The State Of Bihar vs Dugendra Kumar Jha
2023 Latest Caselaw 3704 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.842 of 2023
                                        In
                 Miscellaneous Jurisdiction Case No.2142 of 2022
     ======================================================

1. The State of Bihar through Principal Secretary, Education Department, Government of Bihar, Patna.

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Director, General Education cum Additional Secretary, Education Department, Bihar, Patna.

4. The Director, Science and Technology Department, Government of Bihar, Patna.

... ... Appellant/s Versus

Dugendra Kumar Jha Son of Late Suresh Jah, Resident of Village and P.O.- Dhadhiya, P.S.- Kamtaul, District- Darbhanga-847304.

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 820 of 2023 In Civil Writ Jurisdiction Case No.1430 of 2021 ======================================================

1. The State of Bihar through Principal Secretary, Education Department, Government of Bihar, Patna.

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Director, General Education cum Additional Secretary, Education Department, Bihar, Patna.

4. The Director, Science and Technology Department, Government of Bihar, Patna.

... ... Appellant/s Versus

1. Sanjay Kumar Giri Son of Bhagwat Giri, Resident of Village -

Mumbarakpur, P.O. and P.S.- Marhaura, District - Saran (Chapra) - 841418.

2. Jay Kishore Singh, Son of Bhup Narayan Singh, Resident of Village-

Bhawanpur, P.O. and P.S. - Adapur, District - East Champaran - 845301.

3. Durgendra Kumar Jha, Son of Late Suresh Jha, Resident of Village and P.O.-

Dhadhiya, P.S. - Kamtaul, District - Darbhanga - 847304.

4. Ramesh Kumar, Son of Late Jagannath Prasad, Resident of Village- Dumra, P.O. - Jautiya, P.S.- Chanpatiya, District - West Champaran (Bettiah) - Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

845449.

5. Imran Alam, Son of Late Md. Kashim Resident of village - Pakahi, P.O. -

Andhra, P.S. - Adapur, District - East Champaran (Motihari)- 845433.

6. Md. Sarfe Alam, son of Late Lal Mohammad, Resident of Village Brahmpurra (KumharToli), P.O. - M.I.T., P.S. - Brahmpura, District - Muzaffarpur - 842003.

7. Bangur Yadav, Son of Late Shivmangal Yadav, Resident of Village and P.O.

- Gudra, P.S. - Manjhaulia, District - West Champaran 845454.

8. Mahesh Kumar Yadav, Son of Late Madhukar Yadav, Resident of Village -

Pokhar Shaam, P.O. - Salempur, P.S. - Pandol, District - Madhubani - 847234.

9. Haihar Yadav, Son of Shiv Vachan Yadav, Resident of Village and P.O.-

Manikpur, P.S. and District- Gopalganj - 841428.

10. Ramjeet Chaudhary, Son of Rekha Chaudhary, Resident of Village and P.O. -

Manikpur, P.S. and District - Gopalganj - 841428.

11. Yadulal Yadav, Son of Late Shri Ram Anuj Rai, Resident of Village -

NayaganwJamanipur, P.O. and P.S. - Maner, District - Patna - 801108.

12. Shankar Prasad Gupta, Son of Virendra Prasad Gupta, Resident of Village -

Brahmpura, Lakshmi Chowk, P.O. - M.I.T. P.S.- Brahmpura, District- Muzaffarpur - 842003.

13. ArvindKishroe Prasad Son of ShriRaghavSharan Prasad, Resident of village and P.O.- Ramchandrapur, P.S. - Thawe, District- Gopalganj - 841440.

14. Nand Kishore Bhagat, Son of BaijuLal Bhagat, Resident of Village-

Brahmpura (AwadhBihari Lane), P.O. - M.I.T. P.S. - Brahmpura, District - Muzaffarpu - 842003.

15. Md. SohailAlam, Son of Md. Aslam Resident of Village -

BrahmapurDaudbpurKothi, P.O. - M.I.T., P.S. - Brahmpura, District - Muzaffarpur - 842003.

