Manipur High Court

Khundrakpam Jasper Singh vs Shri Rajesh Kumar on 14 March, 2023

SHAMURAILATPAM SUSHIL                  Digitally signed by SHAMURAILATPAM
                                       SUSHIL SHARMA
SHARMA                                 Date: 2023.03.18 14:26:28 +05'30'

                                                                    Page |1


                 IN THE HIGH COURT OF MANIPUR
                           AT IMPHAL

                   Contempt Case (C) No.94 of 2022
                      Ref:- WP(C) No. 44 of 2019

          Khundrakpam Jasper Singh, aged about 32 years, S/o
          Late Kh. Apabi Singh, a resident of Keishamthong
          Hodam Leirak, P.O. & P.S. Imphal, Imphal West
          District, Manipur.
                                                       ... Petitioner
                                      -Versus-
         1. Shri Rajesh Kumar, IAS, Chief Secretary/Holding the
             Charge of DP, Government of Manipur, Old
             Secretariat, P.O. & P.S. Imphal, Manipur- 795001.

         2. Shri      H.     Gyan       Prakash,       IAS,     Principal
             Secretary/Commissioner,               Education          (U),
             Government of Manipur, New Secretariat, P.O. &
             P.S. Imphal, Manipur- 795001.

         3. Dr. Rangitabali Waikhom, IAS, Director of Education
             (U), Government of Manipur, Keishampat, P.O. &
             P.S. Imphal, Manipur - 795001.
                                      ... Respondents/Contemnors

BEFORE HON'BLE THE ACTING CHIEF JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. I. Denning, Advocate

For the Respondents :: Mr. Y. Nirmolchand, Sr. Adv. for R-1 Dr. RK Deepak, Sr. Adv. for R-2 Mr. N. Ibotombi, Sr. Adv. for R-3

Date of Hearing and reserving Judgment & Order :: 27.02.2023

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |2

Date of Judgment & Order :: 14.03.2023

JUDGMENT AND ORDER (CAV)

This contempt case has been filed by the petitioner

to initiate appropriate contempt proceedings against the

respondents for disobedience of the order dated 17.8.2019

passed in W.P.(C) No.44 of 2019.

2. The petitioner has filed W.P.(C) No.44 of 2019

challenging the order dated 11.12.2018 passed by the

Commissioner (Hr. & Tech. Edn.), Government of Manipur,

rejecting the claim of the petitioner for appointment under die-in-

harness scheme and to direct the respondents therein to appoint

the petitioner under die-in-harness scheme.

3. By the order dated 17.8.2019, this Court allowed the

writ petition and directed the respondents therein to appoint the

petitioner under die-in-harness scheme to any post

commensurate to his educational qualification, subject to

fulfilment of any other criteria under the relevant rules.

4. Mr. I. Denning, the learned counsel for the petitioner

submitted that despite the direction of this Court for appointment

of the petitioner under die-in-harness scheme to any post

commensurate to his educational qualification, the respondents

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |3

have failed to comply with such direction. He would submit that

as against the order dated 17.8.2019 passed in W.P.(C) No.44

of 2019, the respondent State has not prepared any appeal or

application to review the same and, thus, the order is operating

and the same is still in force. While so, the respondents have

shown deliberate and willful disobedience and disrespect of the

order dated 17.8.2019 passed in W.P.(C) No.44 of 2019 and

since the respondents have committed Contempt of Court by

willfully and deliberately disobeying the aforesaid order, the

respondents are to be punished suitably for the non-compliance

of the order dated 17.8.2019.

