Rakesh Kumar Shukla And 2 Ors. vs Dr.Rajnish Dubey Additional ...
2022 Latest Caselaw 21339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 19
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 2492 of 2021
 

 
Applicant :- Rakesh Kumar Shukla And 2 Ors.
 
Opposite Party :- Dr.Rajnish Dubey Additional Chief Secy.Urban Developmentandanr
 
Counsel for Applicant :- Sridhar Awasthi,Anuj Kumar Mishra,Anurag Kumar Srivastava,Lalta Prasad Misra
 
Counsel for Opposite Party :- Namit Sharma
 

 
Hon'ble Rajeev Singh,J.

Heard Dr. L.P. Misra, learned counsel for the applicant and Sri J.N. Mathur, Senior Advocate assisted by Sri Namit Sharma, learned counsel for the respondent.

The present contempt application is filed with the avernment that the judgment and order dated 31.8.2021 passed by this Court in Special Appeal No.1050 of 2005 (Rakesh Kumar Shukla and Ors. Vs. State of U.P. and Ors.) is not being complied by the respondent deliberately.

On 24.12.2021, notices were issued to the respondent No.1 & 2, namely, Dr. Rajnish Dubey, the then Additional Chief Secretary/Principal Secretary, Department of Urban Development, Civil Secrtt., Lucknow and Mr. Ajay Kumar Dwivedi, the then Municipal Commissioner, Nagar Nigam, Lucknow/ Manager, Aminabad Inter College, Aminabad, Lucknow. As per the report of Chief Judicial Magistrate, Lucknow dated 29.1.2022, notices were served on aforesaid respondents.

Affidavit of compliance dated 7.2.2022 was filed by the respondent No.1, Dr. Rajnish Dubey, the then Additional Chief Secretary/Principal Secretary, Department of Urban Development, Civil Secrtt., Lucknow with the avernment that respondent No.2, Mr. Ajay Kumar Dwivedi, the then Municipal Commissioner, Nagar Nigam, Lucknow/Manager, Aminabad Inter College, Aminabad, Lucknow has passed an order on 3.2.2022 and rejected the claim of the applicants with the observation that their confirmation cannot be done. On 16.5.2022, this Court has rejected the affidavit filed by Dr. Rajnish Dubey, the then Additional Chief Secretary/Principal Secretary, Department of Urban Development, Civil Secrtt., Lucknow and directed the respondent No.2 to appear before this Court.

Order dated 16.5.2022 is as under:-

"1. Heard Dr. L.P. Mishra, learned counsel for the applicants as well as Sri Aniruddha Singh, learned counsel appearing for opposite party no. 1. No one appeared on behalf of opposite party no. 2.

2. Learned counsel for the applicants submits that in compliance of order of writ Court dated 31.08.2021, passed in Special Appeal No. 1050 (S/B) of 2005, the opposite party - Municipal Commissioner, Lucknow has passed an order dated 03.02.2022. Counsel for the applicant has vehemently urged that order dated 03.02.2022, itself is in clear defiance of order of writ Court dated 31.08.2021 and prays that the opposite parties shall be proceeded under the Contempt of Courts Act.

3. In support of his contentions, learned counsel for the applicants has submitted that the writ Court by means of order dated 31.08.2021, the opposite parties were directed to consider the applicants for confirmation on the posts on which they are working and pass formal order in accordance with law expeditiously, within a period of six weeks from the date of production of certified copy of the order. He has submitted that while passing the judgment and order dated 31.08.2021, the writ Court had relied upon previous order dated 04.03.2020, where the opposite parties were directed to examine the viability to regularise the applicants in service in accordance with rules and also to place a complete report in that regard.

4. The Division Bench of this Court has observed that in response to the direction dated 04.03.2020, compliance affidavit has been filed by the opposite parties stating therein that appellant nos. 1 and 2 Rakesh Kumar Shukla and Ambrish Kumar Awasthi, respectively were appointed on the post of lecturers and Ram Kumar Gupta was appointed on the post of Assistant Teacher in the prescribed pay scale in the year 2000 in Aminabad Inter College, Lucknow. The above said three persons are working continuously on sanctioned posts and there is no break in their service and these three teachers possess the requisite qualification as is prescribed under the Madhyamik Shiksha Adhiniyam and are getting salary regularly on the respective posts on which they were appointed. The Division Bench also recorded that opinion of Advocate General and Additional Advocate General were taken, who have also opined that services of the applicants are fit to be regularised.

5. It is further stated that on the direction of the State Government the matter was remitted to the Municipal Corporation for consideration of regularisation of the applicants, where a committee was constituted and the said Committee also took decision on 15.11.2019, recommending confirmation of the applicants.