... ... Respondent/s ====================================================== Appearance :

(In Letters Patent Appeal No. 842 of 2023) For the Appellant/s : Mr. P .K. Shahi, AG Mrs. Binita Singh, SC-28 Mr. Vivek Anand Amritesh, AC to SC-28 For the Respondent/s : Mr. Ashish Giri, Advocate Mr. Sumit Kumar Jha, Advocate Mr. Riya Giri, Advocate Mr. Binutosh Kumar, Advocate (In Letters Patent Appeal No. 820 of 2023) For the Appellant/s : Mr. P. K. Shahi, AG Mrs. Binita Singh, SC-28 Mr. Vivek Anand Amritesh, AC to SC-28 For the Respondent/s : Mr. Ashish Giri, Advocate Mr. Sumit Kumar Jha, Advocate Mr. Riya Giri, Advocate Mr. Binutosh Kumar, Advocate ====================================================== Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 11-08-2023

We are concerned with two appeals, one arising

from the order passed in the writ petition and other from an

order passed in the contempt case. Obviously, the order passed

in the contempt case would depend upon the manner in which

the appeal from the order in the writ petition is disposed of.

2. We heard Sri P. K. Shahi, learned Advocate

General for the State of Bihar, the appellant in both the appeals

and Sri Ashish Giri, the learned counsel for the respondents,

who are the petitioners before the learned Single Judge.

3. Learned Advocate General submits that the

learned Single Judge had exceeded his jurisdiction in directing

recruitment within a time frame, by the impugned order, which

was impossible of compliance especially considering the

massive exercise it entails. The selection is not to be confined to

the respondents herein and has to be from the open market also,

with only benefit of age relaxation, conferred in tandem with the

period of service of the respondents. It is also urged that the

petitioners have absolutely no valid claim for consideration and

in that circumstance, they cannot even claim an expeditious Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

recruitment. They are bound to be disqualified for the age

relaxation not inuring to their benefit since they are far above

the maximum age prescribed. The relaxation is only for 3 years,

the period for which they were in service, and all the

respondents are past 50 years of age. There is not even one

person who is qualified to participate in the selection. It is urged

that in the contempt case also, the learned Single judge refused

to give an extension and even imposed costs peremptorily

subject to the recruitment being not carried out as directed in

that order.

4. Sri Ashish Giri, learned counsel for the

respondents, however, vehemently argued that the writ

petitioners are persons, who were fighting for their cause from

2000 onwards. The benefit of the order passed in the year 2001

has not been conferred to them till date. It is pointed out that

other similarly situated persons have been taken into service

either by way of regularization or recruitment, with relaxation

granted for participation in the selection. It is further argued that

the cause of action arose only in the year 2021 when similarly

situated persons were directed to be regularized in the

Department. The learned counsel specifically points out that the

only grievance in the appeal is the limited time granted for Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

completing the recruitment and the respondents do not object to

the same being extended. The rights accrued to them by the

earlier order in 2001, which was sought to be enforced by the

writ petition in 2021, cannot be taken away from the writ

petitioners, who are respondents in the appeal.

5. We have to notice the background facts and the

parallel sought to be drawn with a litigation which had a

checkered career; which is lacking in the case of the respondents

herein. The batch of writ petitions filed by the respondents

herein, along with similarly situated persons were disposed of in

2001. The petitioners at that point of time were persons

appointed on contract basis in Class II Teaching posts, Class III

Technical and Non-technical posts and Class IV, in the different

Polytechnic Centers. Their appointment was also pursuant to a

program funded by the World Bank which was initiated in the

year 1991. It was during the project period that the posts were

sanctioned temporarily and the respondents along with others

were appointed, clearly on contractual basis. The contractual

appointments were made specifically noticing the heavy burden

on the State exchequer; to avoid which, the State took a decision

before-hand to make temporary appointments without filling up

the posts with regular appointments. The State Government was Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

also conscious of the fact that after the project period ended,

there could be deputation drawn from other Departments or

even, the contractual appointments continued. There was some

development achieved during the project period, but it left a lot

to be desired, especially in the area of teaching. The project

came to an end and so did the financial aid, which required the

Government to maintain with its own resources, the

development achieved during the project period.

6. The selections, on contract basis, were made

through advertisements but, it was later realized that there was

imbalance created by disproportionate appointments in Class III

and IV posts, while the teaching posts got fewer appointments.