5. On the other hand, Mr. Y. Nirmolchand, learned

senior counsel for the respondent No.1; Dr. RK Deepak, learned

senior counsel for the respondent No. 2 and Mr. N. Ibotombi,

learned senior counsel for the respondent No.3 submitted that

there was no attempt on the part of the respondents to make a

deliberate and willful disobedience of the order dated 17.8.2019

passed in W.P.(C) No.44 of 2019. The learned counsel would

submit that the Department of Personnel advised the

Administrative Department of the Higher and Technical

Education to reject the application of the petitioner for

appointment under die-in-harness scheme as per paragraph 1(v)

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |4

of the DP's Office Memorandum dated 1.4.20211 as the

petitioner has not attained the required 15 years of age at the

time when his father expired. As advised by the Department of

Personnel, the Commissioner, Hr. Tech. Education issued an

order dated 5.7.2022 whereby rejecting the proposal for

appointment of the petitioner under die-in-harness scheme, as

he had not attained the required age of 15 years at the time when

his father expired. Therefore, there is no flaw in the order dated

5.7.2022 issued by the respondent authority.

6. The learned counsel further submitted that while the

order dated 5.7.2022 was issued in compliance with the order

dated 17.8.2019 passed in W.P.(C) No.44 of 2019, the order

inadvertently omitted to mention that the said order was issued

in compliance with the order dated 17.8.2019. To avoid any

ambiguity in the matter, the Commissioner (Hr. & Tech. Edn.),

issued another order dated 17.11.2022 in continuation of the

earlier order in compliance with the order dated 17.8.20219 and

the said order dated 17.11.2022 was issued rejecting the claim

of the petitioner for appointment under die-in-harness scheme as

he did not fulfil the eligibility criteria of being 15 years of age at

the time of expiry of his father. Therefore, the question of

disobedience of the order dated 17.8.2019 does not arise. Since

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |5

the delay in complying the order is inadvertent, the learned

counsel prayed for dismissal of the contempt case.

7. This Court considered the rival submissions and

also perused the materials available on record.

8. It appears that the present case has had a

chequered history. The petitioner's father, namely Khundrakpam

Apabi Singh, who was serving as Lecturer (SG) in the

Department of Economics, Oriental College, Imphal, died while

serving in the said capacity on 25.7.2022 due to road accident.

Under die-in-harness scheme, the petitioner's elder sister

Khundrakpam Hemabati Dev has submitted an application for

appointment and the said application was kept pending by the

concerned authorities without any consideration. Again on

7.11.2007, the petitioner's sister filed an application to the

Director of Education (U), requesting to appoint her under die-in-

harness scheme and during the pendency of the application, the

petitioner's sister got married. As such, she communicated to the

concerned authorities to drop her from such process for

appointment under the die-in-harness scheme and further

informed that she has no objection for consideration and

appointment of the petitioner under the die-in-harness scheme

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |6

vide application dated 21.10.2016, which was duly

acknowledged by the concerned officials.

9. On 21.10.2016, the petitioner submitted an

application for consideration of such appointment under die-in-

harness scheme in the place of his sister and the request of the

petitioner was not considered. When the petitioner came to know

that his application under die-in-harness was not included in the

seniority list maintained by the authorities and being aggrieved

by the non-consideration, he has filed W.P.(C) No.985 of 2016

before this Court. By the order dated 7.12.2016, W.P.(C) No.985

of 2016 was disposed of and directed the respondent authorities

to consider the application of the petitioner dated 21.10.2016 for

appointment under die-in-harness scheme under the relevant

rules. Since the order dated 7.12.2016 was not complied with,

the petitioner has filed Contempt Case No.68 of 2017 and during

the pendency of the said contempt case, the Director of

University & Higher Education passed an order dated 4.7.2017

rejecting the claim of the petitioner on the ground that the

application submitted by the petitioner's sister was beyond the

stipulated time as per the Office Memorandum dated 6.6.2007

and, accordingly, the Contempt Case No.68 of 2017 was closed.

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |7

10. Aggrieved by the order dated 4.7.2017, the

petitioner has filed W.P.(C) No.599 of 2017 and, by the order

dated 21.6.2018, the said writ petition was disposed of and

directed the State authority to re-examine the case of the

petitioner in accordance with the rules within a period of two

months from the date of passing of the order and to communicate

the petitioner the result of such consideration. Since the order

dated 21.6.2018 has not been complied with, the petitioner has

filed Contempt Case No.143 of 2018. During the pendency of

the said contempt case, the Commissioner (Hr. & Tech. Edn.)

issued an order dated 11.12.2018 thereby rejected the claim of

the petitioner on the ground that on re-examination in the case of

the petitioner, it was found to be contradictory to the provisions

of the Office Memorandum dated 6.6.2007. As such, the

application of the petitioner was rejected. Recording the passing

of the order dated 11.12.2018, the Contempt Case No.143 of

2018 was closed.

