Roop Lal Verma And Others vs Mamta Sanjeev Dubey, Prin. Chief ...
2023 Latest Caselaw 13772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Court No. - 7
 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 2669 of 2022
 
Applicant :- Roop Lal Verma And Others
 
Opposite Party :- Mamta Sanjeev Dubey, Prin. Chief Conservator Of Forest, U.P. Lko.
 
Counsel for Applicant :- Shivam Sharma
 

 
Hon'ble Abdul Moin,J.

1. An affidavit of compliance filed by learned Standing Counsel is taken on record.

2. Heard.

3. The facts and circumstances of the case have already been summed up by this Court in detail vide order dated 23.3.2023 which for the sake of convenience is reproduced below:

"1. Heard learned counsel for the applicants and Shri Vinayak Saxena, learned counsel for the respondent.

2. The instant contempt petition has been filed alleging non-compliance of the judgement and order dated 23.08.2022 passed in Writ A No. 4597 (SS) of 2022 in re: Roop Lal Verma and others vs State of U.P. and others, a copy which is annexure 8 to the petition, whereby the Writ Court had allowed the Writ Petition and directed the respondent no. 2 to pass necessary orders with regard to regularization of the applicants within 6 weeks. While passing the said order the respondent no. 2 was also required to consider the previous judgements of this Court passed in Writ Petition No. 4302 (SS) of 2012 dated 07.02.2018 as well as Writ Petition No. 14516 (SS) of 2019 dated 23.05.2019 and it was and also directed that the said orders will be passed of regularization for the applicants from the date similarly situated persons have been regularized.

3. Learned counsel for the applicants has invited the attention of the Court towards the judgement and order dated 23.05.2019 passed in Writ Petition No. 14516 (SS) of 2019 in re: Roop Lal Verma and others vs State of U.P. and others, a copy of which is annexure 2 to the petition. He states that the writ petition number indicated in the order dated 23.08.2022 indicates the writ petition number as 1456 (SS) of 2019 but the same should be 14516 (SS) of 2019. The said fact is not disputed by Shri Vinayak Saxena, learned counsel for the respondents.

4. Learned counsel for the applicants while placing reliance on the aforesaid judgement dated 23.05.2019 argues that this Court while allowing the writ petition had also quoted the earlier judgement passed in Writ Petition No. 430 (SS) of 2012 (indicated as Writ Petition No. 4302 of 2012 in the judgement and order dated 23.08.2022). He contends that in Writ Petition No. 430 (SS) of 2012, the operative portion of which have been quoted in the judgement and order dated 23.05.2019, the Writ Court had specifically indicated that three similarly situated Seasonal Nikasi Munshi have been regularized vide the regularization order dated 22.04.2003 as informed vide the letter dated 06.06.2015.

5. Placing reliance on the aforesaid judgement, it is contended that once persons similarly circumstanced have been regularized with effect from 22.04.2003, as such the respondents while passing an order in purported compliance to the order passed by the Writ Court dated 23.08.2022 alleging non-compliance of which the instant contempt petition has been filed are not within their rights to regularize the services of the applicants with effect from the year 2010-11 in as much as the regularization has to be made with effect from 22.04.2003. It is also stated that till such time the respondents do not regularize the services of the applicants with effect from 22.04.2003 i.e. the date of regularization of persons similarly circumstanced as specifically indicated by the Writ Court in its order as referred to above till then the respondents shall run in contempt to the order passed by the Writ Court dated 23.08.2022, more particularity when a specific mandamus has been issued by the Writ Court for the regularization of the applicants with effect from the date the persons similarly circumstanced were regularized and this Court did not leave it to the discretion of the respondents to pass an order at their own whims, caprices and fancies.

6. Responding, Shri Vinayak Saxena, learned counsel for the respondent, on the basis of the averments contained in the compliance affidavit argues that as no post was available at the relevant time i.e. the year 2003 and the vacancies have been made available in the year 2010-11 consequently the applicants have only been regularized from the date the vacancies were made available i.e. 2010-11.

7. Having heard learned counsel for the parties and having perused the record what emerges is that the Writ Court vide the order dated 23.08.2022 had issued a specific mandamus commanding the respondents to regularize the services of the applicants with effect from the date persons similarly circumstanced had been regularized. The Writ Court had referred to its two earlier judgements. In the earlier judgement dated 07.02.2018 the Writ Court had specifically indicated the date of regularization of the persons similarly circumstanced which was 22.04.2003. The respondents though have regularized the services of the applicants but the same have only been regularized with effect from the year 2010-11 on the ground that no vacancies were available prior to the said date.

8. The said ground taken by the respondents in not regularizing the services with effect from the date persons similarly circumstanced were regularized would be prima facie contemptuous on the ground that (a) the writ Court vide the order dated 23.08.2022 had issued a specific mandamus to the respondents to regularize the applicants with effect from the date the persons similarly circumstanced were regularized, thus did not leave to the discretion of the respondents to regularize them from any date on their own whims, caprices and fancies, (b) the Writ Court had placed reliance on the earlier judgement of this Court whereby the date of regularization of persons similarly circumstanced has specifically been indicated as 22.04.2003 and (c) it is not the case of the respondent contemnor that the earlier orders passed by the Writ Court including the order dated 23.08.2022 has been challenged or modified or stayed by any court or by filing of a special appeal. Thus for all practical purposes the judgement and order dated 23.08.2022 has attained finality.

9. Upon the same being pointed out Shri Vinayak Saxena, learned counsel for the respondent prays for and is granted four weeks' and no more time for fling of better affidavit keeping in view the discussion made above. In case the affidavit is not filed then the sole respondents shall appear in person.

