Rajesh Kumar Kaushik vs State Of Chhattisgarh

With the consent of Learned Counsel appearing for the parties, the matter is heard finally.

Since a common issue is involved in the present writ petitions, they are heard together and disposed of by this common order.

During the course of argument, Shri Manoj Paranjpe, Learned Counsel appearing for the respective Petitioners submits that he does not want to press the relief mentioned in Clause (iv) of paragraph 10 of Writ Petition (S) No.9177 of 2023. He further submits that he also seeks leave to withdraw Annexure P6 of the writ petition, i.e., opinion dated 10.11.2023 given by the office of Advocate General. The two prayers made by Shri Paranjpe are allowed.

All the Petitioners were working as Assistant Teacher/Teacher and were considered for promotion to the post of Teacher/Headmaster. After counselling, their posting orders were issued. On the basis of applications submitted by some of the promoted Teachers/Headmasters, amended posting orders were issued by the concerned Joint Directors and pursuant thereto they joined their new place of posting. The State Government vide order dated 4.9.2023 cancelled all the amended posting orders holding that the amended posting orders issued by the authorities concerned are illegal and without authority of law. It was also directed that if any Teacher/Headmaster had joined at new place of posting on the strength of amended posting order then he/she would be relieved immediately to join at his/her original place of posting within a period of 10 days, failing which, his/her order of promotion shall stand cancelled automatically.

The order dated 4.9.2023 issued by the State/Respondent had been challenged by the Petitioners herein and other Teachers/Headmasters by filing writ petitions before this Court. All the writ petitions, i.e., Writ Petition (S) No.6253 of 2023 and other connected writ petitions were disposed of by this Court vide order dated 3.11.2023. The relevant paragraphs of the order dated 3.11.2023 are as under:

“9. Considering the peculiar facts of the case and the submissions made on behalf of the parties, it would be appropriate to dispose of the present bunch of writ petitions without going into their merits by constituting a committee to consider and decide the matter of the present Petitioners. Accordingly, as proposed by Learned Counsel appearing for the parties, a committee is constituted comprising of the Principal Secretary of School Education Department as the Chairman, the Director of Public Instructions as a member and all the Joint Directors of the concerned five divisions as members of the committee (henceforth ‘the committee’).

Before the committee, all the applications of the Petitioners, which were made before the Joint Directors on the basis of which amended posting orders were issued, shall be placed. The Petitioners shall have liberty to submit any document in support of their said applications before the committee within 15 days from today. The committee shall decide the matter of each of the Petitioners and their fresh posting orders shall be issued by the committee or the competent authority. All these exercises shall be completed within 45 days from today. The committee or the competent authority, while deciding the matter of the Petitioners and issuing their fresh posting orders, shall also consider relevant provisions of the transfer policy of the State dated 22.8.2022 and the directions issued by the State (School Education Department) dated 29.3.2023.

Considering the submissions made by Learned Counsel for the parties that pursuant to the orders passed by the concerned Joint Directors, the Petitioners have already joined at their place of posting and their last pay certificates have also been sent there and pursuant to the impugned order dated 4.9.2023 the Petitioners have already been relieved automatically from their place of posting and as of now pursuant to the order of this Court dated 11.9.2023 passed in the lead case, i.e., Writ Petition (S) No.6253 of 2023 they are not being allowed to join back at their previous place of posting and, therefore, they are not able to draw their salary, further considering the fact that pursuant to the impugned order the Petitioners have already been relieved automatically and in their places none have joined and, therefore, considering the interest of the students also, in the interest of justice it is directed that all the Petitioners be allowed to join at their previous place of posting so that their issue of salary could be resolved.

In view of the observations and directions made hereinabove, the impugned order dated 4.9.2023, so far as it relates to the present Petitioners, is quashed.”

Writ Petition (S) No.9177 of 2023 has been preferred by the Petitioners challenging the order dated 20.11.2023 passed by Respondent 4 of the writ petition, i.e., the District Education Officer, Baloda Bazar, whereby he directed his subordinate Block Education Officer to give joining to the Petitioners in the place which was originally allotted to them during the time of promotion through counselling rather than the place allotted through amended order dated 12.6.2023.

Writ Petition (S) No.9151 of 2023 has been preferred by the Petitioners seeking a direction to the Respondents to comply with the directions issued by this Court vide order dated 3.11.2023 regarding joining of the Petitioners in their place of posting.

According to the Learned Counsel appearing for the Petitioners in Writ Petition (S) No.9177 of 2023, the order dated 20.11.2023 has been issued on the basis of the opinion given by the office of Advocate General.

