Chintan Harishbhai Vaishnav vs Kamal Dayani (Now M.K. Das)
2023 Latest Caselaw 8329 Guj

Gujarat High Court

Chintan Harishbhai Vaishnav vs Kamal Dayani (Now M.K. Das) on 1 December, 2023

Author: A.S. Supehia

Bench: A.S. Supehia

                                                                                    NEUTRAL CITATION




     C/MCA/1985/2023                                  ORDER DATED: 01/12/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/MISC. CIVIL APPLICATION (FOR RECALL) NO. 1985 of 2023
                            In
        R/MISC. CIVIL APPLICATION NO. 975 of 2023
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                       CHINTAN HARISHBHAI VAISHNAV
                                 Versus
                       KAMAL DAYANI (NOW M.K. DAS)
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Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR AAKASH GUPTA, AGP for the Opponent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
       and
       HONOURABLE MR. JUSTICE M. R. MENGDEY

                  Date : 01/12/2023
                    ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Learned Assistant Government Pleader Mr.Aakash Gupta, has tendered an affidavit-in-reply dated 01.12.2023. The same is ordered to be taken on record. A copy of the same is also supplied to the learned advocate Mr. Hriday Buch, appearing for the applicant / original petitioner.

2. The present application has been filed seeking restoration of the captioned Misc. Civil Application No.975 of 2023, which was filed by the present applicant - original petitioner seeking compliance of the judgment and order dated 29.04.2023 passed by the Division Bench in Letters Patent Appeal No.1517 of 2022 confirming the judgment and order dated 04.04.2022 passed in Special Civil Application No.7047 of 2019 by the learned Single Judge.

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C/MCA/1985/2023 ORDER DATED: 01/12/2023

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3. Learned advocate Mr.Buch, appearing for the applicant - original petitioner has submitted that by both aforesaid judgment and orders of learned Single Judge as well as Division Bench, the respondents were supposed to give all the consequential benefits, after the impugned order dated 02.03.2019, terminating the petitioner from the service was quashed and set aside. He has submitted that since the aforesaid directions were not complied with and the consequential benefits were not paid to the original petitioner - the applicant has filed the captioned Misc. Civil Application No.975 of 2023. It is submitted that the aforesaid contempt application was disposed off by the order dated 10.07.2023 taking on record the communication dated 10.07.2023, wherein and whereby, the respondent-authorities have in fact though reinstated the petitioner but did not grant any consequential benefits. It is submitted that the application was not pressed with the hope that the respondents will honour the directions issued by this Court and pay all consequential benefits after the communication dated 10.07.2023, but no consequential benefits of promotion are paid. Hence, the applicant is constrained to file the present application seeking restoration of the captioned contempt application being Misc. Civil Application No.975 of 2023. Thus, he has submitted that in fact, thereafter the respondent-State passed an order dated 30.11.2023 conferring the benefit of one promotion that too notionally, however, the applicant is also entitled to another promotion, which is also not given to the applicant / original petitioner, hence, he is seeking for restoration of contempt application.

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C/MCA/1985/2023 ORDER DATED: 01/12/2023

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4. Learned advocate Mr.Buch, has thus submitted that the applicant / original petitioner is entitled to actual arrears and two promotions, pursuant to the directions issued by the learned Single Judge as well as Division Bench and hence, the contempt application may be revived.

5. Per contra, learned Assistant Government Pleader has submitted that in fact, by the order dated 30.11.2023, the State Government has granted promotion to the petitioner after convening DPC. He has submitted that the applicant / original petitioner has been promoted to the post of Deputy Collector, Class-I (Junior Scale) with effect from 30.10.2018 with notional payments.