The project came to an end on 28.02.1999 and the Government

was of the opinion that the contractual appointees cannot be

retained, which decision in fact had been taken even before the

appointments were mooted by the Government. In fact, it was

specifically observed by the Court in its order dated

7/8.04.2001, that, at no point of time the contractual employees

had any hope of getting regularized in their posts considering

the very nature of their appointments which were expressly

stated to be temporary and contractual. This position was

admitted by the various counsel appearing for the petitioners at Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

that point and none had seriously challenged the termination

orders.

7. The limited submission in the year 2001 was

that, to sustain the little development achieved, the Government

would necessarily have to employ personnel and the petitioners

be continued till such time as replacements are made. The Court

while disposing of the batch of writ petitions observed in an

interim order that the question of replacement and continuance

would arise, only if fresh recruitments are to be made and not

when transfers are to be made from other Polytechnic

institutions; which according to the State was their intention,

especially considering the minimum requirement that would be

needed to sustain the development achieved through the project.

The Court specifically noticed an earlier order passed on

28.02.2001 which specified that no recruitment shall be made to

the post of Lecturer in the Government Polytechnics presently

held by the petitioners. The State requested for a consideration

of filling up of necessary posts on transfer on a minimum need

basis and undertook the restoration of all the courses, that

existed at the time of termination of the petitioners, within one

month. An affidavit was also filed with the above undertaking,

but noticing that no specific date was mentioned, the matter was Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

posted on 17.05.2001, so that the State Government could

apprise the Court as to the undertaking given by the State

having materialized. This much is evident from the order of the

learned Single Judge dated 07/08.04.2001. We have to also

notice that the concern of the Court was the sustenance of the

development achieved with the World Bank Project and

maintenance of the teaching standards in the Polytechnics

within the State. The petitioners were held to have no right to be

continued.

8. The matter stood finally disposed of by order

dated 26.06.2001 in the batch of writ petitions. It was noticed

that there was no challenge to the orders of termination; which

was clearly understood by all the petitioners, to be temporary

and contractual. A counter affidavit dated 22.06.2001 filed by

the Science and Technology Department after discussions at the

administrative level, was specifically referred to. It had been

decided to transfer surplus staff from one place to another, thus,

ensuring placement of teachers in available vacancies in the

various Polytechnics so as to ensure that the situation is better

than that existing with contractual appointments. The learned

Single Judge, who disposed of the petitions specifically noticed

that there was no fault of the Government in making such Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

transfers, especially to ensure that the teaching posts in the

Polytechnics do not suffer by termination of the contractual

appointees. Finding the action of the Government to be proper,

the petitioner's prayers were rejected but, however, it was also

observed that in future when the Government makes

appointments to the Polytechnics, the petitioners would be

surely entitled to relaxation in age to the extent of their service

period and for some reasonable weightage for their past

satisfactory service. It is this observation that is sought to be

enforced after more than two decades.

9. An appeal was filed which was dismissed by a

Division Bench by order dated 28.11.2001, and it was

categorically found that the appellants had no right to continue

and their termination from contractual appointments, on the

project period expiring, could not be faulted. It was also found

that the apprehension expressed of maintaining the educational

standards in Polytechnics by transfer from other polytechnic

institutions, as proposed by the Government was misplaced,

since it perfectly took care of the situation. The direction of the

learned Single Judge to consider the terminated contractual

employees for appointments with due weightage and reckoning

their period of service was reiterated by the Division Bench. The Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

orders referred to; both of the learned Single Judge and Division

Bench are of the year 2001. The matter ended there and

admittedly, there was no claim set up by any of these petitioners

after the said orders till 2021, when the instant writ petition was

filed.

