Jharkhand High Court
Chandra Bhushan Pathak vs The State Of Jharkhand on 11 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Jurisdiction)
C.M.P. No. 430 of 2021
IN
Contempt Case (Civil) No. 907 of 2018
Chandra Bhushan Pathak, s/o Govind Pathak, r/o village L.C. Road, behind
Indian Oil Office, PO & PS Dhanbad, District Dhanbad. ......Petitioner
Versus
1. The State of Jharkhand
2. Dr. Madhwi Kumari, the District Education Officer, Dhanbad, PO & PS
Dhanbad, District Dhanbad. ... Opposite Parties
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(Through V.C.)
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Ms. Aprajita Bhardwaj, Advocate
For the State : Mrs. Darshana Poddar Mishra, AAG-I
Mr. Rohit, AC to AAG-I
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ORDER
th
11 February 2022
By Court :
The writ petitioner approached this Court in W.P.(S) No. 3003 of
2015 with a grievance that his claim for reinstatement in service was wrongly
declined by the District Education Officer, Dhanbad.
2. The order dated 13th August 2018 passed in W.P.(S) No. 3003 of
2015 begins with chequered history of litigation. In short, the writ petitioner
succeeded in persuading the Court that he was entitled for reinstatement in
service atleast on the ground of parity for co-employee Rajendra Prasad who
was taken back in service in compliance of the order passed in C.W.J.C No.
2545 of 2000 (R) and that too after a decision by the Hon'ble Supreme Court in
Civil Appeal No. 4310 of 2007, the order on which the State of Jharkhand
heavily relied on to oppose the claim of reinstatement put forth by the writ
petitioner. It further appears from a glance at the order dated 13 th August 2018
that Sanjay Kumar was another employee who was permitted to continue in
service even after the aforesaid order passed by the Hon'ble Supreme Court.
Apart from the aforesaid instances which indicated that the attempt by the State
of Jharkhand to take shelter behind the order passed by the Hon'ble Supreme
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Cont. Case (Civil) No. 907 of 2018
Court in Civil Appeal No. 4310 of 2007 was just blathering, there are several
other aspects of the matter which the writ Court took note of.
3. The relevant portions of the order dated 13 th August 2018 are
extracted below;
"......10. From the impugned order dated 22.01.2015 it
appears that petitioner's claim has been rejected primarily on
the ground that petitioner is similarly situated with the
employee-Manshu Kumbhkar whose appointment has been
held illegal by the Supreme Court. In this context it is
pertinent to mention here that in his representation dated
04.12.2014 the petitioner has raised a specific plea of parity
on the ground that one Rajendra Prasad has been reinstated
in service pursuant to order passed in CWJC No.2545 of 2000
(R), after the decision of the Supreme Court in Civil Appeal
No.4310 of 2007. Further stand of the petitioner is that the
employee-Sanjay Kumar is still working in the department.
11. Apparently, these are some uncomfortable questions which
the respondents have conveniently not chosen to answer
inspite of specific order passed by this Court on 23.07.2018.
The impugned order dated 22.01.2015 also does not deal with
the aforesaid specific stand of the petitioner. While there is
some substance in the stand taken by the respondent-State on
the appointments which were held illegal by the Supreme
Court, there is no explanation why inspite of order passed by
the Supreme Court in Civil Appeal No.4310 of 2007 the
respondent-State has permitted Sanjay Kumar to continue in
service and chosen to reinstate Rajendra Prasad in service
with back-wages; office orders dated 29.06.2012 and
12.07.2012 reflect that Rajendra Prasad has been reinstated
in 5 service with 25% back-wages. True, an employee cannot
derive benefit from an illegal benefit conferred upon another
employee, but before a similar benefit is denied to an
employee it must be conclusively established that both are
similarly situated. Only on account of the fact that the
petitioner also was initially appointed by Miss Surajmani
Khalkho he cannot be held illegally appointed. In its order
dated 22.01.2015, except stating that the Supreme Court has
held appointment of Manshu Kumbhkar illegal, the
respondent-authority has not assigned any other reason while
claim of the petitioner has been rejected. In the present
proceeding the respondents have not taken a stand that
Rajendra Prasad has been wrongly reinstated in service. This
time even if it is found that the said Rajendra Prasad is not
entitled for reinstatement in service, as on today the
petitioner's claim for a similar benefit cannot be declined.
Courts do not pass orders on future probabilities. And, for
how long the respondent-State can be permitted to remain
blissfully ignorant of the judgments passed in the cases in
which it was a party.
