JUDGMENT Rajes Kumar, J.
1. Present petition has been filed on the allegation that the opposite parties have violated the order passed by this Court dated 21 12.2001 in Writ Petition No. 19333 of 2000, Mehamood Akhtar and Ors. v. State of U.P. and Ors. and order dated 19.4.2002 passed on the Review Petition No. 33405 of 2002.
2. Brief facts of the case are that the applicant was working in their respective department as confirmed employee. It would appear that on the creation of new department known as Backward Class Welfare Department w.e.f. 12.8.1995 an advertisement was issued in the newspaper to the effect that appointment for the functioning for the new Directorate in the new department will have to be made at the divisional/district levels on the gazetted and non-gazetted temporary posts indicated in the notification, for the period commencing from the date of notification or the date of appointment, whichever happens to be later and ending on 29.2.1996 unless terminated earlier. A letter dated 20.9.1995 was issued from the office of the Chief Secretary, U.P. Government, Lucknow visualizing that the appointments on the post of gazetted and non-gazetted posts in the new Department would be made on temporary basis on transfer/deputation from other departments. According to the said communication, 53 posts of District Backward Class Welfare Officer were vacant in various districts. Another letter dated 18.12.1995 was issued by the Chief Secretary to various Secretaries and other departmental heads informing them that appointments on the gazetted posts of District Backward Classes Welfare Officer would have to be made on the recommendation by the U.P. Public Service Commission but since it would take time, appointments, may be made by way of transfer/deputation from other departments such as Vikas Vibhag, Chikitsa Vibhag, Shiksha Vibhag and officers who have had sufficient experience and were willing to go to the present posts may be selected for appointment or service transfer/deputation basis. The petitioners, it is alleged, applied and were selected for appointment to the posts of District Backward Classes Welfare Officers which they accepted in the hope that they would later on be absorbed in the department. It is further alleged that thought the petitioner were appointed on deputation but no deputation allowance was ever paid to them. Selection, it is further alleged, was made after due recommendation by the departmental selection committee.
3. Respondents, however, issued an advertisement dated 11.1.1989 in the newspaper Rashtriya Sahara inviting applications for regular appointments to the 52 posts of Backward Classes Welfare Officer through Public Service Commission on the basis of a preliminary/final examination. Pursuant to the said advertisement U.P. Public Service Commission completed the selection, the final result of which, it is alleged, was expected to come in the first week of May, 2000. Some of the petitioners, it is alleged, preferred representations to the Director, Backward Class Welfare Department to the effect that a provision was made for adsorption in the draft Niyamawali Known as U.P. Adhinastha Seva Chayan Ayog Vaiyaktik Sahayak Niyamawali, 1995 but the Public Service Commission in exercise of powers under Article 320 of the Constitution of India declined to approve the clause providing for absorption of deputationist in the U.P. Backward Class Gazetted Officers Service Rules, 1998. The representation having been rejected by the State Government vide order dated 31.8.1999 (Annexure No. 13) to the Writ Petition No. 49798 of 1999 and thus the petitioners have approached this Court for the aforesaid reliefs.
4. The above writ petition was decided on 21.12.2001. The Division Bench relying upon the Supreme Court decision in the case of Ratilal B. Sons and Ors. v. State of Gujarat and Ors., reported in AIR 1990 SC 1132 and S. Muniyappa Naidu v. State of Karnataka and Ors., reported in (1976) 4 SCC 543, held that the "legal position is well settled is that Government servant on deputation can be reverted to his parent department at any time in that he does not get any right to be absorbed on the deputation post and further. A deputationists can claim right to be considered for absorption only if rules provide for absorption and not otherwise." The Division Bench, however, observed that it is always open to the respondent to provide for adsorption of the deputationist if it is considered expedient so to do by the State Government. On the review application being filed by the applicant Division Bench reiterated its earlier view and referred a subsequent decision of the Hon'ble Supreme Court in the case of Mahesh Kumar K. Parmar and Ors. v. S.I.G. of Police and Ors., reported in JT 2002 (3) SC 92, wherein Hon'ble Supreme Court has clearly held that deputationists has no enforceable right for permanent absorption and a writ can not be issued. However, Division Bench observed that it goes without saying that if any representation is filed by the petitioners the same shall be considered by the State Government.
5. Petitioner filed the representation on 14.3.2002 before the Secretary, Pichhra Verg Kalyan, Government of U.P., Lucknow with the request not to revert the petitioner to his parent department. He further filed the representation on 4.4.2002. It appears that on 12.4.2002 applicant was relieved in pursuance of the order dated 4.3.2002 passed by Chief Development Officer, Jaunpur when the petitioner was on duty as Sector Magistrate in U.P. Board Examination. After the decision on the review application, petitioner further sent a detailed representation on 10.5.2002, 27.5.2002 and 29.8.2002 through registered post. It is further submitted that opposite party No. 2 issued press note giving last opportunity to 16 candidates whose names were recommended by the U.P. Public Service Commission to be appointed as District Backward Class Welfare Officers and by the said notification dated 8.6.2002, 16 candidates recommended by the U.P. Public Service Commission were given last opportunity to join their respective place of appointment latest by 3.7.2002 and out of 16 candidates only one candidate joined and 15 remained vacant against which the petitioner could be easily absorbed.
