Hon'ble Rohit Ranjan Agarwal,J.
Order on Civil Misc. Exemption Application No.1 of 2021 The application seeking exemption from filing certified copy of the order of the High Court is allowed.
The defect stands cured.
Order on Memo of Appeal By this appeal, a challenge is made to the orders dated 22.01.2021 and 18.01.2020 passed in the pending contempt petition.
The case has chequered history, thus, needs to be given.
The petitioner/ non-appellant applied for the post of Assistant Teacher. When appointment was not accorded to him, a writ petition was preferred to challenge the action of the respondents. The writ petition was disposed of, however, on an appeal, following judgment was given on 03.7.2018 and operative portion thereof is quoted hereunder :
"Accordingly, this appeal is allowed. The order impugned passed by learned single Bench is set aside. The writ petition is allowed. The respondent Appointing Authority is directed to accord appointment to the appellant-petitioner on the post of Assistant Teacher, if he is otherwise eligible, at earliest as far as possible within a period of one month from today. No order to cost."
The authorities passed an order on 04.10.2018 holding petitioner to be ineligible in absence of qualification of Shastriya Examination. The petitioner again preferred writ petition to challenge the order dated 04.10.2018. The writ petition was allowed vide order dated 20.12.2018, and operative portion thereof is quoted hereunder :
"In view of the certificate provided by the University that petitioner has passed Shasti examination in the year 2009 from Sampurnanand Sanskrit Vishwavidyalaya, there would be no justification to allow the order of the Director of Education, dated 11.9.2018, to be sustained.
Consequently, the writ petition succeeds and is allowed. The impugned order dated 11.9.2018, accordingly, stands quashed. The authorities shall process the petitioner's claim for appointment in accordance with law within a period of two months from the date of presentation of a certified copy of this order."
Pursuant to the direction given on the second occasion, respondents again passed an order holding the petitioner to be ineligible for obtaining two degrees simultaneously without adhering to the requirement of attendance to the extent of 75 percent. The said order has been challenged by the petitioner by maintaining third writ petition which is still pending.
After the judgment on the second writ petition matter was processed to consider it in accordance with law. The petitioner non-appellant was held to be ineligible in view of two degrees taken simultaneously.
During the pendency of third writ petition, the Contempt Court while passing the order dated 18.1.2020, made comment on the merits of the order by which the petitioner was held ineligible on obtaining two degrees simultaneously. It is going beyond the jurisdiction vested in it in the light of the judgment of Apex Court in J.S.Parihar vs. Ganpat Duggar and others (1996) 6 SCC 291. Para 6 of the judgment supra is quoted hereunder :
"The question then is whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr.S.K. Jain, learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision take by the Government in preparation of the seniority list in the light of the law laid down by three benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench."
The learned Single Judge thereupon proceeded to direct the respondents-appellant to issue order of appointment without realizing that the writ petition bearing No.7523 of 2019 is still pending where order for denial of appointment has been challenged.
In the light of the limited jurisdiction vested in the Court hearing contempt petition, the comment on the merit of the order pending consideration in a writ petition is not proper when a matter is subjudice before this Court in writ petition preferred in the year 2019. The direction to give appointment and for that to take course for punishment for contempt cannot said to be justified rather Court travelled beyond the jurisdiction vested in it. The Apex Court in the Case of J.S.Parihar (supra) has clearly held that once the compliance of the order has been made, Court hearing the contempt petition cannot make comment on the merit of the issue. If one is aggrieved by the subsequent order, can take course of the fresh litigation which in fact has been taken by the petitioner herein by maintaining third writ petition in the year 2019 and is pending consideration.
The comment made by the learned Single Judge is quoted hereunder :
"Upon the perusal of the record, I am of the view that by the order dated 20.12.2018 the petitioner had to be given appointment if the respondents found all the papers etc. of the petitioner in order. If there was a show-cause notice with regard to there being two degrees, they were not by the University but by the Authorities. The degree till date stood and had not been cancelled. There is no provision in law that the educational authorities had to give appointment to the petitioner after looking into the fact whether there were two degrees in possession of the petitioner. The degree was thee which had to be honoured. If there was a certain direction of the University Grants Commission, then it was for the Universities to follow. The educational authorities should have refrained from getting guided by the directions of the University Grants Commission. As of today, the degree is very much intact and there is an order dated 20.12.2018 of the High Court that the petitioner had to be given the appointment upon looking into his degree."
It shows nothing but comment on the subsequent order pending consideration in the writ petition preferred in the year 2019. It is beyond the jurisdiction of the Court and thereby subsequent order dated 22.01.2021, in furtherance to the earlier order, is also not legally sustainable.
The appeal accordingly succeeds and is allowed. The orders dated 18.01.2020 and 22.01.2021 are set aside.
The appeal against the order impugned is maintainable in the light of the judgment of Apex Court in the case of Midnapore Peoples' Co-op. Bank Ltd. And Ors. vs. Chunilal Nanda and Ors. (2006) 5 SCC 399.
Order Date :- 2.2.2021 KA