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Judgment
This is an application u/s 12 of the Contempt of Courts Act, 1971 filed six Petitioners complaining of willful disobedience of the judgment dated 8.12.1992 of a Full Bench of this Court in OJC No. 714 of 1992. Golakh Ch. Mohanty and Others Vs. State of Orissa and Others, , reported in Golakh Ch. Mohanty and Others Vs. State of Orissa and Others, and the judgment of the Special Bench in O.J.C. No. 9655 of 1992, Priti Ranjan Pradhan and Others Vs. State of Orissa and Others, .
The relevant facts briefly are that the six Petitioners are trained graduate teachers of different High Schools which were earlier aided High Schools under the Direct Payment Scheme of the State Government. The said aided High Schools have been taken over by the State Government with effect from 7.6.1994. Golakh Chandra Mohanty and eleven other assistant teachers of different similar aided High Schools (prior to their take over on 7.6.1994) located in district Puri filed a writ petition in O.J.C. No. 714 of 1992 challenging the promotion of opposite party No. 4 in the said writ petition Bhubanananda Sarangi to the post of Headmaster of the School on the ground that Bhubananda Sarangi was not eligible to be promoted as Headmaster because he had not completed seven years of teaching experience after training. The case of the aforesaid twelve writ Petitioners in O.J.C. No. 714 of 1992 was that Regulation 17(2) of the Regulations of Board of Secondary Education, Orissa (hereinafter referred to as "the Regulations) provided that a trained graduate in Arts or Science with minimum seven years experience after training was eligible to be promoted to the post of Headmaster. The further case of the Petitioners in the said O.J.C. No. 714 of 1992 was that under Rule 8(2)(b) of the Orissa Education (Recruitment and Conditions of Service of Teachers and Staff of Aided Educational Institutions) Rules, 1974 (hereinafter referred to as "the 1974 Rules"), a vacancy in a post carrying higher scale of pay is to be filled up with the prior approval of a Director in case of a High School. Since Bhubanananda Sarangi had not completed seven years teaching experience after training and no prior approval of the Director had been obtained, the promotion of Bhubanananda Sarangi was contrary to the provisions of the Regulations and the 1974 Rules. In the said writ petition (O.J.C. No. 714 of 1992), the Petitioners prayed for quashing the promotion of Bhubananda Sarangi and for directing the authorities to consider the promotion of trained graduate teachers to the post of Headmaster in accordance with the Regulations and the 1974 Rules. On 22.10.1992, a Division Bench of this Court passed orders for referring the following question for decision to a Full Bench:
Whether seven years teaching experience as trained graduate is necessary to make an assistant teacher eligible for promotion/appointment to the post of Headmaster of a High School?
Thereafter, the matter was referred to a Full Bench and on 8.12.1992, the Full Bench delivered its judgment. Paragraphs 26 and 27 of the said judgment of the Full Bench in the case of Golakh Chandra Mohanty (supra) are quoted herein below:
We record our conclusions as follows:
(1) Seven years teaching experience as trained graduate teacher was necessary for an assistant teacher to be promoted to the post of Headmaster with the aid of Rule 8(2)(b) of the 1974 Rules in those cases where the appointments had been made on or after 29.4.1977, when amended regulation 17(2)(i) of the Board''s Regulations had come into force. This applies both to aided and unaided schools.
(2) The promotions of incumbents made even after 29.4.1977, despite their not having had the requisite qualification (i.e., seven years teaching experience as trained graduate teacher) would not be reopened if the appointments have already been approved.
(3) Those cases of promotion relating to which approval orders have not been passed by today shall be decided keeping in view what we have stated above, namely, that if the incumbents had acquired the requisite qualification before 3.6.1988, the promotions/appointments shall be approved.
(4) Those cases, in which the requisite qualification had not been obtained before 3.6.1988, shall not be approved, and the post shall be treated as vacant on and from 3.6.1988 and shall be filled up by complying with the requirements of Rule 8(3) of the 1974 Rules.
(5) Rule 8(3) of the 1974 Rules applies to all aided school irrespective of whether the school has started receiving full-salary cost or not.
Let a copy of the judgment be urgently sent to the Secretary to Government of Orissa, Education Department, who would apprise all concerned about it, so that they may act as per the aforesaid conclusions reached by us.
Thereafter Priti Ranjan Pradhan filed Anr. writ petition, namely, O.J.C. No. 9655 of 1992, before this Court and his case in the said writ petition was that he was working as Headmaster of Raj Kumar Singh Bariha High School, Badikata, District - Sambalpur and he was not being allowed to draw Headmaster''s scale of pay in spite of his completion of seven years of teaching, experience as a trained graduate teacher. In this said writ petition (O.J.C. No. 9655 of 1992), he prayed for a mandamus to the authorities to release Headmaster scale of pay in his favour with effect from date he completed seven years teaching experience as a trained graduate teacher. The said writ petition of Priti Ranjan Pradhan along with other cases which were analogous, were heard by a Division Bench initially. But it was pointed out to the Division Bench on 13.7.1995 that the points involved in these cases have been raised in the cases pending before a larger Bench. Thereafter, the said cases of Priti Ranjan Pradhan and Ors. were heard by a Full Bench and on 22nd of December, 1995, the Full bench delivered a judgment holding that the decision of the Full Bench of this Court in the case of Golakh Chandra Mohanty and Ors. (supra) does not need reconsideration. As per the said judgment dated 22nd of December, 1995, the cases were to be listed before appropriate Bench for disposal on merits. Thereafter the matter was heard by a Division Bench, but on 26.8.1996, the Division Bench delivered an order that the case of Priti Ranjan Pradhan and other connected cases should be heard by a larger Bench on the question as to whether the Inspector''s order of approval of an incumbent as Headmaster-in-charge of the school is protected under conclusion No. (2) recorded by the Full Bench in the case of Golakh Chandra Mohanty and Ors. (supra) and whether Rule 8(2)(b) of the 1974 Rules is applicable to such order of approval made by the Inspector of Schools. Accordingly, a Special Bench of five Judges heard the case of Priti Ranjan Pradhan and the other connected cases and delivered a judgment on 25.1.1999. Paragraphs 19 and 20 of the said judgment are quoted herein below:
19 Our conclusions are as follows:
(a) The decision of the Full Bench of this Court in Golakh Chandan Mohanty''s case (supra) as contained in Sub-paras (2), (3) and (4) of paragraph 26 is contrary to law. In paragraph 26(2) of the judgment, use of expression ''appointment'' is admittedly improper as there is no question of direct appointment. In paragraph 20, the Full Bench itself observed that all posts were to be filled up as required by Rule 8(3) of the Rules. Regulation 17(2) of Chapter IX of Board''s Regulations is applicable to both aided and unaided institutions and only when a person is a trained graduate with minimum of seven years of experience after training is eligible to become as Headmaster.
