1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CONTEMPT PETITION NO. 227 OF 2006 CONTEMPT PETITION NO. 227 OF 2006 CONTEMPT PETITION NO. 227 OF 2006 IN WRIT PETITION NO. 1020 OF 2002 Shri Raju Haribhau Thombe ) Age about 37 years, ) Occupation:Service (terminated) ) R/at Navin Mukund Nagar ) Room No. 55/6,Ahmednagar. ).. Petitioner (Respondent in Writ Petition) Versus 1. Mr. Sudam Marutraio Bhapkar ) Age about 52 years, ) Secretary of Shri Bhairavnath) Shikshan Mandal, at post ) Khutbhau Tal.Daund, ) District: Pune. ) 2. Mr. Arund Gulabrao Thorat ) Age about 46 years, ) Headmaster, ) 2 Shri Bhairavnath Secondary ) School, at post Khutbhau ) Tal. Daund, District: Pune. ).. Respondents (Petitioners in Writ Petition) CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 16th February,2008. DATE: 16th February,2008. DATE: 16th February,2008. JUDGMENT JUDGMENT JUDGMENT 1. Heard learned Counsel for the parties. 2. The petitioner was a teacher in the School of Respondent No.1. His services were terminated and, therefore, he challenged that order before the School Tribunal, Pune Region, Pune, by filing Appeal No.9 of 1996. In that appeal, by an order dated 4.1.2002, the School Tribunal directed the Management to reinstate the petitioner. That order was challenged by the Management in Writ Petition. No.1020 of 2002. On 4.3.2002, the learned Counsel for the management in that Writ Petition had made a statement that as and when the vacancy would arise, the petitioner would inform the respondent and accommodate him as the Asstt. Teacher. According to the petitioner, as per the information received by him, 3 after 4.3.2002 when the statement was made, two vacancies had arisen in the School and both the vacancies were filled in on 1.10.2002 by making appointment of two teachers, viz. Smt. Kharade and Mr. Chopade. The Contempt Petition was filed on 1.7.2006 contending that contempt of this Court was committed by the respondents by not complying with the statement made before the Court on 4.3.2002. 3. Respondent No.2, who is the Head Master of the School, has filed affidavit in reply on behalf of both the respondents. He has stated that the petitioner belongs to the Scheduled Caste and no vacancy has arisen for scheduled caste after 3.4.2002. Out of the two persons appointed on 1.10.2002, one belongs to O.B.C. and another belongs to Nomedic Tribe and they were given appointment against the vacancies available for those categories. He further stated in para 7 of the affidavit that as on 7.6.2004, there were 8 vacancies i.e. 3 for the Scheduled Tribes, 1 for Nomedic Tribe,1 for Special Backward Class and 3 for other backward classes. Not a single vacancy is available for the schedule caste even now. It is contended that as the petitioner belongs to scheduled caste, he cannot be appointed unless there is a vacancy for the scheduled caste and therefore no contempt has been committed by 4 the respondent. It is further contended that the alleged appointments were made on 1.10.2002 and the contempt petition was filed in July, 2006 and therefore, it is barred by limitation. 4. Section 20 of the Contempt of Courts Act, 1971 provides that no Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. If the contention of the petitioner is accepted, the contempt of Court was committed on 1.10.2002 when the respondent made appointments of 2 teachers in the School in violation of the undertaking given by them before the court on 3.4.2002. The Contempt Petition was filed on 1.7.2006 i.e. long after expiry of the period of limitation. In the Contempt Petition,nowhere the petitioner has alleged that he was not aware about the said appointments and that he had come to know about the same only within one year prior the filing of the Contempt Petition. It is material to note that the respondent NO.2.Arun Gulabrao Thorat, Head Master filed affidavit in reply clearly taking stand that the petitioner is barred by limitation. No rejoinder or reply is filed by the petitiioner nor it is explained how the contempt petition is within time. In view of 5 this, it is clear that the Contempt Petition is barred by limitation and on that ground itself it is liable to be dismissed. 