Murari Bhagat vs The State Of Jharkhand
2024 Latest Caselaw 9363 Jhar

Jharkhand High Court

Murari Bhagat vs The State Of Jharkhand on 20 September, 2024

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           Cont. Case (Civil) No. 683 of 2024
                                         With
                                 I.A. No. 9990 of 2024

             Murari Bhagat, aged 59 years, son of Sri Chunyun Bhagat, resident of
             Deen Dayal Nagar, Booty Road, P.O.- Ranchi University, P.S.-
             Lalpur, District- Ranchi, Pin Code- 834008, Jharkhand
                                                          ...      ...     Petitioner
                                       Versus
             1. The State of Jharkhand
             2. Sri Lalbiaktluanga Khiangte, son of K. Thanzauva (L), Chief
                Secretary, Government of Jharkhand, Project Bhawan, P.O. and
                P.S. Dhurva, District Ranchi, Pin Code - 834004 Jharkhand
                                                     ...       ...       Opp. Parties
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Jitendra Singh, Senior Advocate : Ms. Amrita Sinha, Advocate : Mr. Yash Singh, Advocate : Mrs. Shweta Suman, Advocate For the Opp. Parties : Mr. Ashutosh Anand, AAG-III : Mr. Binit Chandra, AC to AAG-III : Mr. Sahbaj Akhtar, AC to AAG-III

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06/20.09.2024 Heard the learned Senior counsel appearing on behalf of the petitioner Mr. Jitendra Singh, Senior Advocate assisted by Ms. Amrita Sinha, Mr. Yash Singh and Mrs. Shweta Suman, Advocates.

2. Heard Mr. Ashutosh Anand, learned Additional Advocate General -III representing the State and opposite party no. 2 assisted by Mr. Binit Chandra, AC to AAG-III and Mr. Sahbaj Akhtar, AC to AAG-III.

3. Learned counsel for the opposite parties has submitted that pursuant to order dated 31st August 2024, a show cause has been filed on behalf of the opposite party no. 2 on 10 th September 2024 indicating that there is no willful, deliberate or intentional violation of order passed by this Court and the filing number of Letters Patent Appeal being LPA Filing No. 8361 of 2024 has been given. A copy of the order passed by the Hon'ble Supreme Court in Special Leave to Appeal (C) Nos. 5289-5291 of 2021 has also been placed . It has further been mentioned therein that the decision to file appeal was taken on 06th August 2024 whereafter appeal was drafted and filed on 17th August 2024. The decision for filing appeal was taken much prior to the issuance of notification dated 16th August 2024 referred to in order dated 31st August 2024.

4. The learned counsel for the opposite parties has further submitted that a supplementary affidavit dated 12th September 2024 has been filed on behalf of the opposite party no. 2 and submits that the Letters Patent Appeal was mentioned ,but the same has been directed to be listed in usual course. He has submitted that the defects in the said appeal were rectified yesterday only and the appeal number has been given as LPA No. 489 of 2024. The learned counsel has also submitted that all steps have been taken for listing of the Letters Patent Appeal, but as per the supplementary affidavit, there is a direction to list the case in usual course.

5. Learned counsel for the opposite parties has also referred to I.A. No. 9990 of 2024 to submit that the hearing of this petition be deferred till the final disposal of the Letters Patent Appeal.

6. Learned Senior counsel appearing on behalf of the petitioner has opposed the prayer and by referring to the order dated 31st August 2024, he has submitted that this Court has already expressed prima facie that the opposite party no. 2 has no regards to the orders passed by this Court and has acted in a manner to frustrate the judgment by issuing notification dated 16th August 2024. The learned Senior counsel has also submitted that in the judgment passed by this Court, it was clearly observed that the petitioner has not been treated fairly at the hand of the state.

