Ramesh Chander Dimri vs R.S.Verma

V.S. Aggarwal, J.

Petitioner Ramesh Chander Dimri is a practising advocate. He had filed Civil Writ Petition No. 1316 of 1997 alleging that he is a dependent of Exserviceman and practices as an advocate in Punjab and Haryana High Court. He applied for recruitment to the Haryana Civil Services (Judicial Branch) in the year 1993. He failed to secure sufficient marks so as to become entitled to be appoinment to the service. He again applied for recruitment to the service in response to advertisement No. 7 of 1996. After passing the written test he was called for interview in November, 1996. He secured 517 marks in the written examination out of 900 marks and 40 marks in vivavoce out of 120 marks. He prayed for a direction to the respondent Haryana Public Service Commission to recommend his name for appointment to the service. He claimed appointed against the unfilled vacancies of physically handicapped.

The writ petition had been heard and a Division Bench of this Court had allowed the same with the following directions :

"(1) The Haryana Public Service Commission should prepare a merit list in addition to the list already sent to the Government by including the names of the candidates who have secured marks in the written examination and vivavoce as well as aggregate marks in terms of the amended Rules 7 and 8 make recommendations to the Government and the High Court for the purpose of appointment to the unfilled vacancies/posts of Haryana Civil Service (Judicial Branch).

(ii) While making recommendations in compliance of the direction No. (1) the commission shall keep in view the law laid down by this court in Jas Karan Singh''s case and Dr. Abdul Majid''s case, so far as reserved vacancies are concerned.

(iii) The necessary exercise shall be completed by the commission within one month of the submission of certified copy of this order. The State Government and the High Court shall then take the required steps and appoint the selected candidates within next six weeks."

The petitioner has filed a petition under Section 12 of the Contempt of Courts Act alleging that respondents have wilfully and deliberately disobeyed the orders passed in the above said writ petition. The petitioner has not been offered the post in the service despite a clear direction given by the Court. According to him the Haryana Public Service Commission in the year 1993 had advertised 32 vacancies in Haryana Civil Service (Judicial Branch) out of which two posts were reserved for Exservicemen category and one for physically handicapped category. It was stipulated that in the event of non availability of suitable Exservicemen/their dependent sons and daughters who fulfil the conditions of qualification and age etc. will also be considered on merits against the posts reserved for them. This entitlement would be made available to one dependent child only. It was further stipulated that in the event of nonavailability of suitable candidates belonging to Physically Handicapped category, the vacancies reserved for that category would be filled in from Exservicemen category. The petitioner had applied as dependent of Exservicemen. He was called for vivavoce test after the written test. He was declared unsuccessful. A subsequent examination was held in September, 1995 and in that examination condition of 3 years'' experience at the bar was made a condition precedent for appearing in the said examination. In 1996 another advertisement was issued with the same condition. The posts were reserved for the category of Exservicemen. In response to the advertisement in the year 1996, the petitioner applied claiming the benefit of reservation meant for dependents of Exservicemen. He successfully qualified the written test and was called for interview. The name of the petitioner was not shown by the Haryana Public Service Commission in the list of qualified candidates. The result was that he filed a writ petition in this Court in which the above said directions were issued. The grievance of the petitioner as referred to above in these circumstances is that despite the directions of this Court his claim is being ignored and this is deliberate violation of the order passed by this Court.

In the reply filed by the Chief Secretary, Government of Haryana it has been pointed that Haryana Public Service Commission had to prepare the merit list in accordance with the directions given by this Court. As per information received from the Haryana Public Service Commission, the petitioner has not been treated as a dependent of Exservicemen since he is a practising advocate. It is denied, therefore, that the order passed by this Court has been violated.

In the separate reply submitted by the Registrar, Punjab and Haryana High Court, Chandigarh the plea offered is that the petitioner is claiming the benefit of reservation meant for dependent of Exservicemen for appointment to the Haryana Civil Service (Judicial Branch) as a result of examination held in May, 1996. The High Court points out that neither the Haryana Public Service Commission nor the Haryana State Government forwarded the additional list for appointment of the candidates to Haryana Civil Services (Judicial Branch) within the stipulated time. An appeal even was preferred in the Supreme Court which was dismissed. Since the name of the petitioner has not been forwarded by the Haryana Public Service Commission, he could not be appointed. On 1.1.1998 a letter was received from the Government of Haryana seeking views of this Court on certain points. Another letter seeking views of High Court has been received dated 16.1.1998. In this letter view has been sought of the Punjab and Haryana the High Court on one point only. It has to be considered by the Judges in Full Court meeting only. It is denied thus that any contempt has been committed.

The main contest has been offered by the Haryana Public Service Commission. It has been pointed that as is evident from the certificate dated 17.3.1996 issued by the President of Punjab and Haryana Bar Association, Chandigarh the petitioner has been a practising advocate in Punjab and Haryana High Court from 7.9.1992. It means that he has been earning his livelihood. Therefore, he cannot be treated as dependent on his parents. He cannot be treated as dependent son of Exserviceman. The State of Haryana vide instructions dated 21.11.1980 on the subject "reservation of posts of the children of the Exservicemen in the service of the Haryana State" has clarified that even if a person may be unemployed at the time of making the application but may have other sources of income, he does not fall within the definition of dependent. Thus, it was claimed that petitioner could not claim the benefit as a dependent son of the Exserviceman.