10. List this case on 02.05.2023."

4. In the affidavit of compliance filed today, learned Standing Counsel states that an order dated 30.4.2023, a copy of which Annexure-3 to the affidavit of compliance has been passed and which has also been brought on record. By the said order, the services of the applicants have been regularized with effect from 22.4.2003 as had been done with respect to the persons similarly circumstanced.

5. Placing reliance on the order dated 30.4.2023, learned Standing Counsel states that the writ Court had required to the opposite party to consider and pass necessary orders with regard to regularization of the applicants and that while passing the said order, the respondent no. 2 was required to consider the previous judgments of this Court and also that the order would be passed of regularization of the petitioners from the date similarly situated persons were regularized.

6. It is contended by learned Standing Counsel that as similarly circumstanced persons have been regularized as per the details given in order dated 30.4.2023 with effect from 22.4.2003, consequently, the regularization of the applicants has also been made with retrospective effect i.e. with effect from 22.4.2003 on notional basis and thus, nothing further survives in this instant contempt application.

7. In response to that, the argument of Shri Shivam Sharma, learned counsel for the applicants is that the writ Court while passing the order dated had 23.8.2022 had required the respondent no. 2 to pass necessary orders with regard to regularization of the applicants within six weeks and while passing the said order, the respondent no. 2 was also required to consider the previous judgments of this Court passed in Writ Petition No. 4302 of 2012 dated 7.2.2018 as well as Writ Petition No. 1456 of 2019 dated 23.5.2019.

8. Shri Shivam Sharma, learned counsel states that the writ petition number, as mentioned in the order dated 23.8.2022 with respect to Writ Petition No. 1456 of 2019 is a typographical error and the same should be read as Writ Petition No. 14516 of 2019, a copy of which has been filed as Annexure No. 2 to the application.

9. The argument of Shri Shivam Sharma, learned counsel is that writ Court while deciding Writ Petition No. 14516 of 2019 vide judgment and order dated 23.5.2019, which order has also been directed to be considered by the respondent no.2 while passing the order dated 23.8.2022, had directed the opposite party no. 1 to consider the case of the applicants for regularization with all consequential benefits with effect from the date such benefit has been given to similarly placed employees. List of similarly placed employees has also been indicated in the previous order dated 7.2.2018 which was also reproduced by the Court and thus, opposite party, while passing the order dated 30.4.2023 as has been brought on record by means of supplementary affidavit whereby the services of the applicants have been regularized with effect from 22.4.2003, were also required to grant consequential benefits as was directed in the writ Court judgment in Writ Petition No. 14516 (SS) of 2019 dated 23.5.2019.

10. He further contends that as consequential benefits are not indicated in the order dated 30.4.2023 with effect from 22.4.2003, consequently, the opposite party runs in contempt of the order of the writ Court dated 23.8.2022 in not having granted the consequential benefits to the applicants.

11. Having heard the learned counsels for the contesting parties and having perused the records what emerges is that the writ Court, while passing the order dated 23.8.2022 passed in Writ Petition No. 4597 of 2022 in re: Roop Lal Verma and 4 Ors. Vs. State of U.P. and Ors., had allowed the petition with a direction to the respondent no. 2 to pass necessary orders with regard to regularization of the applicants within specified time considering the earlier orders dated 23.5.2019 and 7.2.2018.

12. Admittedly, the opposite party has passed an order dated 30.4.2023 per which the services of the applicants have been regularized with effect from 22.4.2003 on notional basis with effect from the date the services of juniors were regularized.

13. Grievance as raised by learned counsel for the applicants now is that as writ Court in Writ Petition No. 14516 (SS) of 2019 required the opposite party no.1 to consider the case of the applicants for regularization with all consequential benefits and that order has been required to be followed by the writ Court vide judgment and order dated 23.8.2022, consequently, the opposite party while passing the order dated 30.4.2023 regularizing the services of the applicants with effect from 22.4.2003 on notional basis and not giving consequential benefits, has committed deliberate and willful disobedience and defiance of the order and judgment dated 23.8.2022 passed by the writ Court and hence, runs in contempt.

14. The aforesaid argument, though attractive on the face of it, merits to be rejected inasmuch as the perusal of the judgment and order dated 23.5.2019 would indicate that though certain observations had been made by the writ Court while passing the judgment yet in the penultimate paragraph of the judgment and order 23.5.2019, the direction was to the opposite party no. 1 to pass a fresh order considering what has been indicated with promptness. Nothing prevented the writ Court in issuing a specific mandamus commanding the respondent no. 1 to grant consequential benefits with effect from the date of regularization. Once, the writ Court in its own wisdom had left it to the discretion of respondent no. 1 by use of the words to '"consider the case of the applicants" meaning thereby the discretion was accorded to the respondent no. 1 for passing a fresh order. Thus, no specific mandamus had been issued to grant consequential benefits with effect from the date of regularization of the juniors or for grant of consequential benefits. As such the opposite party, while passing the order dated 30.4.2023 and regularizing the applicants on notional basis does not appear to have committed deliberate and willful disobedience and defiance of the judgment and order dated 23.8.2022 as passed by the writ Court.

15. Apt to mention that sine-qua-non for contempt is deliberate and willful disobedience and defiance of the order passed by the Court. In the instant case, there is no deliberate and willful disobedience and defiance on the party of the opposite party while passing the order dated 30.4.2023.

16. Considering the aforesaid as well as the order dated 30.4.2023 which has been passed by the opposite party, the instant contempt application is rejected.

17. However, it would be open to the applicants to challenge the order dated 30.4.2023, in case they are aggrieved, before the appropriate Court in appropriate proceedings.

18. Notices, if any, stand discharged.

Order Date :- 2.5.2023

Mohit Singh/-

(Abdul Moin, J.)