10. The present writ petition numbered as C.W.J.C.

No. 1430 of 2021 was filed, after twenty years taking umbrage

at the appointments made in the Science and Technology

Department. The alleged cause of action is the letter dated

25.02.2020 produced as Annexure-5 to the writ petition. The

petitioners alleged that by the aforesaid letter, 23 candidates

were to be appointed against vacant Class IV posts in the

Science and Technology Department, which appointments were

also made, ignoring the claims of the petitioners in the instant

writ petition. The petitioners, hence, made a representation to

the Director, General Education-cum-Additional Secretary as

well as the Science and Technology Department for considering

their recruitment on the basis of the observations made in the

2001 judgment. It was alleged that the appointments now made,

were contrary to the directions in the 2001 judgment and

violative of Articles 14 and 16 of the Constitution of India. The

latter contention was pressed on the premise that there was no Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

public advertisement issued before proceeding to fill up the said

Class IV posts and if that was taken out, the writ petitioners

would have had the benefit of the observation in the 2001

judgment.

11. In the writ petition, various orders were passed

directing the respondent to file affidavits and by order dated

03.01.2022, the petitioners' appointment in 1997 and on

contractual basis was noticed along with the promulgation of the

Bihar Group D (Recruitment and Service Conditions) Rules,

2010. Finding that without proceeding for a recruitment as per

the Rules of 2010, 23 appointments were made and 365 posts

were left vacant, the learned Single Judge directed filing of an

affidavit as to the procedure that would be adopted for filling up

the remaining vacancies. The said order dated 03.01.2022 is

extracted in the impugned judgment. Again, on 13.01.2022 on

the submission of the learned counsel for the petitioners that

there is no full compliance of the order dated 13.01.2022, the

Director, Science and Technology Department was asked to be

present before Court on the next date of hearing. On 31.01.2022,

noticing the supplementary counter affidavit filed by the

Director, Science and Technology Department, the writ petition

was disposed of by the impugned judgment.

Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

12. The extract of the supplementary counter

affidavit made in the impugned judgment indicates that the

Department of Science and Technology was ready to proceed

with the existing rules for recruitment of the remaining Class IV

posts. However, difficulties were expressed in carrying out

immediate selection, especially since the Department was in the

process of complying with the orders and directions passed by

the Hon'ble Supreme Court in S.L.A. (C) No. 32079/2015,

affirming the directions of the Hon'ble High Court in L.P.A. No.

1489/2011 and Civil Review No. 344/2016. In compliance with

the aforesaid orders, the Department had reported the vacancies

available in Group D to the Education Department, and till date

270 candidates among the retrenched non-formal education

instructors belonging to Non-Formal Education Programme,

were recommended for adjustment in vacancies in Class IV. One

hundred and eighty seven candidates had been appointed and

the remaining 83 were pending verification of documents. These

83 persons also were to be adjusted in the remaining 365

vacancies. It was also pointed out that there would be more

requests made by the Government for adjustment of retrenched

non-formal educational instructors, which also would have to be

carried out. The further difficulty urged was in the qualification Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

for Group D posts which would attract scores of applications.

The minimum qualification for Group D posts was matriculation

and there would be a large number of candidates, possibly in

lakhs applying for the posts which would make the task very

difficult and impossible of compliance within a definite time

frame. For the development of a robust I.T cell to carry out

recruitment, 6 month time was requested. The learned Single

Judge, however, understood the said affidavit as the recruitment

being notified within 6 month time; which according to the

learned Single Judge was the submission made by the Director,

Science and Technology Department, who was present in

person. The impugned judgment was passed directing selection

and appointment in the 282 vacancies of Class IV posts, within

a period of 8 months. The impugned judgment was dated

31.01.2022 and a Miscellaneous Jurisdiction Case was filed

alleging contempt by M.J.C. No. 2241/2022. It was alleged that

the order dated 31.01.2022 has not been complied with and

again the Director, Science and Technology Department was

summoned, who undertook to complete the process pursuant to

the advertisement dated 22.09.2022 within a period of 2 months.

A peremptory order was made that if such process of selection is

not completed within a period of 2 months, a cost of Rs. 1 lakh Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

would be paid to the High Court Legal Services Committee.

13. In the context of the above directions issued,

we have to notice another set of litigation which arose prior to

and was continued long after the judgment of 2001; the

observations in which is relied on by the petitioners in the writ

petition from which the instant appeal arises. The two separate

sets of writ petitions, though sought regularization, arose out of

distinct facts and circumstances. The learned counsel for the

respondents placed heavy reliance on the regularization of

certain people, while allegedly similarly placed respondents

were denied of the same. Reliance was also placed on yet

another Division Bench decision in L.P.A. No. 214 of 2022.