11. Aggrieved by the order dated 11.12.2018, the

petitioner again filed W.P.(C) No.44 of 2019 before this Court.

This Court, by the order dated 17.8.2019, allowed the writ petition

and directed the respondents therein to appoint the petitioner

under die-in-harness scheme to any post commensurate to his

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |8

educational qualification subject to fulfilment of any other criteria

under the relevant rules. Since there was some typographical

error in the order dated 17.8.2019 i.e. date of Office

Memorandum dated 6.6.2007, MC (WP) No.229 of 2019 came to

be filed and the same was allowed on 13.9.2019. Alleging that

the order dated 17.8.2019 has not been complied with, the

petitioner has filed the present contempt case.

12. From the above narrated facts, it is clear that

W.P.(C) No.44 of 2019 is the third round of litigation. The fact

also remains that the earlier two rounds of litigation and orders

passed thereon were not complied with within the time stipulated

therein by the respondent authorities and only after initiation of

the contempt proceedings by the petitioner, the respondent

authorities have passed orders rejecting the request of the

petitioner, which would clearly prove that the respondent

authorities have not complied the orders on their own giving

respect to the direction issued by this Court. Passing orders after

filing of the contempt cases and during pendency of the contempt

cases is a bad practice adopted by the Government officials. The

said practice has to be avoided by the authorities concerned

against whom orders were passed. They should give respect to

the orders/direction passed in the writ petitions and strictly

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) Page |9

speaking on their own the authorities have to comply the

orders/directions without even waiting for filing the contempt

cases.

13. Coming to the instant case, when the petitioner

challenged the order dated 11.12.2018 in W.P.(C) No.44 of 2019

and sought for direction on the respondent authorities to appoint

him under die-in-harness scheme, this Court, by the order dated

17.8.2019, allowed the writ petition. On a reading of the order

dated 17.8.2019, it is clear that considering the previous history

of case, this Court allowed the writ petition and issued direction.

On a further perusal of the order, it is clear that the learned

Government Advocate took a plea that there was a clear

stipulation in the Office Memorandum dated 6.6.2007 that those

applicants who had applied for appointment under die-in-harness

scheme had to apply afresh within two months from the date of

issuance of the Office Memorandum dated 6.6.2007 and in the

present case, the petitioner has submitted his application only in

the year 2016 and, therefore, his case has been rejected. The

said plea has been duly considered by this Court and came to

the conclusion that the Office Memorandum dated 6.6.2007 was

not published for information of the general public and, therefore,

it is not expected that the general public would be aware of any

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 10

stipulations contained in the Office Memorandum dated

6.6.2007. While observing so, this Court in paragraph 7 of the

order dated 17.8.2019 held as under:

"[7] The order dated 11.12.2018 which is impugned in the present writ petition has also been considered by this Court. On a consideration of the same, it would clearly indicate that it is a repetition of the earlier order dated 4.7.2017. The order dated 11.12.2018 travels primarily on the premise of delay in submission of the application of the petitioner. It is to be borne in mind that the mother of the petitioner had made the first application as early as in the month of August, 2002. The sister of the petitioner had also made her application on 7.11.2007. it was only thereafter that the petitioner had made his application on 21.10.2016.

Therefore, the application of the petitioner for appointment under the die-in-harness scheme was a continuing process from the year 2002 and therefore, the respondents cannot reject the case of the petitioner merely on the ground that he had submitted his application late and beyond the prescribed time in the Office Memorandum dated 6.6.2007. Further, the respondents ought to have considered the case of the

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 11

petitioner in terms of the order dated 21.6.2018 passed by this Court in WP(C) No.599 of 2017. This has not been done by the State respondents. The said order has not been reviewed nor appealed against and therefore, it has attained its finality. In that view of the matter, this Court has no other option but to direct the respondents to appoint the petitioner under the die-in- harness scheme to any post commensurate to his educational qualification subject to fulfilment of any other criteria under the relevant rules."