Learned Deputy Advocate General appearing for the Respondents/State submits that on 20.11.2023 itself the State Government issued the direction to all the Joint Directors to comply with the order of this Court dated 3.11.2023 in the light of the opinion given by the office of Advocate General and pursuant to the said direction the District Education Officer of Baloda Bazar, who is arrayed as a party/Respondent in Writ Petition (S) No.9177 of 2023, passed the order mentioned earlier.

It is jointly submitted on behalf of all the Petitioners that by virtue of the order dated 3.11.2023 passed by this Court in Writ Petition (S) No.6253 of 2023 and other connected writ petitions the order dated 4.9.2023 passed by the State/Respondent cancelling the amended posting order has already been set aside. Therefore, now, the amended posting order issued by the concerned Joint Directors have been restored back. Since the order dated 4.9.2023 cancelling the amended posting order is now no more in existence, the Petitioners are supposed to join at the place of posting ordered by the concerned Joint Directors, as is directed by this Court in its order dated 3.11.2023. But, the Respondents authorities erroneously and willfully neglecting the directions issued by this Court passed the order dated 20.11.2023.

Learned Deputy Advocate General for the State submits that since the final order has already been passed by this Court vide order dated 3.11.2023 and directions were already issued that if the Petitioners think that there is willful disobedience of the order dated 3.11.2023 then they should have preferred a contempt petition. Thus, the instant writ petitions are not maintainable. He further submits that order dated 20.11.2023 has been issued by the State on the basis of opinion given by the office of Advocate General, which is an internal communication between the State and the office of Advocate General and, therefore, the said internal communication cannot be challenged.

During the course of argument, it is also informed by Learned Counsel appearing for the parties that in compliance of the order dated 3.11.2023 passed by this Court a committee has already been constituted and the Petitioners have represented before the said committee. However, the Chairman of the said committee has now resigned and appointment of new Chairman by the State can take some time.

I have heard the contentions put-forth on behalf of the parties and perused the material available including the documents filed with due care.

With regard to the maintainability of the present writ petitions, after passing of the order dated 3.11.2023 by this Court, the State/Respondent issued a fresh order dated 20.11.2023 on the basis of the communication of the office of Advocate General. Therefore, in both the present petitions, fresh cause of action has arisen in respect of the Petitioners. Even otherwise, while dealing with the issue, the Supreme Court in Bibekananda Mondal v. State of West Bengal, 2002 SCC OnLine Cal 571 observed and held as under:

“6. It is, therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ court. This court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done in wilful disobedience of a court order is not only contempt, but, also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said article recognises a very wide power on the High Courts to remedy injustice wherever it is found.

It has been held in Begunkodar High School v. Samarendra Bandopadhyay, reported in 1996 (2) CLJ 349, that it was the duty of the High Court to see that the order passed by the High Court is carried out by any means whatsoever otherwise a constitutional remedy under Article 226 would become infructuous.”

Further, in Commissioner, Karnataka Housing Board v. C. Muddaiah, (2007) 7 SCC 689, the Supreme Court observed and held as under:

“32. We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.

The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open tot he authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.”

In the light of above-quoted principles of law laid down by the Supreme Court, it is quite vivid that the instant writ petitions are maintainable on two counts. First, after passing of the order dated 3.11.2023 by this Court, order dated 20.11.2023 has been passed by the State and secondly, both the present writ petitions have been filed on the ground of willful non-compliance of the order of this Court dated 3.11.2023.

A bare perusal of the order of this Court dated 3.11.2023 clearly shows that the order dated 4.9.2023 passed by the State/Respondent has been set aside, meaning thereby, the amended orders of posting issued by the concerned Joint Directors are still in existence. Further, on the basis of the submission made by the Learned Counsel for the Petitioners that pursuant to the amended posting orders the Petitioners have already joined at their place of posting and their Last Pay Certificates have also been sent there and on the basis of the order dated 4.9.2023 they are not being allowed to join back at their previous place of posting and they are not able to draw their salary, this Court has directed that all the Petitioners be allowed to join at their previous place of posting so that their issue of salary could be resolved. Since the order dated 4.9.2023 has already been set aside, earlier amended posting orders issued by the Joint Directors are still in existence and before passing of the order dated 4.9.2023 the Petitioners had already joined their amended place of posting and their Last Pay Certificates had also been sent there. Therefore, as of now, even after the direction issued by this Court, the Petitioners are not being allowed to join at their amended place of posting by the State/Respondent, which appears to be disobedience of the order passed by this Court dated 3.11.2023. Therefore, the order dated 20.11.2023 passed by the State/Respondent is set aside. The Respondents are directed to allow the Petitioners to join at their previous place of posting where they had joined pursuant to the order passed by the concerned Joint Directors. This exercise shall be done within a period of 10 days from today. Learned Deputy Advocate General for the State is also directed to inform the concerned authorities about this order.

In the result, both the writ petitions are disposed of in the aforesaid terms.