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Judgment
Ritu Raj Awasthi, J.—Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Sameer kalia for the appellant, Sri R.N. Gupta for the respondent and perused the record.
These are a bunch of appeals arising out of the judgment dated 30.11.1995 passed in Writ Petition No. 4532 (ss) of 1992 (Mohd. Waseem v. U.P. State Electricity Board and Ors.) and the orders passed in Contempt Petition filed for compliance of the judgment and order dated 30.11.1995 i.e. Criminal Misc. Case No. 318 (c)/1997 (Mohd. Waseem v. Sri Ajay Singh and Ors.). All these appeals have been heard together as they involve the same controversy. The details of these appeals are as under:
Special Appeal No. 87/2002 was filed by the U.P. Power Corporation Ltd against the judgment and order dated 30.11.1995, passed in W.P. No. 4532 (s/s) of 1992 Mohd. Waseem v. U.P. State Power Corporation Ltd and Ors.
Special Appeal No. 214 (S/B) of 2006 (B.K. Bhatt and Anr. v. Mohd. Waseem) filed against the judgment and order dated 30.11.1995 passed in W.P. No. 4532 (s/s) of 1992.
Contempt Appeal No. 40 of 2006 filed by Ashok Kumar Khurana, B. K. Bhatt and Harish Chandra Singh u/s 19 of the Contempt of Courts Act against the order dated 04.04.2006 passed in Criminal Misc. Case No. 318 (C) of 1997 (Mohd. Waseem v. Sri Ajai Singh and Ors.) by which application for discharge of notice was rejected.
Contempt Appeal No. 12 of 2006 was filed by Sri Kripa Shanker u/s 19 of the Contempt of Court Act, against the order dated 10.01.2006 passed in Criminal Misc. Case No. 318 (C) of 1997, by which the appellant was held guilty of contempt of court u/s 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India and sentenced for three months R.I. and a fine of Rs. 2,000/-.
In order to appreciate the controversy involved in the present appeals and the question which has cropped up for our consideration it is necessary to narrate certain facts of the case in brief.
The respondent was engaged as an apprentice Draftsman for a period of one year on 22.08.1988. He was again engaged as on muster roll for a period of three moths w.e.f. 01.01.1990, thereafter he was discontinued. The respondent feeling aggrieved filed writ petition No. 4532 (ss) of 1992 against dis-continuance and for regular appointment on the post of Draftsman/Tracer with all consequential benefits.
By the judgment and order dated 30.11.1995 the said writ petition was allowed, directing the respondent Board to consider the case of the present respondent provided there are vacant post for appointment keeping in view the following conditions:
Other thing being equal, a trained apprentice should be given preference over direct recruits.
For this, a trainee would not be required to get his name sponsored by any employment exchange, the decision of this Court in Union of India (UOI) and Others Vs. N. Hargopal and Others, would permit this.
If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given.
The concerned training institute would maintain a list of the persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.
However, I made it clear that while considering the case of petitioner for giving employment on a post, the rules laid down in the service regulations of Electricity Board shall be followed except that the petitioner would not be required to appear in any written examination if any provided by the regulations. Before considering the case of the petitioner, the requirement of his name being sponsored by the employment exchange would not be insisted upon. In so far as the age requirement is concerned, the same shall be relaxed as indicated above.
The aforesaid decision was issued, apparently in view of the pronouncement made by the Supreme Court in the case of U.P.S.R.T.C. and Anr. v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Ors. 1995 UPLBEC 320 which read as under:
...we state that the following would be kept in mind while dealing with the claim of trainees to get employment after successful completion of their training:
Other thing beings equal, a trained apprentice should be given preference over direct recruits.
For this, a trainee would not be required to get his name sponsored by any employment exchange. The decision of this Court in Union of India (UOI) and Others Vs. N. Hargopal and Others, would permit this. 3. If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. 4. The concerned training institute would maintain a list of persons trained year wise. The persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior.
A bare perusal of the directions quoted above, would reveal that they nowhere exempt the trained apprentice, from undergoing the requirements of applying for the post, when it is to be filled in, nor they exempt such a candidate from undergoing the selection process. It is only when in the selection it is found that there is a tie between the trained apprentice and a non-trained apprentice, then if other things are equal, preference shall be given to the trained apprentice, in appointment.