6. It has lastly been submitted by learned counsel for the applicants that in the aforesaid conspectus, entire consideration of the facts in issue was also discussed in details by the Division Bench and had directed that only formal orders are required to be passed in the case of the applicants and it was not left to the opposite parties to re-open the entire factual aspect or taking into consideration any other aspect of the matter.

7. The opposite parties have rejected the regularisation of the applicant, by stating that their appointments are not in accordance with law. It is submitted that this aspect of the matter could not have been dealt with by the opposite parties inasmuch as said objection was not raised before the writ Court and adequate opportunity was given to the opposite parties to consider the candidature of the applicants for regularisation.

8. It is also noted that the opposite parties cannot now be permitted to consider fresh material and reject the candidature of the applicants on a new ground which was never raised or informed to this Court during writ proceedings earlier. It is settled legal position that order when set aside and matter being remanded to the concerned authority for passing formal order, scope of consideration cannot be extended beyond the directions of the writ Court and consequently this Court is of the considered view that fresh consideration is clearly in gross violation of the order of writ Court.

9. Considering the aforesaid, I find force in the submissions made by learned counsel for the applicants.

10. In the light of above, the compliance affidavit filed by opposite party no. 1 is hereby rejected. The opposite parties are directed to take fresh decision in compliance of the order of writ Court dated 31.08.2021.

11. Despite notices having been issued to opposite party no. 2, no counsel has appeared on his behalf nor any affidavit of compliance has been filed. Let opposite party no. 2 appear before this Court in person on the next date of listing and file compliance affidavit.

12. List this case on 15.07.2022."

On 19.7.2022, it was informed that the respondent Nos.1 & 2 has been transferred and Mr. Amrit Abhijat has joined as Additional Chief Secretary/Principal Secretary, Department of Urban Development, Civil Secrtt., Lucknow and Mr. Indrajeet Singh has joined as Municipal Commissioner, Nagar Nigam, Lucknow/Manager, Aminabad Inter College, Aminabad, Lucknow and aforesaid persons were impleaded as respondent No.3 and 4. Sri Namit Sharma, Advocate had filed Vakalatnama on behalf of respondent No.4.

On 26.9.2022, deferment application was filed by respondent No.3 and 4 with the request that Special Leave Petition is preferred before Hon'ble The Apex Court and Diary No.30544 of 2022, Special Leave Petition was dismissed on 17.10.2022 and thereafter, affidavit of compliance was filed by the respondent No.4, Mr. Indrajeet Singh, Municipal Commissioner, Nagar Nigam, Lucknow/Manager, Aminabad Inter College, Aminabad, Lucknow annexing order dated 20.10.2022, regularizing the services of the applicant from 31.8.2021 and the affidavit of compliance was rejected by this Court on 21.10.2022, as the direction of writ court was to confirm the petitioners and time was granted to re-visit the order and file a fresh affidavit of compliance and it was also directed that in case, the affidavit of compliance is not filed, then respondent No.4 shall appear again on the next date for framing of charge.

On 17.11.2022, affidavit of compliance was filed by the respondent No.4, Mr. Indrajeet Singh, Municipal Commissioner, Nagar Nigam, Lucknow/Manager, Aminabad Inter College, Aminabad, Lucknow alongwith the Office Memo No.504/Mu.vi./Shiksha, dated 15.11.2022, in which, it is admitted that services of the applicants were confirmed from 31.8.2021 but in the affidavit, word "regularized/confirm" was mentioned, therefore, on 17.11.2022, respondent No.4 was directed to file a fresh affidavit of compliance and the matter was fixed for 28.11.2022.

Fresh affidavit dated 25.11.2022 was filed by Mr. Yamunadhar Chauhan, Assistant Municipal Commissioner, Nagar Nigam, Lucknow and Mr. Indrajeet Singh, Municipal Commissioner, Nagar Nigam, Lucknow/Manager, Aminabad Inter College, Aminabad, Lucknow and admitted that due to inadvertent clerical mistake the word "regularized/confirm" was typed in the earlier affidavit dated 15.11.2022 in place of confirmation.

As specific question was asked from Sri J.N. Mathur, Senior Advocate that what is the initial date of appointment of applicants, then he conceded this fact that initial date of appointment of applicants is mentioned in the order dated 15.11.2022, as by which they were appointed in the pay scale of 5500-175-8650 for petitioner No.1 and 2, namely, Rakesh and Ambrish on the post of lecturer and in the pay scale of 4500-125-7000 for the post of Assistant Teacher, as their services have been confirmed from 31.8.2021 vide office memo dated 15.11.2022 (Supra).

As it is undisputed that order of the Writ Court is already complied with, therefore, the present contempt application is hereby disposed of.

Notices of the respondent are hereby discharges.

Order Date :- 16.12.2022

Gaurav/-