JUDGMENT Rajes Kumar, J.
1. Present petition has been filed with allegation that the opposite parties have violated the following direction given by this Court vide order dated 6.2.2002 in Company Misc. Application No. 4 of 1997 :
"(3) In the matter of payment of salaries to the teaching and non-teaching staff of primary schools :
It is reported that there are seven primary schools which were run by the company (in liquidation) out of these, three primary schools are at Churk Cement Factory, one at Gurma and three at Dela Cement Factory and that there are in all about 62 teaching and non-teaching staff in these schools. These teachers, employees have not been paid their salary from 13.7.1998.
U. P. State Cement Corporation Ltd. (In liq.) was wholly owned and controlled by the State Government and that the company was a Government Company under Section 617 of the Companies Act, 1956, which was wholly owned and controlled by the State Government, and was thus a instrumentality of the State. The U. P. Basic Education Act, 1972 provided for taking over the Primary Schools run by Local Bodies, to be managed by the Basic Education Board, for which grant comes under planned expenditure of the State of U. P. Even after company has been wound up, and is under liquidation, the State Government which was running and managing the institutions avoid its obligation to take over the responsibility and to provide primary educational facilities as a mandate by Constitution of India. In facts and circumstances of the case and looking into the interest of the school going children of the area, which include the children of company workers, employees and other children of the area as well, Secretary of Education Basic, U.P., is directed to consider the matter to take over these primary schools, under U. P. Basic Education Board, and to provide financial aid to these schools. He shad consider the matter and issue necessary orders with intimation to the official liquidator without four weeks."
2. On behalf of opposite party No. 1 an affidavit of compliance has been filed. In paras 5 and 6 of the affidavit, it has been stated that in compliance to the order dated 6.2.2002, an order dated 12.2.2004 has been passed and the copy of the same was sent to official liquidator. The copy of the order dated 12.2.2004 has been annexed as Annexure-1. Order dated 12.2.2004 reads as follows :
^^dEiuh fel ,Iyhds'ku la[;k&4197 esa 'kkldh; lekid dh fjiksVZ la[;k&[email protected] ds ifjisz{; esa ;w- ih- lhesaV dkjiksjs'ku dh lekiu dh fLFkfr esa ek- U;k;ky; }kjk vius fu.kZ; fnukad 6-2-2002 }kjk lfpo] csfld ,tqds'ku cksMZ ds v/khu ysdj] fok iksf"kr djus ds fcUnq ij fopkj dj 'kkldh; lekid dks pkj lIrkg ds Hkhrj voxr djk;s tkus ds vkns'k iznku fd;s x;s A bl lanHkZ esa fopkj&foe'kZ gsrq 'kklu LRkj ij fnukad 23-11-2002 dks cSBd vkgwr dh x;h ftlesa f'k{kk funs'kky; cs- ek- o ftyk fo|ky; fujh{[email protected] csfld f'k{kk vf/kdkjh] lksuHknz }kjk mifLFkr gksdj vfHkys[kh;@HkkSfrd fLFkfr Li"V dh xbZ A izkFkdrd fo|ky;ksa dks fok iksf"kr fd;s tkus ds ifjizs{; esa fo|eku lqlaxr fu;e fuEuor~ gSa A 1- v'kkldh; fo|ky;ksa dks fok iksf"kr djus dh dksbZ 'kkldh; uhfr ugha gS A 2- fdlh Hkh dkjiksjs'ku }kjk lapkfyr [email protected]|ky;ksa dks Vsd&vksoj djds mls fok iksf"kr djus dh dksbZ 'kkldh; uhfr ugha gS A 3- v'kkldh; ek/;fed fo|ky;ksa ls lEc) izkbejh izHkkx dks vuqnkfur fd;s tkus gsrq ewyHkwr 'krs fuEuor~ gSaa ;Fkk&izkbejh fo|ky;ksaa dks lEc) ekudj {kfriwfrZ vuqnku fn;k x;k gks] izkFkfed fo|ky; dk uke ifjlheu lwph esa gks A izkFkfed fo|ky;ksa dks ek/;fed fo|ky; ds lkFk lEc)rk ds vkns'k fnukd 21 twu] 1973 ds iwoZ l{ke vf/kdkjh }kjk iznku fd, x;s gksa A mDr fLFkfr;ksa ds vkyksd esa lanHkZxr izkFkfed fo|ky;ksa dh rF;kRed fLFkfr fuEuor ik;h x;h % 1- ;w- ih- lhesaV dkiksZjss'ku }kjk dqy 7 izkFkfed fo|ky; lapkfyr gSaa A bu izkFkfed fo|ky;ksa dh u rks csfld f'k{kk ifj"kn }kjk dHkh ekU;rk iznku dh x;h gS] u ;s lEc) izkbejh fo|ky; dh 'krs iwjh djrs gSaa A buesa dk;Zjr v/;kidksa dh fu;qfDRk] vuqeksnu rFkk inl`tu laca/kh dksbZ dk;Zokgh tuin Lrjh; f'k{kk ds dk;kZy; ls ugha dh x;h gS A bu fo|ky;ksa dks ifj"knh;@jktdh; izkFkfed fo|ky;ksa dh Js.kh esa Hkh ugha ekuk tk ldrk gS A of.kZr fLFkfr esa v'kkldh; [email protected]'ku }kjk lapkfyr izkFkfed fo|ky;ksa dks fok iksf"kr djus dh dksbZ 'kkldh;
