1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CONTEMPT PETITION NO. 178 OF 2009 IN WRIT PETITION NO. 5401 OF 2008. Sandip Purushottam Ajmire and others ... PETITIONERS VERSUS State of Maharashtra and others. ... RESPONDENTS WITH CONTEMPT PETITION NO. 179 OF 2009 IN WRIT PETITION NO. 5411 OF 2008. Ulhas Pralhad Deshmukh and others ... PETITIONERS VERSUS State of Maharashtra and others. ... RESPONDENTS .... Shri A.C. Dharmadhikari, Advocate for the petitioners. Shri K.S. Dhote, Assistant Government Pleader for the respondent No.1. Shri J.S. Mokadam, Advocate for the respondent No.2. Shri Sheikh Majid, Advocate for the respondent No.3. .... 2 CORAM : PRASANNA.B.VARALE, J. DATE OF RESERVING THE ORDER : 19TH APRIL, 2010. DATE OF PRONOUNCING THE ORDER : 07TH MAY, 2010. ORDER : Since both the contempt petitions are arising out of common orders dated 19th December, 2008 and 6th May, 2009 passed by this Court, the same are being decided by common order. 2. Heard Shri A.C. Dharmadhikari, the learned Counsel appearing on behalf of the petitioners, Shri K.S. Dhote, the learned Assistant Government Pleader appearing on behalf of the respondent No.1, Shri J.S. Mokadam, the learned Counsel appearing on behalf of the respondent No.2 and Shri Sheikh Majid, the learned Counsel appearing on behalf of the respondent No.3. The respondent No.3 was personally remained present in the Court. 3. The factual matrix of the present petitions is that the petitioners were appointed as Junior Engineers (Civil) under the scheme namely “District Primary Education Programme” on 20th December, 1997. As the government decided to construct the schools in Gadchiroli district, the petitioners were appointed as Junior Engineers on contract basis by following due procedure. The said scheme was continued for quite some time and in the year 2003, the said scheme came to an end. In the year 2003, the Central Government with the assistance of the State Government floated the 3 scheme namely “Sarva Shiksha Abhiyan Scheme”. Under the said scheme, the State Government decided to construct the schools and other related civil works for the project of “Sarva Shiksha Abhiyan Scheme”. The petitioners were appointed in the said project as Junior Engineers (Civil) on contract basis by giving a technical break of one day. 4. The Chief Executive Officer, Zilla Parishad, Gadchiroli – respondent No.2 issued an advertisement for the posts of Junior Engineers in Zilla Parishad, Gadchiroli on 19.04.2007. The petitioners submitted representations to the State Government – respondent No.1 to absorb them on the posts of Junior Engineers as they have acquired lot of experience under the schemes, namely, “District Primary Education Programme” as well as “Sarva Shiksha Abhiyan Scheme”. The Chief Executive Officer, Zilla Parishad, Gadchiroli – respondent No.2 forwarded recommendation in pursuant to the representations made by the petitioners vide communication dated 27.04.2007. The respondent No.2 – Chief Executive Officer, Zilla Parishad, Gadchiroli by communication dated 08.05.2007, absorbed the petitioners as Junior Engineers in Zilla Parishad, Gadchiroli. In view of the fact that the petitioners were absorbed, the respondent No.2 cancelled the advertisement dated 19.04.2007 vide communication dated 14.05.2007. On receiving one complaint protesting the absorption of the petitioners, the absorption of the petitioners was stayed by communication dated 21.05.2007. An enquiry was conducted by the department concerned and the stay granted to the process of absorption was cancelled, on 27.06.2007, the respondent No.2 issued appointment orders to the 4 petitioners. On 29.06.2007, the petitioners were relieved from the posts of Junior Engineers under “Sarva Shiksha Abhiyan Scheme”. On 06.07.2007, the Executive Engineer issued passing orders in favour of the petitioners. The petitioners submit that in view of completion of their probation period successfully, the petitioners are deemed to be the permanent employees. The petitioners were shocked to know that the resolution came to be passed cancelling the absorption orders of the petitioners dated 08.05.2007, on 24.07.2008 without giving any opportunity to the petitioners either to raise any protest or submit their say. 5. Being aggrieved by the order of cancellation of absorption, the petitioners along with the other similarly situated persons preferred Writ Petition No. 3397 of 2008 challenging the resolution dated 08.05.2007. The said writ petition No. 3397 of 2008 preferred by the petitioners was listed for admission and stay on 04.08.2008. The respondent No.2 who was personally present at the time of admission of writ petition, instructed the Government Pleader to bring to the notice of the Court that in view of the resolution dated 24.07.2008, the orders of termination dated 31.07.2008 are issued and thus termination orders are served on the petitioners. However, this