Jarnail Singh vs H.D.Bansal, Financial Commissioner

M.S. Liberhan, J. (Oral)

This order shall dispose of C.O.C.P. Nos. 725 of 1989 and 290 of 1990 as they arise out of the common judgment.

The petitioners preferred Civil Writ Petitions Nos. 730 and 746 of 1984 which were allowed on February 29, 1988. The petitioners claim that in the said writ petitions, the following directions were given :

i) that the results of the First Ziladari Examination declared on September 28, 1983 (Annexure P2 in C.W.P. No. 746 of 1984) and second Ziladari Examination declared on September 17, 1984 (Annexure P4 in C.W.P. No. 3794 of 1984) were quashed. The Ziledar candidates who were petitioners in abovesaid writ petitions continued in service as Ziledars and as such were entitled to payment of stipend/fixed salary/subsistence allowance at the rate of Rs. 550/ per month all through,

ii) that the respondents were directed to hold the fresh Ziladari Examination in accordance with the provisions of Appendix `B'' to the Rules read with the Government instructions contained in para 6.6 of the Manual of Administration within a stipulated period of three months and to declare the result within two months thereafter. During this period, the candidates would be entitled to the stipend/fixed salary/subsistence allowance at the rate of Rs. 550/ per month; and

iii) that the successful candidates would undergo training under the Qanungos in the Land Revenue Department as provided by Appendix `B'' to the Rules and if finally accepted as candidate Ziledars, they would be appointed as officiating Ziledars on probation or Additional Revenue Clerks in the circles to which they would be attached. The names of the persons failing in the examination were to be removed from the list of selected candidates with effect from the date of declaration of the result of the examination.

It has been averred in the petition that the respondents have neither paid the subsistence allowance nor have appointed them as Ziledars or Additional Revenue Clerks as directed in the Civil Writ Petitions and are intentionally avoiding to implement the orders of this Court.

It was not disputed that the examination was held in terms of the directions of the Court and result was declared as far back as July 9, 1988. In spite of the representations made and legal notice given, the petitioners have not been absorbed in service.

By way of defence, the respondents took the stand that there were no vacancies to absorb the petitioners inasmuch as out of 113 posts in the cadre there was stay granted by the Court operating against the respondents restraining them from removing any of the persons holding 92, posts and 21 persons were recruited earlier. Resultantly, no post was available for accommodating the petitioners.

The petitioners have filed an additional affidavit as a counteraffidavit giving the details viz. out of 92 persons relating to whom there is a stay order from the Court restraining the respondents from removing them from service, one has died, three did not join the service, two have retired, four have been promoted as Tehsildars, eight promoted as Deputy Collectors and six appointed as Ziledars on March 5, 1984, as retrenched employees of M.I.T.C. (though these facts are disputed by the respondents in their reply to the counter affidavit). It is further stated in the reply to the counter affidavit that certain posts are excadre posts and the petitioners cannot be appointed against these posts.

The counsel for the respondents vehemently urged that there was no wilful disobedience of the orders of this Court. They have got highest respect for the Court. The exam was held in terms of the orders of the Court and the candidates have completed the training. There was no deliberate flouting of the orders. It was reasonably understood by the respondents that the stay order operated with respect to 42 posts and no person at any point of time got the stay order varied. It was immaterial if the posts have fallen vacant as a stopgap arrangement as detailed in the written statement. If two interpretations are possible and there is no deliberate flouting of the order, it then merely acting on due interpretation does not disclose that the respondents have committed any contempt. Mere delay in complying with the order does not amount to contempt. The Advocate General relied on Nirbhai Singh Dhillon v. Sohan Singh Bassi and others, 73 P.L.R. (1971) page 344.

The Advocate General further produced an order of the Supreme Court in Civil Appeals Nos. 1144, 1145 and 1146 of 1990 Charan Singh and others v. State of Haryana and others) decided on April 17, 1990, wherein the Supreme Court granted three months time to the State of Haryana to give service to the petitioners. Regarding payment of allowances etc., the question was left open to be decided on representation of the petitioners. In view of this later development, the learned Advocate General submitted that the contempt proceedings initiated should be discharged.

The learned counsel for the petitioners submitted that in view of the order of the Supreme Court, it was admitted by the State that there were vacancies and still the petitioners were not appointed. It should be inferred that the respondents were deliberately not complying with the directions of this Court. The Advocate General vehemently refuted the submission and contended that though at no point of time it was admitted by the State before the Supreme Court that there were posts available or vacant to be filled in from amongst the petitioners, however, the directions of the Supreme Court will be complied with.

On my asking it was stated that requisite directions have already been given to pay the arrears of stipend/fixed salary/subsistence allowances within two months, if not already paid.

In my considered view, there being disputed questions of facts, firstly whether the posts were available or not; secondly there was stay order in favour of 9 persons out of which the petitioners have attempted to show that various vacancies fell vacant on account of one reason or the other i.e. nonjoining of certain appointees, retirement, promotions etc., taking into consideration the later development i.e. judgment of the Supreme Court in the aforesaid Civil Appeals, no strict view can be taken that the respondents have deliberately failed to comply with the directions of this Court, though delay has occurred in complying with the orders of this Court. In view of these peculiar facts and circumstances of the case, no serious notice of the delay can be taken in exercise of contempt jurisdiction.

In view of my observations above and the categorical stand taken by the State, believing the Advocate General that needful will be done in terms of the judgment of the Supreme Court expeditiously, the rule is discharged. No order as to costs.

JUDGMENT accordingly.