12. On applicability of the judgment in Civil Appeal No.4310
of 2007 to the case of the petitioner, it needs to be indicated
that initial stand of the petitioner which is reflected in order
dated 26.05.1995 passed in CWJC No.1160 of 1995 (R) has
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Cont. Case (Civil) No. 907 of 2018
not been successfully challenged by the respondents. A
perusal of the aforesaid order would disclose that the
petitioner has brought on record a copy of advertisement
(Annexure-2) in the said writ proceeding. Stand taken by the
respondents in the present proceeding that no advertisement
was issued, thus, on face of Annexure-2 filed in CWJC
No.1160 of 1995 (R) raises serious doubt whether the
petitioner was appointed without any advertisement as has
been done in case of other employees who were parties before
the Supreme Court in Civil Appeal No.4310 of 2007. Order
dated 24.12.1999 and other orders which have been referred
to in the order dated 26.5.1995 passed in CWJC No.1160 of
1995 (R) indicate that subsequently the petitioner was
absorbed in service and he was paid salary, may be pursuant
to a direction of the writ Court, but the fact remains that he
was paid salary. On quashing of the criminal case against
Miss Surajmani Khalkho, 6 stand of the petitioner is that once
the criminal case against her for making illegal appointments
is quashed, petitioner's appointment cannot be held illegal.
Mr. Yogesh Modi, the learned State counsel submits that the
quash-petition was allowed primarily on the ground that
appointees of Miss Surajmani Khalkho did not draw salary.
As noticed above, the petitioner was paid salary for which
office order dated 21.06.1995 was issued vide Annexure-2 to
the writ petition. Absorption of the petitioner in service is also
a distinguishing fact.
13. In the aforesaid facts, it must be held that the respondents
have failed to establish that the petitioner's appointment was
illegal. Law declared by the Supreme Court has to be applied
in the facts of the case.
14. For the reasons indicated hereinabove, finding serious
infirmity in the impugned order dated 22.01.2015, it is
quashed. The writ petition stands allowed."
4. When the writ Court's order was not complied with by the
respondents, the writ petitioner filed Contempt Case (Civil) No. 907 of 2018
which was taken up for hearing on 17th May 2019. On that day, the learned State
counsel made a statement in the Court that Letters Patent Appeal against the
writ Court's order was preferred by the State.
5. The order dated 17th May 2019 reads as under;
"Mr. Yogesh Modi, the learned State counsel states that
against the writ Court's order a Letters Patent Appeal has
been preferred by the State.
Ms. Shristi Sinha, the learned counsel for the petitioner,
however, states that L.P.A No. 126 of 2019 is still in defects.
Post the matter on 14.06.2019."
6. From the proceedings in Contempt Case (Civil) No. 907 of 2018, it
appears that about one month's time was granted to the State to remove the
defects as notified by the Registry in L.P.A No. 126 of 2019. The matter was
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Cont. Case (Civil) No. 907 of 2018
listed next on 14th June 2019 when the Court was informed by the learned State
counsel that the defects in Letters Patent Appeal were removed. As one can read
from the tenor of the order dated 14 th June 2019, the writ Court being conscious
of the judicial proprietary felt constrained to proceed further with the contempt
case in the face of L.P.A No. 126 of 2019 which was by that time ready for
listing before the Hon'ble Division Bench.
7. The order dated 14th June 2019 reads as under:
"Mr. Yogesh Modi, the learned State counsel states that
defects in the Letters Patent Appeal have been removed and it
has been numbered as L.P.A. No. 126 of 2019.
Ms. Aprajita Bhardwaj, the learned counsel for the petitioner
submits that mere filing an appeal is not a ground not to
comply with the Court's order.
May be the submission of the learned counsel for the
petitioner is correct but then the proprietary requires that this
Court should not proceed with this contempt case at this
stage.
Accordingly, this contempt case is closed with liberty to the
petitioner to approach the Court, if necessary, after disposal
of L.P.A. No. 126 of 2019."
8. What happened next presents a very uncomfortable situation for
the Court - it is never a pleasant experience for the Court to deal with a
contempt case. The materials on record depict a sorry state of affairs, in that
how far a litigant can go to wriggle out from the contempt proceedings. The writ
petitioner filed an application for modification of the order dated 14 th June 2019
which was registered as C.M.P. No. 430 of 2021. This application was taken up
for hearing on 4th February 2022 when this Court was informed that L.P.A No.
126 of 2019 was still lying in defects. The statement made on behalf of the writ
petitioner was supported by the information retrieved from the website of High
Court of Jharkhand. The order dated 4th February 2022 would indicate that the
stand taken by the writ petitioner was not controverted by the State counsel, and,
rightly so. The learned State counsel apprised the Court that most of the defects
pointed out by the Registry were removed on 2 nd February 2022 at the Defects
Removal Centre.
