Resolution dated 15.9.2022 of Health and Family Welfare Department dealt with the subject of regularizing the ad hoc services and to treat such services continuous with earlier services of the Professors in the medical field. It provided that the recommendations of the sub-committee of the group of Ministers which was constituted by Resolution dated 27.12.2021 would be regularized. It provided that services whether prior or subsequent to the passing of regular recruitment examination in any cadre would be liable to be regularized to be treated continuous. One of the condition mentioned for earning the said benefit were that the regular recruitment examination should have been passed by the candidate concerned. The benefit of the Resolution would be availed upon fulfilling the other conditions Page 7 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 mentioned in the Resolution.
5.5 In order to examine the above aspect, the services of the applicant in different categories may be noticed. She worked as ad hoc tutor from 12.8.1998 to 2.10.2003. She worked as Teacher on ad hoc basis from 3.10.2003 to 2.12.2008. It appears that thereafter she passed regular examination of Public Service Commission to be directly recruited as Assistant Teacher. She worked as Assistant Teacher from 3.12.2008 to 7.1.2011. Thereafter the applicant became Sah Adhyapak on ad hoc basis from 8.1.2011 and till date she is working on this post. She is yet to be appointed as regular.
5.6 A careful relook of the directions of learned single Judge would clearly suggest that the respondents were required to treat the period of the applicant concerned from 12.8.1998 to 2.10.2003 as regular which was the ad hoc period for the applicant on the post of tutor and in accordance with Resolution dated 16.5.2021 to be treated accordingly for all purposes. Extending the benefits of said Resolution dated 16.5.2021 as directed, the ad hoc services of the applicant in the post of Tutor upto 2.10.2003 and thereafter the ad hoc services as Assistant Professor from 3.12.2008 to 7.1.2011, were treated continuous for the purposes of leave pay and pension. Upto this period the effect of regularization and continuous benefit, in accordance with Resolution dated 16.5.2021 was given to the petitioner, in compliance of order and directions of learned single Judge.
5.7 Thus, from the date of initial appointment all the ad hoc services of the applicant came to be regularized excepting the Page 8 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 ad hoc period from 8.1.2011 on the post of Sah Adhyapak. The directions of court were accordingly attended to and the order of the court was complied with. The regularization of the period after 8.1.2011 is sought for by the applicant on the basis of and with reference to Resolution dated 15.9.2022.
5.8 The claim of the petitioner has been that above does not amount to total compliance of the order. According to the case put forth, since Resolution dated 15.9.2022 was issued, the regularization of services from onwards 8.1.2011 ought to have been granted and that extension of such benefit was to be treated as inclusive in the directions of learned single Judge for the reason that the Resolution dated 15.9.2022 was in furtherance of resolution dated 16.9.2022.
6. Civil contempt is defined in Section 2(b) of the Contempt of Courts Act, 1971. The jurisdiction of the court in respect of civil contempt arises when there is a wilful disobedience of court's order.
6.1 In Anilkumar Shahi Vs. Prof. Ram Sevak Yadav [(2008) 14 SCC 115] following were the observations of the Supreme Court.
"A glance of the Contempt of Courts Act, 1971 and the provisions thereof makes it abundantly clear that the Act has been brought in the Statute book to define the limit and powers of certain Courts punishing for contempt of courts and it has laid down the procedure for exercise of such powers. Contempt of Court has been defined under Section 2(a) of the Act, to mean civil contempt or criminal contempt.Page 9 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023
C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 `Civil Contempt' has been defined under Section 2(b) of the Act to mean `wilful disobedience of any judgment, decree, direction, order, writ or other process of court of willful breach of undertaking given to a court.' It is by now well-settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed `civil contempt' and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated."
6.1.1 It was next stated, "In other words, while exercising its power under the Act, it is not open to the court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked.
When the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of court. There is no willful disobedience if best efforts are made to comply with the order."
6.2 In Suresh Estates Private Limited Vs. Municipal Corporation of Greater Mumbai [(2009) 3 SCC 186], the Supreme Court examined whether there was wilful disobedience and case for contempt was made out or not. In the said petitioner's own case reported in (2007) 14 SCC 439, the petitioner had claimed the benefit of additional FSI under the Page 10 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 Development Control Rules, 1967, having been granted to certain other hotels. The direction to the State Government was issued to exercise its discretion under relevant Rules to take decision in that regard. The petitioners came to be granted particular FSI, however, they put forth their claim of additional FSI. It was also contended by the petitioners that they were not liable to pay any premium, which was asked for.
