IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2679 of 2009 PRASOON KUMAR . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioner:- Mr. Dhirendra Kumar Jha, Adv. Mr. Jibendra Mishra, Adv. For the Respondents:- Mr. Abhay Shankar Jha, Adv. ----------- 5. 5.1.2011 Heard learned counsel for the petitioner and for the Opposite party nos. 4 and 5. The controversy in the writ petition related to appointment of Panchayat Teacher in the physically handicapped category. One Ashish Kumar, respondent no. 9 in the writ petition, was at serial no. 1 of the merit list and the petitioner at serial no.2. The order notices that the person at serial no. 1 of the merit list did not appear for counseling leading to appointment of the petitioner which was then terminated in violation of the principles of natural justice in preference to the non appearing candidate. The writ Court then pronounced that the removal of the petitioner dated 25.2.2007, in violation of principles of natural justice was a non est order like a still born child which never came into existence. However, since notice was not issued to Ashish Kumar, the Court directed the opposite parties to consider the legality of the 2 termination of the petitioner and the justification for fresh counseling of Shree Ashish Kumar when it was the case of the respondent themselves that he did not participate in the counseling. The order was required to be complied with within a maximum period of 12 weeks from the date of receipt/production after hearing all concerned, including Shree Ashish Kumar by issuance of appropriate orders by present opposite party no. 4. The order of the writ Court is stated to have been submitted before the opposite party no. 4 on 16.4.2009. He was, therefore, required to comply it within 12 weeks i.e., by 16.7.2009. When it was not so done, the present application came to be filed. Opposite Party Nos. 4 and 5 filed a show cause enclosing an order dated 23.7.2009, passed in appropriate compliance of the order of the writ Court. The Court on 25.8.2010 noticed that they were willfully flouting the order of the Court. On the next date, counsel for the opposite party submitted that he had instructions to state that they did not wish to add anything further to the order dated 23.7.2009 which according to them was fully in consonance with the directions of the Court. The Court then directed the personal presence of 3 opposite party nos. 4 and 5 to show cause why charges be not framed against them for flouting the order of the Court. It appears that thereafter for one reason or the other; the matter could not be taken up. A fresh show cause is stated to have been filed by opposite party nos. 4 and 5 on 3.1.2011 which is not available on the record. Let the office trace out the same and place it on record. The Court therefore requested counsel for the opposite parties to make available his copy for perusal so that not to hold up the proceeding. Let a Xerox copy of the show cause placed by the counsel for the opposite parties be kept on record. The show cause contains a fresh order dated 20.12.2010. The order dated 20.12.2010 concludes by a discussion that Shree Ashish Kumar was wrongly denied permission for counseling and that he had appeared for the same. Counsel for the petitioner sought to persuade the Court that this was a stand contrary to that being taken by the respondents earlier. On a joint reading of the order passed on the writ petition and the discussions contained in the order dated 20.12.2010, the Court does not find 4 it possible to start an enquiry in the contempt jurisdiction of the correctness of the fact whether Shree Ashish Kumar has participated or not participated in the counseling on the scheduled date as that is clearly beyond the purview of the contempt jurisdiction. The correctness of the order dated 20.12.2010, obviously therefore cannot be tested in the contempt proceedings. Counsel for the petitioner is right in his submission that this Court had returned a finding in the writ petition that the termination of the petitioner in violation of natural justice was like a still born child. If that be so, the petitioner was first required to be reinstated before the opposite party nos. 4 and 5, could proceed in the matter and pass fresh appropriate orders after hearing the petitioner, Shree Ashish Kumar and examination of records. The connotation of the words “Like a still born child which never came into existence” are clear and specific. However, this Court finds it difficult to proceed against the opposite parties in the contempt jurisdiction on that ground in absence on any clear direction for reinstatement. Though otherwise, this Court is satisfied that instead of acting fairly and reasonably as responsible officers of the State 5 Government, acting in the best interest of justice, the conduct of the opposite party nos. 4 and 5 leaves much to be desired. Perhaps these are matters which can more appropriately be considered if the petitioner is advised to question the order dated 20.12.2010 afresh. That, however, leaves another aspect of the matter, and which appears to be surfacing with continued regularity before the Court in more than one contempt application. It is a common phenomenon that the stand which should be taken in the counter affidavit to the writ petition is invariably taken in the show cause to the contempt application to urge that the matter could not be placed appropriately in the writ petition. In the present case, if the opposite party nos. 4 and 5 were so sanguine of their earlier order dated 23.7.2009, being fully in consonance with the direction of the writ Court and which was the stand that they took before the Court on 15.9.2010, there was no occasion for them to file any supplementary show cause. The proceedings would have been tested on basis of that order itself. Obviously, when they realized their failure and that the order was not in consonance with the direction of the writ Court, 6 faced with no other option than to answer charges for contempt, they have now issued a fresh order as discussed aforesaid. Perhaps, if the order dated 20.12.2010 had been passed at the very first instance instead of a casual and perfunctory order in a contempt proceeding only to answer allegation of contempt on 23.7.2009, not only the financial resources of the State but the time of the Court would also have been saved. The Court is satisfied that opposite party nos. 4 and 5 appear to be treating proceedings before the Court with utmost casualness unconcerned with the time of the Court. The Court was inclined to impose heavy cost on them notwithstanding that it finds it difficult to proceed any further in the contempt jurisdiction. For having wasted the time of the Court, such orders have been passed in more than one case but the same appears to be having no fruitful result. The matter is therefore appropriately referred to the Chief Secretary of the State of Bihar for examination by him of the manner in which the opposite party nos. 4 and 5 have conducted themselves on behalf of the Government and for appropriate remedial action not only with regard to them but also in other cases of similar nature so 7 that every writ petition is not followed by a contempt application and long drawn out. Let the records of the case be also forwarded to the Chief Secretary of the State of Bihar to be a compulsory case study in framing of the State litigation policy. The Court expects that the Chief Secretary shall take appropriate action at his earliest convenience. The contempt proceedings are therefore dropped. The remedies of the petitioner to assail the order dated 20.12.2010, lie in a fresh writ petition only, if so advised. The application is disposed. P. Kumar ( Navin Sinha, J.)