Tripura High Court
Shri Subhojit Shil vs Shri Brijesh Pandey on 18 May, 2022
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HIGH COURT OF TRIPURA
AGARTALA
Cont. Cas(C) 31/2022
Shri Subhojit Shil, S/O Shri Sudhangshu Shil, resident of
Ranirbazar, PO and PS: Ranirbazar Dist: West Tripura,
PIN-799035
-----Petitioner(s)
Versus
1.Shri Brijesh Pandey, I.A.S. Finance Secretary and
Education Secretary to the Govt. of Tripura, Civil
Secretariat, PO and PS: NCC, West Tripura, Pin 799010
2.Smt Chandni Chandran, I.A.S, Director of Elementary
Education, Tripura, PO: Agartala, District: West Tripura,
Pin -799001
-----Respondent(s)
BEFORE
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Petitioner(s) : Mr. S. Datta, Adv
Mr. P. K. Pal, Adv
Mr. H. Debbarma,Adv
Mr. S. Baidya, Adv
For the Respondent(s) : Mr. D.Bhattacharjee, GA.
Mr. S.Saha, Adv.
Date of Hearing & : 18.05.2022
Delivery of Judgment
Whether fit for reporting : Yes/No
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Judgment & Order (Oral)
(S.G.Chattopadhyay,J)
[1] By means of this contempt petition filed
under Section 12 of the Contempt of Courts Act, 1971,
the petitioner has alleged non compliance of the order
dated 13.12.2021 rendered by this Division Bench in
Writ Appeal No.291 of 2021 [The State of Tripura Vs.
Subhojit Shil].
[2] We have heard Mr.P.K.Pal, learned advocate
appearing for the petitioner and Mr.D.Bhattacharjee,
learned Government Advocate, appearing along with
Mr.S.Saha, advocate for the respondent contemnors.
[3] The factual context of the case is as under:
By filing WP(C) No.572 of 2019, petitioner
Subhojit Shil challenged the communication dated
25.09.2018 under which the officer on special duty for
Director of Elementary Education, Government of
Tripura conveyed to him that his request for providing
employment under the Die in Harness scheme could
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not be granted as he was not eligible for employment
under the said scheme. He was informed that instead
of employment under the scheme he would be eligible
for one time financial assistance of Rs.1,00,000/-
(Rupees One Lakh) for which he could apply. The
background facts are that petitioner is a son of one
Smt. Gita Debnath who died in harness on 24.11.2017
while she was working as an assistant teacher in the
department of education, Government of Tripura. She
left behind the petitioner who is her elder son, her
husband and another son. When she died, petitioner
was aged 16 years 10 months and 22 days as per his
birth certificate. The father of the petitioner did not
have a steady job who was working as a contractor in
some private agency. Therefore, after the death of his
mother petitioner was in urgent need of employment
to maintain the family consisting of his unemployed
father and younger brother. He was also eligible to be
appointed to a class-III or class-IV post in terms of his
Cont.Case (C)31 / 2022
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educational qualification. Therefore, he applied for a
job on compassionate ground. On 30.01.2018, he
submitted required documents along with his
application. Respondents, however, turned down his
application by the impugned communication dated
25.09.2018. Aggrieved petitioner, therefore,
approached this court by filing WP (C) 572 of 2019.
[4] Counsel of the petitioner argued before the
learned Single Judge that main ground for rejection of
his petition was that petitioner was under age on the
date of the death of his mother. Petitioner's counsel
contended before the learned Single Judge that the
Die- in-Harness scheme prescribed that the minimum
age of the dependent of the Government servant shall
not be less than 17 years for being eligible for
employment on compassionate ground under the
scheme. But in the present case, age of the petitioner
fell short barely by 01 month and few days. Counsel
contended that in view of the object of the Die-in-
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Harness scheme, the respondent could have relaxed
the provision for valid reasons. Counsel of the
petitioner also contended that the respondent never
disputed the fact that petitioner was in urgent need of
an employment after the death of his mother who was
the sole bread winner of the family and who died in
harness leaving the entire family in deep financial
crisis. Counsel contended that in similar situation, this
court issued direction to the state to give employment
on compassionate ground.