7. Learned senior counsel for the petitioner has also referred to paragraph 51 of the judgment passed by this Court and has submitted that earlier also there have been orders directing the Chief Secretary not to make officiating arrangements. Paragraph 51 of the order passed by this Court in W.P.(S) No. 6693 of 2023 is quoted as under:

"51. This Court in W.P.(S) No. 2709 of 2011 vide order dated 12.08.2011 has deprecated non-filling of the post on regular basis

and filling up the post on ad-hocism and inchargeship. Para 5 of the aforesaid order is quoted as under:

"5. I hereby also direct the Chief Secretary, State of Jharkhand to look into the matter personally, since not less than in a dozen writ petitions, directions have been given by this Court to the Chief Secretary, Government of Jharkhand not to appoint in-charge person on regular post of the State of Jharkhand. In the facts and circumstances of the present case and as per the allegations, since the bifurcation of the State in the year 2000, the post of Assistant Excise Commissioner has never been regularly filled-up and adhocism or inchargeship is going on which tantamounts to favrouritism and nepotism by the high ranking officials of the State of Jharkhand. As far as possible, the said situation should have been avoided which creates dis-satisfaction in the senior most persons working in the cadre. It is expected from the Chief Secretary of the State that the aforesaid post in the Excise Department be filled-up at the earlist. Enough is enough. Time of eleven years have elapsed. The post of Assistant Commissioner of Excise ought to have been regularly filledup in stead of filling-up of the post by junior persons giving incharge-ship."

The said case was in relation to the petitioner, who was senior- most in the cadre of Inspector in the Excise department, and he was working with honesty, sincerity and diligently to the satisfaction of all but instead of posting him to the said post, the State of Jharkhand appointed another person in the post of inspector other than the seniormost person in the cadre."

8. Learned Senior counsel for the petitioner has also submitted that once the Hon'ble Division Bench has observed that the matter has to be heard in usual course, there can be no reason not to comply with the order passed by this Court. He submits that the petitioner is scheduled to retire on 31st December 2024 and if the petitioner attains the age of superannuation, then the fruits of the judgment passed by this Court in the writ petition can never be given to the petitioner. He has reiterated that the petitioner is the only officer in the State of Jharkhand who has been promoted to the post of Engineer-in-chief - cum- Additional Commissioner -cum- Special secretary and by the conduct of the opposite parties, they have deprived him of the rank, status and the post. He submits that as on date, the petitioner stands nowhere in law in view of the fact that the posting of the petitioner to the Vigilance Department has been set-aside by this Court.

9. The learned Senior counsel for the petitioner has also submitted that the interlocutory application seeking deferring the hearing of this contempt petition be dismissed.

10. Learned Senior counsel has further referred to Rule 393 of the High Court of Jharkhand Rules and submits that a notice is required to be issued to the opposite party no. 2 in Form - 1 by the office of this Court and appropriate order be passed to that effect.

11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that vide judgment dated 15th July 2024 passed in W.P.(S) No. 6693 of 2023 which was uploaded on the same date, the opposite party no. 2 was directed to take a decision with regard to the petitioner in connection with his posting within a period of 15 days from the date of communication of the judgment.

12. The order passed in the writ petition having not been complied, the petition for initiating contempt proceedings was filed before this Court on 05.08.2024. The notice to the opposite party no. 2 by speed post was directed to be issued on 09.08.2024. When the matter was taken up on 23.08.2024, the filing number of the Letters Patent Appeal i.e., 8361 of 2024 was provided and the same was mentioned in the order. Admittedly, the appeal was filed only on 17.08.2024. The matter was then taken up on 30th August 2024 wherein it was submitted that the defect in the Letters Patent Appeal would be cured on the same day and the matter was directed to be posted on 31 st August 2024 to inform this Court as to whether the defects in the Letters Patent Appeal have been cured or not. It was submitted on 31st August 2024 that the defects in the Letters Patent Appeal have been cured but the case number could not be obtained.

13. However, on 31st August 2024 a detailed order has been passed by this Court which is as under:

"1. Learned senior counsel for the petitioner Mr. Jitendra Singh has joined the court proceeding online along with Mrs. Amrita Sinha, who is present in the court.

2. Mr. Binit Chandra, Advocate appears on behalf of the opposite parties.

3. Learned counsel appearing on behalf of the opposite party No. 2 has submitted that the defects in the appeal filed against the judgement dated 15th July 2024 has been removed yesterday, though he has not been able to obtain the number of the LPA. The learned counsel submits that some time may be granted so that the outcome of the LPA may be placed on record.

