Kailash Mahto vs State of Bihar and Another

M.Y. Eqbal, J.—This application has been filed by the Petitioner under Sections 11 and 12 of the Contempt of Courts Act, 1971, read with Article 215 of the Constitution of India, for initiation of a contempt proceeding against the opposite parties especially opposite party Nos. 2 and 3 for wilfully disobeying and not complying the orders and directions dated 19.7.1996 in CWJC No. 331 of 1996 (R).

The aforesaid writ petition was filed by the Petitioner praying for appropriate direction upon the responents - opposite parties to forthwith promote him from the post of Orderly in Grade-IV to the post of Assistant in Grade-III in terms of the Resolution as contained in Memo No. 335 dated 16.9.1992 of the Personnel and Administrative Reforms Department, Government of Bihar.

The case of the Petitioner was that he was appointed in Grade-IV post in the year 1973 and since then he is continuing against the said post. The further case of the Petitioner is that he is possessing requisite qualification for promotion to the higher post, i.e. Class-III post, with respect to which certain quota has been fixed for appointment. It was alleged that a number of persons juniors to Petitioner and Ors. to Class-IV employees have been granted promotion to the higher post, i.e. Class-III post.

In the counter affidavit the stand taken by the Respondents was that the Petitioner cannot be promoted straightway from Class-IV to Class-III post simply because be holds the requisite qualification, unless he qualified in the limited competitive examination in terms of the Resolution dated 16th September, 1992.

The aforesaid writ petition was disposed of by a Bench of this Court after hearing the parties with certain observations and directions. The operative portion of the judgment and order of this Court is re-produced hereinbelow:

Taking into note that the persons juniors to the present Petitioner have already been promoted to the higher Class-III post and the Respondents are taking work from Petitioners against Class-III post since 1988, this Court directs the authorities to take appropriate steps for filling up Class-III post, which are to be filled up from amongst Class-IV employees in terms with Resolution dated 16.9.1992. It is not desirable that they should continue with the interim arrangement for long period by taking work of Class-III post from amongst Class-IV employees like the Petitioner. The Respondents are directed to consider the case of the Petitioner along with other similarly situated persons, in terms with the Resolution dated 16th September, 1992, and fill up 50% Class-III post on that basis, within a period of three months from the date of receipt/production of a copy of this order.

A show cause has filed on behalf of Opposite Party Nos. 2 and 3, namely State Commissioners, Transport Department, Government of Bihar, stating, inter alia, that the contemnor - opposite parties have not disobeyed the order of this Court intentionally, but some delay has been caused due to unavoidable procedural compulsion. It is stated that the order of this Court was passed in view of the Resolution of the State Government which prescribes the mode and method of appointment by "Limited Competitive Examination". It is further stated that when the order of this Court was brought to the notice of the opposite parties, steps have been taken for holding limited competitive examination. It is further stated that any Class-IV employee desirous of being appointed to a Class-III post is required to appear in the limited competitive examination and on successful-result of it (sic) required to be considered for appointment. The opposite parites in the Transport Department are neither authorised to conduct such an examination in terms of the Resolution of 1992, nor they can make such appointment. It is further stated that the proposal for holding the said examination was sent to the Personnel Department for necessary action and advice and the opposite party No. 2 was advised that no examination was conducted by the Personnel Department and that a new Resolution dated 20.12.1995 has been issued by the Personnel and Administrative Reforms Department superseding all previous circulars are not the matter of appointment of Class-IV employees to Class-III posts have to be considered under the guidelines and parameters of the 1995 Resolution. It was clarified that the appointment of Class-III employees was to be made on the basis of a limited competitive examination to be conducted by the Bihar Public Service Commission. A panel of successful candidates shall be sent to the District Magistrate who with the help of a committee would allot the candidates to various departments in view of the vacancies. It is stated that since no limited competitive examination was conducted, even in terms of 1992 Resolution, the opposite parties could not have appointed the Petitioner nor they had any authority to do so. The opposite parties have further stated that in view of the advice given to them, the Petitioner was advised through the District Transport Officer, Palamu, to appear in the said limited competitive examination, which would be held in due course. Lastly it was contended that the opposite parties in compliance with the order dated 19.7.1996 considered the case of the Petitioner and it was found that in terms of the Resolution dated 16.9.1992, the Petitioner was required to pass limited competitive examination for this purpose. Now after the Resolution of 1995, the Petitioner is required to appear and pass the aforesaid examination to be conducted by the Bihar Public Service Commission.

