NEUTRAL CITATION
C/MCA/475/2021 ORDER DATED: 17/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 475 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 2430 of 2017
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JASHODABEN BHUDARBHAI PARMAR
Versus
K K NIRALA, ADDITIONAL SECRETARY, WOMEN AND CHILDREN
DEVELOPMENT DEPARTMENT
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Appearance:
MR DP JOSHI(1163) for the Applicant(s) No. 1
MR DG SHUKLA(1998) for the Opponent(s) No. 3
MR HS MUNSHAW(495) for the Opponent(s) No. 4,5
NOTICE SERVED for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 17/08/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present application has been filed seeking initiation of contempt proceedings for willfully and deliberate contempt of CAV judgement dated 30.9.2019 passed in captioned writ petition and further it is prayed that the respondents may be directed to comply with the aforesaid judgement.
2. Learned advocate Mr.D.P.Joshi appearing for the applicant has submitted that despite the directions issued by this Court vide judgement dated 30.9.2019 directing the respondents to appoint the petitioner to the post of Mukhya Sevika, the respondents have not Page 1 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined offered any appointment. Learned Advocate Mr.Joshi has placed reliance on the directions issued in para 6 of the judgemnent and order dated 30.9.2019. It is submitted that after the aforesaid directions were issued the respondents-authorities prepared a select list of 6 candidates and the name of the applicant was included in the same and she was placed at Sr.No.5. However, she is not offered appointment on the ground of non-availability of the vacancies. Learned Advocate Mr. Joshi has further submitted that in fact the respondents-authorities should have placed the applicant as per her merits looking to her seniority. It is submitted that the respondents- authorities have deliberately not included her name along with the the other candidates looking to her age. He has further submitted that the respondents have not clarified with regard to the the vacancy of the post and hence, in order to deny the appointment to the applicant, the respondents have acted in a contemptuous manner. Learned Advocate Mr. Joshi has also raised the issue of seniority in the matter and also placed the reliance on the decision of the Hon'ble Apex Court in the case of Ram Janam Singh & Anr. Etc. vs State of Uttar Pradesh and Anr. Etc. reported in AIR 1994 SC Page 2 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined 1722. He has further submitted that the in fact the appointments are made dehors the rules.
3. Per contra, Learned Advocate Mr. H.S.Munshaw for the respondents Nos. 4 an 5 has submitted that the respondents- authorities have in fact complied with the directions issued by this Court as 4 candidates are already appointed to the post of Mukhya Sevikas and since the present applicant is less meritorious, she is not offered appointment and also 4 vacancies for which, such recruitment process was to be undertaken, they are filled-up by the candidates who are more meritorious then the applicant. Hence, it cannot be said that the respondents have willfully and deliberately disobeyed the directions issued by this Court. He has further placed the reliance on the affidavit filed by the respondents-authorities and also pointed out the communication dated 23 rd February, 2022. In support of his submissions, learned Advocate Mr.Munshaw has categorically stated that there were 4 posts of Mukhya Sevika, Class III which were absorbed on 14.2.2022 and accordingly, the Departmental Promotion Committee of Banaskantha District Panchyat which met on 14.2.2022 sent a proposal of 6 candidates to Page 3 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined the Gujarat Panchayat Service Selection Board and accordingly they were sanctioned. It is submitted that for rest of the two posts, it was observed that as and when any vacancies falls, the candidates who are placed in select list would be appointed. Thus, it is submitted that there is no willful or deliberate disobedience of the the directions issued by this Court.
4. Learned Advocate Mr.D.G.Shukla appearing for the respondent No.3 Panchayat Service Selection Board while referring to the further affidavit filed by it, has submitted that the Panchayat Service Selection Board received a proposal from the respondent- DDO for sanctioning the select list of 6 Mukhya Sevika, which were accordingly sanctioned and hence, after such proposal was sanctioned, the necessary exercise was required to be undertaken by the respective DDO for filling up the post.
5. Heard Mr. D.P.Joshi, learned Advocate for the applicant; Mr. D.G.Shukla, learned advocate for the respondent No.3 and Mr. H.S.Munshaw, learned Advocate for the respondent Nos. 4 and 5 .
6. The present application is filed under the Contempt of Court's Act 1971 by the applicant who is seeking to be appointed to the post Page 4 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined of Mukhya Sevika as per the directions issued by the learned Single Judge vide judgement and order dated 30.9.2019 passed in captioned writ petition . The para 6 of the directions are as under:-
"6. For the reasons and discussion foregoing, all the petitioners succeed partly in their respective petitions. The respondents are directed to add the name of each of the petitioners in different petitions in the list dated 11th August, 2016 for appointment to the post of Mukhya Sevika. All the petitioners who have completed 45 years of age on the date of nomination for the post are declared to be entitled to be appointed as Mukhya Sevika. The respondents may consider their case for appointment against the vacancies as may be available."