6.2.1 It was held that it was not possible to conclude that the decision to grant particular FSI, was in any way contravention of the directions of the Supreme Court, and amounted to compliance, "According to the petitioners, if the 1967 Rules are applicable, no premium would be payable by the petitioners. It is also argued that the imposition of heavy premium was done purposely to deny the benefits of the judgment passed by this Court. As it is a matter which came into issue subsequent to the judgment passed by this Court, we leave the matter open to be agitated in other appropriate forum and we make it clear that we do not express anything on merit regarding the issue whether the petitioners are liable to pay any premium or not."
(para 31) 6.2.2 The Supreme Court observed that an issue coming to the fore subsequent to the judgment passed by the court could be agitated in other appropriate proceedings. The payment of premium was an issue outside the purview of the directions of the court. The Supreme Court noted to further observe, "As regards premium payable by the applicant petitioners, it was not a matter in issue nor was it argued. But the direction was to consider the application in accordance with Page 11 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 the Development Control Rules, 1967."
(para 30) 6.3 It is also trite principle while exercising the contempt jurisdiction that any supplemental directions beyond the four corners of the directions passed in black and white by the court, cannot be issued. This principle would emanate and stand fortified from the decision of the Supreme Court in V.M.Manohar Prasad Vs. N.Ratnam Raju and Another [(2004) 13 SCC 610].
6.3.1 Following observations may be noticed from V.M.Manohar (supra), "On the basis of what has been indicated above, the first submission is that there is no violation of the order passed by the learned Single Judge directing regularization of the employees, since the said order has not been violated in any manner, the matter was considered in the light of the scheme for regularization dated 24.4.1994. Secondly, it is submitted that the Contempt Court gas no jurisdiction to issue any directions of this Court in Jhareswar Prasad Paul Vs. Tarak Nath Ganguly [(2002) 5 SCC 352], and Notified Area Council Vs. Bishnu C. Bhoi [(2001) 10 SCC 636]. There is no doubt about the position under the law that in contempt proceedings no further directions could be issued by the court. In case it is found that there is violation of the order passed by the court. In case it is found that there is violation of the order passed by the court the court may punish the contemnor otherwise notice of contempt is to be discharged. An order passed in the contempt petition, could not be a supplemental order to the main order granting relief."
Page 12 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 6.4 While exercising the contempt jurisdiction, the court does not have a free hand. In soliciting the compliance of the order of the court, the court exercising contempt jurisdiction cannot travel beyond the directions given. It is not open for the court to read the orders and directions between the lines to understand them accordingly, and to thus seek from the contemnor the compliance thereof. The alleged contemnor cannot be said to have committed contempt of the court beyond the ambit of express order. Also, where two interpretation of the order of the court is possible, the contempt court would not go into the aspect to hold that by not complying the directions in particular way or interpreting them in other way, the contempt is committed.
6.5 Similarly, the developments occurring subsequent to the order under contempt cannot be looked into. These developments may be related to the subject matter of order but non consideration thereof would not lead to contempt. The compliance has to be of actual operative directions standing in their four corners. The directions under contempt cannot be subtracted, at the same time, cannot be supplemented.
6.6 Viewed in context of the above principles, the Resolution dated 15.9.2022 was not the part of the directions of learned single Judge. It was also a subsequent development post-order under contempt. Giving any direction for dealing with the said Resolution or in that regard, or in relation to the said Resolution would amount to supplementing and adding into the original order and the directions. Even otherwise the respondent authorities had a bonafide stand to thwart allegations of Page 13 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023 C/MCA/707/2022 JUDGMENT DATED: 18/01/2023 contempt that the claim for benefit of Resolution dated 15.9.2022 was premature and subjected to fulfilment of conditions.
6.7 If the applicant seeks entitlement and benefit of the said Resolution, the applicant is not precluded from instituting separate subsequent proceedings to be considered in accordance with law, if advised, of merits of which this court does not express any opinion. It is an independent cause to be segregated from contempt proceedings to be dealt with as per law.
7. In the present case therefore no contempt is committed by any of the respondents as the order and directions of learned single Judge are complied with. The present Miscellaneous Civil Application is liable to be dismissed. Accordingly, it is dismissed. Notice is discharged.
(N.V.ANJARIA, J) (NIRAL R. MEHTA,J) Manshi Page 14 of 14 Downloaded on : Mon Jan 23 20:37:42 IST 2023