I have heard Mr. Metha, learned Counsel for the Petitioner, and the learned Counsel appearing for the opposite parties.

From bare persual of the operative part of the judgment/order, subject matter of this contempt petition, it appears to me that this Court by the said order simply directed the authorities to take appropriate steps for filling up Class-III posts in terms of the Resolution of 1992.

The case of the Petitioner is that since the Petitioner has not been promoted to Class-III post, the opposite parties have disobeyed and violated the order of this Court. In my opinion, it is not a clear case of contempt; inasmuch as even under the Resolution of 1992, the Petitioner has to face the "Limited Competitive Examination" and only if the Petitioner qualifies in the examination, he shall be entitled for promotion to class-III post. Admittedly, the opposite parties who are officers of the Transport Department are not the appointing authorities, it is the Department of Personnel and Administrative Reforms, Government of Bihar to act under the Resolution of 1995. In view of the subsequent development, it appears to me that under the Resolution of 1995, the Petitioner is required to face the said Limited Competitive Examination to be held by the Bihar Public Service Commission.

It is well settled that the law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in administration of justice. Normally speaking, it cannot be gain-said that the order ought to have been obeyed but it appears that there are inseparable difficulties in implementing the order. At the same time, if the order is incapable of compliance, then it shall not be justified to decline un-conditional apology of the contemners.

In the case of Mohd. Iqbal Khanday Vs. Abdul Majid Rather, a writ petition was filed seeking ad-hoc promotion of the Petitioner, Assistant Professor, to the post of Associate Professor. It was urged in the writ petition that the promotions granted to the various other persons were arbitrary and he had been denied such a promotion despite having requisite experience. The High Court directed the State Government to grant ac hoc promotion to the Respondent to the post of Associate Professor. When the order was not complied, a contempt proceeding was initiated. In the show cause and the counter affidavit filed by the contemner-opposite party it was stated, inter alia, that the promotion to the post of Associate Professor under the relevant rule was required to be made by the Public Service Commission or by the Departmental Promotion Committee. It was further stated that the post of Associate Professor was a selection post. Mere gaining of experience was not sufficient to entitle the Respondent to claim promotion.

When the matter came to the Apex Court, the Apex Court laid down the principles of law which is worth to be quoted hereinbelow:

From the above, it appears that the Appellant was expressing his genuine difficulties with regard to the implementation of the order dated 21.9.1992. In such a situation the insistence of the Courts on implementation may not square with realities of the situation and the practicability of implementation of the Court''s direction. In our considered view, hooking a party to contempt proceedings and enforcing obedience to such orders hardly lends credence to judicial process and authority; more so, in the peculiar facts and circumstances of the case. The Court must always be zealous in preserving its authority and dignity but at the same time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt. Practically, what the Court by means of the contempt proceedings seeks is an execution which cannot meet with our approval.

In the light of the principles laid down by the Supreme Court in the aforesaid case, it cannot be held that the contemner-opposite parties have flouted the order of this Court. As a matter of fact, it was not disputed by the Petitioner that the contemner-opposite parties are not the appointing authorities. It was also not disputed that even under the Resolution of 1992, the Petitioner has to face the Limited Competitive Examination in the matter of promotion to Grade-III post. In such circumstances, I am of the opinion that unqualified apology tendered by the contemner-opposite parties should be accepted.

Having regard to the fact that no case of contempt is made out by the Petitioner, this proceeding is dropped and the Rule is discharged. However, it is expected that the opposite parties shall take all possible steps so that the said Limited Competitive Examination could be conducted by the Bihar Public Service Commission at an earliest.

This contempt petition is accordingly disposed of.