uhfr u gksus ij bu fo|ky;ksa }kjk lac)rk dh 'krks dh iwfrZ u fd;s tkus rFkk budh ekU;[email protected] dh fu;qfDRk] vuqeksnu vkfn ls lacaf/kr dksbZ dk;Zokgh f'k{kk foHkkx ds tuinh; dk;kZy;ksa ds ek/;e ls u gksus dh n'kk esa ;w- ih lhesaV dkiksZjs'ku }kjk lapkfyr izkFkfed fo|ky;ksa dks ;w- ih- csfld ,twds'ku cksMZ ds v/khu ysdj fok iksf"kr fd;k tkuk fu;ekuqlkj laHko gS A gfjjkt fd'kksj] lfpo A**
3. In para 5 of the rejoinder-affidavit, it has been stated that more than two years have been passed from passing of the judgment and order dated 6.2.2002 by this Hon'ble Court and during the entire period schools are running as before and applicants and other teachers have been discharging their duties as Principal and Head Master and teachers and educating the children but had not been paid even a single paisa for the work taken from them from 6.2.2002. It is further stated that the apology offered by the contesting opposite parties are a farce and is a pretension calculated to deceive and cheat this Court and to harm the children studying in the primary schools and the teachers, employees and other staff of the schools, who are discharging their duties in accordance with the directions of this Hon'ble Court. It is further stated that the order of compliance clearly shows that contesting opposite parties have no concern with the welfare of children and to their interest as well. It is also stated that the U. P. Cement Corporation Limited is established by the Government of Uttar Pradesh under Section 617 of Companies Act, 1956, which is a Government Company. As such U. P. State Cement Corporation Limited even prior to its liquidation was a Government Company and all the posts of these were created by the State Government and without its prior sanction no post could be created. It is further stated that the alleged order of compliance stating that U. P. Cement Corporation Limited has seven primary schools and none of them have even recognised by Basic Shiksha Parishad is untrue. A communication dated 21.11.1996, which was sent by Basic Education Officer, Sonebhadra to the Managing Director/Manager of the Schools Cement Cotton Mills, Churk, Sonebhadra clearly stating that the schools are recognised schools and the provisions of U. P. Basic Education Act, 1972 are fully applicable to it and as such the suspension of the Head Master of the school without prior approval of the District Basic Education Officer, Sonebhadra is wholly invalid. A letter of the District Inspector of Schools, Sonebhadra dated 26.12.1992 has also referred, in which it is stated that the primary schools at Churk and Gurma have been recognised by order dated 14.12.1956. This communication was sent to the Madhyamik Sangh, Sonebhadra. It has been further stated that the matter regarding the grant of recognition to primary schools situated at Churk and Gurma had come to the notice of this Court in various cases and this Court held that primary schools being run by U. P. State Cement Corporation Limited, Churk and Gurma are recognised institutions. On the basis of the aforesaid averment, it is stated that the order dated 12.2.2004 is illegal and full of mala fide. It has also been submitted that the opposite party is playing subterfuge and therefore, committed contempt. In support of his submissions he relied upon the decisions, namely, AIR 1970 SC 1767 ; 1998 (4) Supreme 417 ; JT 2000 (1) SC 337 ; AIR 1979 SC 49 (7) ; 1997 (1) AWC 2-119 : AIR 1987 SC 294 ; (1998) 3 SCC 127 ; AIR 1996 SC 205 ; 1990 ALR 144.