(b) In Priti Ranjan''s case (supra) the second Full Bench observed that the date 3.6.1988 has rational nexus with the object sought to be achieved by the provisions. The conclusion is indefensible in view of the analysis made above. The basis for such conclusion was enactment of Rule 8(3). In view of the analysis made that the Regulation 17(2)(i) operated at all times, the basis for such conclusion does not hold good. The conclusion in Golakh Chandra Mohanty''s case (supra) as followed in Priti Ranjan Pradhan''s case (supra) that in cases where prescribed qualifications had not been acquired by 3.6.1988, but were acquired subsequently were to be approved is clearly without any basis.
That there can be no arbitrariness in fixation of even a cut off date in not disputed before us by the learned Counsel for the parties. This stand has been correctly taken, because after Article 14 has spread its wing in the field of administrative law following what was principally held in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, , no stand can be taken by any administrative authority that it can act arbitrarily. Indeed, even before the decision in Maneka Gandhi, law was that no administrative authority has absolute discretion to decide a matter within its competence the way it chooses. This has been the accepted position and the apex Court had cited with approval what had been stated in this regard in United States v. Wunderlich (1051) 342 US 98, the relevant part of which reads as below:
Law has reached its finest moments, when it has freed men from unlimited discretion of some Ruler, some official, some bureaucrat. Absolute discretion is a Ruthless master. Low in more destructive of freedom than any of man''s other invention.
In so far as fixation of cut off date is concerned,, the same can be regarded as arbitrary by a Court if the same be one about which it can be said that it has been ''picked out from a hat'', as was found to be by the apex Court in D.R. Nim, I.P.S. Vs. Union of India (UOI), , because of which fixation of 19.5.1991 as the date for the concerned purpose was held to be invalid.
As to when choice of a cut off date can be interfered was stated by Holmes, J. in Louisville Gas and E.Co. v. Coleman (1927) 277 US 32, by stating that if the fixation be ''very wide of any reasonable mark'' the same can be regarded arbitrary. What was stated by Holmes, J. was cited with approval by the apex Court in Union of India (UOI) and Another Vs. Parameswaran Match Works and Others, , in paragraph 10 by also stating that choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. It was further pointed out where a point or line has to be, there is no mathematical or logical way of fixing it precisely, and so, the decision of the legislature or its delegate must be accepted unless it can be said that it is very wide of any reasonable mark.
The aforesaid decision was cited with approval in D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, ; so also in State of Bihar and others Vs. Ramjee Prasad and others, The position was again reiterated in Union of India and Another Vs. Sudhir Kumar Jaiswal, .
(c) The orders of approval passed by the Inspectors of Schools are of no consequence and do not have any force on the question of promotion in terms of Rule 8(3).
Since we have laid down the position of law, the writ applications are disposed of. The opposite parties shall take a decision so far the Petitioners are concerned keeping in view the conclusions indicated supra, and the consequences flowing from the same. No costs.
Against the aforesaid judgment dated 25.1.1999, appeals were carried to the Supreme Court and on 4.1.2001, the Supreme Court upheld the said judgment of the Special Bench in Civil Appeal Nos, 3190 and 4670 of 1999. Paragraphs 7 and 8 of the said judgment of the Supreme Court in the Civil Appeals (Pabitra Mohan Dash, etc. v. State of Orissa and Ors.) AIR 2001 SC 560, are quoted herein below:
Having examined the rival contentions and on a through scrutiny of two earlier Full Bench decisions as well as the impugned judgment of the Special Bench we are of the considered opinion that the Special Bench rightly thought it appropriate to reconsider the entire matter afresh and re-determine the issues involved in the light of the relevant provisions of the Act, Rules and Regulations after hearing at length on all issues and there was no infirmity on that score even though the point of reference was of a limited nature. Courts exist to interpret the law and while examining the provisions of any Act, Rule or Regulation, if it is felt that the earlier decision on the question is not clear on any particular issue or has created confusion in resolving the disputes or has caused hardship to a group of people, it would be the duty of the Court to re-examine the matter after giving opportunity to all parties concerned and by such process question of taking away anybody''s vested right does not arise. In the case in hand it is not a particular writ or order that had been issued in favour of any individual is sought to be nullified by the subsequent Special Bench decision. On the other hand the erroneous conclusion of the relevant provisions of the Act, Regulation and Rules are sought to be corrected and we see no infirmity in this approach of the Special Bench. That apart, though point of reference may be of a limited nature but in answering the same if the Court feels that it would be in the interest of justice to constitute a larger Bench and examine the correctness of any earlier conclusion which might have been made on an erroneous interpretation of any provision, then there would be no fetter for adopting that procedure. In this view of the matter we see no infirmity with the approach of the Special Bench in re-examining the issues afresh in the light of the relevant provisions of the Act, Rules and Regulations. We have also carefully examined the conclusions of the impugned judgment of the Special Bench and we are unable to persuade ourselves to agree with the submission of Mr. Ranjit Kumar that the said conclusions are either erroneous on interpretation of relevant provisions or in any way intended to take away the rights of any persons who have got the benefit of the earlier Full Bench decision. It is not disputed that with effect from 29.5.1977 (sic) Regulation 17 in the Board of Secondary Education has been brought into force which makes it obligatory for every institution to have a Headmaster who must be a trained graduate and must have 7 years of teaching experience as a trained graduate teacher. If subsequent to 29.5.1977 any appointment has been made to the post of Headmaster contrary to the aforesaid provisions of the Regulation then the said appointment would be invalid appointment and would not confer any right on the appointee. The expression ''approval'' used in the second direction in Golakh Chandra Mohanty''s case (1993 Lab IC 903) is referable to the approval contemplated under Rule 8(2)(b) of the Recruitment Rule and, therefore, if there has been an approval by the Director then in such a case the appointment made after the prior approval would not be invalidated. In our considered opinion the conclusion of the Special Bench that an approval of the Inspector is no approval in the eye of law is the correct position, and as such, does not require any interference by this Court. We would further make it clear that a person who has been appointed as Headmaster in charge cannot claim any right on the basis of that appointment even if the same might have been approved by any Competent Educational Authority. The In charge Headmaster is not the same as the Headmaster of the school and it merely entitles a person to remain in charge and discharge the duties of a Headmaster. in this view of the matter where the appointment itself has been to the post of Headmaster as in charge, and such appointment had been approved, obviously the said appointee cannot claim to be continued as Headmaster or to be entitled to get the scale of pay attached to the post of Headmaster. The Special Bench in the impugned judgment has correctly analysed the different provisions of the Rules and Regulations and have rightly come to the finding on the directions 2, 3, 4 and 5 of the earlier Full Bench decision in Golakh Chandra Mohanty''s case (1993 Lab IC 903).
In the aforesaid premises, we do not see any infirmity with the conclusions arrived at by the Special Bench requiring interference by this Court. The appeals accordingly fail and are dismissed.