[5] To nourish his contention, counsel relied on
the decision of the learned Single Judge of this court
passed on 13.03.2018 in WP(C) No.150 of 2017 in the
case of Diptanu Majumder Vs. State of Tripura and
Others in which this court made the following
observations:
"5. The object of the Die-in-harness scheme is to
give succour to the family to tide over the sudden
financial crisis befallen the dependants on account
of the untimely demise of its sole breadwinner. The
intention of the rule making authority appears to
give relief to the family of the Government servant
Cont.Case (C)31 / 2022
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from financial destitution and to assist it to get
over the financial hardship.
6. Keeping in view of the above principles and the
object of the Die-in-harness scheme into
consideration, indisputably the petitioner has
crossed the age of 18 years and the earlier
impediment which was taken a note of the
respondents in their impugned communication
dt:19.12.2015 may not now hold good in the
changed circumstances. At the same time, it is not
the case of the respondents that the petitioner is
not holding the minimum qualification for the post
of Group-C even at the relevant point of time.
7. After having heard the counsel of the parties, in
my considered view the impugned letter
dt:19.12.2015 (Annexure-4) may not now hold
good and deserves to be set aside and accordingly
it is set aside. The respondents are directed to
consider candidature of the petitioner for
compassionate appointment under the Die-in-
harness rules/scheme to any suitable post
according to his qualification and necessary orders
be passed within two months."
[6] Counsel of the petitioner therefore, argued
that in view of the object of the scheme, the state
government should have relaxed the age of petitioner
Subhojit Shil in exercise of the power provided under
paragraph 15 of the scheme to provide him
employment under Die-in-Harness scheme. Counsel
therefore, urged before the learned single judge for
directing the state respondent to provide employment
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to the petitioner on compassionate ground under the
said scheme.
[7] The state counsel argued before the learned
Single Judge that since the writ petitioner did not fulfill
the criteria with regard to minimum age, he was not
eligible for employment under Die in Harness scheme.
[8] It was contended by the state counsel that
the Die-in-Harness scheme unambiguously prescribed
that minimum age of the applicant must have to be 18
years on the date of the death of the government
servant which is relaxable by 01(one) year. But in the
present case petitioner did not even attain 17 years of
age on the date of the death of his mother. Therefore,
his application was rejected.
[9] Learned Single Judge, reproduced the Die-
in-Harness scheme promulgated under Notification
dated 26.12.2015 in the Judgment which records the
object of the Scheme as under:
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"OBJECT : The object of the Scheme is to extend
benefits either by an appointment in Government
service on compassionate ground or admissible
Financial Assistance to an eligible dependant
member of family of a deceased Government
servant in the event of death while in service
provided that there is no earning member in the
family of the deceased. The intention is to relieve
the family of the Government Servant from
financial destitution and to help it get over the
financial hardship. Employment would be provided
to one of the eligible dependents of the deceased
Government servant."".
[10] The Die-in-Harness scheme of the state
government has made detailed provision with regard
to the age limit, power of the government to relax the
age limit, responsibilities of the government to dispose
of the applications received under the scheme within a
time frame etc. The relevant paragraphs of the said
scheme read as under:
"6. Age limit - Minimum age is 18(eighteen) years
and upper age limit is 40(forty) years. Upper age
limit is relaxable by 5(five) years in case of
SC/ST/PH candidates. 7. Relaxations on age limit -
(a) Minimum Age is relaxable by 1(one) year
i.e. age of an applicant on the date of death
of deceased Govt. servant shall not be less
than 17 years to make him/her eligible to
get the benefit of Government job under Die
in harness scheme. It may be noted that
actual employment shall be provided on
attaining the age of 18 years.
Cont.Case (C)31 / 2022
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(b) Upper age limit for the applicant(s)
under Die-inharness Scheme is relaxable by
1(one) year i.e. for candidates of un-
reserved category, age should not be more
than 41(forty one) years and candidates of
SC/ST/PH category should not be more than
46 (forty six) years to get the benefit of
Govt. job under Die-in-harness Scheme.
(c) No age limit is prescribed for having the
benefits of financial assistance under Die-in-
harness Scheme.
