Md. Abdul Sattar vs M.H. Khan

This contempt petition has been filed by the petitioners to take suo motu cognizance of the contempt of Court committed by the respondents and punish them for their willful disobedience of the order dated 8.7.2019 passed in W.P.(C) No.923 of 2016.

Heard Mr. BP Sahu, the learned senior counsel for the petitioners and Mr. Jotindra Luwang, the learned counsel for the respondents.

The case of the petitioners is that they are all regular Section Officer Grade-I of the Department of Rural Development and Panchayat Raj, Government of Manipur and they have been serving for decades without getting any promotion in their entire service career. Being aggrieved, the petitioners have filed W.P.(C) No.923 of 2016 with prayer to direct the respondents to promote them to the post of Assistant Engineer or equivalent and thereafter Executive Engineer or equivalent of the Department of Rural Development and Panchayat Raj (RD&PR) or in the newly established Rural Road Engineering Department. By the order dated 8.7.2019, W.P.(C) No.923 of 2016 was disposed of with direction to the first respondent to pass appropriate orders on the letter of proposal sent by the Director, RD&PR dated 20.12.2017 within a period of eight weeks from the date of receipt of the said order, by giving fair opportunity to the petitioners. Now the grievance of the petitioners is that they have not been considered for promotion and thus, the respondents have violated the order dated 8.7.2019 passed in W.P.(C) No.923 of 2016. Hence, the contempt petition.

Respondents filed affidavit-in-opposition stating that the Director, RD&PR had sent a letter dated 20.12.2017 to the Principal Secretary, RD&PR with a proposal for absorption of 49 Section Officers (23 nos. of Grade-I and 26 nos. of Grade-II) of the Directorate of RD&PR into the Rural Engineering Department during the pendency of the writ petition in which the petitioners were seeking for promotion to the post of Assistant Engineer in Department of RD&PR. It is stated that the writ petition was disposed on 8.7.2019 directing the first respondent to pass appropriate orders on the proposal sent by the Director, RD&PR dated 20.12.2017 within eight weeks. It is further stated that the promotional avenues cannot be given to the petitioners in Rural Engineering Department as the same is totally separate entity from the Directorate of RD&PR and each has its own organizational structure with certain number of posts created already. As such the two cannot be merged together in terms of promotion of staff. According to the respondents, the case of the petitioners has been examined and rejected their grievance vide order dated 17.8.2020 in compliance of the order dated 8.7.2019 passed in W.P.(C) No.923 of 2016. Hence, prayed for dismissal of the contempt petition.

The petitioners filed rejoinder stating that the said compliance order dated 17.8.2020 is not the actual compliance of the Court's order, but is, in fact, in defiance of the same, in both letter and spirit. It is stated that no opportunity was given to the petitioners, on the contrary the petitioners were victimized. According to the petitioners, there has been no application of mind on the part of the respondents while issuing the order dated 17.8.2020.

The learned senior counsel for the petitioners submitted that W.P.(C) No.923 of 2016 was disposed of on 8.7.2019 directing the first respondent to pass appropriate orders on the letter of proposal sent by the Director, RD&PR dated 20.12.2017 within eight weeks from the date of receipt of a copy of the order by giving fair opportunity to the petitioners. He would submit that the said direction of this Court has not been duly complied with the first respondent. On the other hand, the respondents have purportedly in compliance of the order passed in the said writ petition, issued a back-dated order dated 17.8.2020 intended to be in compliance of the direction of this Court.

The learned senior counsel further submitted that no opportunity was given before passing the order dated 17.8.2020. According to the learned senior counsel, there has been no application of mind on the part of the respondents while issuing the said order which is evident from their submission that staff from RD&PR cannot be absorbed into as they are two separate entities, which is in stark contrast to their conduct as staff from RD&PR had in fact been absorbed in 2016.

It is submitted on behalf of the petitioner that the Principal Secretary had absorbed 196 staff of RD&PR in 2016 and now the same Principal Secretary is submitting that absorption cannot be done between the two aforesaid departments as they are two separate entities. This clearly demonstrates their malafide.

The learned senior counsel then submitted that the respondents did not take into consideration the fact that the prayer of the petitioners if allowed, would have no financial implication as the said incumbents have already availed the enhanced financial remuneration and other consequential benefits and that the letter of the Director, on which order was required to be passed as per the direction of this Court, has clearly indicated that there would be no financial implication.