4. At this, the learned counsel for the petitioner has submitted that the opposite party no. 2 has already committed contempt. The opposite party no.2 was granted only 15 days' time to take a decision in connection with posting of the petitioner as Engineer in chief cum Additional Commissioner cum- Special Secretary from the date of communication of the judgment. Instead of complying the order , again officiating arrangement has been made to fill up the post of Engineer in chief cum Additional Commissioner cum- Special Secretary in the Road Construction Department on 16th of August, 2024 . The LPA was filed on 17.08.2024. The learned counsel has submitted that the officiating arrangement has been made by a person who is just a chief engineer and junior to the petitioner in the same department . The learned counsel has referred to paragraph 51 and 57 of the judgement passed by this court and has submitted that this court has clearly observed that the petitioner has not been treated fairly by the respondents of the writ petition. The learned counsel has submitted that by making officiating arrangement to fill up the highest cadre post in Road Construction Department, the opposite party No. 2 has frustrated the orders passed by this court and therefore he has already committed contempt by not passing appropriate order in terms of the judgement passed by this Court and simultaneously filling up the post by making ad hoc/officiating arrangement. It has been submitted that the opposite party No. 2 has no regards to the judgment passed by this court and therefore it is submitted that an appropriate order be passed to initiate a contempt proceeding against the opposite party No.

2.

5. After hearing the learned counsel for the parties and considering the facts and circumstances of this case as has been brought on record by supplementary affidavit dated 19.08.2024, this court is of the prima facie view that not only the opposite party No. 2 has failed to comply the direction passed in paragraph 58 (iii) of the judgement dated 15th of July 2024 but has made an attempt to frustrate the order passed by this court. Para 9 of the supplementary affidavit dated 19.08.2024 is quoted as under: -

"That the aforesaid Sunil Kumar, Principal Secretary, Road Construction Department, Government of Jharkhand who was also a respondent in the said Writ

Petition bearing W.P. (S) No.6693 of 2023 and thus was well aware of the Order and Judgement dated 15.07.2024 passed by this Hon'ble Court in the said Writ Petition and in any case was informed with a copy of the Order and Judgment dated 15.07.2024 by the Petitioner, in sheer disregard and to lower the authority of this Hon'ble High Court, has not initiated the process for posting of the Petitioner on the Highest Statutory Cadre Post as directed for and has instead in derogation of the Rule of Law filled up the abovesaid Statutory Cadre Posts vide Notifications under memo no. 3370 (S) dated 16.08.2024 which are non- existent under the Jharkhand Engineering Service Rules. Further worse still by the abovesaid notification, Res Ipsa Loquitor, the Notifications dated 16.08.2024 appointing persons as Engineer-in-Chief on officiating basis in the Departments have been made of persons from the lower grade/feeder post of Chief Engineer, who were not even eligible either to be posted as Engineer in Chief or promoted to the Highest Post in terms of the decisions as contained in Circulars dated 25th January, 2006 and dated 19th December, 2006 (Annexure- 12 and 12/1 respectively to the writ petition) read with provisions relating to Kalawadhi as specified in Resolutions dated 4th April, 2014 and 24th October, 2014 of the Personnel, Administrative Reforms and Rajbhasha Department and that too when a person substantially promoted to such Highest Statutory Cadre Post was available and worse still, a subsisting direction of this Hon'ble High Court to post the Petitioner had been passed vide Order and Judgment dated 15.07.2024 passed in W.P. (S) No.6693 of 2023. It is suffice to state that the Highest Statutory Cadre Post of Engineer-in- Chief-cum-Additional Commissioner-cum- Special Secretary of the Cadre Controlling (Road Construction) Department was vacant since 01.08.2022 and only by the Notification No. 3332 (S) dated 16.08.2024 in great hurry, services of one Sanjay Kujur of the lower ranked officer of the feeder post of Chief Engineer, who was earlier posted as Engineer-in-Chief (Incharge) of the Building Construction Department was taken back and has now by the said notification been posted on officiating basis as Engineer-in-Chief (Incharge) of the Cadre Controlling (Road Construction) Department. The officiating arrangement in Building Construction Department (against the 2nd statutory cadre post) which thus became vacant was also filled up by one Ram Pyar Prasad once again on officiating arrangement, posting

the said Ram Pyar Prasad as Engineer-in-Chief (Incharge) of the Building Construction Department whereas, the 3rd statutory cadre post of the Rural Development Department (Rural Work Affairs) is pre occupied (on officiating basis) by one other ineligible person from the feeder post of Chief Engineer."

