M.M. Ali Memorial Inter College vs Sri Mohd. Ibrahim Kham, D.I.O.S. ...
2015 Latest Caselaw 4020 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 
AFR
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 5111 of 2015
 
Applicant :- M.M. Ali Memorial Inter College
 
Opposite Party :- Sri Mohd. Ibrahim Khan, D.I.O.S. Kanpur Nagar
 
Counsel for Applicant :- Rohan Gupta
 
Counsel for Opposite Party :- S.C.
 
Hon'ble Vivek Kumar Birla,J.

Heard Sri Rohan Gupta, learned counsel for the applicant and Sri K.R. Singh, learned Additional Chief Standing Counsel for the opposite party.

Rejoinder affidavit filed today is taken on record.

A short counter affidavit has been filed on behalf of the opposite party.

The applicant is alleging willful disobedience of the order dated 18.12.2013 passed in Writ Petition No. 62544 of 2013 (C/M Lala Babu Baijal Memorial Inter College and others Vs. Special Secretary, Government of U.P. and others). The said order dated 18.12.2013 is quoted as under:-

"Heard learned counsel for the parties.

Pursuant to orders dated 6.12.2013 and 12.12.2013 Sri A.K. Yadav, learned Standing Counsel states that he has not received any instructions so far from the respondents justifying the amendment in Regulation 101 of Chapter III of Regulations framed under the U.P. Intermediate Education Act, 1921 whereby it has been provided that all the appointments of Class IV posts in aided educational institutions would be made by way of outsourcing.

Learned counsel for the petitioners has submitted that earlier also a similar amendment had been brought by the State Government vide Government Order dated 6.1.2011, which had been quashed by this court vide judgment and order dated 21.3.2013 passed in bunch of writ petitions, the leading case being Writ Petition - C No.11760 of 2011, Committee of Management of Lala Babu Baijal Memorial Inter College and others vs. State of U.P. and others. It is also the case of the petitioner that the said judgment is still in force and has not been stayed or modified by the same court or by any superior forum. In the said circumstances it has been submitted that the amendment to the same effect and without there being any rational justification is illegal.

Sri A.K. Yadav, learned standing counsel prays for and is granted a month's time to file counter affidavit on behalf of all the respondents. Petitioner will have two weeks thereafter to file rejoinder affidavit.

Till further orders of this court the effect and operation of the impugned order dated 4.9.2013 filed as Annexure-4 to the writ petition shall remain stayed. There shall be no recruitment by way of outsourcing in the meantime and further the recruitment process as was existing prior to the said amendment shall remain in force. The Educational Authorities are further directed not to cause any hindrance or obstruction in the selection process of Class IV employees in the educational institutions against vacant Class IV posts on the above ground. However, any appointments made on vacant Class IV posts in the educational institutions would abide by the final outcome of this petition."

On the strength of the above noted interim order, the applicant-M.M. Ali Memorial Inter College filed an application before the District Inspector of Schools seeking relief that the educational authorities may not create hindrance or obstruction in the selection process of Class IV employees on the basis of Government Order dated 4.9.2013. The said representation was rejected vide order dated 19.11.2014, which is Annexure-4 to the contempt application.

The order dated 19.11.2014 was passed on the ground that Regulation 101 of Chapter III of the regulations framed under the U.P. Intermediate Education Act, 1921 has been been amended, therefore, such permission to make appointment on Class IV posts cannot be granted and the direct recruitment of one Sri Firdaus Khan was rejected.

Admittedly, the applicant has filed Writ Petition No. 68534 of 2014 challenging the order dated 19.11.2014 as well as the Government Order dated 4.9.2013 amending Regulation 101 of Chapter III as noted above. No interim order was passed in the aforesaid writ petition and on 28.4.2015 only counter affidavit was called for.

Admittedly, no interim order was granted in the writ petition filed by the applicant but he is alleging willful disobedience of the order dated 18.12.2013 issuing general mandamus passed in Writ Petition No. 62544 of 2013 as noted above.