6.1 It appears that thereafter the aforesaid order passed by the learned Single Judge was assailed before the Division Bench in Letters Patent Appeal No. 1075 of 2021 and allied matters vide order dated 31st January, 2022, the Division Bench in para 11 observed thus:-
"11. We are in total agreement with the conclusions arrived at by the learned Single Judge. All that has been said is to consider the case of the original petitioners and not to treat them as non-eligible only because they had crossed 45 years of age on a particular date when the nomination Committee/concerned Committee sat to consider the seniority. We do not find any error as complained of by Mr. Munshaw, learned advocate for the appellants. As far as the last contention about the authorities is concerned, the same is beyond the scope of this appeal. It is for the authorities to take the decision in accordance with law."
6.2 Thus, as per the directions issued by the learned Single Judge and confirmed by the Division Bench, the respondents-authorities were directed to include the name of the petitioners in the select list and treat as eligible and "consider" their case for the appointment to Page 5 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined the post of Mukhya Sevika, since they have completed 45 years of age on the date of nomination. The learned Single Judge has specifically observed and directed the respondents to "consider" the case of such applicant (petitioner) against the vacancies as may be available. After the aforesaid directions were confirmed by the Division Bench, the respondent Nos.4 and 5 undertook necessary exercise and accordingly prepared a list of 6 candidates of Anganwadi Workers. The name of the applicant stands at Sr.No.5. The proceedings undertaken by the respondents-auhorities would reveal that there were 4 vacancies which were available at the relevant time to be filled in from the nomination of the Anganwadi Workers. The respondents have categorically in the affidavits made averments that there were 4 vacancies which were available and accordingly they are required to be filled-in. The communication dated 23.2.2022 written by the Programme Officer to the Secretary of the Gujarat Panchayat Service Selection Board-respondent No.3 specifically refers that there are 4 vacancies which are required to be filled- in by the Anganwadi Workers as per their nomination and as per the seniority and accordingly the proposal was sent to the Board.
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It was further observed that for rest of the 2 Anganwadi Workers whose names are placed in the select list, they will be appointed as and when there is any future vacancies available. The respondent - Board accordingly granted approval and sanctioned the proposal sent by the respondent Nos. 4 and 5 along with the sanction letter, the Board also had sent the list of 6 candidates in which the name of the petitioner is included at Sr.No.5 . Thus it is not in dispute that after undertaking necessary exercise as per the directions issued by this Court, the respondents-authorities have filled up the 4 vacancies of Mukhya Sevikas and the name of the petitioner is at Sr.No.5. Thus, it cannot be said that there is any willful or deliberate disobedience of the directions issued by this Court in filling up the posts. The applicant has not controverted the averments made in the affidavit as well as the select list which has been prepared by the respondents- authorities after the directions were issued by this Court. It is not pointed out to this Court that any persons who is less meritorious then the Anganwadi Workers at Sr.No.1 to 4 have been offered the appointment.
6.3 We may also referred to the decision of the Hon'ble Apex Page 7 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined
Court in the case of Prithawi Nath Ram vs State of Jharkhand And Ors reported in 2004 (7) SCC 261 wherein, the Supreme Court has held that while dealing with an application for contempt the Court cannot traverse beyond the order, a non-compliance of which is alleged and it cannot test correctness or otherwise of the order or give additional direction or delete any direction and that would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings.
6.4 As per the decision of the Hon'ble Apex Court in case of V.Senthur & Anr. Vs. M.Vijaykumar IAS, Secretary, Tamilnadu Public Service Commission & Anr. reported in 2021 Vol.11 SCALE 566, in a contempt jurisdiction, the Court will not travel beyond the original judgment and direction; neither would it be permissible for the Court to issue any supplementary or incidental directions, which are not to be found in the original judgment and order.
7. Thus while delving into the contempt application, the Court cannot at this stage connect on the alleged violation of any rules while framing the seniority list. If the applicant is aggrieved by such Page 8 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023 NEUTRAL CITATION C/MCA/475/2021 ORDER DATED: 17/08/2023 undefined action, it will be open for the applicant to file appropriate proceedings before appropriate forum.
Under this Circumstances, we do not find any merits in the present application, the same stands rejected.
(A. S. SUPEHIA, J) (M. R. MENGDEY,J) BEENA SHAH Page 9 of 9 Downloaded on : Sun Sep 17 01:23:13 IST 2023