(d) There will be no other relaxation in any
provisions of Recruitment Rules of any
particular post for the purpose of providing
compassionate employment under the
Scheme.
****
9. Limitations for making claim and dispose of
cases under Die-in-harness Scheme -
Claims for employment/financial assistance under
Die-in-harness Scheme should be submitted before
the appropriate authority within 1(one) year from
the date of death of the Government servant as per
provisions contained under Para1(II) above. The
eligibility in all respect shall be determined as on
the date of death of the concerned employee.
10. Responsibilities of the Department
concerned:-
(i) The respective Department shall have to
dispose of the cases of Die-in-harness where the
application is complete in all respects within 6(six)
months from the date of receipt of the
claim/application submitted by the applicant.
(ii) Sometimes the members of the family of
deceased may not be aware of the provisions of
the Die-in-harness scheme and the formalities to
be observed in submitting the application (i.e. time
limit of submission of application, consequence of
submission of false documents etc.) Therefore, the
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Department, when they get information about the
death of any of their employees, while in service
shall immediately communicate in written to the
respective family so that application for
employment/financial assistance under Die-in-
harness scheme from the family of the deceased
should be submitted before the appropriate
authority in prescribed manner within the
stipulated period.
(iii) The concerned Department shall also intimate
in written to the applicant(s) of die-inharness
cases that they should not submit the false/fake
documents for having the benefits of die-in-
harness scheme.
****
15. Powers to Relax: Where the State Government
is of the opinion that if it is felt necessary or
expedient to do so, it may, by order, for reasons to
be recorded in writing relax any of the provisions
of this scheme.".
[11] On appreciation of the submissions of the
counsel representing the parties and the materials
placed before the court, the learned Single Judge held
that that petitioner's age was only about 6 weeks
short of the minimum age. Learned Single Judge,
therefore, viewed that it was the fit case where the
government should be asked to exercise the power of
relaxation provided under the scheme. Having said so,
the learned Single Judge set aside the impugned
communication dated 25.09.2018 and directed the
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state respondents to consider petitioner's application
for compassionate appointment on merit and
communicate the decision to the petitioner within a
period of 3 months from the date of the judgment. It
would be appropriate to reproduce the observations of
the learned Single Judge in paragraph 9 to 15 of the
judgment which read as under:
"[9] It is undoubtedly true as has been held in a
series of decisions of Supreme Court that the
appointment on compassionate basis is not meant to
be a parallel source of recruitment and such
appointment can be made only subject to the
provisions made in the Scheme upon finding that on
account of sudden death of a Government servant the
family is left in financial destitution. However, once
the Government has framed the Scheme for such
compassionate appointment, the interpretation of the
terms of Scheme must be in consonance with the
object for which the Scheme is framed namely, as in
the present case, to extend the benefits by an
appointment in Government service on
compassionate ground or admissible financial
assistance where there are no earning members in
the family of the deceased in order to relieve the
family of the Government servant from financial
destitution and to help the family get over the
financial hardships.
[10] As noted, Paragraph 6 of the Scheme prescribes
a minimum age limit of 18 years and upper age limit
of 40 years (relaxable by 5(five) years in case of
SC/ST/PH candidates) for appointment under the
Scheme. As per paragraph 9 of the Scheme, the
application for appointment should be submitted
within one year from the date of death of the
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Government servant. Combining the provisions of
minimum age limit of 18 years, as contained in
Paragraph 6 and the time for making application of
one year from the death of the Government servant
for compassionate appointment contained in
Paragraph 9, Paragraph 7(a) of the Scheme provides
that the minimum age would be relaxable by 1(one)
year i.e. the age of the applicant on the date of death
of a Government servant should not be less than 17
years to make him or her eligible to get the benefit
under the Scheme. However, actual employment
would be provided upon him or her attaining the age
of 18 years.
[11] Combined reading of Paragraphs 6, 7(a) and 9
of the said scheme would show that an aspirant for
appointment on compassionate grounds under the
Scheme, must make such an application within one
year from the date of death of Government servant.
On the date of appointment he or she must be of a
minimum age of 18 years. Consequently, an
application can be made by a person who is not
below the age of 17 years on the date of death of the
Government servant. However, actual appointment
would be granted only upon completion of minimum
age of 18 years.