The learned counsel next submitted that the acts of the respondents in issuing the order dated 17.8.2020 without affording the petitioners an opportunity of being heard and without any application of mind with the objective of victimizing the said incumbents Is in defiance of the direction of this Court dated 8.7.2019. Hence, the respondents are to be punished for their willful disobedience of the order of this Court dated 8.7.2019. In support, the learned senior counsel relied on the decision of the Hon'ble Supreme Court in the case of Bihar State Government Secondary School Teachers Association v. Ashok Kumar Sinha and others, (2014) 7 SCC 416.

Per contra, the learned counsel for the respondents submitted that the case of the petitioners has been examined fairly by the respondent authorities and rejected vide order dated 17.8.2020 of the Under Secretary, RD&PR in compliance of the order dated 8.7.2019 passed in W.P.(C) No.923 of 2016. He would submit that during the issuance of the order dated 17.8.2020, there was total lockdown in the State and as such curfew were imposed in the State during the wide spread of pandemic Covid-19.

The learned counsel further submitted that only the Officers not below the rank of Under Secretary were allowed to attend as per Annexure Clause 11(b) of the notification dated 15.8.2020 issued by the Chief Secretary. Moreover, the contempt petition was fixed for hearing on 18.8.2020 and however, since there was no Court sitting during the lockdown for pandemic Covid- 19, the compliance order could not be placed before this Court on the date fixed on 18.8.2020.

The learned counsel next submitted that the compliance order dated 17.8.2020 was issued in compliance of the order dated 8.7.2019 and in the public interest. If the petitioners feel aggrieved by such order, they are at liberty to approach the appropriate forum.

This Court considered the submissions raised by the learned counsel appearing on either side and also perused the materials available on record.

It appears that on 8.7.2019, this Court passed an order in W.P.(C) No.923 of 2019 directing the first respondent to pass appropriate orders on the letter of proposal sent by the Director, RD&PR dated 20.12.2017 within a period of eight weeks from the date of receipt of the copy of the order by giving fair opportunity to the petitioners.

It also appears that on 25.7.2019, the petitioners sent a legal notice through their counsel to the respondents bringing to the notice of the order dated 8.7.2019 passed in the writ petition and requested them to pass appropriate orders on the basis of the letter of the proposal sent by the Director dated 20.12.2017. The said legal notice states that the petitioners are to be promoted to the post of Assistant Engineers in the Department of RD&PR within a period of eight weeks in compliance of the Court's order to avoid further legal complications and contempt of Court proceedings.

It is to be mentioned that by the order dated 8.7.2019 this Court directed the first respondent to pass orders on the proposal sent by the Director, RD&PR dated 20.12.2017 within the specified time and no specific direction was given to the first respondent to promote the petitioners to the post of Assistant Engineers. Hence, the notice dated 25.7.2019 issued on behalf of the petitioners to the effect that the petitioners should be promoted to the post of Assistant Engineers cannot be taken into account and such notice was issued to the effect that the petitioners should be promoted is not In accordance with the direction of this Court dated 8.7.2019.

Coming to the non-compliance of the order dated 8.7.2019 alleged by the petitioners is concerned, the contempt petition was filed on 3.10.2019 and after taken on file, the contempt petition was adjourned from time to time and during the pendency of the contempt petition, on 17.8.2020, the Under Secretary of RD&PR issued orders rejecting the claim of the petitioners.

For proper appreciation the order dated 17.8.2020 is extracted herein under:

"No.6/1/2011-RD&PR(HC): Whereas, the Hon'ble High Court of Manipur has passed an order dated 08.07.2019 in W.P.(C) No.923 of 2016 thereby directing the Respondent Authority to pass appropriate orders on the letter of proposal sent by the Director, Rural Development & Panchayat Raj, Manipur dated 20.12.2017 within a period of 8 (eight) weeks from the date of receipt of the Court's order, by giving fair opportunity to the petitioners.

Whereas, during the pendency of the Writ Petition, the Director (RD&PR), Manipur had sent a letter dated 20.12.2017 to the Principal Secretary (RD&PR), Government of Manipur with a proposal for absorption of 49 (forty nine) Section Officers (23 nos. of Grade-I and 26 nos. of Grade-II) of the Directorate of RD&PR, Manipur to the Rural Engineering Department, Manipur.

Whereas, promotional avenues cannot be given to the Petitioners in Rural Engineering Department (RED) as this is totally separate entity from the Directorate of RD&PR, and each has its own organizational structure with certain number of posts created already. And, as such, the two cannot be merged together in terms of promotion of staffs.