(emphasis supplied)
After the aforesaid judgment of the Supreme Court dismissing the Civil Appeal Nos. 3190 and 4670 of 1999 against the judgment and order dated 25.1.1999 of this Court in the case of Priti Ranjan Pradhan and other connected cases, the Petitioner Nos. 1 to 5 filed a contempt petition OCRMC No. 217 of 2001 complaining that the said judgment and order dated 25.1.1999 of this Court had not been complied with and on 18.6.2001, this Court disposed of the said contempt petition observing that it was most unfortunate that the said judgment and order had not been complied with by the opposite parties and granting eight weeks time to the opposite parties to comply with the said judgment and order of this Court if the same had been already been complied with failing which the matter will be viewed seriously. Petitioner Nos. 6 and 7 also filed a contempt petition OCRMC No. 11 of 2000 complaining that he said judgment and order dated 25.1.1999 of this Court had not been complied with and the said contempt petition was also disposed of by a similar order on 14.5.2001 granting eight weeks time to the opposite parties to comply with the said judgment and order if the same had not already been complied with failing which the matter will be viewed seriously. The Petitioners have made a grievance in this contempt petition that despite expiry of the said period of eight weeks granted by the Court, the judgment and order of this Court dated 8.12.1992 in the case of Golakh Chandra Mohanty (supra) and the judgment and order dated 25.1.1999 in the case of Priti Ranjan Pradhan (supra) have not been implemented and have prayed for punishing the opposite parties for such violation of the judgments and orders in the said two cases.
On 10.9.2001, the Court issued notice to the opposite parties and in response to the said notices, the opposite parties filed show cause. Opposite party No. 1 Commissioner -cum- Secretary to Government of Orissa, Department of School and Mass Education, filed a show cause on 30.10.2001 stating therein that since the judgment dated 25.1.1999 of this Court in the case of Priti Ranjan Pradhan was challenged before the Supreme Court, and was subjudice before the Supreme Court, the said judgment dated 25.1.1999 of this Court had not been carried out. In the said show cause opposite party No. 1 prayed for six months time from the Court for doing the needful. ON 14.3.2002, the opposite party No. 3 Director of Secondary Education, Orissa, filed a further affidavit stating therein that the Government in their letter No. 1149/SME dated 11.1.2002 have issued instructions to the Director of Secondary Education and all Inspectors of Schools for implementation of guidelines in G.O. No. 18335/SS & ME dated 28.6.2000 which had been issued pursuant to the judgment of this Court in the case of Priti Ranjan Pradhan. In paragraph 8 of the said further affidavit, the opposite party No. 3 has further stated that after receipt of the said Government instructions, near about 854 numbers of affected Headmasters had to be reverted to trained graduate cadre and after reversion they were to be adjusted on transfer and after the process was over, they would be enlisted in the gradation list of trained graduate cadre for which the list was again to be recast at the Directorate and after the same was finalized, the D.P.C. already constituted by the Government was to prepare a select list of trained graduate teachers for promotion to the post of Headmasters of taken-over High Schools as per Rules which would require at lest six months time. Thereafter 854 Headmasters/Headmistresses of taken-over High Schools were reverted to the post of trained graduate teachers but on 22nd January, 2003 the Government of Orissa, Department of School and Mass Education, adopted a resolution for rehabilitating the 854 reverted Headmasters/Headmistresses. The said resolution dated 22nd January, 2003 of the Government of Orissa is quoted herein below:
No. 2102/SME. IX-SME (HC)-29/99 Government of Orissa Department of School and Mass Education. RESOLUTION Bhubaneswar, Dated the 22nd, January, 2003.
Pursuant to the judgment dated 25th January 1999 of the Special Bench of the Hon''ble High Court of Orissa in O.J.C. No. 9655/92 and a batch of 32 cases as affirmed by the judgment dated 4th January 2001 of the Hon''ble Supreme Court of India in CA No. 3190/99 and CA No. 4670/99, 854 (Eight hundred and fifty four) Headmasters/Headmistresses of taken over High Schools of the State were reverted to the post of Trained Graduate Teachers as they did not have seven years of teaching experience as Trained Graduate Teachers.
After reversion of the above Headmasters/Headmistresses, the number of vacancies of Headmasters in taken over High Schools had gone upto 2119, out of which 821 vacancies are meant for SC/ST categories. Such a large number of vacancies in High Schools resulted in dislocation of studies in the schools.
Considering their efforts in building the schools and prolonged service rendered for the development of education in the State and their appeal for reinstatement, the Government, without prejudice to the rights of the Trained Graduate Teachers who are senior to the reverted Headmasters/Headmistresses, have been pleased to decide to rehabilitate the 854 reverted Headmasters/Headmistresses in the following manner:
(i) The revert Headmasters/Headmistresses shall be treated as Trained Graduate Teachers as per the judgment of the Special Bench of the Hon''ble High Court, Orissa, as affirmed by the Hon''ble Apex Court and their seniority as Trained Graduate Teachers shall be fixed in the gradation list accordingly along with other Trained Graduate Teachers of taken over high schools. However, such reverted Headmasters/Headmistresses, the Circle-wise number of which is given in Annexure, shall form an ex-cadre.
(ii) After finalisation of the gradation list as above, steps will be taken to fill up the vacancies of Headmasters meant for general candidates and those reserved for SC/ST candidates from among the respective categories. After giving promotion to all the eligible Trained Graduate SC/ST teachers, about 711 vacancies meant for them will remain vacant due to non-availability of eligible SC/ST Trained Graduate Teachers. These vacancies may be filled up temporarily by these reverted headmasters on ex-cadre basis till such vacancies are filled by eligible SC/ST Trained Graduate Teachers as and when available. It may here be made clear that as and when suitable SC/ST teachers will be available for promotion to the vacancies meant for this category, the posts will be gradually filled up by such persons on reversion of the junior most of the reverted headmasters holding such post on ex-cadre basis. There will be no additional financial implication for these 711 posts.
(iii) Further, ex-cadre posts numbering 143 (854-711) may be created to adjust the remaining 143 reverted Headmasters for which there will be a financial implication because of the difference in the scale of Headmaster and Trained Graduate Teacher. These 143 posts will keep on diminishing with the retirement of the reverted Headmasters or on their normal absorption. 143 Trained Graduate Teacher vacancies shall be kept in abeyance and filled up gradually as and when the posts of H.M. are diminished.
This has been concurred in by the Law Department, Finance Department and the SC/ST Development Department in their UOR No. 1963/L. dated 13.11.2002, U.O.R. No. 794/SS-I, dated 25.11.2002 and U.O.R. No. 110/MSTSC, dated 19.12.2002, respectively.
Ordered that the resolution be published in the next issue of the Orissa Gazette.
By order of the Governor
J. Panda
Commissioner-cum-Secretary to Government
The Government of Orissa in the Department of School and Mass Education simultaneously addressed a letter dated 22.1.2003 to the Director of Secondary Education, Orissa for implementation of the said resolution of the Government dated 22.1.2003. Misc. Case No. 57 of 2003 has been filed by the Petitioners in this OCRMC No. 454 of 2001 alleging that by the said resolution dated 22.1.2003 and by the said letter dated 22.1.2003, the opposite parties have deliberately and intentionally violated the aforesaid judgments of this Court in the case of Golakh Chandra Mohanty and in the case of Priti Ranjan Pradhan and praying for an appropriate order restraining the opposite parties not to act pursuant to the said resolution dated 22.1.2003 and the said letter dated 22.1.2003.