[12] In my opinion, this requirement is not inviolable
or inflexible. In a given case for sound reasons,
minor deviation is not ruled out even as per the
provisions of the Scheme. We have noticed the
provisions of Paragraph 10 of the Scheme which
require the concerned department to educate the
members of the family about their right and
entitlement to seek companionate appointment or
financial assistance. This proceeds on the basis that
when a Government servant suddenly dies leaving
behind distressed family members, they may not be
fully aware about their entitlement under the
Scheme.
[13] Paragraph 15 of the Scheme which pertains to
the power of the Government to relax the provisions
of the Scheme, therefore, must be seen in light of
these provisions. Paragraph 15 provides that if the
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State Government is of the opinion that it is
necessary or expedient for the reasons to be
recorded in writing, it may relax any of the provisions
of the Scheme. This residuary power of relaxation is
thus retained by the Government. For valid reasons
to be recorded in writing, any provision of the
Scheme can be relaxed. Learned Government
Advocate is not correct in pointing out that in view of
Clause (d) of Paragraph 7 there can be no further
relaxation. What Clause (d) of Paragraph 7 refers to
is the relaxation in any of the provisions of the
recruitment rules of a particular post and does not
refer to relaxation in terms of the Scheme. If Clause
(d) of Paragraph 7 is read in the manner the
Government Advocate wants us to read, it would be
directly in conflict with Paragraph 15 which vests the
power in the Government to relax any of the
provisions of the Scheme. Thus the Government
undoubtedly has power to accept an application for
compassionate appointment beyond the period of
1(one) year prescribed in Paragraph 9 of the Scheme.
This of course can be done only on exceptional
circumstances justifying exercise of such powers and
as provided in Paragraph 15 by recording reasons for
exercising the same.
[14] In the present case, we have noticed that the
mother of the petitioner expired leaving behind the
petitioner as her elder son who has just short of 17
years of age, a cut off provided in the Scheme for
eligibility for making application for appointment on
compassionate grounds. There was no other older
sibling. The petitioner had a younger brother. The
petitioner's father was over aged and therefore, not
eligible for appointment in any case. Considering
such factors and in particular, considering the fact
that the petitioner's age was only about 6 weeks
short of the minimum age required for making
application, in my opinion, it is the fit case where the
Government should be asked to exercise the power of
relaxation.
[15] Under the circumstances, impugned
communication dated 25th September, 2018 is set
aside. The petitioner's application for compassionate
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appointment shall be considered on merits with
respect to which I have expressed no opinion.
Decision on merits, whether to offer appointment on
compassionate grounds on the basis of relevant
considerations or not, shall be taken and
communicated to the petitioner within a period of
3(three) months from today.
Petition is disposed of accordingly.
Pending application(s), if any also stands
disposed of."
[12] The state respondent challenged the
judgment of the learned Single Judge by filing Writ
Appeal which was heard and disposed of by this Div.
Bench by an order dated 13.12.2021 in WA No.291 of
2021 which reads as under:
"Heard Mr. D. Bhattacharya, learned Govt.
Advocate for the appellant.
The present writ appeal has come to be filed
seeking to challenge the judgment dated 10.12.2019
passed in W.P(C) No.572 of 2019, inter alia, issuing
the following directions:
"[15] Under the circumstances, impugned
communication dated 25th September, 2018 is set
aside. The petitioner's application for compassionate
appointment shall be considered on merits with
respect to which I have expressed no opinion. Decision
on merits, whether to offer appointment on
compassionate grounds on the basis of relevant
considerations or not, shall be taken and
communicated to the petitioner within a period of
3(three) months from today.
Petition is disposed of accordingly.
Cont.Case (C)31 / 2022
Pending application(s), if any also stands disposed of."
It is contended on behalf of the State that the
date of birth of the petitioner was 02.01.2001 and he
made an application for compassionate appointment
on the death of his mother on 30th January, 2018.
Learned Government Advocate submits that the
minimum age that is required for making necessary
application under the compassionate appointment
scheme is 18 years and the State in accordance with
its policy has the power of relaxation up to a period
of one year. In other words, what he submits is that
had the applicant turned 17 by the time of his
application, the State had the power of relaxation up
to the period of one year.