submission was strongly opposed by the petitioners and it was submitted by the petitioners that though the termination orders are passed, they are not served on the petitioners. In view of the rival contentions of the parties, the High Court had passed the order of maintaining status quo in the matter. The petitioners approached Zilla Parishad and requested to allow them to continue to work and discharge their duties. The request of the petitioners was turned 5 down by Zilla Parishad and the petitioners were not allowed to resume their duties. The petitioners, therefore, submitted representations through post. 6. The respondent No.2 – Chief Executive Officer, Zilla Parishad, Gadchiroli filed reply to the petition on 21.08.2008 and made a statement in the reply to the effect that some of the petitioners i.e. the petitioner Nos.2 to 4 have been served with the termination orders on 31.07.2008 itself and as the other petitioners were absent without any leave and they were not found on their addresses, they were tried to be served through postal service. The respondent No.1 has also filed reply to Writ Petition on 28.08.2008. The petitioners filed counter affidavit to the reply filed by the respondent Nos.1 and 2 and it was stated in the said counter affidavit filed by the petitioners that the termination orders have not been served on the petitioners. This Court, on 11.09.2008 disposed of the writ petition with a direction to the respondent/State Government for reconsideration of the issue afresh by giving petitioners an opportunity of hearing and further directed to take decision within a period of eight weeks from the date of communication of the order. This Court further directed that the status quo granted on 04.08.2008 will be continued till the decision taken by the government. The petitioners, after disposal of the writ petition with directions, approached Zilla Parishad, Gadchiroli with a request to allow them to resume their duties. The request of the petitioners was flatly turned down by the respondent-Zilla Parishad. The petitioners submitted representations to the Chief Executive Officer, Zilla Parishad, Gadchiroli, but no decision was taken on the said representations. 6 The grievance of the petitioners is that the Zilla Parishad, Gadchiroli is not allowing the petitioners to resume their duties. 7. The petitioners, being aggrieved by the refusal from the Zilla Parishad, Gadchiroli to allow the petitioners to resume their duties, approached this Court by filing Contempt Petition No. 203/2008. Initially, this Court had issued notice on 21.10.2008. In the meantime, on 12.11.2008, the petitioners received notice of hearing before the Hon'ble Minister. The Hon'ble Minister, by order dated 25.11.2008 rejected the representations of the petitioners and maintained the order dated 24.07.2008. The petitioners have challenged the order passed by the learned Minister by filing present Writ Petition No. 5401 of 2008. 8. On 19.12.2008, the petition was listed for admission. This Court has granted status quo. A statement was made by the petitioners that they are not served with any termination order. The respondent No.2, on 18.02.2009, filed written submission and submitted that the termination orders have been issued to the petitioners and the same are served upon them. On 08.04.2009, this Court has admitted present Writ Petition No. 5401 of 2008. The present writ petition No. 5401 of 2008 was placed on 06.05.2009 as the earlier order granting status quo dated 19.12.2008 was till next date of listing of the matter. The status quo order was not continued. Therefore, the petitioners mentioned the petition before the Court on 06.05.2009 and requested for continuation of status quo. On 06.05.2009, this Court continued the status quo. The petitioners in this contempt petition submitted that though there were orders 7 passed by this Court on 19.12.2008 and 06.05.2009, the petitioners were not permitted to continue. The petitioners have also submitted representations dated 09.02.2009 to the respondent No.2. But, the respondent No.2 refused the petitioners to work. It is the grievance of the petitioners that at no point of time, the termination order has been served upon any of the petitioner. 9. Shri A.C. Dharmadhikari, the learned Counsel appearing on behalf of the petitioners submitted that in spite of the orders passed by this Court on 19.12.2008 and 06.05.2009, the respondent No.2 was not allowing the petitioners to work on their respective posts of Junior Engineers (Civil) and this act of refusal, in disobedience to the orders passed by this Court, is nothing but contempt of this Court. He further submitted that the petitioners were working under the schemes, namely, “District Primary Education Programme” and “Sarva Shiksha Abhiyan Scheme”. The learned Counsel further submitted that as the petitioners were absorbed on the posts of Junior Engineers and as they have acquired experience, the petitioners were appointed under the orders dated 08.05.2007 and 11.06.2007. He further submitted that even taking into consideration the terms and conditions of the appointment and more particularly the condition No.2, the petitioners who were appointed in pursuance to Maharashtra Zilla Parishad District Recruitment Rules, 1967, the period of probation would be of one year. He further submitted that on completion of one year satisfactory probationary period, the petitioners would be deemed to be permanent in the service of Zilla Parishad. 