are that father of the petitioner, who was working as teacher in Sri Jyotish Pith Sanskrit Mahavidyalaya, Alopibagh, Allahabad, died in harness on 21.08.2000. The petitioner was given compassionate appointment on the post of Clerk in the said institution and the same is alleged to have been duly approved by the competent authority.
Alleging that despite approval of his appointment, he is not being permitted by the management to discharge his duties as Clerk, he approached this Court by filing writ petition no. 22709 of 2003 wherein an interim order directing the respondents to permit the applicant to discharge his duties as Clerk and to be continued in service and paid salary was passed on 22.05.2003. The applicant approached this Court again by filing Contempt Application (Civil) No. 1580 of 2004 alleging non compliance of the order dated 22.05.2003 which was rejected on 25.11.2004 by passing the following order :
"Heard counsel for the parties.
This contempt petition has been filed with the allegation that inspite of the order dated 22.05.2003 passed in writ petition no. 22709 of 2003 the opposite parties are not allowing him to discharge his duties as clerk or paying his salary.
The applicant claimed to have been appointed on compassionate ground and his appointment was duly approved by the competent authority as a clerk but he was not being permitted to discharge his duties and as such the aforesaid writ petition was filed where the said interim order was passed.
Upon issuance of notice, a counter affidavit of opposite party no. 2 has been filed stating that the applicant was never appointed in the institution concerned and as such there was no question of payment of salary. It is further alleged that the opposite party no. 2 was not even impleaded as party in the said writ petition and there was no vacant post of clerk in the institution.
Even though a rejoinder affidavit has been filed but no appointment letter or approval order has been annexed. It is not denied that in the pending writ petition, pleadings have already been exchanged.
In view of the aforesaid, the applicant may get his right adjudicated in the pending writ petition but so far as this contempt petition is concerned, it is premature at this stage. Notices are discharged. Contempt petition is rejected. Consign to record."
After dismissal of the contempt application, the applicant again filed another writ petition no. 40763 of 2012 alleging that during pendency of the writ petition no. 22709 of 2003 and continuance of the interim order dated 22.05.2003, the committee of management of the institution illegally appointed Sri Ashish Kumar Misra as Clerk and the papers have been forwarded to the District Inspector of Schools for according approval to the appointment and the matter is pending before him. The writ petition was disposed of vide order dated 22.08.2012 by making following observation :
"Consequently, the District Inspector of Schools is directed to finalize the proceedings after taking into account the objections so filed by the petitioner, within a period of eight weeks from the date of receipt of a certified copy of this order. Before taking final decision, view point of the Manager and Principal of the institution concerned as well as Ashish Kumar Mishra may also be taken into account.
Writ petition stands disposed of accordingly."
The applicant has filed instant contempt application impleading the manager of the institution and the District Inspector of Schools, Allahabad alleging that though in compliance of the order dated 22.08.2012 passed on writ petition no. 40763 of 2012, the District Inspector of Schools has passed an order dated 17.12.2012 accepting the claim of the applicant and held him entitled for payment of salary from 01.09.2010 when the substantive vacancy was caused in the clerk cadre due to retirement of Sri Mohan Dubey and the appointment of Sri Ashok Kumar Mishra made by the committee of management was disapproved on the ground that it was made dehors the procedure but the committee of management is still not permitting him to discharge his duties and payment of salary is also not being made.
Vide order dated 22.03.2013 notices were issued to both the opposite parties who had put in appearance and filed their affidavits.
In the affidavit dated 08.05.2013 filed by the opposite party no. 2, District Inspector of Schools, it has been stated that after the order dated 17.12.2012 passed by him when the committee of management did not comply with the same, another notice dated 04.02.2013 was issued directing the management to ensure taking work from the applicant and payment of his salary. Subsequently, another notice dated 26.04.2013 to the same effect was issued which was replied. However, when the reply was not found to be satisfactory, he referred the matter to the Joint Director of Education vide letter dated 03.05.2013 for appointing authorized controller over the institution and the matter is pending with the Joint Director of Education.
Thus, in so far as opposite party no. 2, District Inspector of Schools, is concerned, there is no disobedience much less any willful disobedience on his part. He not only considered the claim of the applicant viz-a-viz Sri Ashok Kumar Mishra and decided the same but on failure on the part of the management to comply with the order, has taken suitable steps as provided by the Statute by referring the matter to the Joint Director of Education for appointing an authorized controller. In so far as opposite party no. 2 is concerned, no case for contempt, as alleged, can be said to be made out for willful disobedience or violation of the order dated 22.08.2012 passed on writ petition no. 40763 of 2012 as there was no direction for him..
In so far as the order dated 22.05.2003 passed on writ petition no. 22709 of 2003 is concerned, as already stated above, the applicant had approached this Court alleging disobedience of the same by impleading the manager of the institution as well as District Inspector of Schools but the same was dismissed vide order dated 25.11.2004 on the ground that it was premature with the observation that the applicant may get high right adjudicated in the pending writ petition no. 22709 of 2003 which is alleged to be still pending.
In view of the order dated 22.05.2004, there being no change in the circumstances in as much as writ petition no. 22709 of 2003 is still pending, he cannot be permitted to file another contempt application for the same cause of action.
In view of the aforesaid facts and circumstances and discussions, no case for contempt at this stage can be said to be made out.
Notice are discharged and the contempt application be consigned to record.
Date : February 3, 2014. (Krishna Murari, J) Dcs.