On a bare reading of aforesaid dates as noted
hereinabove, it appears that the applicant writ
petitioner was 28 days short of his 17th birth day on
the date of his application. In our considered view,
this particular contention has lost all relevance in
view of the direction issued by this Court by the
judgment and order dated 10.12.2019. It is
important to take note of the fact that by the time
directions were issued by this Court, the applicant
was already more than 18 years of age. The
directions by this Court were to reconsider the
petitioner's application for compassionate
appointment on merit within a period of three
months. In other words, by the day the directions
were issued by the Hon'ble Single Judge, the
applicant (writ petitioner) was already 18 plus.
Therefore, in view of the aforesaid finding
arrived at thus, we are of the considered view that
the present writ appeal is a pure and simple waste of
the court's time and there was no justification
whatsoever for filing the present appeal. We reiterate
this view since the directions issued by this Court
were in the year 2019 and the reconsideration
directed by the said order effectively meant that the
applicant was already a major more than 18 years of
age. Consequently, no issue or even applying the
principle of relaxation was necessitated by the date
the directions were issued by this Court.
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This Court takes a view in utter seriousness
that this appeal serves no real purpose nor does it
sub-serve the policy of the State in question.
Undoubtedly, a litigant has a right to file an appeal
but at the same time when the appellant is the State,
it is expected that application of mind, issues of law
that arise in the appeal as well as consequences of
the same has to be considered. We may not forget
that when Justice is done to a citizen, state suffers
no loss, rather it is a victory of the State. While
dismissing the present appeal, we direct compliance
of the direction of the Hon'ble Single Judge within a
period of four weeks from today positively.
In terms of the above, the appeal stands
dismissed and the case is disposed of.
Pending application(s), if any, shall also stand
disposed of."
[13] Before filing WA No. 291 of 2021, appellant
Subhojit Shil entered into second round of litigation by
filing another Writ Petition being WP(C) No.724 of
2021 for the same relief for compassionate
appointment under Die-in-Harness scheme. In the
course of hearing of said Writ Petition(C) No.724 of
2021 before the learned Single Judge, the state
preferred the Writ Appeal No.291 of 2021 which was
decided by this court by judgment and order dated
13.12.2021 as aforesaid and in view of the decision in
the said Writ Appeal, the learned Single Judge by
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judgment and order dated 22.12.2021 decided the 2nd
Writ Petition of the petitioner i.e WP(C) No.724 of
2021 viewing as under:
"5. In the emerged circumstances, this Court is
of the view that the judgment of the learned Single
Judge as delivered in W.A.No.291 of 2021 has
clinched the controversy and as such, no fresh
decision is called for in this writ petition. The
respondents shall act in terms of the order dated
13.12.2021 as noted above.
Having observed thus, this writ petition stands
disposed of.
................................................................................. "
[14] In response to the notice issued from this
court in the instant contempt matter, the respondent
contemners appeared. Learned GA submitted before
the court that since the appointees under Die-in-
Harness scheme were to mandatorily undergo an
induction level training for 10 days conducted by
SIPARD from 1st January and 1st July of every calendar
year, appointment orders under Die in Harness
scheme are issued on those 2 dates. Pursuant to the
direction of this court by order dated 10.05.2022, the
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state counsel has produced the relevant notification
dated 03.09.2019 which reads as under:
"GOVERNMENT OF TRIPURA
GENERAL ADMINISTRATION (PERSONNEL & TRAINING) DEPARTMENT
NO.F.1(1)-GA(P&T)/18 Dated , Agartala the 3rd September,2019.
NOTIFICATION
Subject: Scheme for Compassionate Appointment /Benefits for
Government Employees of Tripura -Schedule for
Appointment under the Scheme.
Attention is invited to the Notification vide No.F1(1)-
GA(P&T)/18 dated 2nd March, 2019 on the subject cited above vide
which the guidelines of the " Scheme for compassionate Appointment
/ Benefits for Government employees of Tripura" has been published
to provide benefits to the next of kin of the deceased government
servants who dies while in service/missing/ permanent invalidity of
the government servant while on duty.