8 10. It is further the contention of the petitioners that as there was no extension of the probation period of any of the petitioner and as the petitioners have completed the period of one year of probation, they have achieved the status of permanent employees. Learned Counsel for the petitioners further submitted that though it is contended by the respondent/Zilla Parishad that the copies of termination orders have been served on the petitioners, the petitioners in their counter affidavit dated 28.08.2008 denied that the termination orders are served on the petitioners. He submitted that the respondent No.2 in Writ Petition No. 3397 of 2008 filed an additional affidavit on 02.09.2008 and accepted that no termination orders have been served on the petitioners. Learned Counsel further submitted that in view of the order of status quo passed by this Court in Writ Petition No. 3397 of 2008, the petitioners had been to the office of respondent No.2-Chief Executive Officer, Zilla Parishad to perform their duties but the respondent No.2 denied the same. The basic contention of the learned Counsel for the petitioners is that in view of the status quo order passed by this Court and in view of the fact that the termination orders are not served on the petitioners, the refusal by respondent No.2 to allow the petitioners to work on the posts of Junior Engineers (Civil) is in clear breach of violation of the order passed by this Court and as such the respondent No.2 has committed the contempt of Court. Learned Counsel for the petitioners invited my attention to page No.122 of the paper book in Contempt Petition No. 179 of 2009 to the circular issued by the State Government dated 29th December, 1992. By placing reliance on the said circular, he submitted that the termination orders would take effect when it is received by the concerned employee. In the case of 9 the petitioners, the termination orders are not at all received by the petitioners. He further placed reliance on the judgment of the Apex Court in the case of Union of India and others .v. Dinanath Shantaram Karekar and others (reported in 1998 (II) CLR 849). 11. Per contra, Shri J.S. Mokadam, the learned Counsel appearing on behalf of the respondent No.2 submitted that there is a basic fallacy in the contentions raised by the petitioners. He submitted that the petitioners were initially appointed under the scheme “Sarva Shiksha Abhiyan Scheme”. Initial appointment itself was temporary appointment. He further submitted that the scheme of “Sarva Shiksha Abhiyan” was sponsored by the Central Government and was executed with the aid of World Bank District Primary Education Project. The appointment of the petitioners on the said scheme was purely temporary and till the completion of the project. Learned Counsel for the respondent No.2 further submitted that the petitioners thereafter were absorbed as Junior Engineers on temporary basis. The permission was granted to absorb the petitioners on temporary basis and the advertisement published in the news paper inviting the applications for various posts including the Junior Engineers was cancelled. He further submitted that the corrigendum to that effect was also issued in the news paper dated 15.05.2007 which also discloses that the petitioners were absorbed as Junior Engineers on temporary basis. Learned Counsel submitted that the petitioners have never acquired the status of permanent employees and as such they have no right to be continued on the posts held by them. He further submitted that by an order dated 25.11.2008, the Hon'ble Minister by considering the submissions of 10 the parties, rejected the representation and confirmed the order dated 25.07.2008 cancelling the regularization/absorption of the petitioners as Junior Engineers. Learned Counsel for the respondent No.2 further submitted that though the respondent/Zilla Parishad tried to serve the order of respondent No.1 to the petitioners along with the communication dated 01.12.2008 and as the petitioners were not available at their residences, the orders were affixed at their respective residences. Affidavit to that effect by the concerned Clerk is placed on record. He further submitted that though some of the petitioners were present in the office, they refused to accept the orders. 