14. We cannot but notice that the other issue of

regularization arose with respect to a totally different scheme.

The present appointments made by the Science and Technology

Department, the cause of action claimed by the writ petitioners

in 2021, were according to the recommendation made by the

Education Department, of non-formal educational instructors

appointed in the latter department and retrenched. The writ

petition from which the L.P.A. arose was an off-shoot of another

writ petition numbered as C.W.J.C. No. 8418 of 2010, which

was decided on 21.04.2011. The petitioners therein were Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

persons appointed as Instructors in a Scheme originally

formulated by the Central Government in 1981-82 known as

Non-Formal Education Programme, to impart non-formal

education to children of age, ranging from 6 to 14 years; later

continued by the State Government under its Department of

Adult and Non-Formal Education, from 1984 till 2001. The

question arose whether there could be any distinction to non-

formal educational supervisors and non-formal educational

instructors, as a consequence of the closure of the scheme in the

State and the non-formal supervisors being rehabilitated

pursuant to a government decision dated 12.01.2010. Though

the instructors and supervisors were found to be two separate

categories, the former appointed to impart teaching and the

latter to supervise the running of the non-formal centers; if one

category was found entitled to regularization, the other category

also should be given the same benefit, was the finding. The

policy to regularize supervisors was held to be applicable to the

instructors, mutatis mutandis subject only to the condition that

they should have been working for 3 years continuously at the

time when the non-formal education scheme was abolished. In

fact, the prayer before the Court was that instructors were ready

to even occupy Class IV posts though, as instructors they would Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

have been holding posts equivalent to Class III. The decision of

the learned Single Judge was approved in Annexure-B judgment

of the Division Bench in L.P.A 1489 of 2011, and similar cases

which is produced in the counter affidavit to the writ petition.

The S.L.P. filed against the judgment, by the State was

dismissed on 26.02.2016 (S.L.A. (C) No: 32079/15); but

restraining the benefit to those persons who were before the

Supreme Court & the High Court, as on that date; i.e.,

26.02.2016. Obviously, the respondents herein were neither

before the Supreme Court or the High Court on 26.02.2016;

their claims having been rejected in 2001.

15. A review was filed from the aforesaid judgment

dated 11.08.2015, which was disposed of finding that even

those persons who were not before Court, but identically

situated should be extended the benefit. Civil Appeal No. 7353

of 2021 against the order in review was disposed of by order

dated 02.12.2021. It was noticed that a scheme was introduced

by the Central Government for imparting elementary education

to the students in furtherance of which centers for non-formal

education were established with instructors and supervisors

appointed on contractual basis. The scheme was closed in the

year 2001 and there were litigations filed by the various Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

retrenched employees. Eventually, the government decided to

absorb the supervisors but not the instructors. The judgment

dated 11.08.2015 of the Division Bench in L.P.A. No. 14731 of

2008 was challenged before the Hon'ble Supreme Court. While

approving the order impugned and dismissing the SLP, it was

made clear that the relief granted would be restricted to those

who approached the High Court and whose applications were

pending at that point of time. In the appeal from the order in

review, it was categorically held that the order of the Hon'ble

Supreme Court dated 26.02.2016 cannot be deviated from by

the High Court and the general principles relied on by the High

Court in disposing of the review petitions were found to be bad

and in the teeth of the clear terms of the order dated 26.02.2016.

We extract the following paragraphs from the order dated

02.12.2021 in Civil Appeal No. 7351 of 2021 :-

While it may be true that, generally, similarly situated persons, irrespective of whether they move the Court or not, must be similarly treated, this principle cannot be applied when this Court has spoken and pronounced the order in terms as order dated 26.02.2016. Equally unsustainable is the finding that those who are waiting in the wings cannot be denied the relief which is granted by the Court unless the relief is personal to the person.

Reference similarly to the provision of clause 4(c) of the Bihar State Litigation Policy was, in our view, a product of error following non-advertence to the terms of the order dated 26.02.2016. The final observation in paragraph A that if the petitioners are Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

similarly circumstanced to other persons, they would be similarly treated, does not involve a clear finding as to whether these persons were within the ambit of the order dated 26.02.2016. It was incumbent upon the High Court to have decided the case, in other words, with specific reference to what has been stipulated by this Court by its order dated 26.02.2016.We reiterate the said principle.

