Heard Sri Khalil Ahmad Ansari, learned counsel for the applicant.
The applicant alleges to have filed Writ Petition No. 19149 of 2011 (Smt. Vineeta Mekhla Paul Vs. State of U.P. and others), wherein by an interim order dated 6.4.2011, the Court provided as under:-
"The retirement of the petitioner working on the post of Principal in Government Girls Higher Secondary School, Kulpahad, Mahoba shall be subject to the decision of this writ petition"
According to Sri Khalil Ahmad Ansari, learned counsel for the applicant, by the letter dated 18.5.2011 (Annexure-3 to the affidavit filed in support of this contempt petition), the District Inspector of Schools has informed the petitioner that she will be attaining the age of superannuation (60 years) on 30.6.2011 and she will be retired on that date unless she can get an order in her favour in her pending writ petition, where her claim is to continue up to the age of 62 years. Learned counsel submits that subsequent thereto the opposite party permitted the petitioner to continue till 23.7.2011, however, on 23.7.2011 when the petitioner had gone on two days Medical Leave, the District Inspector of Schools, Mahoba has passed an order that the petitioner has retired on 30.6.2011 and in accordance with the earlier order passed by the District Inspector of Schools, the senior most lecturer namely Smt. Shobha Rani Chaurasiya is being given the charge of Principal of the Institution namely Government Girls Higher Secondary School, Kulpahad, Mahoba.
Contempt is alleged by the petitioner of the interim order dated 6.4.2011 when the opposite party, District Inspector of Schools has issued the letter dated 18.5.2011 and secondly when he has passed the order handing over charge of Principal to Smt. Shobha Rani Chaurasia on 23.7.2011.
Learned counsel for the applicant has referred a decision of a Division Bench of this Court in the case of Bhoopendra Singh and others Vs. State of U.P. and others reported in [2007 (4) ESC 2360] and has referred to paragraph 30 onwards of the said decision to explain the meaning of the expression 'subject to'. Learned counsel has also placed reliance of a judgement of Supreme Court in the case of E.T. Sunup Vs. C.A.N.S.S. Employees Association and another reported in [(2005) 1 UPLBEC 325] and refers to paragraphs 16 and 18 therein.
Having considered the submission of learned counsel for the applicant and perused the record of this contempt petition as also the decisions cited by him, it is clear that under the interim order passed by the Writ Court, the issue of retirement of the petitioner at the age of 60 years was considered and it was held that her retirement shall be subject to the decision of the writ petition. Clearly the interim order did not contemplate that she will continue in service and her retirement will be subject to the result of the Writ Petition. Therefore, when the interim order provided that her retirement shall be subject to the result of the writ petition, it is quite apparent that the petitioner has to retire and in case she is successful in the writ petition, she can get all the consequential benefits for the period of two years during which she was not permitted to work and in case her writ petition fails ultimately it will not be a circumstance that the petitioner has worked illegally for two years and withdrawn emoluments and salary by an interim order passed by the Writ Court.
Clearly the interim order provided for retirement of the petitioner and not her continuance. If the Writ Court had found a strong prima facie case of the petitioner it would have passed a positive interim order in her favour. No such interim order was passed to enable the petitioner to continue in service even after the age of 60 years.
Insofar as reliance placed by the petitioner in the case of Bhoopendra Singh and others (supra)of a Division Bench of this Court it is clear that the expression 'subject to' has to be given effect to. In its application to the present case the retirement of the petitioner is subject to the result of the writ petition, therefore, when the result of the writ petition is given and if it is in favour of the petitioner, the expression 'subject to' has to be given effect for the purpose of all the benefits to which the petitioner may became entitled by the final order of the Writ Court and which benefits were denied to her by the respondents who prevented her from working for such period.
The use of the expression 'subject to' can be in relation to an already existing circumstance or an existing determination or even an existing fact or law. But this expression 'subject to' can be used to mean a circumstance that may occur in the future or a determination yet to be done or made but not yet done or made or even a fact that might occur later on.
In its application to the facts of the present proceedings clearly the Writ Court has used the expression 'subject to' in an interim order. Its use was in relation to the final decision of the writ petition. The writ petition is admittedly pending as of today. Therefore, the meaning and import of the use of the expression 'subject to' in the interim order is definitely in relation to a future happening or a circumstance yet to take place or a determination yet to be done or made.
The expression 'subject to' used in the interim order contempt whereof is alleged can only qualify with the words 'decision of the writ petition'. It cannot be read as an expression used in the interim order to hold that the date of retirement has been extended or deferred.
Retirement at the age of 60 years on 30.06.2011 was a fait accompli. The claim to continue till 62 years is still a claim and not a right vested in the petitioner at the present. Therefore, also she is governed by her service conditions and is to retire on attaining the age of 60 years.
The word 'subject to' can be interpreted for the benefit of the petitioner only after the result of the writ petition and at no stage prior to final disposal of the writ petition or even during the pendency of the writ petition. Therefore, at this stage of the proceedings when the writ petition is pending the petitioner cannot gain any advantage from the decision in the case of Bhoopendra Singh and others (supra).
Insofar as the decision of the Supreme Court in the case of E.T. Sunup (supra) is concerned, there is no dispute that if the Government Authorities circumvent the order of the Court and take recourse to one justification or the other, it would be a complete lack of grace in accepting the orders of the High Court.
In the aforesaid case, the Court was dealing with the matter under the Contempt of Court Act. In paragraph 18, it was held that if the incumbent employee, who was on the verge of retirement has tendered apology, even then if the courts order has been flouted like this, then people will loose faith in the Courts and hence the Supreme Court held that it is necessary to deal with such type of violation of Court's order with a strong hand.
Insofar as the aforesaid decision is concerned in its application to the present case, the writ petition has not yet been finally decided as to whether the rights of the applicant to continue up to the age of 62 years exists. By the interim order, her retirement has been made subject to the result of the writ petition and hence she has been retired at the age of 60 years by the order dated 23.7.2011.
Consequently, it cannot be held that the opposite parties have disobeyed the interim order passed by the Writ Court, so as to enable this Court in its contempt jurisdiction to deal with the matter with a strong hand to punish the opposite party. There is no circumstance of circumventing the interim order passed by the Writ Court when the opposite party has passed the order dated 23.7.2011.
Moreover, permitting the petitioner to continue after 1.7.2011 for 23 days by the Authorities will not give any further or more rights to the petitioner to continue in service after attaining the age of superannuation (60 years). However, the benefits to which she may be entitled in the event the writ petition is finally allowed can always be claimed by her thereafter.
For the aforesaid reasons, this contempt petition is misconceived and it is accordingly dismissed.
No order is passed as to costs.
Order Date :- 8.9.2011 Lbm/-