12. The respondent No.2/Zilla Parishad filed written submission. The learned Counsel for the respondent No.2 submitted that this Court on 19.12.2008 has issued notice and directed the respondent No.2 to maintain status quo in Writ Petition No. 5401 of 2008 filed by the petitioners challenging the order dated 25.11.2008. He further submitted that on 02.03.2009, the petition was placed before the Court. It was submitted by the respondent No.2 on 02.03.2009 that the services of the petitioners came to be terminated by order dated 16.12.2008 and the orders were pasted at the respective residences of the petitioners. It is submitted by the learned Counsel for the respondent No.2 that in spite of statement made by the learned Counsel for the petitioners that till that date no termination orders except which are annexed with the affidavit filed by the respondent/Zilla Parishad are received by the petitioners. The learned Counsel for the respondent No.2 submitted that in spite of statement made by the learned Counsel for the petitioners, this Court 11 has not continued the status quo order passed on 19.12.2008. 13. Learned Counsel for the respondent No.2 submitted that the petitioners have filed Civil Application No. 1017 of 2009 and thereby prayed for grant of stay to the effect, implementation and operation of the resolution dated 25.11.2008 as well as prayed for stay of the termination order dated 16.12.2008. This Court, after hearing the parties, passed the order to maintain status quo. He further submitted that the petitioners have again filed Civil Application No. 1697 of 2009 for grant of stay and appropriate directions. The copy of the order passed by this Court on 4th September, 2009 dismissing the application is placed on record at page 195. This Court observed that grant of relief prayed by the petitioners in the application would amount in allowing the petition which ordinarily is not possible. Learned Counsel for the respondent No.2 submitted that though the petitioners prayed for stay, this Court finds no favour with the submission of the applicants/petitioners and ultimately the civil application was dismissed by this Court. He submitted that the petitioners have failed in getting any relief in Civil Application No. 1697 of 2009 and as such this is the second attempt by the petitioners even though the petitioners have failed in their first attempt. 14. The learned Counsel for the respondent No.2, in reply to the submission of Shri Dharmadhikari, the learned Counsel for the petitioners in respect of Government Circular dated 29th December, 1992, submitted that the reliance placed on the circular is misconceived. The learned Counsel for the respondent No.2 submitted that the circular is not relevant in the case at hand. He 12 invited my attention to the title of the circular, which is in respect of action to be taken against those government employees who found guilty in the criminal matters. He further submitted that on any count the circular would not be applicable in the cases of petitioners. He submitted that insofar as the services of the petitioners are concerned, the provision of Zilla Parishads and Panchayat Samitis Act, 1961 would be applicable. The learned Counsel for the respondent No.2 submitted that Section 227 of the said Act would be relevant which reads thus :- 227. Service of notices, etc. addressed to indeividual. - The service of every notice and presentation of every bill under this Act on any person or to any person to whom it is by name addressed shall, in all cases not otherwise specially provided for in this Act, be effect6ed by a Zilla Parishad or by an officer or servant or other person authorised by the Zilla Parishad in this behalf, or on such terms as may be agreed upon, by any officer or servant of the Government - (a) by giving or tendering the notice or bill to the person to whom it is addressed; or (b) if such person is not found, by leaving the notice or bill at his last known place of abode, if within the District, or by giving or tendering the notice or bill to some adult male member or servant of his family; or (c) if such person does not reside within the District, and his address elsewhere is known to the President or other person directing the issue of the notice or bill, then by forwarding the notice or bill to such person by registered post under cover bearing the said address; or (d) if none of the means aforesaid be available, then by causing the bill or notice to be affixed on some conspicuous part of the building or land, if any, to which the bill or notice relates. 