Shri Amit Pawan points out that following the order of the High Court, respondent Nos. 1 and 2 were appointed and subsequently, their services have been terminated. It is, however, pointed out that they have filed petitions before the High Court which are pending consideration.

In the light of this, the course that this Court must adopt is, since the matter is a live issue, even from the point of view of the averments seeking modification, the matter must receive the attention of the High Court in the light of the order passed by this Court on 26.02.2016.

As noted already, certain petitions at the hands of Unions have attained finality cannot be reopened. At the same time, if there are persons who fall within the four walls of the order dated 26.02.2016, they may be entitled to relief as envisaged. Accordingly, we allow the appeals and set aside the impugned order. The matter will be considered by the High Court in the light of our observations and with specific reference to the order dated 26.02.2016. We make it clear that the matters which have become final cannot be reopened.

16. Hence, the specific direction was to consider

recruitment or regularization on the basis of the order dated

26.02.2016 of the Hon'ble Supreme Court. The writ petitioners

therein were appointed under a totally different scheme and their

rights stood crystallized by the judgment of the Hon'ble

Supreme Court dated 26.02.2016. Neither the respondents in the Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

present appeal nor the Science and Technology department were

parties; either before the Hon'ble Supreme Court or before the

Hon'ble High Court in those litigations. The writ petitioners in

the instant appeal are persons whose writ petitions and the

appeals therefrom stood disposed of in the year 2001 and there

were no further proceedings taken. They are not identically

situated to the persons now sought to be appointed in the

various departments of the State in Class IV posts, including the

Science and Technology Department; by any stretch of

imagination.

17. The writ petitioners here, were persons

contractually appointed to posts identical to Group IV posts in

the Science and Technology Department and continued only for

3 years under a World Bank Project as distinguished from a

Central Government Project continued by the State

Government. The issue dealt with by the Division Bench in

L.P.A. No. 214 of 2022 also was identical to that of the

respondents herein. In fact, in L.P.A. No. 214 of 2022, it has

been noticed that the instructors similarly situated, were the

petitioners in C.W.J.C. No. 1430/2021 and the Department is

fixated today on regularizing the said persons; which, however,

we notice was on the basis of the order passed in C.W.J.C. No. Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

1430 of 2021, against which the present appeal is filed. It was

also noticed by the Division Bench that the petitioners in

C.W.J.C. 1430 of 2021 were persons who had approached the

High Court and the Supreme Court, before the order dated

31.01.2022 was passed, which, with due respect is factually,

incorrect. The writ petitioners/respondents in the appeal herein

had never approached the Hon'ble Supreme Court and their

litigation stood concluded by the judgment in L.P.A Nos. 644 of

2016 and connected matters, by judgment dated 28.11.2001.

They were not persons whose petitions were allowed or pending

as on 26.02.2016 when the order in S.L.P. No. 32079 of 2015

was passed in the case of the Non-Formal Instructors who were

appointed and continued under a totally different scheme.

18. We also have to notice another contention

raised by the learned Advocate General on behalf of the Science

and Technology Department. The advertisement as issued for

recruitment in the Group D posts, as of now, gives age

relaxation to the extent of the period spent in employment,

which even according to the petitioners, is only 3 years. The age

relaxation granted which is evident from Annexure-1 series is of

3 years, which would be applicable to the various upper age

limit provided in paragraph 4 (ii) which are 37, 40 and 42. Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

Hence, even if the upper age limit is applied, none of these

persons who have crossed 50 years would be eligible. Some of

the petitioners who had applied had asserted that they were 'ex-

service men' and claimed relaxation from the 53 years

maximum limit provided to 'ex-service men'. We cannot, but

notice that the said assertion is fallacious insofar, as none of the

petitioners, who claimed so, have any service in the defense

service of the Union of India, who alone are entitled to the

relaxation as available to 'ex-service men'. The mere fact that

they were employed on contractual basis in the Science and

Technology Department would not make them 'ex-service men'

as indicated in the notification.

