Jharkhand High Court
Syed Nasim Akhtar @ Syed Naseem ... vs State Of Jharkhand And Ors on 17 February, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No. 681 of 2021
Syed Nasim Akhtar @ Syed Naseem Akhtar and Anr.
... ... Petitioners
Versus
State of Jharkhand and Ors. ... ... Opp. Parties
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Petitioners : Mr. Pankaj Srivastava, Advocate
For the Opp. Party-State : Mr. Gautam Singh, JC to GP-IV
---------------------------
06/Dated 17th February, 2023
1. The instant contempt case arises out of an order passed on 31.07.2012
passed in W.P.(S) No. 5924 of 2003, whereby and whereunder, direction
was passed by the writ court to examine the case of the petitioners as to
whether they are fit to be regularized in service.
2. Mr. Gautam Singh, learned JC to GP-IV has submitted by referring to
the show cause filed by opposite party no.7 that the decision has been
taken on 11.01.2023 passed by the Committee headed by Commissioner,
Palamau Division, Medininagar.
3. Mr. Srivastava, learned counsel for the petitioners has submitted by
referring to the decision taken by the Committee dated 11.01.2023 that
the same cannot be construed to be an order in terms of the judgment
rendered by the Hon'ble Apex Court in Secretary, State of Karnataka &
Ors. Vs. Uma Devi (3) & Ors., 2006 (4) SCC 1.
The contention has been raised by referring to paragraph-53 of
the said judgment as also referred by the writ court while disposing of
the writ petition that the distinction has been made in between the
irregular appointment and illegal appointment. The Hon'ble Apex Court,
according to him, while carving out the distinction in between irregular
appointment and illegal appointment has also carved out exception for
regularizing such irregular appointment who have been appointed having
due qualification and against duly sanctioned vacant post, if such
appointees have completed 10 years of continuous service without any
aid of an interim order passed by any court of law.
The Hon'ble Apex Court has further directed that the exercise is
required to be taken by setting in motion within six months from the date
of passing of the judgment by the Hon'ble Apex Court in the aforesaid
case.
4. The learned counsel on the basis of the aforesaid proposition has pointed
out the infirmities in the decision taken by the committee negating the
claim of the petitioners. It has been pointed out by referring to the
reasons of rejection so far as it relates to the petitioner no.1, namely,
Syed Nasim Akhtar @ Syed Naseem Akhtar wherein even though the
committee has come to conscious finding that the said petitioner has
been appointed against the sanctioned post on 28.03.1987 on the basis of
the sanction given by the Conservator of Forest, Social Forestry Circle,
Hazaribagh but the same has not been considered to be authentic in
absence of the fact that no document to that effect has been placed.
He has raised the question that when it is the admitted case of
the committee that the petitioner no.1 was appointed against the
sanctioned post then it was incumbent upon the concerned official of the
department to place on record the decision of the post having been
sanctioned against which he has been appointed. But, the liability has
been casted upon the petitioner that no document has been provided.
5. He has further pointed out that the appointment letter has not been issued
by the competent authority. The required educational qualification has
been reported to be intermediate passed and the petitioner has passed his
intermediate examination in the year 1981.
Learned counsel submits that when the appointment was made
against the sanctioned post as per the reason assigned in the column no.1
under heading "grounds of rejection", on 28.03.1987 and if the said
petitioner has passed the intermediate examination in the year 1981 then
where is the question of having no intermediate passed as on the date of
appointment, which according to the opposite party is 28.03.1987.
6. The fourth ground has been assigned while rejecting the claim of the
petitioner no.1 that no documentary evidence was produced by the
petitioner of having continued in service continuously for 10 years.
He has raised the question that when the petitioner has put forth
the case that he has been in service continuously for 10 years then it is
incumbent upon the opposite party to get it corroborated from their own
documents but having not done rather the ground has been taken that no
evidence to that effect has been produced and therefore, the same also
cannot be said to be a ground for negating the claim of the petitioner.
7. The fifth ground has been taken as would appear from the decision taken
by the committee that the recruitment process has not been followed.
8. Referring to the reason assigned for rejecting the claim of another
petitioner, namely, Ramashray Yadav, the same ground has been taken
save and except the post upon which Sri Ramashray Yadav was
appointed was to be filled up by a candidate who has passed
matriculation examination which he had passed in the year 1980.
9. It has been submitted as would appear from the report referred in column
no.1 while considering the case of Sri Ramashray Yadav, that he was
appointed on 28.06.1986 which itself suggest that as on the date of
engagement, i.e., on 28.06.1986, he was possessing the requisite
qualification since the said petitioner had passed the matriculation in the
year 1980.
10.Regarding the reason as has been taken that no document has been
produced for rendering continuous 10 years of service and the process
has not been followed, the same argument as has been advanced with
respect to the case of Sri Ramashray Yadav as referred hereinabove.
11.Learned counsel for the petitioners, on the basis of the aforesaid ground,
has submitted that the meaning of compliance in terms of the order
passed by the writ court is always if the order has been passed in
accordance with law. The compliance does not mean that any decision
contrary to law if taken that will also construed to be compliance of the
order passed by the court of law.