In the short counter affidavit a copy of the judgment of Hon'ble Division Bench passed in Special Appeal Defective No. 266 of 2015 (State of U.P. and others Vs. The U.P. Pradhanacharya Parishad Lko and anothers) has been annexed. The aforesaid special appeal was allowed on the ground that amended Regulation 101 was notified on 24.4.2014, which was subsequent to the interim order dated 18.12.2013 passed in Writ Petition No. 62544 of 2013. Relevant extract of the judgment dated 13.7.2015 passed in the aforesaid special appeal is quoted as under:-

"However, both in the reply which has been filed in the appeal and during the course of the hearing, learned counsel appearing on behalf of the respondents has relied upon an interim order of the learned Single Judge at Allahabad dated 18 December 2013 in Writ-A No.62544 of 2013, filed by the Committee of Management Lala Babu Baijal Memorial Inter College against the State Government. By that interim order, the learned Single Judge directed until further orders, that the communication dated 4 September 2013 would remain stayed. On this basis, it was sought to be urged that this interim order has the effect of staying Regulation 101.

It is not possible to subscribe to this submission for the simple reason that amended Regulation 101 was notified on 24 April 2014, which was subsequent to the interim order of the learned Single Judge dated 18 December 2013. At the stage when the interim order was issued on 18 December 2013, all that had happened, was that a communication was issued on 4 September 2013 indicating the prior approval of the Governor. Regulation 101 as amended was notified much later. As a matter of fact, several writ petitions have been filed, as stated by the learned Standing Counsel, to challenge the vires of Regulation 101, which are pending adjudication at Allahabad. The State has filed its counter affidavit in those writ petitions so as to facilitate a final hearing and disposal.

The respondents filed a writ petition before the learned Single Judge on 29 August 2014, which was after amended Regulation 101 had come into force. Unless they were to challenge amended Regulation 101 and were in a position to obtain an interim order or, as the case may be, a final order, it would not be possible for them to obtain relief merely on the basis of the judgment in the earlier writ petition filed by Committee of Management Lala Babu Baijal Memorial Inter College. That judgment was rendered in the context of the second paragraph of the Government Order dated 6 January 2011 and much before Regulation 101 was amended by the issuance of a gazette notification on 24 April 2014.

Hence and for these reasons, the mandamus which has been issued by the learned Single Judge by the impugned judgment and order dated 16 September 2014 is unsustainable. The learned Single Judge has not had regard to the provisions of amended Regulation 101 or to the admitted position that there was no challenge thereto in the writ petition.

We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 16 September 2014. However, should the respondents be so advised, we leave it open to them to adopt suitable proceedings in accordance with law in regard to the validity of Regulation 101. Since the writ petitions challenging the constitutional validity of Regulation 101 are pending, we clarify that we have had no occasion to express any view on the legality of that provision.

The special appeal shall stand, accordingly, allowed, and the writ petition which has been filed by the respondents, shall stand dismissed subject to the aforesaid observations."                                                      (emphasis supplied)

It is very pertinent to note that the judgment of the Hon'ble Division Bench was passed on 13.7.2015 whereas the present contempt application has been filed on 20.8.2015 i.e. much after the judgment of the Hon'ble Division Bench.

It may also be noticed that no interim order was passed by the Writ court in Writ Petition No. 68534 of 2014 filed by the applicant challenging the order dated 19.11.2014, the present contempt application has been filed for willful disobedience of the order dated 18.12.2013 passed in Writ Petition No. 62544 of 2013 wherein the applicant Committee of Management was not a party and which was filed by another Committee of Management, although a direction of general nature was issued.

Undisputedly, the Hon'ble Division Bench had considered the direction of general nature issued by Writ court vide order dated 18.12.2013 and had also noted the earlier judgment dated 21.3.2012 passed in Writ C No. 11760 of 2011 (C/M Lala Babu Baijal Memorial Inter College and another Vs. State of U.P. and others). The argument that the interim order dated 18.12.2013 has the effect of staying Regulation 101 was rejected by the Hon'ble Division Bench as the amended Regulation 101 was notified on 24.4.2014, which was subsequent to the aforesaid interim order dated 18.12.2013.

In view of the fact that subsequent amendment in Regulation 101, which was notified on 24.4.2014, was noticed by the Hon'ble Division Bench, the opposite party cannot be directed to comply with the order, which is contrary to the judgment of the Hon'ble Division Bench as noted above as well as to the statutory regulation which stand amended.

On the strength of decision of Hon'ble Apex Court in Prithavi Nath Ram Vs. State of Jharkhand and others, 2004 (7) SCC 261 learned counsel for the applicant submitted that even if interim order is subsequently vacated or relief is refused in the main proceedings, it cannot justify disobedience of such interim order.