19. We cannot, but notice that the writ

petitioners/respondents and similarly situated persons were

found to have absolutely no right for regularization, as far back

as in 2001. The respondents were only persons who were

appointed to contractual posts, which were declared to be

temporary in nature and in pursuance of a project

implementation. The services stood terminated on the

completion of the project and the writ petitions filed seeking

regularization were dismissed in the year 2001 and so were the

appeals filed. The action of the State Government in providing Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

for deputation and transfers for the purpose of ensuring and

maintaining the teaching standards achieved through the

implementation of the project was also upheld by this Court. It

was only by way of an indulgence that the petitioners were

conferred the benefit of being considered for recruitment to

identical posts in the Science and Technology Department, as

and when it takes place. The observation made in 2001 cannot

be claimed as a benefit in the year 2021 after almost 20 years,

that too on the basis of appointments made pursuant to the

directions of a Division Bench of this Court, approved by the

Hon'ble Supreme Court, in a totally distinct batch of writ

petitions; which benefit was also directed to be confined to

those persons who were before the High Court as on 02.06.2016

when the S.L.As were disposed of. There is no parallel between

the case of the respondents and of the persons, who were

directed to be considered by the Hon'ble Supreme Court. We

find no cause of action for the writ petitioners/respondents in the

appeal.

20. The learned counsel for the petitioners had

submitted that the appeal is filed only seeking further time to

bring out the advertisement. However we have found the writ

petitioners to have no cause of action and in that circumstance Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

no claim can be raised for expeditious recruitment. The

advertisement has been made and we are of the opinion that it

was not proper for the learned Single Judge to have specified a

time frame within which the selection should be completed,

especially looking at the problems put forth in the counter

affidavit filed. Again, after the contempt was filed, an

advertisement was brought out. There could not have been, any

further directions issued in the contempt case, which has been

issued and an anticipated cost mulcted on the Department, if the

orders are not complied with. It is trite that in contempt matters,

if there is deliberate contempt found, the contemnors could be

proceeded with and punished but, as far as possible, there could

be no further directions issued.

21. In Midnapore Peoples' Coop. Bank Ltd. v.

Chunilal Nanda, (2006) 5 SCC 399 : at page 410, after looking

at a catena of decisions it was held thus:

11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:

I. An appeal under Section 19 is maintainable only against an or- der or decision of the High Court passed in exercise of its jurisdic- tion to punish for contempt, that is, an order imposing punishment for contempt.

II. Neither an order declining to initiate proceedings for con- tempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or ex- onerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

proceeding, it is not appropriate to adjudicate or decide any issue re- lating to the merits of the dispute between the parties.

IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appeal- able under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal un- der Section 19 of the Act, can also encompass the incidental or inex- tricably connected directions.

V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a pro- vision for an intra-court appeal), or by seeking special leave to ap- peal under Article 136 of the Constitution of India (in other cases).

[underlining by us for emphasis]

22. Hence, an order of punishment is appealable

under Section 19 of the Contempt of Courts Act and any

directions issued or decision on merits can be challenged in an

intra-court appeal. It has also been held that it would be

inappropriate for the Court to decide or adjudicate any issue on

merits; in a contempt of Court case.

23. We set aside the order passed by the learned

Single Judge in C.W.J.C. No. 1430 of 2021 and also find the

interim orders extracted in the order to be of no consequence.

The writ petition would stand dismissed as the petitioners have

no cause of action on the basis of Annexure-5, letter dated

25.02.2020. The directions passed in the contempt case and the

peremptory order of cost, in anticipation of a probable non-

Patna High Court L.P.A No.842 of 2023 dt.11-08-2023

compliance, also would stand set aside. As far as the eligibility

of the petitioners insofar as the advertisement is concerned they

could claim it, if they come within the relaxation as provided in

the advertisement subject to our findings above. The recruitment

as advertised cannot be directed to be completed within a

particular time frame.

24. We allow both the appeals and as a

consequence dismiss the writ petitions and reject the contempt

of court case.

(K. Vinod Chandran, CJ)

Partha Sarthy, J. I agree

(Partha Sarthy, J)

sharun/-

AFR/NAFR
CAV DATE                03.08.2023
Uploading Date          11.08.2023
Transmission Date