Smt. Neeraj Mishra vs Pradeep Kumar Singh, Joint ...
2023 Latest Caselaw 21757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:53595
 
Court No. - 4
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 2647 of 2023
 

 
Applicant :- Smt. Neeraj Mishra
 
Opposite Party :- Pradeep Kumar Singh, Joint Director, Lko. And Another
 
Counsel for Applicant :- Brijesh Kumar Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Shri Brijesh Kumar Singh, learned counsel for the petitioner.

2. Learned counsel for the petitioner has submitted that the opposite parties hereto have flouted the directions being issued by the writ court dated 12.09.2019 in Service Single No.24856 of 2019 'Smt. Neeraj Mishra versus State of U.P. & Ors.' for convenience the order dated 12.09.2019 is being reproduced herein below:-

"Heard learned counsel for the petitioner.

Notices on behalf of opposite party nos. 1, 2 and 3 have been accepted by the office learned Chief Standing Counsel and notice on behalf of opposite party no. 4 has been accepted by Shri R. K. S. Suryavanshi, learned counsel.

Notice to opposite party no. 5 is hereby dispensed with as no prejudice is being caused to opposite party no. 5 by this order.

Learned counsel for the petitioner has prayed the following reliefs:

"I. Issue a writ, order or direction in the nature of Mandamus commanding the opposite party no. 2 and 3 to consider and regularize the petitioner's services as per the amendment dated 22.03.2016 under Section 33-G of the U.P. Secondary Education Services Selection Board Act, 1982 forthwith.

II. Issue a writ, order or direction in the nature of Mandamus commanding the respondents not to fill up the post in question by other source of recruitment like promotion, transfer as well as recruitment."

Learned counsel for the petitioner has submitted that the claim of the petitioner may be considered under Section 33-G of the U.P. Secondary Education Services Selection Board Act, 1982 and be decided by the competent authority strictly in accordance with law as no such decision has yet been taken.

Accordingly, without entering into the merits of the issue the writ petition is disposed of finally at the admission stage, permitting the petitioner to prefer the representation to the opposite party no. 2 i.e. Joint Director VI Region, Secondary Education, Shiksha Bhawan, Lucknow taking all pleas and grounds which are available with her enclosing therewith copies of all relevant documents which are necessary for disposal of her representation within 7 days from today and if such representation is preferred by the petitioner within stipulated time, the same shall be considered and decided by the competent authority strictly in accordance with law by a speaking and reasoned order with expedition preferably within a period of six weeks from the date of production of certified copy of this order along with representation.

It is needless to say that the competent authority may fill up the posts of Assistant Teacher strictly in accordance with law, but by no other means which are not permissible in the eyes of law."

3. Shri Singh has further submitted that immediately after getting the certified copy of the aforesaid order dated 12.09.2019, the petitioner has produced the copy of the order of the writ court before the Joint Director of Education, Lucknow Division, Lucknow on 20.09.2019 along with representation (Annexure No.2). On 26.09.2019 the authority concerned directed the petitioner to produce all the relevant documents in terms of the order of the writ court dated 12.09.2019 (Annexure No.3). Pursuant to the aforesaid letter, the petitioner submitted the required documents before the competent authority on 23.12.2019.

4. Learned counsel for the petitioner has submitted that the appropriate orders have been passed in favour of identically placed employees but no order has been passed in a case of the petitioner despite she has provided all required documents on 23.12.2019. Learned counsel for the petitioner has also stated that on 10.02.2023 almost all eligible candidates have been regularized but the petitioner was neither regularized nor his representation was decided by opposite party no.2.

5. On being confronted the learned counsel for the petitioner about the point of limitation in view of Section 20 of the Contempt of Courts Act, 1971 (hereinafter referred to as 'Act, 1971') which categorically provides that no Court shall initiate any proceedings of the contempt, either on its own motion or otherwise, after expiry of a period of one year from the date of which the contempt is alleged to have been committed, the learned counsel for the petitioner has drawn attention of this Court towards para 16 of the contempt petition wherein he has referred the judgment of Calcutta High Court and Apex Court in re; Tata Iron & Steel Co. Ltd. Vs. Ram Niwas Poddar and others AIR 1989 Calcutta 375, Pallav Sheth Vs. Custodian and Ors. (2001) 7 SCC 549 and Om Prakash Jaiswal Vs. D.K. Mittal and Anr. (2000) 3 SCC 171.