The appellants thereafter started collecting data regarding the number of trained apprentices working in the department which were about 30 to 35 thousands in number. Therefore it took considerable time to collect and maintain the record of such large number of persons and only thereafter an advertisement was issued in November, 1997 for appointment on the post of Draftsman/Tracer. It was provided in the advertisement that persons who are trained apprentice will be given preference.
Writ Petition No. 12867/1997 was preferred before this Hon''ble Court at Allahabad challenging the said advertisement in which by order dated 15.04.1997 the recruitment in pursuance of the said advertisement was stayed.
The question of appointment of trained apprentice again became subject matter of challenge in a couple of writ petitions before this Court viz. W.P. Nos. 5076 (ss)/1996 and 5068(ss)/1996 (Manoj Kumar Mishra v. State of U.P. and Ors.). This Court while considering all aspects of the matter, inter alia the judgment of the Apex Court in U.P.S.R.T.C. and Anr. v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Ors. (supra), held that if the relevant service rules and government orders provide for holding a competitive examination or test, the petitioner had to appear in the said examination or test to compete with other candidates. Therefore, the claim of the petitioner that not required to appear in any competitive examination or test which is held for making selection on the post of which they want to be appointed cannot be sustained. In the said judgment the learned Single Judge had considered the decision rendered in the the case of Mohd. Waseem v. State of U.P. 1996 LCD 82 and Bhartiya Majdoor Sangh v. I.T.I. Limited in writ petition No. 1489/1991 and has observed as under:
With profound respects and utmost humility, I am unable to agree with the aforesaid direction of the learned Single Judge that the petitioners would not be required to appear in any examination.
The question of requirement of trained apprentice to participate in selection/examination for being appointed again came for consideration before the Full Bench of this Court in the case of Arvind Gautam v. State of U.P. and Ors. 1999 (II) UPLBEC 1397 the Full Bench while considering the above judgments held that all the persons including apprentices have to appear in competitive examination as may be prescribed in respect of other candidates.
The contempt petition No. 318 (c)/1997 was filed by the respondent for non-compliance of the judgment and order dated 30.11.1995 passed in the case of Mohd. Waseem v. U.P. State Electricity Board and Ors. (supra). The contempt Court by order dated 01.03.2000 directed the appellants to consider and decide the representation of the respondent within a period of one month.
The representation of the respondent was, however, rejected by order dated 09.04.2000 passed by Sri D.D. Paswan the then Chief Engineer Hydel stating therein that his case would be considered as and when the vacancy is available. The vacancies were advertised but the same were stayed by the High Court at Allahabad in W.P. No. 12867/97.
However, the contempt court again by order dated 04.12.2000 directed the appellants to re-consider the claim of the respondent within a period of one month and give necessary employment, while giving such direction it was observed that the representation was wrongly rejected and the case of the respondent shall be considered in accordance with the impugned judgment dated 30.11.1995.
The application for recall/modification of the order dated 04.12.2009 was moved by the appellants which was rejected by order dated 01.08.2001.
Thereafter the contempt appeal No. 15/2001 was filed by the appellant U.P. State Electricity Board (now U.P. Power Corporation Ltd.) against the order dated 04.12.2000 and the order dated 01.08.2001 which was dismissed as not maintainable by order dated 07.08.2006, being filed by a corporate body.
The special appeal No. 87/2002 was, thereafter filed by the U.P. Power Corporation Limited challenging the judgment and order dated 30.11.1995 mainly on the ground that the said judgment is against the Full Bench decision of this Court in Arvind Gautam v. State of U.P. and Ors. (supra) and the decision of this Court in the case of Manoj Kumar Mishra (supra).
It is pertinent to mention here that in the writ petition No. 12867/1997, by means of which interim order dated 15.04.1997, the selection pursuant to advertisement of February, 1997 was stayed, was subsequently dismissed in default without being decided on merit.
The learned contempt Judge by order dated 10.01.2006 passed in criminal misc. case No. 318 (c)/1997 held two officers guilty namely D.D. Paswan, Chief Engineer, Hydel and Kripa Shanker, Executive Director under the Contempt of Courts Act read with Article 215 of the Constitution of India and sentenced them to three months R.I. and a fine of Rs. 2,000/- each.