Mr. Budhadeb Routray, learned Counsel for the Petitioners, submitted that if the State Government is allowed to give effect to the resolution dated 27.1.2003 and the letter dated 22.1.2003, the Petitioner who are senior trained graduate teachers and are at the verge of their retirement will not be able to get the benefits of the judgments in Golakh Chandra Mohanty''s case and in Priti Ranjan Pradhan''s case throughout their lives and they will suffer serious prejudice. He submitted that even though the promotions of some of the 854 reverted Headmasters/Headmistresses have been approved prior to 8.12.1992 when the judgment of the Full Bench in the case of Golakh Chandra Mohanty was delivered, the said cases of approvals of ineligible persons have to be reopened, if as per the judgment of the Special Bench in the case of Priti Ranjan Pradhan such persons were ineligible for being promoted to the posts of Headmaster and were not entitled to the Headmaster scale of pay, particularly when the Supreme Court has upheld the said judgment of the Special Bench in the case of Priti Ranjan Pradhan. In this context, Mr. Routray submitted that in Golakh Chandra Mohanty''s case the Full Bench in its judgment dated 8.12.1992 in sub-para(2) of para-26 held that the promotions of incumbents made even after 29.4.1977 despite their not having had the requisite qualification of seven years teaching experience as trained graduate teachers would not be re-opened if the appointments have already been approved, but in Priti Ranjan Pradhan''s case, the Special Bench held that the said decision of the Full Bench in Golakh Chandra Mohanty''s case in sub-para(2) of para-26 was contrary to law. He submitted that in the case of Priti Ranjan Pradhan, the Special Bench further held that the conclusion in Golakh Chandra Mohanty''s case under Sub-paras (3) and (4) were contrary to law and that the orders of approval passed by the Inspectors of Schools are of no consequence and do not have any force on the question of promotions in terms of Rule 8(3) of the 1974 Rules. According to Mr. Routray, all cases of promotions to the posts of Headmasters made contrary to the said judgment of the Special Bench in the case of Priti Ranjan Pradhan had to be re-opened. Mr. Routray submitted that similarly all cases had to be re-opened where directions have been issued by this Court in separate writ petitions and pursuant to such directions the authorities have approved the promotions to the posts of Headmasters, but such persons were not eligible to be promoted to the post of Headmaster as per the said judgment of the Special Bench in the case of Priti Ranjan Pradhan. Mr. Routray further submitted that as a matter of fact, after the said judgment of the Special Bench in the case of Priti Ranjan Pradhan and the judgment of the Supreme Court dismissing the Civil Appeals against the said judgment of the Special Bench in the case of Priti Ranjan Pradhan, the Government re-opened all these cases and reverted 854 Headmasters/ Headmistresses as they were found not to be eligible to be promoted to the posts of Headmaster/Headmistress as per the said judgment of the Special Bench in Priti Ranjan Pradhan''s case as upheld by the Supreme Court. Mr. Routray submitted that the reverted Headmasters/Headmistresses accepted the fact of their reversion on account of their ineligibility for being promoted to the posts of Headmasters/Headmistresses and made an appeal to the Government for their rehabilitation and by the resolution dated 22.1.2003 and the letter of the State Government, they are now sought to be rehabilitated in the posts of Headmaster/Headmistress in blatant violation of the judgment of the Special Bench in Priti Ranjan Pradhan''s case and the judgment of the Supreme Court. Mr. Routray submitted that the High Court has ample powers under Article 215 of the Constitution to undo such blatant violation of the judgment of the Special Bench in Priti Ranjan Pradhan''s case by issuing appropriate orders/directions besides punishing the contemnors. He cited the decisions of the Supreme Court in Sheoratan Agarwal and Another Vs. State of Madhya Pradesh, , Pritam Pal Vs. High Court of Madhya Pradesh, Jabalpur through Registrar, , M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, , Delhi Development Authority Vs. Skiper Construction Company (P) Ltd. and another, , Pallav Sheth Vs. Custodian and Others, , Jhareswar Prasad Paul and Another Vs. Tarak Nath Ganguly and Others, , Dilip Mitra and Anr. v. Swadesh Chandra Bhadra and Ors. JT 2002 (Supp.1) SC 56, in support of his aforesaid submission. He also relied on the decision of the Full Bench of the Madras High Court in entry Century Flour Mills Ltd. Vs. S. Suppiah and Others, , in which it was held that where there is a violation of stay or injunction against a party and something has been done in disobedience, it will be the duty of the Court as a policy to set the wrong right and not allow the perpetuation of the wrong doing. He also relied on the observation of the Allahabad High Court in Daya Shanker Dubey Vs. Subhas Kumar, , that there is an unhappy trend developing these days of the Executive trying to find fault with judicial orders and then devising ways and means of skirting the order somehow and this is not a healthy sign for a young democracy and that the Executive instead of circumventing the judicial order must try as much as possible to comply with the name first and if that may not be found feasible then to make an effort to approach the Court and seek clarification/modification of the judicial order and only this will enable the different wings of the State in maintaining a proper balance and harmony. Mr Routray submitted that when this contempt petition was pending before this Court, the State Government should have first approached this Court and sought clarifications before adopting the resolution dated 22.1.2003 for rehabilitation of the 854 reverted Headmasters/Headmistresses. Mr. Routray finally submitted that this is a fit case in which the High Court in exercise of its powers under Article 215 of the Constitution should quash the resolution so that the contemnors do not enjoy the fruits of the contempt.
This contempt petition was heard along with W.P. (C) No. 746 of 2003 and other connected writ petitions in which the resolution dated 22.1.2003 and/or other resolutions of the Government have been challenged. Mr. Rajat Kumar Rath appearing for the Petitioner in W.P. (C) No. 746 of 2003, Mr. Sanjit Mohanty appearing for the Petitioners in W.P. (C) No. 1123 of 2003, Mr. Indrajit Mohanty appearing for the Petitioners in W.P. (C) No. 1618 of 2003, Mr. Ashok Mohanty appearing or the Petitioners in W.P. (C) No. 1001 of 2003, while undopting the aforesaid arguments of Mr. Budhadeb Routray, submitted that the resolutions had been issued by the Government of Orissa in blatant violation of the judgments of this Court in the cases of Golakha Chandra Mohanty and Priti Ranjan Pradhan and this Court in exercise of its power under Article 226 of the Constitution can stay the said resolution and quash, the same and the Petitioners are not required to approach first the Orissa Administrative Tribunal constituted under the Administrative Tribunals Act, 1985. They made lengthy submissions and cited several decisions, but it is not necessary for us to deal with the said submissions and the said decisions in view of the decision of the Constitution Bench of the Supreme Court in L. Chandra Kumar Vs. Union of India and others, , and the decision of the Supreme Court in Kendriya Vidyalaya Sangathan and Anr. v. Subhash Sharma etc. JT 2002 (2) SC 568, to which we shall advert later.