12.He, therefore, submits that exactly the case herein is since the law has
been laid down by the Hon'ble Apex Court in Secretary, State of
Karnataka & Ors. Vs. Uma Devi (3) & Ors. (supra) as would appear
from paragraph-53 thereof wherein illegal appointment has been decided
not to be legalized while irregular appointment has been directed to be
regularized.
13.This Court has heard the learned counsel for the parties, perused the
order passed by the committee and even considering the fact that this
Court is under the jurisdiction of contempt of courts act and is conscious
of the jurisdiction but the question herein is that merely on the ground
that a plea has been taken or a decision has been taken as the fact of the
given case is as per the submission made on behalf of the learned
counsel for the opposite parties that since the decision has been taken in
terms of the order passed by the writ court, therefore, the instant
contempt case may be dropped.
14.This Court is not in agreement with such submission reason being that
under the contempt of courts act as would appear from the definition as
contained under Section 2(c) that the contempt court will proceed against
the opposite party if it is found to the court that there is willful and
deliberate non-compliance of the order passed by the court.
15.The word „deliberate‟ suggest that the order be passed strictly in
accordance with law and if the order has been passed contrary to law, it
will come under the fold of deliberate non-compliance also with willful
non-compliance.
16.This Court has proceeded to examine on the basis of the aforesaid
consideration of definition and found from the facts of the given case
that the Hon'ble Apex Court while laying out the law in the case of
Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors. (supra)
which has got binding effect under the provision of Article 141 of the
Constitution of India, the same is required to be followed by everyone
coupled with Article 144. The reference is also required to be taken of
Article 144 of the Constitution of India.
17.The Hon'ble Apex Court in Secretary, State of Karnataka & Ors. Vs.
Uma Devi (3) & Ors. (supra) since has carved out the distinction in
between illegal and irregular appointment and while carving out such
distinction, illegal appointment has been held to be illegal appointment if
person concerned has been appointed not against the sanctioned post and
not having due qualification to hold the post, meaning thereby, save and
except on these grounds if any appointment has been made, the same
will be treated to be an irregular appointment and irregular appointment
by way of exception has been directed to be regularized subject to
fulfillment of 10 years of continuous service without the aid of any
interim order by any court of law.
18.The judgment passed by the Hon'ble Apex Court regarding distinction so
made for irregular and illegal appointment has again been deliberated by
the Hon'ble Apex Court in State of Karnataka & Ors. vs. M.L. Kesari &
Ors., (2010) 9 SCC 247.
19.This Court on the basis of the ratio laid down by the Hon'ble Apex Court
and coming to the decision taken by the committee is of the prima facie
view that when the opposite party themselves scrutinizing the cases of
the petitioner has come to the conclusion on the basis of the report given
by the competent authority that the appointment of petitioner no.1 was
made against the sanctioned post as on 28.03.1987 and also having the
due qualification since the conscious finding has been recorded that the
said petitioner no.1 has passed intermediate examination in the year 1981
which was the required educational qualification to hold the post.
20.The other ground of his continuation of 10 years of service having not
been followed in terms of the judgment passed by the Hon'ble Apex
Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors.
(supra), the same will be said to be under the fold of irregular
appointment.
21.Likewise also, the case of Ramashray Yadav wherein it appears that his
case has been rejected in a very cryptic and mechanical manner and on
the ground that the petitioner no.2, Ramashray Yadav, has failed to
produce the relevant records about sanctioned post having been created.
The issue of post created or not is under the domain of the appointing
authority, as such, it was the duty of the appointing authority to assess
that fact on the basis of the document available but having not done so
rather the petitioner has been blamed that no document to that effect has
been produced.
22.It further appears that it cannot be said that the said Ramashray Yadav,
the petitioner no.2, was having no educational qualification. Since it
finds at column no.3 under the discussion made with respect to the case
of Ramashray Yadav that the matriculation was the qualification which
he had passed in the year 1980 while he was appointed on 28.06.1986.
Therefore, this Court is not in agreement with the submission advanced
on behalf of the learned counsel for the opposite parties that the instant
contempt is required to be dropped considering the decision taken by the
committee on 11.01.2023 to be non-compliance of the order passed by
the writ court.
23.This Court, further, is of the view on the basis of the discussion made
hereinabove that since the said decision dated 11.01.2023 cannot be said
to in consonance with the judgment of the Hon'ble Apex Court rendered
in Hon'ble Apex Court in Secretary, State of Karnataka & Ors. Vs. Uma
Devi (3) & Ors. (supra), therefore, the same cannot be said to
compliance of the order of the writ court.
24.This Court, therefore, is of the view that presence of Commissioner is
required to explain as to how the judgment passed by the Hon'ble Apex
Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi (3) & Ors.
(supra) has been interpreted and is further directed to explain as to why a
proceeding be not initiated for non-compliance of the order passed by
this Court.
25.Accordingly, let the Commissioner, Palamau Division, Medininagar
appear in person on the next date of hearing.
26.Let this matter be listed on 03.03.2023.
(Sujit Narayan Prasad, J.)
Saurabh