6. On the basis of aforesaid judgment, learned counsel for the petitioner has stated that as per Section 20 of the Act, 1971 the contempt petition may be filed within a period of one year from the date when the cause of action arises and in the case in hand the cause of action has arisen on 10.02.2023 when the other eligible candidates have been regularized but the petitioner has neither been regularized not her representation has been decided in terms of the order of the writ court.

7. He has further submitted that the Calcutta High Court in re; Tata Iron & Steel Co. Ltd. (supra) has declared Section 20 of the Act, 1971 as ultra vires, therefore, the contemnors cannot take plea of limitation. However, the Apex Court in re; Pallav Sheth (supra) and Om Prakash Jaiswal (supra) has held that the cause of action in the contempt matters arises when the order of the writ court is deliberately and willfully flouted.

8. The writ court vide order dated 12.09.2019 has not entered into the merits of the issue but permitted the petitioner to prefer her representation within a period of seven days and such representation should be decided within a period of six weeks. Even if, it is accepted that the petitioner has completed all required formalities in terms of the order of the writ court on 23.12.2019 providing all required documents to the competent authority, the representation of the petitioner should have been decided on or before 07.01.2020. So, the contempt petition should have been filed on or before 07.01.2021. Actually, the cause of action has arisen in the present case on 07.01.2020 when the period of six weeks expired after providing all required documents to the concerning authority and as per Section 20 of the Act, 1971 the contempt petition should have been filed on or before 07.01.2021.

9. The subsequent correspondences of the College with the petitioner which, as per pleadings of the contempt petition, started w.e.f. 10.12.2021 would not provide any benefit of limitation to the petitioner for not approaching the contempt court within time so prescribed under the Act. This Court can understand the relevant period with effect from March, 2020 to March, 2021 which was a period of corona pandemic and the Apex Court has given some relaxation for the period but after passing over that period, the contempt petition could have been filed within a period of limitation.

10. In the present case, the contempt petition should have been filed by January, 2021 but even if the contempt petition could not be filed in the month of January, 2021 on account of the period of corona pandemic even then the contempt petition should have been filed at the earliest seeking benefit of the direction of the Apex Court whereby the period of limitation has been extended in a period of corona pandemic. However, no such plea has been taken in the present contempt petition. Rather, the petitioner is only stating that the similarly placed employees have been regularized on 10.02.2023 but the petitioner has not been regularized.

11. Notably, the writ court has not directed the opposite parties to consider the regularization of the petitioner but has directed to dispose off the representation of the petitioner and that direction has been given without appreciating the merits of the issue. Therefore, the cause of action to file the contempt petition may not be treated as 10.02.2023 but it would be w.e.f. 07.01.2020 when after expiry of a period of six weeks the representation of the petitioner has not been decided. It would not be out of place to indicate here that the period of corona pandemic started w.e.f. March, 2020, therefore, the petitioner could have filed her contempt petition immediately after 07.01.2020 or within an extended limitation period so granted by the Apex Court considering the corona pandemic.

12. So far as the decision of Calcutta High Court in re; Tata Iron & Steel Co. Ltd. (supra) is concerned, it is to be noted that despite the fact that the Calcutta High Court has declared Section 20 of the Act, 1971 ultra vires to the Article 215 of the Constitution of India on 12.12.1988 (date of judgment) but the Apex Court in re; Pallav Sheth (supra), which is a judgment of the year 2001, has held that the limitation begins under Section 20 of the Act, 1971 on the date on which the contempt is alleged to have been committed, therefore, as per the Apex Court, the provision of Section 20 of the Act, 1971 will have to be adhered to.

13. Therefore, there is inordinate delay in filing the present contempt petition, more precisely, the present contempt petition has not been filed within time so stipulated under Section 20 of the Act, 1971, accordingly, the contempt petition is dismissed.

Order Date :- 11.8.2023

Mohd. Sharif