Mr Sovesh Roy, learned Advocate General of the State of Orissa, submitted that after the judgment of the Supreme Court in the Civil Appeals upholding the judgment of the Special Bench in the case of Priti Ranjan Pradhan the State Government complied with the said judgment by reverting 854 Headmasters/Headmistresses to the posts of trained graduate teachers though there was no specific direction in the said judgment for such reversion of the Headmasters/Headmistresses. But pursuant to the decision of the State Cabinet, the State Government by the resolution dated 22.1.2003 resolved to rehabilitate such reverted Headmasters/Headmistresses. He explained that the aforesaid decision of the Government was taken considering the contribution of the erstwhile Headmasters to the field of education, the efforts and sincerity in building the schools and also their appeal for reinstatement. He further submitted hat the resolution dated 22.1.2003 itself makes it clear that the decision does not prejudice in any way the rights of the trained graduate teachers who were senior to the reverted Headmasters/Headmistresses because the seniority/gradation list of the trained graduate teachers including the reverted Headmasters/Headmistresses was to be prepared first and after finalisation of such seniority/gradation list, steps were to be taken for filling up the vacant posts of Headmasters meant for general cadre and reserved cadre. He submitted that the resolution will make it clear that after the vacant posts of Headmasters meant for general cadre and reserved cadre are flied up by promotion, 711 vacancies meant for eligible S.C./S.T. trained graduate teachers would remain vacant and these vacancies were to be temporarily filled up by the reverted Headmasters/Headmistresses on ex-cadre basis till the eligible S.C./S.T trained graduate teachers were available for promotion to these posts and when such S.C./S.T. trained graduate teachers were eligible for promotion, they were to be promoted and the junior most reverted Headmasters/Headmistresses holding such posts on ex-cadre basis are to vacate the posts. The aforesaid arrangement has been made as a temporary one for effective running of the schools and the resolution dated 22.1.2003 does not in any way violate the judgments of this Court or the Supreme Court. The learned Advocate General further submitted that in any case if any of the Petitioners is aggrieved by the said resolution dated 22.1.2003, the remedy is to approach the Orissa Administrative Tribunal which has the powers under the Administrative Tribunals Act 1985 to adjudicate all service disputes he submitted that no relief can be granted by this Court in a contempt petition or in a writ petition under Article 226 of the Constitution. He cited the decision of the Constitution Bench of the Supreme Court in L. Chandra Kumar v. Union of India and Ors. (supra) that the Administrative Tribunals are to act as Courts of first instance in respect of the areas of law for which they have been constituted and it will not therefore be open for litigants to directly approach the High Courts by overlooking the jurisdiction of the concerned Tribunal. He also relied on a decision of the Supreme Court in Kendriya Vidyalaya Sangathan and Anr. v. Subhash Sharma etc. (supra) in which following the aforesaid decision of the Constitution Bench of the Supreme Court in L. Chandra Kumar''s (supra), the Supreme Court held that the High Court erred in law directly entertaining the writ concerning service matters of the employees of the Kendriya Vidyalaya as these matters came under the jurisdiction of the Administrative Tribunal.
Mr. Jagannath Patnaik, learned Counsel appearing for some of the 854 reverted Headmasters/Headmistresses who have intervened in W.P. (C) No. 746 of 2003, submitted that they had been appointed/promoted as Headmasters/Headmistresses and their appointments/promotions had been approved prior to 8.12.1992, i.e., the date on which the judgment of the Full Bench in Golakh Chandra Mohanty''s case was delivered, and conclusion No. (2) in para 26 of the said Full Bench judgment in the case of Golakh Chandra Mohanty clear stated that the promotions of the incumbents made even after 29.4.1977 despite their not having had the requisite qualification of seven years teaching experience as trained graduate teachers could not be re-opened if the appointments had already been approved. According to Mr. Patnaik, therefore, the promotions/appointments of these Headmasters/Headmistresses having been approved prior to 8.12.1992, their promotions/appointments could not be re-opened and they could not have been reverted and if the State Government having wrongly reverted them has now sought to rehabilitate them by forming a temporary cadre of Headmasters/Headmistresses though the resolution dated 22.1.2003, the State Government has not committed any contempt. He further submitted that in any case the remedy against the resolution dated 22.1.2003 for the Petitioners is to move the Orissa Administrative Tribunal which has jurisdiction over all service matters of State Government employees and this Court has no jurisdiction either under Article 215 or under Article 226 of the Constitution to adjudicate the dispute. He also relied on the decisions of the Supreme Court in the case of L. Chandra Kumar (supra) and in the case of Kendriya Vidyalaya Sangathan (supra) in support of his submission. Mr. Patnaik also cited the decision of the Supreme Court in Supreme Court Bar Association Vs. Union of India and Another, , in which the Supreme Court held that the Court cannot in exercise of its jurisdiction under Article 142 read with Article 125 of the Constitution, while punishing a contemnor for contempt of Court, also impose the punishment of suspending his licence to practice, where the contemnor happens to be an Advocate because the power to suspend the licence to practice of an Advocate is vested in the Bar Council and not in the Court, Mr. Patnaik submitted that similarly, the High Court in exercise of its power under Article 215 of the Constitution cannot adjudicate a dispute relating to service matters of Government servants because the jurisdiction to adjudicate such dispute is vested in the Orissa Administrative Tribunal under the Administrative Tribunals Act, 1985 and not in the High Court. Mr Patnaik also relied on the decision of the Supreme Court in Jhareswar Prasad Paul v. Tarak Nath Ganguly (supra) for his submission that the contempt, jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the Court and the Court while exercising contempt jurisdiction is not to entertain questions which have not been dealt with or decided in the judgment or order, violation of which is alleged by the applicant. Mr. G.A. Dora, learned Counsel appearing for some of the reverted Headmasters/Headmistresses who have intervened in W.P. (C) No. 746 of 2003, submitted that the judgment of the Special Bench, in the case of Priti Ranjan Pradhan made it clear in paragraph 20 of the said judgment after the position of law was laid down in the said judgment, the authorities of the State Government were to take a decision so far as the Petitioners were concerned keeping in view the conclusions in the said judgment. According to Mr. Dora, the judgment of the Special Bench in the case of Priti Ranjan Pradhan was confined to the 33 Petitioners in the case of Priti Ranjan Pradhan and other connected writ petitions which were disposed of by the said judgment of the Special Bench and, therefore, on the basis of the said judgment of the Special Bench in the case of Priti Ranjan Pradhan, Headmasters/Headmistresses other than the said Petitioners could not be held to be not eligible for promotion/appointment as such Headmasters/Headmistress and their promotions/appointments could not be re-opened and they could not be reverted by the State Government pursuant to the said judgment of the Special Bench in the case of Priti Ranjan Pradhan. He further submitted that the resolution dated 22.1.2003 only seeks to remedy the situation by rehabilitating the Headmasters/Headmistresses who had been wrongly reverted to the posts of trained graduates. He argued that in any case the remedy for the Petitioners against the resolution dated 22.1.2003, if any, is to move the Orissa Administrative Tribunal and not to move this Court either in a contempt petition or in a writ petition. The aforesaid arguments of Mr. Patnaik and Mr. Dora were also adopted by Mr. A. Rath, Mr. J. Rath, Mr. K. K. Swain, Mr. B. K. Patnaik and Mr. Rajib Rath who appeared for some of the reverted Headmasters/Headmistresses who have intervened in W.P.(C) No. 746 of 2003. They, however, supplemented the aforesaid arguments of Mr. Patnaik and Mr. Dora and submitted that besides the judgment of the Full Bench on 8.12.1992 in the case of Golakh Chandra Mohanty, orders have been passed by this Court in separate writ Petitioners and pursuant to the orders passed by this Court such separate writ petitions, the promotions of various Headmasters/Headmistresses had been approved by the authorities from time to time and these promotions could not be re-opened pursuant to the judgment of the Special Bench in the case of Priti Ranjan Pradhan as upheld by the Supreme Court in the two Civil Appeals.