In the same judgment it has been observed by the Hon'ble Apex Court that while dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has been received its finality had been complied with or not. Therefore, in my view the aforesaid case is clearly distinguishable as in the present case only an interim order, which has not attained finality and on the contrary a different view has been taken by the higher court as already discussed. Hence, the submission of learned counsel for the applicant that even if the ultimate decision is not in favour of the applicant, the interim order was liable to be complied with, has no force.

It is a settled law that even mere disobedience of the order is not contempt unless it is 'willful' disobedience. It is always open to the opposite party to take a defence on the basis of the judgment of the higher court on the same general mandamus given after considering the statutory provisions/amended statutory provisions for the purpose of taking a defence that there is no willful disobedience of the order.

A reference may be made to a decision of Hon'ble Apex Court in the case of Anil Ratan Sarkar and others Vs. Hirak Ghosh and others, 2002 (4) SCC 21. Paragraph 15 of the aforesaid judgment is quoted as under:-

"15. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a "civil contempt" within the meaning of Section 2 (b) of the Act of 1971 - the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation - the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise."

A reference may also be made to a decision of Hon'ble Apex Court in the case of Indian Airports Employees' Union Vs. Ranjan Chatterjee and another, 1999 (2) SCC 537. Relevant paragraphs 7 and 11 of the aforesaid judgment are quoted as under:-

"7. It is well settled that disobedience of orders of the court, in order to amount to "civil contempt" under Section 2 (b) of the Contempt of Courts Act, 1971 must be "wilful" and proof of mere disobedience is not sufficient (S.S. Roy v. State of Orissa, AIR 1960 SC 190). Where there is no deliberate flouting of the orders of the court but a mere misinterpretation of the executive instructions, it would not be a case of civil contempt [Ashok Kumar Singh v. State of Bihar, (1992) 1 SCC 152].

11. In our view, these rival contentions involve an interpretation of the order of this Court, the notification and order relevant documents. We are not deciding in this contempt case whether the interpretation put forward by the respondents or the petitioners is correct. That question has be decided in appropriate proceedings. For the purpose of this contempt case, it is sufficient to say that the non-absorption of these six sweepers was bona fide and was based on an interpretation of the above orders and the notification etc. and cannot be said to amount to "wilful disobedience" of the orders of this Court."

A reference may also be made to a decision of this Court in the case of State of J and K Vs. Mohd. Yaqoob Khan and others, 1992 (4) SCC 167. Paragraph 7 of the aforesaid is quoted as under:-

"7. We, therefore, hold that the High Court should have first taken up the stay matter without any threat to the respondents in the writ case of being punished for contempt. Only after disposing it of, the other case should have been taken up. ........................... The High Court should first take up the stay matter in the writ case, and dispose it of by an appropriate order. Only thereafter it shall proceed to consider whether the State and its authorities could be accused of being guilty of having committed contempt of court." (emphasis supplied)

In view of the subsequent development and judgment of Hon'ble Division Bench, to my mind, the ratio of the abovenoted case applies in the present case as admittedly, no interim order was granted by the Writ court in the petition filed by the applicant and the effectiveness of the general mandamus dated 18.12.2013 issued by Hon'ble Single Judge in Writ Petition No. 62544 of 2013 after notification of amended Regulation 101 on 24.4.2014 was considered by the Hon'ble Division Bench in Special Appeal Defective No. 266 of 2015 as noted above and the contention raised by the educational institution was specifically rejected, therefore, I do not find that it is a case of 'willful' disobedience of the order of the Writ court dated 18.12.2013, benefit whereof was denied by the authority by rejecting representation of the applicant vide order dated 19.11.2014, which is under challenge in Writ Petition No. 68534 of 2014, wherein no interim order was passed.

Further, in the name of compliance of the order of the Court, if it is brought to the notice of this Court that compliance of the order would be contrary to any statutory provisions or order of the higher court given on the same issue after hearing all interested/identically situated parties, particularly in a case of general mandamus, the authority cannot be punished for 'willful' disobedience of the order of the Writ court.

For the aforesaid reasons notice issued against the opposite party stand discharged and present contempt application stand dismissed.

Order Date :- 16.11.2015/Lalit Shukla