3. The matter has been examined and it has been decided that
henceforth, all appointments under the 'Scheme' shall be made twice
in a year i.e 1st January and 1st July of the Year. If the dates itself
falls on government holiday then the appointment will be on the
following working day.
4. On being appointed under this Scheme, all such appointee shall
undergo induction level training for 10(ten) days to be conducted by
the SIPARD from 1st January and 1st July of the year except Constable
(recruited through "Scheme for Compassionate Appointment /
Benefits for Government employees of Tripura" as per memorandum
vide NoF.1(14)-GA(P&T)/18 dated 15th November, 2018). PHQ may
arrange training for Constable as per their training system.
5. All Departments / Heads of Departments are therefore,
requested to go by the above guidelines / direction of the
Government in letter and spirit.
6. This will take immediate effect.
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By order of the Governor,
(Animesh Das)
Deputy Secretary to the Government of Tripura"
[emphasis supplied]
[15] The state counsel has argued that since
offer cum posting order has been issued in favour of
the petitioner asking him to report to SIPARD to
undergo the induction level training with effect from
1st July, 2022, in terms of the said notification, a
contempt petition against the respondents does not
survive. Learned state counsel further contends that
after the Div. Bench judgment was delivered on
13.12.2021 in WA No.291 of 2021, the respondents
had immediately initiated process for providing
appointment to the petitioner in Die-in-Harness
scheme. Having referred to communication dated
02.02.2022 of the Directorate of Elementary Education
at Annexure-4, counsel contends that petitioner was
informed by this letter that the matter was taken up
with the finance department for creation of 01 post
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for providing employment to him in terms of the order
of the High Court.
[16] Thereafter, offer of appointment cum
posting order dated 05.05.2022 [Annexure-R/2] was
issued in favour of the petitioner for his appointment
to the post of LDC [Group-C] under UR category on
fixed pay basis and the petitioner was informed that if
the offer of appointment was accepted by him, he
could join in the office of the Director, SIPARD,
A.D.Nagar, Agartala on 1st July,2022 for 10 days'
induction training to be conducted by SIPARD and
after completion of the training he would be instructed
to join the office.
[17] Learned GA contends that there is no willful
disobedience on the part of the respondent
contemners in complying with the order of this court
because immediately after the order was passed,
process to provide employment to the petitioner under
Die-in-Harness scheme was initiated by the state
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respondent for which post was created and offer of
appointment cum posting order was also issued to the
petitioner.
[18] Mr.P.K.Pal, learned counsel appearing for
the petitioner submits that this court by order dated
13.12.2021 in Writ Appeal No.291 of 2021
categorically directed the respondents [contemners
herein] for compliance of the direction of the learned
Single Judge, issued in WP(C)No.572 of 2019 within 4
weeks from 13.12.2021 which expired on 10.01.2022.
Counsel contends that the state respondent
[contemners herein] neither applied for extension of
time for complying with the order nor they complied
with the said order within time. Counsel therefore,
submits that this is a clear case of contempt for which
appropriate action should be taken against the
contemners.
[19] We have considered the submissions of the
counsel representing the parties. We have also
Cont.Case (C)31 / 2022
perused the entire record and the surrounding facts
and circumstances of the case. It is true that the state
respondents [contemners herein] did not comply with
the order dated 13.12.2021 passed in WA No.291 of
2021 literally within the time frame. But we are not
oblivious of the fact that there are certain essential
formalities which have to be maintained for issuing
appointment to a person in government service. The
record would demonstrate that under communication
dated 02.02.2022 issued from the Directorate of
Elementary Education, the petitioner was informed
that matter was taken up with the Finance Department
for creation of 01 post to provide him employment
under the Die-in-Harness scheme. Therefore, the
Revenue Department, Government of Tripura by Memo
dated 02.05.2022 [Annexure-R/1] conveyed the
approval of the Finance Department, Government of
Tripura for appointment of the petitioner in the post of
LDC [Group-C] under UR category on fixed pay basis
Cont.Case (C)31 / 2022
and by Memo dated 05.05.2022[Annexure-R/2], Offer
of Appointment cum posting order was issued to the
petitioner asking him to join the office of the Director,
SIPARD, at A.D.Nagar on 1st July,2022 to undergo the
mandatory induction level training programme of 10
days conducted by SIPARD. He was informed that on
completion of such training he would be instructed to
join the office. Pursuant to the direction of this court,
the Government Advocate also brought to our notice
the Notification dated 03.09.2019 issued from the
GA(P&T),Department which provides that all
appointees recruited on compassionate ground shall
undergo mandatory induction level training for 10 days
w.e.f. 1st January and 1st July. Learned GA therefore,
contended that in view of the said Memo dated
03.09.2019 appointment of the petitioner is given
effect on 01.07.2022.