There was no controversy raised at either end that it would only be contempt of court if the directions given by this Court were deliberately disobeyed and not followed. On behalf of the petitioner it has been vehemently argued that the petitioner is the son of an exserviceman. He must be taken as a dependent and consequently there was no occasion for not offering one post in Haryana Civil Service (Judicial Branch) to him. In line with the written reply the Haryana Public Service Commission urged that petitioner has been practising as an advocate at Chandigarh. He cannot be taken to be the dependent son of Exserviceman.

To appreciate the said controversy, reference can at the outset be made to the facts in the civil writ petition decided by this Court including Civil Writ Petition Nos. 1316 of 1997. This Court opened the judgment with the question in controversy. It reads :

"The principal issue raised in these petitions is whether the petitioners are entitled to be appointed to the Haryana Civil Service (Judicial Branch) in view of the amendment made to the Punjab Civil Service (Judicial Branch) Rules, 1951 (hereinafter referred to as "the Rules") vide notification dated 30th of October, 1996."

It is abundantly clear from aforesaid that the dispute before the Bench of this Court was whether petitioners were entitled to be appointed in view of the amendment made in the Haryana Civil Service (Judicial Branch) Rules. The question as to if the petitioner is a dependent of the Exserviceman or is eligible was not in controversy before the Bench. While deciding the writ petition mentioned above, it had been held that the amendment made in the year 1996 in the rules should have been made applicable to the on going process of selection. It is in this background that the writ petition had been allowed and the directions issued. In the absence of any direction or finding that petitioner was the dependent of the Exservicemen, if he has not been so appointed will not permit the petitioner to rake up an issue that there has been disobedience of the order of this Court.

In that event it had been contended that the facts as to if the petitioner was eligible or not, should have been brought to the notice of the Court in the writ petition and if they have not done so, still it would be disobedience to the orders passed by this Court. Reliance was placed on the decision of the Supreme Court in the case of T.R. Dhananjaya v. J. Vasudevan, AIR 1996 SC 302. In the cited case the petitioner had claimed promotion as Chief Engineer. The writ petition had been allowed. Subsequently, it was urged that petitioner was not eligible under the relevant rules for promotion. But this fact was never brought to the notice of the Court. The Supreme Court held that the Government could not go behind the Court''s order and dilute this fact. In paragraph 12 it was held :

"Question is whether it is open to the respondent to take at this stage this volteface step. It is seen that all through the Government was a party. When the direction was given in I.A. No. 3 filed by the petitioner, it was not brought to our notice that the petitioner was not eligible for promotion, in contradistinction with Dasegowda, or any other. When the claim inter se had been adjudicated and the claim of the petitioner had become final and that of Dasegowda was negatived, it is no longer open to the Government to go behind the orders and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimise legal alibi to circumvent the orders passed by this Court. Thus it is clear that the concerned officers have deliberately made concrete effort to disobey the orders passed by this Court to deny the benefits to the petitioner. So, we are left with no option but to hold that the respondent has deliberately and wilfully, with an intention to defeat the orders of this Court, passed the impugned order."

However, the ratio decidendi of the cited case will not help the petitioner. As referred to above, there was no such finding arrived at in the earlier writ petition that petitioner was a dependent of the Ex serviceman. During the course of arguments, the Court was being informed that even the reply was not filed because of the limited question that had arisen before the Division Bench of this Court which has already been reproduced above. Once this controversy about eligibility was not before the court, it would not be proper to hold that there has been disobedience of the orders of the Court.

In that event the attention of the Court was being drawn to the decision of Calcutta High Court in the case S.K. Samsudin v. Ravikant and another, 1997(3) All India Criminal Law Reporter 78. In the cited case the Regional Transport Authority was directed by the High Court to consider the case of the petitioner for temporary permit. Not only the authority delayed the matter but rejected the prayer by interpreting the way of the High Court which it likes. It was held that it could not do so and it was the disobedience of the orders of the High Court. It is abundantly clear that the cited case was confined to its peculiar facts. In the absence of any such finding in favour of the petitioner that he was eligible as a dependent of the Ex serviceman, the question of disobedience of the orders of the Court did not arise.

At this stage, it deserves a mention because it transpired during the course of arguments that with three years'' practice at the bar being mandatory for a person to be recruited as a member of the State Judicial Service, the condition of dependent members of the Exservicemen in Judicial Service would become redundant. Indeed, it may appear to be so. It is entirely for the authorities to consider this aspect and take necessary steps to get over the said anomaly.

However, in the facts of the case in hand it cannot be held that the order passed by this Court has been violated. The petitioner must fail and is dismissed. The rule is discharged.