9. In the aforesaid state of affairs, by an order dated 4 th February 2022
the Secretary, School Education and Literacy Department, Government of
Jharkhand was requested to remain present in the Court to render his assistance.
10. Mr. Rajesh Kumar Sharma, Secretary, School Education and
Literacy Department, Government of Jharkhand has joined the Court
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Cont. Case (Civil) No. 907 of 2018
proceedings through virtual mode from the chamber of Mrs. Darshana Poddar
Mishra, the learned Additional Advocate General-I. This Court is not inclined to
record in its today's proceeding every statement made on behalf of the
contemnors during the course of hearing except that the learned Additional
Advocate General-I and the Secretary, School Education and Literacy
Department, Government of Jharkhand made a statement in the Court that
serious efforts for listing of L.P.A No.126 of 2019 shall be taken.
11. In the first place, the Court finds no answer as regards the
circumstances in which an incorrect statement was made on behalf of the
contemnors in the proceeding of Contempt Case (Civil) No. 907 of 2018. All
that the Court finds from the affidavit of opposite party no. 1, in the paragraph
no.10 of the counter-affidavit dated 11th February 2022, is that there was an error
of fact communicated to this Hon'ble Court. Not only the statement is vague,
this Court is not inclined to accept this statement for the reason that the
surrounding circumstances in which a communication error took place have not
been disclosed in the affidavit. The Court further finds that the affidavits filed on
behalf of the opposite party nos. 1 and 2 do not put forth any reason why the
order dated 14th June 2019 be not modified/recalled. This Court is of course not
making any enquiry intending to fix responsibility upon any individual, but, at
the same time the Court is conscious that solemn proceedings of the Court
cannot be permitted to be vitiated on account of such conduct of a litigant. The
aforesaid act on the part of the State in making incorrect statement in the Court
through its learned counsel was intended to wriggle out from the contempt
proceedings and by such act it has polluted the fountain of justice. This Court
has no doubt in its mind that on account of such incorrect statement made on
14th June 2019 the said order is liable to be recalled.
12. Ordered accordingly.
13. The order dated 14th June 2019 is recalled and C.M.P No. 430 of
2021 is allowed. As a consequence of this order, Contempt Case (Civil) No. 907
of 2018 the records of which are attached with C.M.P No. 430 of 2021 is taken
up for hearing.
14. In course of hearing, on a query from the Court, the learned
Additional Advocate General-I has informed that L.P.A No. 126 of 2019 was
filed on 13th February 2019 with a delay of 141 days for which an application
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Cont. Case (Civil) No. 907 of 2018
under section 5 of the Limitation Act vide I.A. No. 1662 of 2019 has been filed.
In the affidavit dated 10th February 2022 filed by opposite party no.2, it is stated
that the defects pointed out by the Registry have been removed on 8 th February
2022. Counting from such date, this Court finds that just short of 5 days the
State took three years to remove the defects and in the meantime the Court
feeling constrained by judicial discipline and proprietary stayed away from
interfering in the matter and declined to proceed with the Contempt Case (Civil)
No. 907 of 2018.
15. Technically speaking, L.P.A No. 126 of 2019 is not in existence as
there is delay of 141 days in filing the appeal. As the Court understands in law,
till the time delay in filing the appeal is condoned the appeal does not come in
existence. Moreover the conduct of the appellant has been such that this Court is
not inclined to await outcome of L.P.A No. 126 of 2019 on the expectation as
shown to this Court by the learned Additional Advocate General-I and the
Secretary, School Education and Literacy Department, Government of
Jharkhand that steps would be taken for listing of L.P.A No. 126 of 2019.
Whatever may be the reason due to which an incorrect statement was made in
the Court, the conduct of the State of Jharkhand which took three years to
remove the defects lacks bonafide and the Court cannot now repose its trust in
such litigant.
16. In view of the aforesaid facts and circumstances, this Court deems
it proper not to proceed further with Contempt Case (Civil) No. 907 of 2018
and accordingly the proceedings in the contempt case are closed with a direction
to the opposite party no. 1 to comply with the writ Court's order within a period
of four weeks, which of course shall be subject to outcome of L.P.A No. 126 of
2019. Now since the Secretary, School Education and Literacy Department,
Government of Jharkhand is in the Court and has made a statement in the Court
that he has apprised himself as regards facts of this case, the aforesaid direction
is issued to him.
17. Contempt Case (Civil) No. 907 of 2018 is disposed of with the
aforesaid direction and in the aforesaid terms.
(Shree Chandrashekhar, J.)
RKM
