Court No. - 5
Case :- CONTEMPT APPLICATION (CIVIL) No. - 4713 of 2011 Applicant :- Rishikant Sharma And Others Opposite Party :- Vijay Kant Dubey Nagar Ayukt And Another Counsel for Applicant :- Anoop Trivedi,Vibhu Rai Counsel for Opposite Party :- S.C., Ashok K Pandey,Vivek Verma Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Vibhu Rai, holding brief of Sri Anoop Trivedi, learned counsel for the applicant and Sri Ashok Kumar Pandey, learned counsel for the respondent.
2. This contempt application has been filed alleging that the order dated 18.04.2011 in Special Appeal No.1283 of 2010 (Anil Kumar Dubey and another Vs. State of U.P. and others) and Special Appeal No.1902 of 2008 (Rishikant Sharma and another Vs. State of U.P. and others), passed by the Division Bench, has been willfully violated by the respondents. The operative portion of the order dated 18.04.2011, passed in Special Appeal is reproduced below:-
“The Special Appeals are allowed. The judgment of learned Single Judge dated 06.7.2007 in Writ Petition No. 2174 of 1997 Sunil Kumar Srivastava and another vs. State of UP & ors, and the judgment dated 01.12.2008 in Writ Petition No. 5297 of 1997 Rishikant Sharma vs. State and others, are set aside. The orders terminating petitioners-appellants' services by the Mukhya Nagar Adhikari, Nagar Nigam, Varanasi dated 6.1.1997 are also set aside. The petitioners were working under the interim orders of learned Single Judge. They did not have any interim orders to protect their services in the Special Appeals. All the petitioners will be taken back with continuity in service, and all consequential benefits including the back wages.”
3. An affidavit of compliance dated 13.05.2012 was filed by respondent – P.K. Pandey, Nagar Ayukt, Nagar Nigam Varanasi, who stated in paragraphs 7, 8, 9 and 10 as under:-
“7. That the deponent immediately thereafter in compliance of the orders passed by this Hon'ble Court gave necessary directions for release of the back wages of the applicants.
8. That thus on 10.05.12 an amount of Rs 11,46,964/- was sanctioned for depositing the same in the account of the applicants maintained at Union Bank Of India, Nagar Nigam branch, Varanasi.
9. That thereafter by composite order an amount of Rs 2,43,273/- was released for depositing the same in the account of applicant no.1 for the period 01.12.08 to 31.08.2011, further Rs.4,55,648 was released for applicant no.2 for the period 01.06.08 to 31.08.11 and further Rs 4,48,043 was released for applicant no.3 for the period 01.06.08 to 31.08.11. A Copy of the letter sent to the Manager , Nagar Nigam Branch,Varanasi for releasing the aforesaid amounts in the account of the applicants is annexed herewith as Annexure S.A.-1 to this affidavit of compliance.
10. That in view of the aforesaid facts, the order dated 16.04.11 passed in Special Appeal no.1283 of 2010 (Anil Kumar Dubey and another Vs. State of U.P. and others) and in Special Appeal no.1902 of 2008 (Rishi Kant Sharma and another Vs. State of U.P. and others), has already been carried out in letter and spirit with certain delay, which was neither deliberate nor willful on the part of the deponent and as such the delay in making compliance is liable to be condoned by this Hon'ble Court.”
4. The aforesaid affidavit of compliance was replied by the applicant. Thereafter, the applicant filed a supplementary affidavit dated 18.07.2012 and stated in paragraphs 10, 11, 12 and 13 as under :-
“10. That it is submitted that the applicant no. 1 has not been paid the complete amount and still a sum of Rs. 55,000/- is still outstanding. The applicant no. 1 has also not been given the amount of bonus and arrear of salary owing to the implementation of the fifth pay commission. Further, the authority concerned has also not granted the status / designation of Deputy Registrar (Birth & Death) to the applicant no. 1.
11. That it is submitted that the applicant no. 2 has not been paid the complete amount and still a sum of Rs. 1,00,033/- is still outstanding .The applicant no.2 has also not been given the amount of bonus and arrear of salary owing to the implementation of the fifth pay commission . Further, the authority concerned has also not granted the status / designation of Deputy Registrar (Birth & Death) to the application no.
12. That it is submitted that the applicant no.3 has not been paid the complete amount and still a sum of Rs.98,402/- is still outstanding. The applicant no.3 has also not been given the amount of bonus and arrear of salary owing to the implementation of the fifth pay commission. Further, the authority concerned has also not granted the status / designation of Deputy Registrar (Birth & Death) to the applicant no.2.
