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Judgment
Anil Kumar, J.—Heard counsel for the parties and gone through the record.
By order dated 10.02.2010 passed in Writ Petition No. 2569 (SS) of 2008 Alok Kuamr v. State of Uttar Pradesh and Ors. Writ Petition No. 2569 (SS) of 2008. following direcitons has been issued:
"Considering the peculiar facts and circumstances of the case, the opposite parties are directed to reconsider the claim of the Petitioner for regularisation taking into consideration the above facts as also the circular letter dated 3rd July, 2009 issued by the Commissioner/Secretary, Board of Revenue, Lucknow. It is further provided that while considering the claim of the Petitioner, the authorities will not be guided with the impugned order and shall pass fresh order after applying its independent mind to the facts and circumstances of the case."
As the said order has not been complied with by the opposite parties as per the version of the Petitioner/applicant, the present contempt petition has been filed u/s 12 of the Contempt of Courts Act.
Thereafter the response has been filed on behalf of O.P. No. 3/Sri Ashutosh Rai, Sub District Magistrate, Bhinga, District - Shrawasthi and in the said response in paragraph No. 5 it is inter alia stated that by an order dated 30th of August, 2010 (Annexure No. CA-1) the case of the applicant has been considered in pursuance to the order passed by writ court and necessary orders were passed/decided accordingly. So the present contempt petition is liable to be dismissed.
Learned Counsel for the applicant submits that the direction as given by the writ court has not been considered in true sense while passing the impugned order dated 30th of August, 2010, hence the opposite parties are liable to be punished in the matter.
In view of the above said facts, the question which arises for immediate consideration in present case is to the effect that after any certain direction issued by the writ court, in compliance of the same, the case of the Petitioner/applicant has been considered and decided then in that circumstances, if the applicant is aggrieved on the ground that order passed by the writ court has not been complied with in letter and spirit, then in that circumstances, Contempt petition filed by him is maintainable or not?
The answer to the above said question finds place in the law as laid down by Hon''ble the Apex Court and by this Court in the following cases:
In the case of J.S. Parihar v. Ganpat Duggar and Ors. AIR 1997 Supreme Court 113 the apex court has held as under:
"The question then is whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, learned Counsel appearing for the Appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the Respondent had willfully or deliberately disobeyed the order of the Court as defined u/s 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the Respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the direction 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, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible u/s 12 of the Act.
In the case of Lalith Mathur V. L. Maheswara Rao, (2000) 10 SCC 285 the Hon''ble Supreme Court held as under:
"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 the representation 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 lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits."
Further in the case of Ashok Kumar Pandey v. Ashok Kumar Singh D.I.O.S. Ballia and Ors. 2003 (5) AWC 4393 this Court has held as under:
"The D.I.O.S. considered the report and the matter of appointment of the applicant in great detail. He observed in the previous writ petition the applicant claimed his appointment u/s 18 of the U.P. Secondary Education Service Commission Act, 1982. However, in the second writ petition, he claimed his appointment under Removal of Difficulties II Order. Both these matters were considered and it was held that the appointment is not according to the rules either u/s 18 of the U.P. Secondary Education Service Commission Act, 1982, or under Removal of Difficulties Order (Second). therefore, the appointment was disapproved.
It is further contended that previous approval in compliance of the order passed in the writ petition was passed by the Sub-Divisional Magistrate, who was holding the charge of D.I.O.S. without considering the provisions of the Act.
Therefore, the direction of this Court has been complied with. If the applicant is aggrieved by the order of the D.I.O.S. deciding the matter and is of the view that the decision is not correct, he may challenge the same in the appropriate writ or in other proper proceedings. There is no ground to proceed with the contempt. The petition for contempt is accordingly dismissed."
In the case of Brahma Deo Tiwari Vs. Alok Tandon, District Magistrate, this Court has held as under:
"As already noted hereinabove, this contempt petition has been filed alleging violation of the order of the writ court dated 10.12.1997 by which the writ court had directed to consider the case of the applicant with regard to his appointment. The contempt court after perusing the order dated 11.7.1997, though had disapproved the decision taken by the opposite party, had directed vide order dated 10.12.1997, to reconsider the case of the applicant after taking into consideration different aspect which are mentioned in the order itself. By the order dated 17.12.2002, the opposite party has considered all the aspects mentioned in the order dated 10.12.1997. Counsel for the applicant has urged that the order dated 17.12.2002 is neither legally nor factually correct. It may be so, but it is well settled that the contempt court can neither sit in appeal nor examine the correctness of a resultant order. The Apex Court in Lalith Mathur V. L. Maheswara Rao, (2000) 10 SCC 285 and J.S. Parihar v. Ganpat Duggar (1996) 6 SCC 29), has held that correctness of an order passed by a statutory authority on the directions of the writ court cannot be examined under the contempt jurisdiction. No doubt the resultant order may give rise to a fresh cause of action."
In the case of Shail Kumari and Others Vs. Hari Raj Kishore, Secretary, Education Basic and Others, this Court has held as under:
"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 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 this Court."
In the case of Anil Kumar Shahi and Others Vs. Prof. Ram Sevak Yadav and Others, the Apex Court held as under:
"When the court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding of an authority to whom direction is given, therefore, mere error of judgment with regard to legal position does not constitute contempt of Court. There is no willful disobedience if the best efforts are made to comply with the court order."
In view of the above said facts, the argument made by the learned Counsel for the applicant is wholly misconceived and the present contempt petition is liable to be dismissed.
For the foregoing reasons, the present contempt petition is dismissed.