The special appeal No. 214/2006 was filed by one B.K. Bhatt and others challenging the order dated 04.12.2000 passed in contempt petition by which it was directed to consider grant of necessary employment to the respondent within a period of one month.
The contempt appeal No. 12/2006 was filed by Kripa Shanker against the punishment order dated 10.01.2006 passed in criminal misc. case No. 318(c) of 1997.
The application for discharge of contempt notice moved by Sri Ashok Kumar Khurana, v. K. Bhatt and Harish Chandra Singh was rejected by the learned contempt judge by order dated 04.04.2006.
The contempt appeal No. 40/2006 filed by the Ashok Kumar Khurana and Ors. against the order dated 04.04.2006 by means of which the application for discharge of contempt notice was rejected.
Thereafter by order dated 07.08.2006 passed in special appeal No. 214/2006 this Court had stayed the operation of the order dated 04.12.2000 passed in criminal misc. case No. 318/1997 and by order dated 01.09.2006 passed in contempt appeal No. 40/2006 the contempt proceeding in criminal misc. case No. 3118 (C) of 1997 were stayed till further orders.
Sri S.K. Kalia has vehemently urged before us that the full Bench of this Court in the case of Arvind Gautam (supra) in consonance with the law propounded by the Supreme Court, in the case of U.P.S.R.T.C. and Anr. v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Ors. (supra) has held that the view taken by the learned Single Judge in the case of Manoj Kumar Mishra is correct and the decision rendered in the case of Mohd. Waseem v. U.P. State Corporation, does not lay the correct law. The Full Bench has approved the judgment rendered in Manoj Kumar Mishra''s case and as such the judgment in the case of Mohd. Waseem is impliedly overruled.
In view of the above, it has been submitted by Mr. S.K. Kalia, Senior Advocate that a judgment which explicitly or impliedly stands overruled, cannot be directed to be implemented and the respondent has adopted the arm twist tactic by drawing the contempt proceeding against them for compliance of a judgment which cannot be said to be correct in the eyes of law.
Mr. R.N. Gupta, learned Counsel appearing for the respondent does not dispute the proposition of law as emerges from the aforesaid judgments, however, submitted that the special appeal No. 87 of 2002 is highly time barred as it was filed after more than 6 years with deliberate intention to throttle the process of compliance initiated in compliance of directions issued by the learned contempt Judge in criminal misc. case No. 318(c)/1997. It has been submitted by Mr. R.N. Gupta that the special appeal is liable to be rejected for being highly time barred.
We have considered the various submissions made by the counsel for the appellant as well as the respondents. The main question for our consideration in the present appeals basically is whether the directions issued in a judgment which cannot be said to be laying down correct law shall be directed to be implemented or not, when the said judgment, is in challenge before the appellate forum of the High Court, is an intra court appeal.
Full Bench of this Court in the case of Arvind Gautam v. State of U.P. and Ors. (supra), while taking into consideration the judgment of the Apex Court in the case of U.P. State Road Transport Corporation v. U.P. Parivahan Nigam Shishuths Sangh had opined that:
The expression "other things being equal" use in Paragraph 12 of the decision of Supreme Court in the case of Uttar Pradesh State Road Transport Corporation and another Vs. Uttar Pradesh Parivahan Nigam Shishukhs Berozgar Sangh and others, and absence of exemption from competitive test in the said paragraph, leads to the conclusion that all persons (including the apprentices) have to appear in the competitive test, as may be prescribed in respect of the particular selection, and if after the competitive test any apprentice trainee gets equal marks than a non-apprentice candidate, then only preference is to be given to the said apprentice trainee.
In the case of Manoj Kumar Mishra v. State of U.P. and Ors. (supra) this Court had the occasion to consider the impugned judgment rendered in the case of Mohd. Waseem v. U.P. State Power Corporation Limited as well as the decision rendered in the case of Bhartiya Mazdoor Sangh v. I.T.I. Limited and Ors. passed in writ petition No. 1489 of 1991, wherein a direction was issued to consider the case of the petitioners in the light of the observation made by the Apex Court in the case of U.P.S.R.T.C. v. U.P. Parivahan Nigam Shishukhs Sangh and Ors. and a further direction that they will not be required to appear in any written examination if any provided under rules governing the condition of service of regular employees. The learned Single Judge while considering the aforesaid decisions had observed that a careful reading of the judgment of the Supreme Court would show that no such observation was made while dealing with the claim of trainees to get employment and, therefore, he is unable to agree with the direction of the learned Single Judge that the petitioner would not be required to appear in any examination.