14. The aforesaid order/direction of this Court passed

in W.P.(C) No.44 of 2019 dated 17.8.2019 is a positive direction

to appoint the petitioner under die-in-harness scheme and when

positive direction has been issued by the Court, the respondent

authorities are duty bound to obey the said order in the absence

of any appeal or review against the order. The fact also remains

that the respondent authorities have allowed the order dated

17.8.2019 to attain finality.

15. It appears that the order dated 17.8.2019 and the

subsequent order dated 13.9.2019 making certain corrections

qua date of Office Memorandum dated 6.6.2007 have been duly

communicated to the respondent authorities through a legal

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 12

notice dated 25.9.2019 itself. However, they have passed an

order only on 5.7.2022 after a lapse of three years thereby

rejecting the request of the petitioner that too pending Contempt

Case No.94 of 2022. Such an approach adopted by the

respondent authorities is highly condemnable. Further, after

passing the order dated 5.7.2022 which was not in compliance of

the order dated 17.8.2019 passed in the writ petition, on

17.11.2022, the Commissioner, Hr. & Tech. Education, suo motu

issued an order stating that the appointment of the petitioner

under die-in-harness scheme to any eligible post commensurate

to his education qualification cannot be countenanced. Such an

order is contrary to the order/direction issued in W.P.(C) No.44

of 2019 dated 17.8.2019.

16. In a contempt jurisdiction, the Court will not travel

beyond the original order and direction; neither would it be

permissible for the Court to issue any supplementary or

incidental directions, which are not to be found in the original

order. The Court is only concerned with the wilful or deliberate

non-compliance of the directions issued in the original order.

17. In Prithawi Nath Ram v. State of Jharkhand and

others, (2004) 7 SCC 261, the Hon'ble Supreme Court has laid

down that the Court exercising the contempt jurisdiction is

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 13

primarily concerned with the contemptuous act only and the

contempt Court cannot take up upon itself and decide the original

proceedings in a manner as if it was exercising the inherent

powers. The following observation was made in the said

judgment:

"5. While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision.

A similar view was taken in K.G.

Derasari v. Union of India (2001) 10 SCC 496 : 2002 SCC (L&S) 756. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 14

contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Though strong reliance was placed by learned counsel for the State of Bihar on a three-Judge Bench decision in Niaz Mohd. v. State of Haryana (1994) 6 SCC 332 we find that the same has no application to the facts of the present case. In that case the question arose about the impossibility to obey the order. If that was the stand of the State, the least it could have done was to assail correctness of the judgment before the higher court. The State took diametrically opposite stands before this Court. One was that there was no specific direction to do anything in particular and, second was what was required to be done has been done. If what was to be done has been done, it cannot certainly be said that there was impossibility to carry out the orders. In any event, the High Court has not recorded a finding that the direction given earlier was impossible to be carried out or that the direction given has been complied with."

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 15

18. In a recent decision in the case of Nalini Sunitha

Devi v. Mangsatabam Harekrishna and another, 2022 SCC

OnLine Mani 364, this Court held as under:

"9. The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment and order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt, the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test the correctness or

Contempt Case (C) No.94 of 2022 (Ref:- WP(C) No. 44 of 2019) P a g e | 16

otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with petition for initiating of contempt proceedings. The same would be impermissible and indefensible."

19. At the cost of repetition, this Court clarify that

though various arguments were advanced with regard to the

merits of the matter by the learned counsel appearing for the

respondents, this Court cannot go into those aspects, inasmuch

as this Court is exercising limited jurisdiction of contempt.

20. Insofar as the present case is concerned, the

respondents ought to have given sanctity to the order passed by

this Court in W.P.(C) No.44 of 2019 dated 17.8.2019 when they

allowed to attain finality of the said order. As stated supra, in the

absence of any appeal before the appellate Court and its set

aside, it is the bounden duty of the respondent authorities to

comply with the order. In this case, admittedly, the respondents