In view of the aforesaid submissions made by the counsel for the reverted Headmasters/Headmistresses, we called upon the State Government by our order dated 26.3.2003 to file an affidavit indicating therein as to how many of the 854 Headmasters/Headmistresses reverted pursuant to the judgment of the Special Bench of this Court in the case of Priti Ranjan Pradhan as affirmed by the Supreme Court in Civil Appeal Nos. 3190 of 1999 and 4670 of 1999, were approved in the posts of Headmasters/Headmistresses prior to 8.12.1992. By the said order dated 26.3.2003, we also called upon the State Government to prepare a chart indicating the names of the Headmasters/Headmistresses who were approved in their respective posts, the exact dates of approval and the authority who had passed the order of approval. Pursuant to the said order dated 26.3.2003, there affidavits have been filed by the Deputy Director, NGS, of the Office of the Director, Secondary Education, Orissa, on 29.3.2003, 9.4.2003 and 23.4.2003. In the affidavit of the Deputy Director, NGS, filed on 9.4.2003, it is stated that after thorough verification it is ascertained that 486 numbers of such Headmasters/Headmistresses out of the 854 reverted Headmasters/Headmistresses have been approved as Headmasters/Headmistresses by 8.12.1992 by the Government/Director, Secondary Education/concerned Inspector of Schools and along with the said affidavit a chart has been filed of such 486 Headmasters/Headmistresses giving therein the dates of orders of approval and the authority who has passed the order of approval. It appears from the said chart that most of the orders of approval have been passed by the Director of Secondary Education. Along with the affidavit of the Deputy Director, NGS, filed on 23.4.2003 Anr. list of 339 reverted Headmasters/Headmistresses besides the list of the 486 reverted Haedmasters/Headmistresses who had been approved by 8.12.1992, has been enclosed and in the said list it has been stated that the approval orders were passed by the Director of Secondary Education or the concerned Inspector of Schools pursuant to the directions of this Court in several writ petitions. In the said list also the date of approval and the reference of the order of approval, the authority who has passed the order of approval and the case number of the writ petition in which directions were issued by this Court have also been clearly indicated and the said list shows that the orders of approval were passed during the years 1992 to 1997. Thus, it appears that a total of 825 (486 + 339) out of the 854 reverted Headmasters/Headmistresses have been approved in their respective posts of Headmasters/Headmistresses either prior to 8.12.1992 when the judgment of the Full Bench in the case of Golakh Chandra Mohanty was delivered or after 8.12.1992 but before 25.1.1999 when the judgment of the Special Bench in the case of Priti Ranjan Pradhan was delivered.
The questions for decision in this contempt case are as to whether by the judgment of the Full-Bench of this Court in the Case of Golakh Chandra Mohanty and by the judgment of the Special Bench of this Court in the case of Priti Ranjan Pradhan, as upheld by the Supreme Court, there was any direction to revert any Headmaster/Headmistress and as to whether the State Government has now violated the directions of the said judgments of this Court in the case of Golakh Chandra Mohanty and in the case of Priti Ranjan Pradhan by trying to rehabilitate them in the posts of Headmasters/Headmistresses through the resolution dated 22.1.2003. In the case of Golakh Chandra Mohanty, the Full Bench of this Court held in para 26 of conclusion no (1) that seven years teaching experience as trained graduate teacher was necessary for an assistant teacher to be promoted to the post of headmaster with the aid of Rule 8(2)(b) of the 1974 Rules in those cases where the appointments had been made on or after 29.4.1977, when amended Regulation 17(2)(i) of the Regulations had come into force and this applied both to aided and unaided schools. But under conclusion No. (2) in para 26 of the said judgment, the Full Bench further held that the promotions of incumbents made even after 29.4.1977 despite their not having had the requisite qualification of seven years teaching experience as trained graduate teacher would not be reopened if the appointments have already been approved. Under conclusion No. (3) of para 26, the Full Bench held in the case of Golakh Chandra Mohanty that those cases of promotions relating to which approval orders had not been passed by 8.12.1992, the date on which the judgment was delivered, shall be decided keeping in view the law laid down therein, i.e., if the incumbents had acquired the requisite qualification before 3.6.1988 the promotions/appointments shall be approved. In conclusion No. (4) of para 26 the Full Bench further held in the aforesaid case of Golakh Chandra Mohanty that where the requisite qualification had not been obtained before 3.6.1988, the promotions/appointments shall not be approved and the post shall be treated as vacant on and from 3.6.1988 and shall be filled up by complying with the requirements of Rule 8(3) of 1974 Rules. In para 27 of the judgment in the case of Golakh Chandra Mohanty, the Full Bench further observed that a copy of the judgment will be sent to the Secretary to Government of Orissa, Education Department, who would apprise all concerned about it so that they may act as per the conclusions therein. Thus, by the said judgment of the Full Bench in the case of Golakh Chandra Mohanty, promotions to the posts of Headmasters/Headmistresses, who did not have the seven years teaching experience as trained graduate teachers, were not to be reopened if their promotions/appointments had already been approved when the said judgment of the Full Bench was delivered on 8.12.1992 and there was no direction in the said Full Bench judgment of this Court in the case of Golakh Chandra Mohanty delivered on 8.12.1992 to revert all those Headmasters/Headmistresses who had not acquired the requisite qualification of seven years teaching experience whose promotions to the posts of Headmasters/Headmistresses had already been approved by 8.12.1992. As indicated above accordingly to the affidavit filed by the Deputy Director, NGS, on 9.4.2003, 486 such Headmasters/Headmistresses out of 854 reverted Headmasters/Headmistresses had been approved as such Headmasters/Headmistresses by 8.12.1992 by the Government/Director, Secondary Education/concerned Inspector of Schools.