[20] Even though in our view, the said
memorandum dated 03.09.2019 does not create any
Cont.Case (C)31 / 2022
embargo in providing compassionate appointment
from any other date in a year, in to totality of the
given facts and circumstances of the case, we do not
find any willful and intentional disobedience of the
order dated 13.12.2021 passed by this court in WA
No.291 of 2021. It is a settled proposition of law that
if in the given facts and circumstances of the case the
court is of the view that disobedience brought to the
notice of the court is the result of some compelling
circumstances under which it was not possible for the
contemner to comply with the order, the court may
not punish the alleged contemnor. In this regard the
Apex Court in the case of NIAZ MOHAMMAD AND
OTHERS Versus STATE OF HARYANA AND OTHERS
reported in (1994) 6 SCC 332 has held as under:
"9. Section 2(b) of the Contempt of Courts Act, 1971
(hereinafter referred to as 'the Act') defines "civil
contempt" to mean "willful disobedience to any
judgment, decree, direction, order, writ, or other
process of a court...". Where the contempt consists in
failure to comply with or carry out an order of a court
made in favour of a party, it is a civil contempt. The
person or persons in whose favour such order or
direction has been made can move the court for
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initiating proceeding for contempt against the alleged
contemner, with a view to enforce the right flowing
from the order or direction in question. But such a
proceeding is not like an execution proceeding under
Code of Civil Procedure. The party in whose favour an
order has been passed, is entitled to the benefit of
such order. The Court while considering the issue as
to whether the alleged contemner should be
punished for not having complied and carried out the
direction of the court, has to take into consideration
all facts and circumstances of a particular case. That
is why the framers of the Act while defining civil
contempt, have said that it must be wilful
disobedience to any judgment, decree, direction,
order, writ or other process of a court. Before a
contemner is punished for non-compliance of the
direction of a court the court must not only be
satisfied about the disobedience of any judgment,
decree, direction or writ but should also be satisfied
that such disobedience was wilful and intentional.
The civil court while executing a decree against the
judgment-debtor is not concerned and bothered
whether the disobedience to any judgment, or
decree, was wilful. Once a decree has been passed it
is the duty of the court to execute the decree
whatever may be consequences thereof. But while
examining the grievance of the person who has
invoked the jurisdiction of the court to initiate the
proceeding for contempt for disobedience of its
order, before any such contemner is held guilty and
punished, the court has to record a finding that such
disobedience was wilful and intentional. If from the
circumstances of a particular case, brought to the
notice of the court, the court is satisfied that
although there has been a disobedience but such
disobedience is the result of some compelling
circumstances under which it was not possible for the
contemner to comply with the order, the court may
not punish the alleged contemner.".
[21] In view of the given facts and
circumstances of the case, and the law laid down by
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the Apex Court in the judgment cited to supra, we are
of the view that there is no willful and intentional
disobedience on the part of the respondent
contemners in complying with the direction of this
court in the judgment aforesaid. However, we make it
clear that if the petitioner has by this time accepted
the offer of appointment dated 05.05.2022, letter of
appointment in clear terms shall be issued in his
favour w.e.f. 01.07.2022 and he shall be entitled to
pay and allowances w.e.f. 01.07.2022 and as indicated
in his Offer of Appointment, the petitioner shall
undergo induction level training in SIPARD for the
period mentioned therein.
[22] In terms of the above, the contempt petition
stands disposed of.
(S.G.CHATTOPADHYAY),J (INDRAJIT MAHANTY),CJ
Saikat Sarma, PS-II
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