Relying on the aforesaid judgment, we are of the considered opinion that the decision rendered by the learned Single Judge which is under challenge in special appeal No. 87/2002 and special appeal No. 214/2006 does not lay down the correct law and, therefore, liable to be set aside.
On the question of delay in filing the special appeals, suffice would be to mention that if the Court finds that for bonafide reasons, the delay has occurred and/or the order under appeal is allowed to stand, it will cause gross miscarriage of justice, there would be no bar in condoning the delay, may be it is a delay of few years.
It is the specific case of appellants, that after the order passed by the learned Single Judge sincere efforts were made for compliance of the order, but the recruitment/selecting agency, suggested that such an appointment cannot be made by them, as it was not possible to select any candidate, without holding the written test.
Also that there were a large number of candidates, including the respondent, similarly situated, who could not have been ignored, if the selection of the present respondent was to be made de-hors the rules and that any order passed or direction issued on misreading of the judgment of the Supreme Court cannot be directed to be complied with.
We would like to observe that High Court being a court of record has inherent power to correct the records. The Apex Court in the case of M.M. Thomas v. State of Kerala and Anr. 2001 (19) LCD 527 has held as under:
High Court as a Court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court''s power in that regard is plenary. In Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a Court of Plenary jurisdiction being a Court of Record.
It is a settled proposition of law that the High Court is not precluded to prevent the miscarriage of justice and it can suo moto pass appropriate orders to preclude the miscarriage. The Full Bench of this Court in the case of Dinesh Kumar Gupta v. State of U.P. through Secretary, Appointment, Lucknow 1999 1 UPLBEC 396 has observed as quoted below:
Before we proceed to consider the submissions of Mr. Ravi Kant, learned Counsel appearing in support of this petitioner, we consider appropriate to remind ourselves as to what is the scope of review jurisdiction of this Court rising out of a proceeding under Article 226 of the Constitution of India. This has already been answered by the Supreme Court through its two 5 judges, decisions and accordingly no longer res-integra. In Shivdeo Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 it was held that there is nothing Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in very Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In State of Gujarat Vs. Sardarabegum and Others, it was held that if a patent error has crept in due to inadvertence the same "could and should have been suo motu corrected by the High Court in the exercise of its inherent jurisdiction even after the expiry of the ordinary period of limitation, if any prescribed for a review application.
Looking into the facts and circumstances of the case as narrated above, it is evident that the delay in filing the present appeal is bonafide and in the interest of justice it is expedient that the same may be condoned. The delay occurred in the appeal is as such hereby condoned. So far as the contempt appeal No. 40/2006 and contempt appeal No. 12/2006 are concerned, they have been filed against the orders passed in contempt petition No. 318/1997 relating to the disobedience and non-compliance of the impugned judgment and order dated 30.11.1995 passed in W.P. No. 4532 (s/s)/1992. In view of the fact that we have come to the conclusion that the present special appeal No. 87/2002 is liable to be allowed and the impugned judgment and order dated 30.11.1995 is hereby set aside, the contempt petition No. 318/1997 become infructuous and, therefore, consequently the contempt appeal No. 40 of 2006 and contempt appeal No. 12 of 2006 are liable to be dismissed as infructuous.
In the present case it is the admitted fact that there is inherent contradiction in the direction issued in the impugned judgment and order dated 30.11.1995 and the decision rendered in the subsequent judgment in the case of Monoj Kumar Mishra and the Full Bench decision in the case of Arvind Gautam, judicial propriety demands that the subsequent decision is to be followed.
In view of above, the special appeal No. 87/2002 and the special appeal No. 214/2006 are allowed and the impugned judgment and order dated 30.11.1995 is hereby set aside. The contempt appeal No. 40/2006 and contempt appeal No. 12/2006 are dismissed as infructuous. No order as to costs.