Whereas, Administrative Department of RD&PR had written letters dated © 24.01.2018, 07.03.2018 and 21.08.2019 requesting the Chief Engineer (RED/MSRRDA), Manipur to examine the matter and furnish comments on the same in order to avoid any future legal complicacies.

Whereas the Chief Engineer, RED/MSRRDA vide his letter No.6/50/2013- SRRDA(RED)/Cont.Case(C)/No.166/2019/210, dated 17th August, 2020 has stated that there is no vacant post of Assistant Engineer in Rural Engineering Department for absorption of 49 (forty nine) Sections officers (23 nos. of Grade-I and 26 nos. of Grade-II) as Assistant Engineer of the Directorate of RD&PR as proposed by the Director (RD&PR), Manipur vide his letter dated 20.12.2017. Moreover, the Directorate of RD&PR and the Rural Engineering Department are different entities and staffs of one cannot be absorbed into another even though the two are under the same Administrative Department.

Now, therefore, the matter has been duly examined by the official respondents and found to be devoid of merit, hence, the same is rejected in compliance of the order dated 08.07.2019 passed in W.P.(C) No.923 of 2016."

On a perusal of the order dated 17.8.2020, it is clear that there is no vacant post of Assistant Engineer in Rural Engineering Department for absorption of certain Sections as Assistant Engineers of the Director of RO&PR as proposed by the Director of RD&PR vide the letter dated 20.12.2017. Further, the order clearly speaks about the fact that the Directorate of RD&PR and the Rural Engineering Department are different entities and staff of one cannot be absorbed into another though the two are the under the same Administrative Department.

It is the contention of the petitioners that while passing the order dated 17.8.2020, the petitioners were not heard by the authority and in fact, the said order is a back-dated order. The said argument of the petitioners cannot be countenanced, as there was no material produced by the petitioners that the order dated 17 8 2020 was back-dated order. Since there was no indication in the order dated 17 8 2020 that the petitioners were heard, it cannot be said the petitioners were not heard and behind their back, the order dated 17.8.2020 has been issued.

It is the say of the respondents that promotional avenues cannot be given to the petitioners in Rural Engineering Department (RED) as this is totally separate entity from the Directorate of RD&PR, and each has its own organizational structure with certain number of posts created already. As such, the two cannot be merged together in terms of promotion of the staff. The said plea of the respondents has not been rebutted by the petitioners.

On over all perusal of the order dated 17.8.2020, it is clear the said order has been passed by the Under Secretary of RD&PR in due compliance with the order dated 8.7.2019 passed in W.P.(C) No.923 of 2016. If the petitioners are really affected by the said order dated 17.8.2020, they can very well challenge the same before the appropriate forum in accordance with law and the merits of the order dated 17.8.2020 cannot be gone into in this contempt petition as the limited point involved in the contempt petition is whether the respondents have willfully disobeyed the order of this Court dated 8.7.2019.

In Ashok Kumar Singh (supra), the Hon'ble Supreme Court held:

"24. ...... The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance with the directions given in the judgment, this Court is not supposed to go into the nitty-gritty of the various measures taken by the respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued "

This Court finds that the decision relied on by the petitioner in the case of Ashok Kumar Singh (supra) is not applicable to the case of the petitioners, as the petitioners have failed to produce any materials to show willful and contumacious disobedience of the order of this Court dated 08.7.2019 passed In W.P.(C) No.923 of 2016.

It is settled that disobedience of orders of the Court, in order to amount to civil contempt under Section 2(b) of the Contempt of Courts Act, 1971 must be willful and proof of mere disobedience is not sufficient. Where there is no deliberate flouting of the orders of the Court but a mere misinterpretation of the executive instructions, it would not be a case of civil contempt.

This Court finds that there is no willful disobedience of the order of this Court dated 8.7.2019 passed in W.P.(C) No.923 of 2016, as the compliance order dated 17.8.2020 stated that the promotional avenues cannot be given to the petitioners in Rural Engineering Department (RED) as the same is totally separate entity from the Directorate of RD&PR and each has its own organizational structure with certain number of posts created already.

This Court is of the considered view that the case of the petitioners has been duly examined by the respondent authorities and the order dated 17.8.2020 issued by the Under Secretary of RD&PR is in due compliance of the order dated 8.7.2019 passed in W.P.(C) No.923 of 2017 and if the petitioners are feeling aggrieved by the order dated 17.8.2020, as stated supra, they can very well challenge the same before the appropriate forum. Therefore, the contempt petition is liable to be dismissed.

Accordingly, the contempt petition is dismissed.