5. Coming to the merits of the case, the order passed by this Court on 4.3.2002 in Writ Petition No.1020 of 2002 reads as follows :- "1. Rule. 2. Mr.Anturkar, learned counsel for the petitioners, on instructions, states that as and when the vacancy would arise, the petitioners will inform the respondent and accommodate him as the Assistant Teacher. The statement is accepted. In view of this interim relief is granted in terms of prayer clause (b)." This order does not show that the learned Counsel for the management/petitioner therein, had said anything about the category to which the present petitioner belongs or about the vacancies available for the schedule caste. There is no doubt that appointments of the teachers and the staff members in the aided schools in State of Maharashtra are to be made as per the quotas reserved for different categories. The Management has 6 to make appointments strictly as per quota of each category. For that purpose, the roster system has to be maintained. As per the affidavit filed by the management, it is clear that after the statement made before the Court on 4.3.2002, there was never any vacancy available for the scheduled caste and the two appointments which were made on 10.10.2002 were against the vacancies available for O.B.C. and Nomedic Tribe. Those vacancies were available for those categories and the candidates belonging to those categories were only appointed. 6. According to the learned Counsel for the present petitioner,at that time the learned Counsel for the Management had not stated before the Court that the present petitioner would be accommodated only against the vacancy available for the Scheduled Caste. According to him, as per the statement, he was to be appointed immediately in the next vacancy which would arise. According to the learned Counsel for the Management, it was not possible because of the quota fixed by the Government. In view of the stand taken by the Management, the present petitioner has admittedly filed Civil Application No.2041 of 2007 in Writ Petition NO. 1020 of 2002 seeking clarification of the order dated 4.3.2002. That Civil Application is still 7 pending. Therefore, it will not be appropriate for this Court to make any comment about the same. But the fact remains that there was a doubt in the mind of the Management as to whether they could really give appointment to the present petitioner against the vacancies belonging to the other categories against which he could not normally be appointed. 7. The learned Counsel for the respondent-Management contended that when there is a dispute about the interpretation and when both interpretations are possible, it cannot be said that the Management had committed any contempt of the Court by adopting and acting as per one interpretation which is also possible. In R.K.Sabharwal & Ors. vs. State of R.K.Sabharwal & Ors. vs. State of R.K.Sabharwal & Ors. vs. State of Punjab and others (1995) 2 SCC 745, Punjab and others (1995) 2 SCC 745, Punjab and others (1995) 2 SCC 745, the Supreme Court has held that roster system has to be maintained for appointments and promotion to maintain the rights of different reserved categories like S.C., S.T., Special Backward Classes. Therefore, unless the Court had specifically directed that the Management shall give appointment in the immediate next vacancy irrespective of the category to which he belongs, it is difficult to accept the contention of the petitioner that the Management had committed contempt of the Court by not giving appointment to him when there was no vacancy 8 available for the schedule caste. In Anil Ratan Sarkar Anil Ratan Sarkar Anil Ratan Sarkar and Ors. vs. Hirak Ghosh and others and Ors. vs. Hirak Ghosh and others and Ors. vs. Hirak Ghosh and others, (2002) 4 SCC 21, the Supreme Court has held that the element of willingness is an indispensable requirement to bring home the charge of civil contempt and also that when two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation, the act cannot be ascribed to be contumacious. Their Lordships observed as follows :- "15. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a "civil contempt" within the meaning of Section 2(b) of the Act of 1971 - the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation - the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct if raised, question of success in a contempt petition would not arise." 9 8. In view of the above observations made by the Supreme Court and the facts of the present case, it is impossible to come to conclusion that the respondents have committed contempt of the Court by giving appointments to the two candidates on 1.10.2002. 9. In view of the above circumstances, on merits, the petitioner has failed to prove that any contempt of the Court is committed and the Contempt Petition is also barred by limitation. 10. Therefore, the Petition stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)