6. It is contended that petitioner's representation has not been considered which amounts to the violation of the order of this Court dated 8.2.2002 and 19.4.2002. Opposite party No. 5 filed short counter affidavit, in which it has been stated that the orders have been passed on 10.3.2003, copy of which has been annexed as CA-1. It is stated that 16 persons have been given fresh appointments. In the order dated 10.3.2003 representation has been rejected, in the absence of any provision for absorption in the U.P. Adhinastha Seva Chayan Ayog Vaiyaktik Sahayak Niyamawali, 1995 and State Government has not found any justification for making amendment in the said Rules. However, having regard to the office memo dated 8.4.1997 fresh appointment was made in the department for one year or till the appointment is made by the U.P. Public Service Commission or till the receipt of further orders. In another affidavit filed by the opposite party No. 1 it has been alleged that the applicant has not been considered because there were complaint against him.
7. Heard Sri M. Sarwar Khan, learned Counsel for the applicant and Sri Pradeep Kumar, learned Counsel for the respondents.
8. Contention of learned Counsel for the applicant is that out of 16 persons, some persons have been appointed in view of the order dated 5.2.2003 passed in Contempt Petition No. 2125 of 2002 and the case of the applicant also stands in the same footing but the applicant has not been appointed and has been discriminated.
9. Sri Pradeep Kumar, learned Counsel for the respondents stated that in the contempt petition what has to be seen is whether the respondents have violated the order of this Court or not. In the present case intent of this Court was to consider the request/representation for the absorption which was considered and rejected. He submitted that under Section 12 of the Contempt of Court Act, this Court can not go into the merit of the case.
10. I do not find any substance in the argument of learned Counsel for the applicant. This Court while dismissing the writ petition relied upon the decisions of the Apex Court and held that legal position is well settled is that Government servant on deputation can be reverted to parent department at any time in that he does not get any right to be absorbed on the deputation post and deputationist can claim right to be considered for absorption only if the rules provide for absorption and not otherwise, In this view of the matter applicant has no right to claim the absorption in the absence of any rule provide for absorption. Division Bench has rejected the claim of absorption because there was no provision for absorption in the rule. Same view has again been confirmed while deciding the review petition. Observation of the Division Bench in the review petition namely, that if any representation is filed by the petitioners, the same shall be considered, by State Government do not give any right to the applicant of absorption. Division Bench has also not fixed any time for deciding the representation. However, representation filed by the petitioners do not find favour and accordingly it was rejected vide order dated 10.3.2003. Further appointment of 16 were fresh appointment in view of the Government Order. In case, if the applicant is aggrieved by the said order because of his non-appointment, if he is so advised may challenge the said order before the appropriate Forum. This Court can not go into the merit of the decision. Thus the allegations that the respondents have violated the order dated 19.4.2002 has no merit.
11. As the preamble shows the Contempt of Courts Act, 1971 has been enacted to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure in relation thereto. The scheme of the Act would show that it provides for the procedure for proceeding against such persons who are alleged to have committed contempt of Courts and for awarding punishment to them. While exercising jurisdiction under the Act the High Court may either discharge an accused or award punishment to him. The Act does not contemplate of either making a declaration or issuing a direction regarding merits of the claim of the parties.
12. In the case of J.S. Parihar v. Ganpati Duggal, AIR 1997 SC 113, a Single Judge of the High Court while hearing a petition under Contempt of Courts Act issued a direction to redraw a seniority list and with regard to this direction the Apex Court made the following observation :
"...................In order words the learned Single Judge was exercising the jurisdiction to consider the matter on merits in he contempt proceedings. It would not be permissible under Section 12 of the Contempt of Courts Act......."
13. In the case of Lalith Mathur v. L. Maheswara Rao, reported in (2000) 10 SCC 285, the facts of the case was that L. Maheswara Rao was the employee of A.P. State Cooperative Rice Federation which was wound up and he ceased to be an employee of that Federation. He filed a writ petition in the High Court seeking reliefs, inter alia, that his representation for absorption in alternative Government service may be directed to be considered by the State Government. The writ petition was allowed and the direction was issued to the State Government to consider and dispose of the representation. Pursuant to that direction, the State Government considered the representation and rejected the claim for absorption in Government service. The said employee, instead of challenging the representation in a fresh writ petition, filed contempt petition, in which he relied a judgment of the High Court in Writ Petition No. 22230 of 1997 and batch decided on 15.10.1997 and the High Court too relying upon that decision disposed of the contempt petition with the direction to absorb the petitioner in any suitable post in any Government department or public undertaking within three months from the date of receipt of a copy of this order. Against the said order Special Leave Petition was filed. Apex Court allowed the Special Leave Petition and held as follows :
"The above will show that the High Court has directed the State Government to absorb the respondent against a suitable post either in a Government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceeding under the Contempt of Courts Act or under Article 215 of the Constitution.
The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government, which had considered and thereafter rejected on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings, which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits.
For the reasons state above, the appeal is allowed, the impugned judgment of the High Court dated 10.8.1998 is set aside and the contempt petition filed by the respondents is dismissed. We, however, make it clear that it will be open to the respondent to challenge the order by which his representation was dismissed on merits, in such proceedings as he may be advised. There shall be no order as to costs."
14. For the reasons stated above, petition is accordingly dismissed.