6. Learned Assistant Government Pleader has further submitted that the applicant - original petitioner is also paid an amount of Rs.27,42,786/-. He has also placed reliance on the judgment of Prithawi Nath Ram Vs. State of Jharkhand, [(2004) 7 SCC 261] and has submitted that if any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the Court that passed the order or invoke jurisdiction. Rightness or wrongness of the order cannot be urged in contempt proceedings and the Court while examining the proceedings under the Contempt of Courts Act, cannot transgress the direction issued in the order. He has further submitted that in fact, the directions issued by the Division Bench are complied with and if any grievance remains, it will be open for the applicant to file appropriate proceedings

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C/MCA/1985/2023 ORDER DATED: 01/12/2023

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before the appropriate forum.

7. We have heard the learned advocates appearing for the respective parties.

8. The present application is filed seeking revival of the contempt application being captioned Misc. Civil Application No.975 of 2023, which was disposed of by the order dated 10.07.2023 by recording thus :

"Learned AGP has tendered a communication dated 10.07.2023 in compliance with the directions issued by this Court. The same is ordered to be taken on record.

In view of the communication dated 10.07.2023 tendered by the learned AGP, learned advocate Mr.Morakhia does not press the present application at this stage.

The present application stands disposed of as not pressed. Notice is discharged."

9. By the aforesaid contempt application, the original petitioner - applicant is seeking initiation of contempt proceedings for non-compliance of the directions issued by the order dated 04.04.2022, the same are as under :-

"(20) Accordingly, the order dated 2nd March, 2019 is hereby quashed and set aside. The respondents are directed to reinstate the petitioner in service forthwith on the post on which he was working prior to the order of termination. The petitioner is deemed to have continued in service and shall be entitled to all consequential benefits. The respondents are directed to reinstate the petitioner and give all consequential benefits within a period of three

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months from the date of receipt of copy of this CAV Judgment. "

10. A simple reading of the directions issued by the learned Single Judge manifests that directions are issue to the respondents to reinstate the petitioner and give all the consequential benefits within a period of three months. It appears that and is not in dispute that thereafter, the respondent- State passed an order dated 10.07.2023, wherein and whereby, it was decided to undertake the necessary proceedings for granting of promotion to the petitioner subject to the result of the Letters Patent Appeal No.1517 of 2022.

11. The captioned Misc.Civil Application No.975 of 2023 was not pressed in view of the order dated 10.07.2023 which refers to reinstatement, but does not refer to the grant of actual promotion. Today along with the affidavit, an order dated 30.11.2023 passed by the Revenue Department, State of Gujarat, has been produced, wherein and whereby, the original petitioner - applicant is granted promotion to the post of Deputy Collector, Class-I (Junior Scale) with effect from 30.10.2018. It is also not in dispute that the petitioner is also granted an amount of Rs.27,42,786/-, after he has been granted promotion. However, in the case of the petitioner that he is entitled further promotion to the post of Additional Collector. It is the case of the applicant / original petitioner that instead of 30.10.2018, the said promotion should have been granted from 28.03.2016 along with full arrears. It is also the case of the petitioner that he is entitled to further promotion to the Additional Collector with effect from the date of when his

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C/MCA/1985/2023 ORDER DATED: 01/12/2023

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juniors are permitted to the post of Additional Collector, Gujarat Administrative Service (Class-I). Hence, the issue which remains to be examined is whether the direction is noted hereinabove for granting of consequential benefits would, in fact, include the promotion to the post of Deputy Collector (Class-I) with effect from 28.03.2016, instead of 13.10.2018 and further promotion to the post of the Additional Collector from the date of his junior or not. The judgement of the Apex Court in case of Prithawi Nath Ram(supra) on which the reliance is placed by the learned AGP can be considered while examining the main contempt application.

12. Hence, for examining such issue and in the interest of justice, we are inclined to recall the order dated 10.07.2023 and revive the Misc. Civil Application No.975 of 2023 to its original file. Registry is directed to revive and restore Misc. Civil Application No.975 of 2023 in its original file and place it before the appropriate Bench for further consideration.

13. In view of the above the present application stands disposed of.

(A. S. SUPEHIA, J)

(M. R. MENGDEY,J) MAHESH/02