13. That the Division Bench of this Hon'ble court has clearly opined in paragraph 25 of the judgement dt. 18.4.2011 that the post of vaccinators continued in Nagar Nigam, Varanasi and in exercise of statutory powers the Director General, Medical Health & Family Welfare, Government of U.P. Designated the vaccinator in Natar Nigam, Varanasi as Sub Registrar under the Birth & Death Registration Rules, 1969.
5. The counter affidavit dated 25.08.2019 in reply to the impleadment application dated 30.06.2019 has been filed by Sri Ashutosh Kumar Dwivedi, Nagar Ayukt, Nagar Nigam, Varanasi, who stated in paragraphs 28, 31, 32 and 33 as under:-
“28. That in reply of Para 06 of the affidavit filed in support of Impleadment Application, it is pertinent to mention here that the applicants were reinstated on their appointed post Paid Apprentice Vaccinator and Vaccinators in compliance of the order dated 18.04.2011 passed by this Hon'ble Court, they were received the dues amount of the termination period accordance to the law. Whether the question of Sub Registrar (Birth & Death); the same are neither created nor sanctioned by the state government, it is merely designated post accordance to the law. The applicants are working in the office of Nagar Nigam on the post of Paid Apprentice Vaccinator and Vaccinators at present the said post have declared as dead cadre by the state government.
31. That in reply of Para 10 of the affidavit filed in support of Impleadment Application, it is incorrect to say that any amount of the applicant is still pending before the answering authority. It is noteworthy here that Shri Anil Kumar Dubey and Sunil Kumar Srivastav are working on the posts of Vaccinator in regular pay scale, therefore, they are getting the benefit of increment, selection grade and ACP etc; Applicant no.01 Rishikant Sharma has appointed on 13.06.1988 in pursuance to the order 23.05.1988 on the post of Paid Apprentice Vaccinator. The Applicant No.01 was working prior to termination on the post of Paid Apprentice Vaccinator, the same post was not regularized in favour of the applicant no.01, while the applicant no.2 and 3 appointed on the post of Vaccinators. They were regularized in regular pay scale prior to terminator; therefore they had gotten the regular pay scale.
32. That in reply of Para 11 of the affidavit filed in support of Impleadment Application, it is pertinent to mention here that the applicant no.01 namely Rishikant Sharma is working in the fixed pay scale, therefore he is getting the salary on fixed pay scale and also the dues have released in pursuant to the fixed pay scale. It is further stated here that salary slip appended by applicant is incorrectly shown the designation as vaccinator.
33. That in reply of Para 12 of the affidavit filed in support of Impleadment Application, it is further stated here that the post of Sub Registrar (Birth and Death) is neither created nor sanctioned by the State-Government, the Hon'ble High court has passed the order dated 18.04.2011, by which set aside the termination order passed by Chief Municipal Officer and directed to pay the salary for their continuing the service with all consequential benefits and answering authority has complied the order passed by this Hon'ble court.”
6. The facts as briefly noted above shows that the petitioners have been back with continuity in service of Nagar Nigam, Varanasi, in compliance to the order passed in Special Appeal. They now want that they should be given the post of Sub Registrar (Birth and Death). For this purpose the applicants may seek appropriate remedy but contempt petition is not the appropriate remedy for this purpose.
7. So far as the payment of dues are concerned, affidavit of compliance dated 13.05.2012 (relevant portion extracted above) shows that arrears have been paid to the applicants. However, the supplementary affidavit of the applicant dated 18.07.2012 shows that they are alleging that the amount paid by the respondents fall short to some extent. No basis of computation has been given by the applicants to allege that the amount paid is short. They have alleged that the applicants have not been given the amount of bonus and arrears of salary owing to implementation of the 5th pay Commission.
8. Thus, if the applicants are still aggrieved with the payment of arrears etc. given to them by the respondents then liberty is granted to the applicants to move a fresh representation before the Nagar Ayukt, Municipal Corporation, Varanasi, giving complete details in support of their claim. If such an application is submitted with complete details and figures then the claim of the applicants shall be decided by the Nagar Ayukt, Municipal Corporation, Varanasi, expeditiously.
9. From the facts as mentioned above, I am of the view that the order passed in Special Appeal has been substantially complied with. Therefore, I do not find any good reason to proceed further in this contempt application. Consequently, the contempt application is disposed of.
Order Date :- 26.11.2019/vkg