All cases of promotions to the posts of Headmasters relating to which approval orders had not been passed by 8.12.1992 were to be decided by the authorities of the Education Department in accordance with the law laid down in the said Full Bench judgment in the case of Golakh Chandra Mohanty. The aforesaid law laid down by the Full Bench in the judgment delivered on 8.12.1992 in the case of Golakh Chandra Mohanty continued to hold the field till the Special Bench of five Judges delivered the judgment in the case of Priti Ranjan Pradhan on 25.1.1999 holding that some of the conclusions of the Full Bench in the judgment dated 8.12.1992 in Golakh Chandra Mohanty''s case were contrary to law. During the interregnum period from 8.12.1992 to 25.1.1999, obviously cases of approval of promotions/appointments to the posts of Headmasters/headmistresses in the aided schools had to be decided in accordance with the law as laid down by the Full Bench in the case of Golakh Chandra Mohanty. Several orders of approval appear to have been passed by the authorities of the Education Department of Government of Orissa approving the promotions/appointments of Headmasters/Headmistresses in different aided schools after the law was laid down by the Full Bench judgment in the case of Golakh Chandra Mohanty pursuant to directions of this Court in separate writ petitions. According to the affidavit filed by the Deputy Director, NGS on 23.4.2003 there were 339 such Headmasters/Headmistresses whose promotions/appointments had been approved pursuant to the directions of this Court in several writ petitions by the Director of Secondary Education or the concerned Inspector of Schools and on perusal of the list of such 339 Headmasters/Headmistresses annexed to the said affidavit filed on 23.4.2003, we find that all such approval orders were passed by the concerned authorities during the years 1992 to 1997 before 25.1.1999 when the judgment of the Special Bench in the case of Priti Ranjan Pradhan was delivered. In the judgment of the Special Bench in the case of Priti Ranjan Pradhan delivered on 25.1.1999, the Special Bench while holding that the decision of the Full Bench in the case of Golakh Chandra Mohanty in conclusion Nos. (2), (3) and (4) under paragraph 26 were contrary to law and while holding that orders of approval passed by the Inspector of Schools are of no consequence and do not have any force on question of promotion in terms of Rule 8(3) of the 1974 Rules, did not in any way direct reversion of those Headmasters/Headmistresses in whose cases approval orders had already been passed during the interregnum period from 8.12.1992 to 25.1.1999. In fact, in para 20 of the said judgment in the case of Priti Ranjan Pradhan, the Special Bench has made it clear that the authorities of the Education Department were to take a decision so far as the Petitioners are concerned keeping in view the conclusions indicated in para 19 of the judgment and the consequences flowing from the same. Thus, the law laid down by the Special Bench in the case of Priti Ranjan Pradhan in the judgment dated 25.1.1999 was to be followed by the authorities of the Education Department while deciding the cases of the Petitioners who were before the Court in the said case of Priti Ranjan Pradhan and other connected cases. From the judgment of the said Special Bench it appears that the judgment was delivered in 33 such separate writ petitions. Obviously, the Petitioners in whose cases the said judgment was delivered by the Special Bench in the case of Priti Ranjan Pradhan on 25.1.1999 were to be covered by the said law and other Headmasters/Headmistresses in whose favour orders of approval had already been passed by 25.1.1999 were not be reverted by the said judgment of the Special Bench in Priti Ranjan Pradhan''s case.
In fact, Pabitra Mohan Dash and Ors. challenged the aforesaid judgment of the Special Bench in the case of Priti Ranjan Pradhan delivered on 25.1.1999 before the Supreme Court in Civil Appeal Nos. 3190 and 4670 of 1999 and it appears from the judgment of the Supreme Court in Pabitra Mohan Dash, etc. v. State of Orissa and Ors. (supra) and particularly paragraphs 4 and 5 thereof that the counsel for the Appellants namely Mr. Ranjit Kumar and Mr. A.K. Pradhan contended before the Supreme Court that the benefits which accrued to persons pursuant to the earlier Full bench judgment in Golakh Chandra Mohanty''s case were sought to be taken away by the subsequent Special Bench judgment in Priti Ranjan Pradhan''s case and that the judgment of the Special Bench in Priti Ranjan Pradhan''s case on that score cannot be sustained. But in paragraph 7 of the said judgment, the Supreme Court held that if the Court had felt that the earlier decision on the question was not clear on any particular issue or has created confusion in resolving the dispute or has caused hardship to a group of people, it would be the duty of the Court to re-examine the matter after giving opportunity to all parties concerned and by such process question of taking away anybody''s vested right does not arise. The Supreme Court in particular clarified in the said judgment in the case of Pabitra Mohan Dash etc. v. State of Orissa and Ors. (supra) in paragraph 7:
...In the case in hand it is not a particular writ or order that had been issued in favour of any individual is sought to be nullified by the subsequent Special Bench decision....
Thus, the Supreme Court has made it clear that by the judgment of the Special Bench in the case of Priti Ranjan Pradhan delivered on 25.1.1999 any writ or order issued in favour of any individual is not sought to be nullified and instead, the erroneous conclusions of the two earlier Full Bench decisions are sought to be corrected. Thus, even as per the judgment of the Supreme Court none of the Headmasters/Headmistresses in whose favour directions had been issued in writ petitions or orders of approval had been passed pursuant to such directions after the earlier judgments of the Full Bench of this Court were to be reverted from the posts of Headmasters/Headmistresses to the posts of trained graduate teachers.
Even though there were no specific directions in the Full Bench judgment of this Court in the case of Golakh Chandra Mohanty to revert the Headmasters/Headmistresses whose promotions had been approved before 8.12.1992 and even though there were no specific directions in the judgment of the Special Bench in Priti Ranjan Prahdan''s case to revert the Headmasters/Headmistresses whose promotions had been approved between 8.12.1992 and 25.1.1999, the State Government appears to have reverted 825(486 + 339)Headmasters/Headmistresses to the post of trained graduate teachers on the ground that they did not have the seven years teaching experience as trained graduate teachers. If subsequently by the resolution dated 22.1.2003 the Government of Orissa, Department of School and Mass Education, have taken a decision to rehabilitate these 825 reverted Headmasters/Headmistresses by accommodating them temporarily in the posts reserved for S.C./S.T. candidates on account of non-availability of eligible S.C./S.T. teachers for promotion to such posts and in the additional ex-cadre posts, it cannot be held by the Court that such rehabilitation of the 825 reverted Headmasters/Headmistresses is in blatant violation of the Full Bench judgment of this Court in Golakh Chandra Mohanty''s case and the Special Bench judgment of this Court in Priti Ranjan Pradhan''s case. This is because there were no specific directions in the said two judgments of this Court to revert the Headmasters/Headmistresses as discussed above and the reversion of the Headmasters/Headmistresses by the State Government was de hors any such specific directions of this Court in the said two judgments. If there would have been specific directions in the said two judgments for reversion of the Headmasters/Headmistresses and the Government would have reverted the Headmasters/Headmistresses pursuant to such directions in the said two judgments of this Court, then any attempt on the part of the Government to rehabilitate such reverted Headmasters/Headmistresses would have been in deliberate violation of the two judgments of this Court and would have amounted to contempt.
