Madras High Court
P.Chithiraiselvan vs Hariharan on 12 December, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/12/2011 CORAM THE HONOURABLE Mr.JUSTICE K.CHANDRU Contempt Petition (MD)No.249 of 2008 & Contempt Petition (MD)No.251 of 2008 in M.P.(MD)Nos.1 and 1 of 2011 in W.P.(MD)Nos.2680 and 3076 of 2008 P.Chithiraiselvan ... Petitioner in Cont.P(MD)No.249/2008 S.Murugaraj ... Petitioner in Cont.P(MD)No.251/2008 Vs. Hariharan, The Chief Educational Officer, Sivagangai. ... Respondent in both the Cont.Petitions Prayer in both the Contempt Petitions Petition filed under Section 11 of Contempt of Courts Act, to punish the respondent for wilful disobedience of the order passed by this Court in M.P.No.2 of 2008 in W.P.Nos.2680 & 3076 of 2008 dated 17.04.2008. !For Petitioner ... Mr.V.Paneerselvam ^For Respondents... Mr.T.S.Md.Mohideen, AGP :COMMON ORDER
(i) Contempt Petition (MD)No.249 of 2008 and
(ii) Contempt Petition (MD)No.251 of 2008.
The Contempt Petition No.249 of 2008 is filed by the petitioner seeking to punish the respondent for having disobedience of the order passed by this Court in M.P.No.2 of 2008 in W.P.No.2680 of 2008 dated 17.04.2008.
2.When the contempt petition came up on 12.07.2008, this Court directed the learned Special Government Pleader to get instructions from the respondent. Subsequently, the respondent appeared before this Court on 30.10.2008 and his presence was dispensed with. It was further stated by the learned Special Government Pleader that the Special Leave Petition filed by the State is pending before the Supreme Court. Therefore, the matter was adjourned from time to time.
3.The second Contempt Petition No.251 of 2008 was filed by the petitioner seeking to punish the very same respondent for having disobedience of the order passed by this Court in M.P.No.2 of 2008 in W.P.No.3076 of 2008 dated 17.04.2008.
4.In fact, these two contempt petitions related to a common order passed by this Court and that the Contempt petitions which were heard together and common orders were passed.
5.However in W.A.Nos.119 and 122 of 2008 the Division Bench of this Court by order dated 14.05.2008 had directed that the recruitment of secondary grade teachers on the basis of District level seniority cannot be allowed and only the state level seniority has to be maintained and it should be on a state wide basis. It was found that the said procedure adopted by the state was violative of Article 16(2) of the Constituion. The said judgment subsequently came to be reported in 2008(4) LLN 560 (Unemployed Secondary Grade Teachers Welfare Association Vs. State of Tamil Nadu rep.by its Secretary, Department of School Education and another).
6.But, however, the judgment of the Division Bench was subsequently taken to the Supreme Court by the aggrieved parties by filing SLP (Civil)Nos.18227 and 18228 of 2008. The Supreme Court refused to grant stay of the order of the division bench instead directed the state to adopt state wide seniority in the matter of recruitment of secondary grade teachers. Notwithstanding the fact that the SLP was pending and a positive direction was given to the state to follow the state wide seniority. But, however, two contempt petitions filed by similarly placed persons came up before this Court. In Contempt Petition (MD) No.237 of 2008 was filed by one Uma Writ petitioner in W.P.(MD)No.3162 of 2008. Contempt Petition (MD)No.210 of 2008 was filed by one I.Sankar Writ petitioner in W.P.(MD)No.3163 of 2008. A learned Judge of this Court on 17.12.2008 held that since no appeals were filed by the state, the order made in W.P.(MD)No.3162 of 2008 dated 03.04.2008 should be obeyed in letter and sprit by the District Elementary Educational Officer, who was the respondent therein. In Contempt Petition (MD)No.210 of 2008 this Court held that without claiming any right pending SLP before the Supreme Court appointment may be granted to the petitioner I.Shankar.
7.In the present Writ petition the petitioners seek for a similar directions. Having realised that the original respondent/contemnor was no longer the Chief Educational Officer, Sivagangai the two petitioners have filed impleading application to implead one Ms.Chellam the present CEO, Sivagangai as party respondent. Those matters are yet to be ordered.
