The Court has proceeded to pass a detailed order on 20.8.2019 to the following effect.
"Heard learned counsel for the applicant and learned Standing Counsel.
The applicant is before this Court for initiating contempt proceedings against the respondents for disobeying the order dated 28.03.2018 passed in Writ Petition No.34302 of 2005 (Deepak Kumar Mishra v. State of U.P. & Ors.) as well as order dated 26.04.2019 passed in Contempt Application (Civil) no.1627/2019 (Deepak Kumar Mishra vs. Shivendra Pratap Singh, DBSA and another). For ready reference, the order dated 28.03.2018 is quoted as under:-
"Heard Sri A.K. Srivasvata, learned counsel for the petitioner and Sri Sudhir Srivastava, learned counsel for the respondent No. 4 as well as learned Standing counsel on behalf of the State-respondent.
This writ petition has been filed for quashing the impugned order dated 28.12.2004 passed by the District Basic Shiksha Adhikari, Fatehpur, whereby the appointment of the petitioner on compassionate ground as an Assistant Teacher was stayed until further order on the basis of complaint filed by the respondent No. 4 (mother of the petitioner).
The father of the petitioner was an Assistant Teacher in Primary School Gandharpi, Block Devmari, District Fatehpur and he died on 1.11.2001. Subsequently, the petitioner being elder son of the deceased applied for his appointment under the Dying in Harness Rules 1974 and he was appointed as an Assistant Teacher in Primary School Gandharpi, Block Devmai, District Fatehpur. Thereafter on a complaint made by the respondent No. 4 (mother of the petitioner), the appointment of the petitioner was stayed until further orders.
In the affidavit was filed by the respondent No. 4 (mother of the petitioner) dated 5.12.2016, it is specifically stated that except the petitioner, no family member has been in the earning capacity and family is facing a huge financial hardship.
It is stated in paragraph No. 13 of the said affidavit that on 5.7.2016 filed an application before the B.S.A., Fatehpur for withdrawal her complaint, but till date, no order has been passed on the application of the respondent No.4 (mother of the petitioner). Since the affidavit has been filed on behalf of the respondent No.4 (mother of the petitioner) and it is further stated, respondent No.4 do not want to pursue her complaint and therefore, the order impugned dated 28.12.2004 is hereby quashed.
The writ petition is allowed. No order as to costs."
Brief facts of the case are that father of the applicant-petitioner late Santosh Kumar Mishra was working as Assistant Teacher in Primary School Gandharpi, Block Devmai, District Fatehpur and died in harness on 01.11.2001. As per the Dying-in-Harness Rules 1974, the applicant was extended appointment as Assistant Teacher in the Institution in question. Admittedly, the appointment letter was issued on 22.12.2004 and he joined the institution on the same date itself. It appears that meanwhile the alleged application has been moved by his mother alleging certain grievance against his son. Consequently, the Basic Education Officer vide registered letter dated 28.12.2004 had stayed the appointment and thereafter the application was moved by the applicant/petitioner to withdraw the said restrain order. Eventually the aforesaid writ petition was also preferred in the year 2005. On behalf of applicant-petitioner claim has been set up that at no point of time neither any termination order was passed nor any enquiry whatsoever has ever been initiated against the applicant. Based on the said facts, the aforementioned writ petition was allowed vide order dated 28.03.2018.
Once the aforesaid order has not been complied with by the opposite party, the applicant had preferred Contempt Application (Civil) no.1627/2019. After the notice, the District Basic Education Officer, Fatehpur had filed an affidavit of compliance on 26.04.2019, wherein, in paragraph 2, 3 and 4 following averments have been mentioned:-
"2. That in response of the writ court's order dated 18th March 2018 the deponent had send a letter dated 25th May 2018 to Secretary, Board of Basic Education U.P. at Allahabad seeking its guidelines, which was received only on 23.04.2019. As such a month's more time is required for necessary compliance of writ court's order, from the part of deponent.
3. That in view of the aforesaid facts and circumstances, the Hon'ble Court may kindly be pleaded to grant at least one month's time for compliance of the writ court's order dated 28.03.2018 and to make all possible efforts to that regard.
4. That in view of the aforesaid facts and circumstances, it is expedient and necessary in the interest of justice that this Hon'ble Court may kindly be pleased to accept the instant affidavit of compliance on record in compliance of the order dated 26.03.2019, otherwise the deponent/respondent no.2 will suffer irreparable loss and injury."
Based on the said assurance given by opposite party, the aforesaid contempt application was disposed of vide order dated 26.04.2019 with following observations:-
"In response of the order of this Court dated 26.3.2019 Shri Yatindra, Advocate has filed an affidavit of compliance on behalf of opposite party no.1 wherein the authority has asked for some breathing time for complying the order of this Court dated 28.3.2018 passed in Writ Petition No.34202 of 2005 filed by the applicant. The same is taken on record.
Consequently nothing further survives and the present contempt application is disposed of, giving one more opportunity to the opposite parties to comply with the aforesaid order of the writ Court within one month from the date of production of a certified copy of this order."
In spite of the aforesaid order, when the writ court order has not been complied with, the applicant has filed the present contempt application.
The matter was taken up on 15.07.2019. While issuing notice to the opposite party one more indulgence was accorded to the opposite party to comply with the writ court order.
Today when the matter is taken up, Shri Yatindra, learned counsel for the opposite party apprised to the Court that opposite party has already proceeded to move an application for recall/review of order dated 28.03.2018 and as such, the present contempt proceeding may be deferred.
Admittedly, in the first round of contempt proceeding, the opposite party has filed an affidavit of compliance and on the basis of assurance given by State, the aforesaid contempt application was disposed of with certain directions. Nothing has been brought on record to indicate or suggest that at any point of time the said order has ever been stayed.
In the present contempt application also, while issuing the notice one more indulgence was accorded to the opposite party to comply with the writ court order. It has also been informed by counsel for the parties that the mother of the applicant is 90 years old. Record in question does not indicate or suggest that at any point of time, benefit from State instrumentality has been provided to the applicant or his mother. Admittedly there was some dispute between mother and son but this is also admitted situation that son is looking after his mother after demise of his father and in such a situation, the Authority concerned could not curtail the rightful claim of the applicant at this belated stage only on the basis making some enquiry in the matter.
In the facts and circumstances of the case, the Court is not inclined to adjourn the proceeding. Admittedly, the writ court order has not been complied and deliberate attempt is being made by the opposite party to mislead the Court in earlier round of contempt proceeding, which was disposed of on the basis of statement made is affidavit of compliance, as such at this stage, the plea as has been made by Shri Yatindra is not available to the opposite party and in such a situation, the Court has no other option except to frame charge against the Officer concerned.
Put up this matter on 26.08.2019 for framing of charges against the opposite party no.1, who shall remain present on the next date fixed in the matter."
In response to the aforementioned order, Sri Yatindra, learned counsel for the opposite party has filed an affidavit of compliance on behalf of the opposite party no. 1 and as such, he submits that the order of Writ Court as well as the order dated 20.8.2019 has been complied with by the order dated 21.8.2019 passed by the opposite party in letter and spirit subject to final order in Review Petition No. 24 of 2019. The same is taken on record.
In the facts and circumstances, the Court is of the opinion that substantial compliance has been made in the matter and the cause for filing of the contempt application no more survives.
Consequently, the present contempt application stands disposed of. Notice, if any, stands discharged. Personal presence of the officer concerned is dispensed with.
Order Date :- 26.8.2019 A.K.Srivastava