But as has been discussed above, the judgment dated 25.1.1999 of the Special Bench of this Court in Priti Ranjan Pradhan case was to be allowed by the authorities in the case of the Petitioners in the 33 cases in which the said judgment was delivered. Hence, if any of the Petitioners in the said 33 cases was required to be reverted from the post of Headmaster/Headmistress as per the law laid down in the said judgment of the Special Bench in Priti Ranjan Pradhan''s case, he/she could not be again rehabilitated in the post of Headmaster/Headmistress without placing relevant facts to show that such rehabilitation was not in violation of the said judgment of the Special Bench of this Court. We, therefore, direct that if any of the 854 Headmasters/Headmistresses was a Petitioner in th 33 cases which were disposed of by the judgment of the Special Bench in Priti Ranjan Pradhans case on 25.1.1999, he/she will not be given the benefit of the resolution dated 22.1.2003 of the Government of Orissa, Department of School and Mass Education, until clarifications are sought from this Court for ensuring that the judgment of this Court of the Special Bench in Priti Ranjan Pradhan''s case is not violated.
For our aforesaid conclusions, we are supported by decisions of the Supreme Court. In Jhareswar Paul v. Tarak Nath Ganguly (supra), the Supreme Court has held:
...The Court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The Court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. ...If the judgment or order does not contain any specific direction regarding, a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the Court which disposed of the matter for clarification of the order instead of the Court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the Court passing the judgment or order....
Similarly, in Dilip Mitra and Ors. v. Swadesh Chandra Bhadra and Ors. (supra), the Supreme Court held:
On the ground that the order made by the High Court on the writ side is not complied with, a complaint was filed in contempt jurisdiction. Unless there is willful disobedience to the order made by the Court, it is very difficult to conceive of the situation where the High Court could hold a party to be guilty of contempt. In the present case, the order made by the learned single judge in respect of which the complaint was made is that the authorities will have to act in terms of the statute and Rules in regard to employment on rotational basis and their continuance and absorption. That is the substance of the order dated 20.7.1998. Whether the statute and Rules have been complied with or not, whether the concerned complainants fulfilled the necessary gratifications as prescribed in the statute or Rules or not are all matters in respect of which there could be a serious dispute. In such matters, it could not be clearly stated that the concerned parties had acted willfully in contempt of the Court. In that view of the matter, we think the High Court is not justified in holding that the Appellants were guilty of contempt. Further, the High Court could have given certain clarifications in regard to the implementation of the order made by the High Court on writ side after giving due opportunity to all concerned, if the High Court felt that the order in the writ application was not properly interpreted or understood by the concerned authorities....
By the Full Bench judgment of this Court in the case of Golakh Chandra Mohanty and by the Special Bench judgment of this Court in the case of Priti Ranjan Pradhan as upheld by the Supreme Court, this Court laid down the law relating to promotion to the posts of Headmasters/Headmistresses in aided schools and approval of such promotions. If according to the Petitioners the said law has not been followed while promoting any trained graduate teacher or while approving such promotion, the remedy for the Petitioners is not to file a contempt petition, but to move for judicial review. This position of law has been explained by the Supreme Court in its order in Packraft (India) Pvt. Ltd. through its Director V.S. Mann Vs. U.P.F.C. through its M.D. R.M. Sethi and Others, , quoted herein below:
This Court in Mahesh Chandra v. Regional Manager, U.P. Financial Corporation has laid down the law as to how the properties of defaulter are to be brought to sale by financial corporations. The Petitioner contends that in spite of specific guidelines laid down therein, the property of the Petitioner had not been sold consistent with those guidelines. Therefore, it amounts to wilful disobedience of the law laid down by this Court. Thereby, the Respondents rendered themselves liable for conviction for contempt of this Court. We are afraid that we cannot accede to the contention.
The law laid down by this Court in Mahesh Chandra case is the law under Article 141. It is needless to say that everyone is bound by the law. But, if there is any infraction of the action in violation of the law laid down by this Court, appropriate remedy is to have it corrected by a judicial review but not by way of contempt proceedings in this Court.
Under these circumstances, we cannot accede to the request made by the Petitioner to issue notice to them and to convict the Respondents for contempt. However, it would be open to the Petitioner to seek appropriate remedy according to law.
The contempt petition is accordingly dismissed.
The Petitioners may also have a grievance against the resolution dated 22.1.2003 and the letter dated 22.1.2003 of the Government of Orissa, School and Mass Education Department and their grievance may be that the said resolution dated 22.1.2003 the said letter dated 22.1.2003 are contrary to the law as laid down by this Court in the two cases of Golakh Chandra Mohanty and Priti Ranjan Pradhan. Here again, the remedy of the Petitioners is not to file a contempt petition but to move for judicial review.
The Petitioners and the reverted Headmasters/Headmistresses are all State Government servants after the aided schools were taken over with effect from 7.6.1994. The Orissa Administrative Tribunal has jurisdiction under the Administrative Tribunals Act, 1985 to entertain and decide such challenge, if any, to the resolution dated 22.1.2003 and the letter dated 22.1.2003 of the State Government. In L. Chandra Kumar v. Union of India (supra), the Constitution Bench of the Supreme Court has held:
In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Article 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and Rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been Constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
It will be thus clear that by the said judgment of the Constitution Bench of the Supreme Court, it will not be open for the litigants to directly approach the High Court in cases falling under the jurisdiction of the Tribunal and the Tribunals are to act as Court of first instance in respect of the areas of law for which they have been constituted.
Despite the aforesaid position of law as laid down by the Constitution Bench of the Supreme Court in L. Chandra Kumar v. Union of India (supra), some writ petitions were filed in the High Court of Jammu and Kashmir and entertained by the High Court and against the orders of the High Court Kendriya Vidyalaya Sangathan and Anr. filed appeals by special leave and the High Court held in the said case of Kendriya Vidyalaya Sanghathan and Anr. v. Subhash Sharma etc. (supra):
The constitution Bench of this Court has clearly held that tribunals set up under the Act shall continue to act as the only Courts of first instance in respect of areas of law for which they have been constituted. It was further held that it will not be open for litigants to directly approach the High Court even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular tribunal is challenged) by overlooking the jurisdiction of the concerned tribunal.
In view of the clear pronouncement of this Court, the High Court erred in law in directly entertaining the writ petitions concerning service matters of the employees of the Kendriya Vidyalaya as these matters come under the jurisdiction of the administrative tribunal....
In view of the aforesaid law laid down by the Apex Court in the case of L. Chandra Kumar and in the case of Kendriya Vidyalaya Sangathan and Anr. , the remedy of the Petitioners, if any, against the resolution dated 22.1.2003 and the letter dated 22.1.2003 of the State Government is not to move this Court under Article 226 of the Constitution but to move the Orissa Administrative Tribunal constituted under the Administrative Tribunals Act, 1985.
For the reasons aforesaid, this contempt petition is disposed of with directions in paragraph 14 of this judgment. Considering the facts and circumstances of this case, parties shall bear their own costs.
P.K. Misra, J.
I agree.