8.The earlier respondent had filed counter affidavits in both the contempt petitions. In the counter, it was claimed by him in Contempt Petition (MD)No.249 of 2008 that the contempt petitioner P.Chithiraiselvan's original native place was Sivagiri Taluk, Tirunelveli District. After his registration in the District Employment Exchange, Tiruneveli, he got transfer of his registration number to Sivagangai District after obtaining a migration certificate from the Tasildar, Thiruppathur. His educational certificates were verified and he was selected for employment. But the others persons, who are in the local Employment Exchange objected to the said selection and they had questioned his migration, which lacked bonofides. Therefore, the District Revenue Officer, Sivagangai issued an order dated 14.03.2008 and cancelled the registration of the petitioner in the local Employment Exchange of Sivagangai. It is against the order of DRO, he had filed W.P.(MD)No.2680 of 2008. This Court by order dated 17.04.2008 set aside the order and directed him to appoint as Secondary Grade Teacher.
9.But in the meanwhile, the Division Bench judgment has rendered its judgment. Therefore, the District Educational Officer, Sivagangai, who was at the relevant time was the appointing authority was not in a position to appoint him though his name was sponsored by the District Employment Officer, Sivagangai. In the Special Leave Petition filed as against the order of the Division Bench in SLP (civil) Nos.18227 and 18228 of 2008, pending the SLP there direction was given for selection based on state level seniority. Hence, the respondent was not in a position to implement the direction issued the earlier order passed by this Court. As the earlier direction was that the selection should be made on the basis of District level seniority.
10.In the second contempt petition also a similar stand was taken where the petitioner S.Murugaraj who was a migrant from Thiruthangal, Rajapalayam Taluk to Virudunagar District.
11.The contention of the petitioner was that the judgment of the Division Bench and the pendency of the SLP had nothing to do with the cases of the petitioners since their cases have been fructified into a final order. There was nothing further to be done in their case. As against the orders passed by this Court in the two petitioners' cases, no appeals have been preferred. Therefore, the action of the respondent was clearly condemnable and they are liable to be punished.
12.However, this Court is unable to accept the contentions raised by the petitioners. It is of the opinion of the respondents that they cannot be hurdled into committing contempt as they were slapped with two different orders. One by this Court in the Writ petition filed by the petitioners and the other by a positive direction given by the Supreme Court and pending the SLP. But for the DRO's order cancelling their migration and subsequent registration in Sivagangai/Virudhunagar Districts' Employment Exchanges, the petitioners would have got appointment. Therefore, their cases should be considered on the basis of the earlier selection process. The subsequent pronouncement by the Division Bench will have bearig on their cases.
13.In order to appreciate the contentions raised by the petitioners, it is necessary to refer to the exact nature of the division bench's order. The division bench while considering the case of the parties in the decisions stated above in 2008(4) LLN 560 (Unemployed Secondary Grade Teachers Welfare Association Vs. State of Tamil Nadu rep.by its Secretary, Department of School Education and another) held that the district level selection was violative of Article 16(2) of the Constitution and the selection process was flagged. It was further observed that if Kashmire to Kanyakumari is a single unit called India, there cannot be a further sub divisions from Dharmapuri to Kanyakumari and the state cannot make Dharmapuri to Kanyakumari into different units for the purpose of selection. The judgment of the Division Bench is a constitutional declaration binding on the state, which includes the CEO of Sivagangai or DEEO against whom the petitioners had secured orders from this Court.
14.The aggrieved parties have gone to the Supreme Court. The Supreme Court far from granting any interim order of stay of the order of the Division Bench, had given positive direction to the state to recruit persons strictly on the basis of state level seniority. The state government had also issued a consequential direction in G.O.(D)No.264 School Education Department dated 18.07.2008. In two writ petitions filed by the petitioners for reasons best known they have not made the state of Tamil Nadu as party respondent, which alone can defend the actions of the state. They have raised contentions making the Chief Educational officer alone as the party. Even that Chief Educational Officer Mr.Hariharan was no longer in service even as per the admission of the petitioners as reflected in Sub application (MD)Nos.1 & 1 of 2011. Another officer had taken charge.
15.It is not clear as to how the said officer could be made as a party in the contempt petition. Ultimately in any writ petition where a relief is claimed even against a subordinate officer, the state can be sued only in the name of the government or the state as enjoined upon under Section 79 of the C.P.C. Having got a direction to a subordinate officer, who is not in a position either defend himself or to implement the orders of this Court without reference to the order passed by the earlier Division Bench followed by a direction given by the Supreme Court in pending SLP (Civil) Nos.18227 and 18228 of 2008. Nothing prevented the petitioner in moving the Supreme Court to get appropriate clarification rather than filing such contempt and attempting to threaten the officers, who have no power to go against the order passed by the Division Bench and the Supreme Court as well as by the state government which had issued a consequential order to implement the interim order passed by the Supreme Court.