4. Learned standing counsel submitted that this Court cannot go into the merit of the case. He submitted that legality of the order cannot be examined by the Contempt Court and if the applicants are aggrieved by the order dated 12.2.2004 the same should be challenged before the appropriate forum. In support of his contention he relied upon the decisions of the Apex Court in the case of J. S. Parihar v. Ganpat Durggar and Ors., (1996) 6 SCC 291 and in the case of Lalith Mathur v. L. Maheswara Rao, (2000) 10 SCC 285.
5. Having heard learned counsel for the applicant and learned standing counsel appearing on behalf of the opposite parties, I am of the view that it is not open to the Contempt Court to examine the merit of the order passed by the opposite party. This Court can only consider whether the direction given in the order is complied with or not. In the present case, the Court has given the direction to the Secretary of the Basic Education, U. P. to consider the matter to take over the primary schools under U. P. Basic Education and to provide financial aid to these schools. This direction has been complied with by passing the order, which has been communicated. It may be that while giving the direction the intent of the Court appears to consider the matter looking into the interest of the school going children, employees, etc. and the alleged order may not be in the interest of the aforesaid persons which appears to have been passed in accordance to the Government policy. If the applicants feel that the order passed by the opposite party is not in accordance to the intent or desire of the Court or otherwise illegal and arbitrary, the same can only be challenged before the appropriate forum. In various cases, Apex Court has held that the Contempt Court cannot go into the merit of the order. Various grounds raised by the learned counsel for the applicant to submit that the order is bad in law required consideration and adjudication, which can only be done by the appropriate Court and not by the this Court. Cases cited by the learned counsel for the applicant referred above are not relevant to the issue involved and are distinguishable.
6. In the case of J. S. Parihar v. Ganpati Duggal, AIR 1997 SC 113, question was whether in contempt proceedings court can direct to redraw the seniority list. Apex Court held as follows :
"The question is whether seniority list is one 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, a fresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned single 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."
7. In the case of Lalith Mathur v. L. Maheswara Rao, (2000) 10 SCC 285, the facts of the case was that L. Maheswara Rao was the employee of A. P, State Co-operative 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 He 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 stated 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."
8. However, perusal of the order of the compliance shows that no valid reason has been given as to why the direction given by this Court in the order dated 6.2.2002 has not been considered within a reasonable time. There is no justification for delaying the matter for two years. Delay in the matter led various consequences. It is seen that delay in taking the decision or complying the order of the Court or inaction on the part of the Government official has become a part of their habit which are leading the serious consequences and multiplying the litigation which cannot be tolerated. In the circumstances, I propose to award the cost of Rs. 20,000 against the opposite party No. 1.
9. In the result present petition is disposed of with the aforesaid observation. Opposite party No. 1 will be subject to cost of Rs. 20,000 payable to the official liquidator within two months, who is directed to use the said amount for the purpose of the said schools. In case if the amount is not paid, same shall be recovered as arrears of land revenue.