6. It has been pointed out that the other two departments, were already having officiating arrangement and the only vacant post for the post of the petitioner was in the Road Construction Department which has also been filled up by way of officiating arrangement vide notification dated 16.08.2024 and the opposite party no. 2 has thereby completely frustrated the judgement passed by this court.

7. In such circumstances, this court is prima facie of the view that the opposite party No. 2 has no regards to the orders passed by this court and has acted in a manner to frustrated the judgement by issuing notification dated 16.08.2024 and thereafter filed the L.P.A. Consequently, the opposite party No. 2 is directed to file show cause as to why a contempt proceeding be not initiated against him.

8. Let the show cause be filed by 11.09.2024.

9. Post this case on 13.09.2024."

14. After considering the entire facts and circumstances, this Court prima facie observed that the opposite party no. 2 has no regards to the orders passed by this Court and has acted in a manner to frustrate the judgment by issuing notification dated 16th August 2024 and thereafter filed the Letters Patent Appeal. The opposite party no. 2 was directed to show-cause as to why a contempt proceedings be not initiated.

15. The show-cause which has been filed by the opposite party no. 2 essentially refers to filing of the appeal. The supplementary affidavit reveals that the Hon'ble Division Bench has directed the matter to be posted in usual course. In such circumstances, there could not have been any justification for the opposite party no. 2 not to comply the order of this Court and file their compliance report. However, instead the learned counsel for the opposite parties has again insisted that the hearing of this petition be deferred by referring to the interlocutory application.

16. This Court is not at all satisfied with the show-cause filed by the opposite party no. 2 including the supplementary affidavit. This

Court is of the considered view that once the appeal is to be heard in usual course, there can be no reason for non-compliance of the order passed by this Court and this Court finds no justifiable reason for not proceeding further in the contempt proceedings.

17. So far as the order annexed with the interlocutory application passed by the Hon'ble Supreme Court in Special Leave to Appeal (C) Nos. 5289-5291 of 2021 is concerned, this Court finds that the State was in appeal against the order of learned Single Judge who had issued contempt proceedings on account of non-compliance of order passed by the Court during pendency of the appeal before the Hon'ble Division Bench. The Hon'ble Supreme Court, however, declined to interfere with the order and observed that the respondents were free to request the Division Bench to expedite the hearing of the pending appeal.

18. This Court finds that the opposite parties have already taken steps for expeditious disposal of appeal by mentioning the matter before the Hon'ble Division Bench, but the Hon'ble Division Bench has refused to fix a date, inasmuch as, it is their own supplementary affidavit which revealed that the matter has to be heard in usual course.

19. In view of the aforesaid facts and circumstances, once the matter is to be heard in usual course and consequently there is no interim order of stay passed in favour of the opposite parties, this Court is of the view that the present proceedings cannot be deferred and accordingly, I.A. No. 9990 of 2024 is hereby dismissed.

20. The show-cause filed by the opposite party no. 2 having found to be not satisfactory, this Court directs the office of this Court to issue notice to the opposite party no. 2 in Form -1 in terms of Rule 393(i) of High Court of Jharkhand Rules fixing the date of personal appearance of opposite party no. 2 before this Court on 04 th October 2024 at 10.30 a.m.

21. It is further observed that in the meantime if the State is able to obtain an interim order of stay by the Hon'ble Division Bench or the

direction of this Court is complied, the opposite party no. 2 need not appear on 04th October 2024.

22. Post this case on 04th October 2024.

(Anubha Rawat Choudhary, J.) Pankaj