Court No. - 4
Case :- CONTEMPT APPLICATION (CIVIL) No. - 1334 of 2021 Applicant :- Zaheerul Hasan Opposite Party :- Sri Kumar Prashant, Collector/ D.M. And 2 Others Counsel for Applicant :- Javed Habib Counsel for Opposite Party :- Jai Bahadur Singh
Hon'ble Prakash Padia,J.
Heard learned counsel for the applicant and Sri Jai Bahadur Singh, learned counsel for the opposite party.
The applicant is before this Court for a direction to initiate contempt proceeding against the opposite party for wilful disobedience of the order dated 6.1.2021 passed in Writ A No.12216 of 2020. The operative portion of the order is reproduced hereibelow :-
"Petitioner is working as Senior Clerk in the Nagar Panchayat Sakhanu. He has been transferred/ attached to Nagar Panchayat, Badaun. This arrangement has been made under the order of the Addl. District Magistrate (Admn.) dated 4.11.2020 which is impugned in this petition . This order is assailed relying upon an order passed by this Court in Writ Petition No. 16853 of 2018 on 14..8.2018 which is reproduced hereafter:-
"In pursuance of the order passed earlier by this Court, the District Magistrate, Badaun has sent written instructions dated 10th of August 2018, the same are kept on record.
From a perusal of the instructions dated 10th of August 2018, it is evident that the main issue involved in the writ petition regarding the jurisdiction of District Magistrate, Badaun to transfer any employee of the clerical cadre of a particular Nagar Panchayat to another Nagar Panchayat, has been side tracked by him. The District Magistrate says that in his instruction there are several vacancies, in several Nagar Panchayats and it is necessary to carry on all kinds of schemes and works relating to development, therefore, he has attached employees of clerical cadre of one Nagar Panchayat to another Nagar Panchayat and such attachment is temporary and shall be reversed as and when regular employees are made available on fresh recruitment in the existing vacancies.
The order passed by the District Magistrate according to the District Magistrate himself is that of attachment only and not of transfer since the District Magistrate is not the Appointing Authority of clerical cadre of Nagar Panchayat and is also not competent under the Rules, as the Director Local Bodies alone is competent for making such transfer.The institutions have been controverted by the counsel for the petitioner has pointed that the by the order impugned a sweeper Bhanu Prakash Pal has been sent from Nagar Panchayat Allapur to work to Nagar Palika Parishad Dadaganj to do clerical work.
What cannot be done in a direct manner has been attempted to be achieved in an indirect manner.
This Court cannot countenance any such attempt being made by the Administrative Officers to exercise power beyond their jurisdiction. If the District Magistrate, Badaun was in such great need of employees of clerical cadre he could have easily written to the Director Local Bodies and the Director Local Bodies could have then considered transfer of some employees or even their attachment to various Nagar Panchayats.
The order impugned is therefore, set aside as being without jurisdiction.
It shall be open for the District Magistrate to approach the Director Local Bodies or the Government with his grievance of continued vacancies in clerical cadre in 7 Nagar Palika Parishads and 13 Nagar Panchayats in his District, and the Competent Authority shall pass orders thereafter.
The writ petition is partly allowed to this extent."
Learned counsel for the petitioner submits that the District Magistrate has absolutely no jurisdiction to pass the order impugned.
Learned counsel for the respondent no. 5, on the other hand, submits that he petitioner has been placed under suspension on 23.12.2020 and, therefore, this petition has lost its efficacy.
Perusal of the suspension order, which has been produced before the Court, would go to show that the first charge against the petitioner is of non-compliance of the order passed by the District Magistrate dated 4.11.2020, which is impugned in the writ petition.
Since basis for passing the order of suspension is alleged non compliance of the impugned order in the present writ petition, therefore, it cannot be said that this petition has been rendered infructuous merely because petitioner has been subsequently placed under suspension.
Prima-facie, this Court finds that the District Magistrate is not the competent authority to pass any order of transfer/ attachment in respect of employee of Nagar Panchayat.
Matter requires consideration.
Learned Standing Counsel states that the instructions have been received and the counter affidavit would be filed shortly. No provision however is shown from the instructions which may justify passing of the order by the District Magistrate, in the facts of the present case.
Put in the additional cause list on 27.1.2021.
Till the next date of listing, effect and operation of the order dated 4.11.2020 passed by the respondent no. 4 (Annexure -10 to the writ petition) shall be kept in abeyance."
Today when the matter is taken up, it is informed by learned counsel for the applicant that the order passed by the writ court has already been complied with, therefore, no cause of action remained survive and prays that the present application be dismissed as infructuous.
In view of the same, the present contempt application is dismissed as infructuous.
Order Date :- 29.7.2021 Pramod Tripathi