16.In fact this Court should not grant directions which are contrary to the other orders passed by higher courts, thereby putting the subordinate officers in a quandary. In order to appreciate the stand of the respondents, one must know the nature of order passed by the Division Bench which is pending in appeal before the Supreme Court. The order of the Division Bench does not pertain to any individuals. It is a declaration of law on the constitutional validity of the State action. When once this Court declares that particular state action is unconstitutional, the legal position is that by the impugned action will always be invalid and the question of applying any judgment prospectively will not arise since such a power do not vest with the High Court under Article 226 of the Constitution.
17.Secondly, the judgment under the appeal did not indicate that it is prospective in nature. If a recruitment by district level employment exchange was held to be unconstitutional and violative of Article 16(2) of the Constitution, it must be understood that it has always been so, right from the day one notwithstanding the fact number of persons would have been appointed due to the earlier action of the state.
18.In this case this Court is not considered with persons who have already secured employment and are in service. In the present case, the petitioners, who are yet enter into service of the state, cannot insist upon directions issued by the single bench to be followed as opposed to the declaration of law by the Division Bench and by a positive direction issued by the Supreme Court directing the state to follow the state level seniority. Though the process of recruitment may start with calling for application and sponsorship by employment exchange, but an appointment cannot be insisted upon by any person as a matter of right when the process is not completed and the actual appointment order was not issued to individuals. The mere finding of the name in a selection list, no Court can give any direction to issue an appointment order.
19.In this contest it is necessary to refer to two judgments of the Supreme Court:-
"State of M.P. v. Sanjay Kumar Pathak, (2008) 1 SCC 456, at page 464 :
20. It is well known that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India2 and Asha Kaul v. State of J&K)
21. In K. Jayamohan v. State of Kerala4 this Court held: (SCC p. 171, para
5) "5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare a waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference."
(See also Munna Roy v. Union of India5.)
22. In All India SC&ST Employees' Assn. v. A. Arthur Jeen it was opined:
(SCC p. 387, para 10) "10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus: (SCC pp. 50-51) '7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v.
Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.' "
23. ...
24. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti this Court observed:
(SCC p. 273, para 32) "32. The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise."
In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee.
25. Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone.
26. In Ramakrishna Kamat v. State of Karnataka12 albeit in the light of right of regularisation in service, this Court opined: (SCC p. 378, para 7) "7. ? It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
(See also Maruti Udyog Ltd. v. Ram Lal State of Bihar v. Amrendra Kumar Mishra, Regional Manager, SBI v. Mahatma Mishra15 and State of Karnataka v. Ameerbi)"
20.Therefore, the petitioners do not have any enforceable right except the order passed by this Court to provide employment. In such circumstances, by the intervening factors of the higher Courts order declaring the law otherwise, certainly the order passed by this Court cannot be enforced that to through contempt process. This is especially so when the Supreme Court had given a positive direction and such direction is a binding on each authority who are to implement the order in terms of Article 142 of the Constitution.
21.In the present case, the respondent is only a Chief Educational officer and that the earlier incumbent is no longer in service. In the counter affidavit he had stated that he was not in position to implement the order. It cannot be understood that he had disobeyed the orders passed by this Court. In a contempt proceedings impossibility of performance is also a ground of defense as held by the Supreme Court in Mohd. Iqbal Khanday v. Abdul Majid Rather reported in (1994) 4 SCC 34 has held that impossibility of performance can be a legitimate defence in the contempt petition. The following passages found in paragraphs 14 to 16 of the said judgment may be usefully reproduced below:
"14.The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of justice. The order dated 21-9-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the court has no power to pass such an order but the question is whether while granting such interim reliefs the discretion of the court has been correctly exercised? If the writ petition is ultimately dismissed, the respondent would have gained an undue advantage of getting a promotion undeservedly. But we are not on the merits of the interim order."
"15.Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Government was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under the rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Public Service Commission and not by the appellant. "
"16.From the above, it appears that the appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21-9- 1992. In such a situation the insistence of the courts on implementation may not square with realities of the situation and the practicability of implementation of the court's direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the court by means of the contempt proceedings seeks is an execution which cannot meet with our approval."
22.Therefore, this Court do not think that any case made out to punish the respondents. Hence, the both the contempt petitions stand dismissed. Hence, the sub application also will stand closed. However, it is always to the petitioners to move the Supreme Court seeking for an appropriate clarification.
nbj To Mr.Hariharan, The Chief Educational Officer, Sivagangai.