Gujarat High Court

Jashodaben Bhudarbhai Parmar vs K K Nirala, Additional Secretary, ... on 17 August, 2023

Bench: A.S. Supehia

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      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

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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

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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

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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

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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

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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






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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