13 15. Learned Counsel for the respondent No.2/Zilla Parishad by placing reliance on clause (d) of the said Section 227 of the said Act, submitted that as the petitioners were not available at their addresses, the notices were affixed at their respective residences and the affidavit to that effect is also placed on record. He further submitted that in view of this fact, the contentions of the petitioners about service of the notice is wholly unsustainable. Learned Counsel for the respondent No.2 submitted that in view of Section 227 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, the judgment relied upon by the learned Counsel for the petitioners is not applicable. He further submitted that in view of the orders passed by this Court in Writ Petition No. 5401 of 2008 dated 06.05.2009, the respondent/Zilla Parishad has kept ten posts vacant. He further submitted that the orders passed by this Court are complied by the respondent/Zilla Parishad. There is no breach of any of the order passed by this Court. 16. I have considered the submissions advanced by the learned Counsel appearing on behalf of the respective parties. It is not necessary to give the details as they are already reflected in the submissions of the learned Counsel for the respective parties. The question as to whether the respondents and more particularly the respondent Nos.2 and 3 have flouted the orders passed by this Court and liable for action for committing contempt of the Court. From the perusal of the record and more particularly the orders passed by this Court which are placed on record at page 78 dated 19th December, 2008 and dated 6th May, 2009 at page 170, which read thus :- 14 “CORAM : B.H. MARLAPALLE AND A.H. JOSHI, JJ. DATED : 19TH DEC., 2008 . Heard Mr. Dharmadhikari, the learned Counsel for the petitioners. Issue notice before admission returnable on 10th February, 2009. Learned A.G.P. Mr. A.S. Fulzele waives service for respondent No.1. By way of ad interim order, it is directed that the Zilla Parishad, will maintain status quo as of now in respect of the employment of the petitioners until the next date.” “CORAM : D.D. SINHA AND A.P. BHANGALE, JJ. DATED : 06TH MAY, 200 9. Heard Mr. A.C. Dharmadhikari, Adv. For petitioners, Mr. Kakani, Adv. for respondent no.1 and Mr. Jayant Mokadam, Adv. for respondent no.2. Counsel for petitioners has brought to our notice order dt. 19.12.2008 passed in the present petition whereby notice before admission was issued and ad- interim relief was also granted by directing the parties to maintain stauts quo until next date. Counsel for petitioners has submitted that the petition was listed thereafter on the few occasions, however, the order of status quo was not continued by this Court. It is contended that, if the order of status quo is not continued, in that event, there is a likelihood that respondent nos.1 and 2 may fill up the posts on which the petitioners are entitled to be absorbed. Counsel for respondent no.1 has submitted that services of the petitioners are already terminated w.e.f. 16.12.2008 prior to passing of order of status quo by 15 this Court. Be that as it may, in the interest of justice, we direct the parties to maintain status quo as on today until order orders.” 17. It is clear that initially this Court granted status quo. Thereafter, by order dated 06.05.2009, the status quo was continued until further orders. The petitioners by the present petition alleged that the respondents have flouted the orders passed by this Court. The grievance of the petitioners is that the respondents and more particularly the respondent No.2 is not allowing the petitioners to join their duties. Further, the grievance of the petitioners is that the termination orders are not duly served upon the petitioners. From the perusal of the orders passed by this Court on 19th December, 2008 and 6th May, 2009 directing the respondents to maintain status quo cannot be treated as an order directing the respondents to allow the petitioners to join their duties. The contentions of the petitioners in these petitions are already raised by the petitioners in Civil Application No. 1697 of 2009. The petitioners, in Civil Application No. 1697 of 2009 which is placed on record at page 188 and more particularly in para 5 at page 190, submits thus :- “5. This Hon'ble Court after hearing both the parties and considering the submissions of the parties, was pleased to admit the instant Writ Petition. As far as the interim relief is concerned, this Hon'ble Court was pleased to direct the Respondents to maintain the status quo. It is respectfully submitted that though this Hon'ble Court was pleased to grant status quo order, the Respondent No.2 illegally did not allow the Petitioners to join their duties. It is respectfully submitted in the light of 16 this status quo order the Petitioners ought to have been allowed to work on their respective posts for the manifest reason that no termination order was duly served upon any of the Petitioners. ...” The prayer in the said Civil Application is as follows :- “(i) Grant stay to the effect and operation of the Government Resolution dated 25.11.2008 (Annexure-5) issued by the Respondent No.1 during the pendency of the instant writ petition and further direct the Respondents to allow the Petitioners to work on their respective posts