HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Contempt Case No.831 of 2008 & Contempt Application Nos.550 of 2008 & 979 of 2008 (Dated : 10-06-2011) Between: P.V.Bharadwaja S/o late Gopala Rao AVV High School, Bapatla, Guntur District. …Petitioner A n d The Commissioner & Director, School Education, A.P., Hyderabad and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Contempt Case No.831 of 2008 & Contempt Application Nos.550 of 2008 & 979 of 2008 COMMON ORDER: This contempt case has been filed by P.V.Bharadwaja under Sections 10 to 12 of the Contempt of Courts Act complaining disobedience of the order dated 2.4.2002 passed in Writ Petition No.23338 of 1996. 2. Background facts, in a nutshell, leading to filing of this contempt case by the petitioner in W.P.No.23338 of 1996 are:- The petitioner was appointed as Grade II Telugu Pandit on 02.7.1983 in AVV High School, Bapatla and his appointment came to be approved by the District Educational Officer, Guntur with effect from 1.1.1984. Later, the petitioner has been promoted as Grade-I Telugu Pandit with effect from 18.8.1988 and the same was approved by the District Educational Officer, Guntur. The post of Grade-I Telugu Pandit was admitted into Grant-in-aid with effect from 1-11-1989, vide G.O.Ms.No.178 Education dated 20.7.1990. The petitioner made a representation to the Management of A.V.V.High School on 22.6.1993 to promote him to the post of Grade-I Telugu Pandit as he possessed requisite qualifications with effect from 1.1.1984. The Correspondent, A.V.V.High School, Bapatla considered the representation of the petitioner and appointed him as Grade-I Telugu Pandit with effect from 01.01.1984 by issuing proceedings No.3/1/KBS/93-94 dated 29.9.1993. The management of AVV High School sent a proposal to the District Educational Officer, Guntur on 6.11.1993 for approval of the appointment of the petitioner in the post of Grade I Telugu Pandit from 1.1.1984 instead of 18.8.1988. 2(b) The Director of School Education, Guntur issued proceedings in Rc.No.3446/D1-2/94, dated 14.5.1996 informing the District Educational Officer, Guntur that the petitioner is not entitled to promotion to the post of Grade-I Telugu Pandit with retrospective effect from 1.1.1984. The said order of rejection-dated 14.5.1996 came to be challenged by the petitioner by filing Writ Petition No.23338 of 1996. The petitioner questioned the proceedings issued by the Director of School Education on the ground that the District Educational Officer is the competent authority to consider the representation and not the Director of School Education. 3. The District Educational Officer filed counter affidavit resisting the relief sought for by the petitioner in the writ petition. 4. The said writ petition came to be disposed of on 2.4.2002 directing the District Educational Officer to consider the representation of the petitioner and pass appropriate orders. The relevant portion of the order passed in W.P.No.23338 of 1996 dated 2.4.2002 reads as hereunder:- “ Whatever may be the reasons, which had been narrated above, the learned counsel representing both the parties were unable to point out any specific rule conferring such power on the first respondent. The 2nd respondent no doubt had already passed an order and since the petitioner is requesting that his case needs to be considered with retrospective effect the matter was referred to, however, the first respondent had not recorded any reasons in detail while rejecting the same. In the light of rule 3 of the rules referred supra, the appointing authority being the 2nd respondent, in the light of the peculiar facts and circumstances of the case, especially in the light of the fact that the recommendations were made by the Correspondent in this regard, the 2nd respondent shall consider the case of the petitioner taking into consideration of the facts and circumstances of the case and pass appropriate orders in this regard not being in any way influenced by the proceedings issued by the first respondent dated 14.5.1996 in this regard. The 2nd respondent shall complete this exercise of considering the case of the petitioner within a period of 2 months from the date of receipt of a copy of this order”. 5. The District Educational Officer issued proceedings, vide Rc.No.14931/B3/1993, dated 6.11.2002 approving the promotion of the petitioner as Grade-I Telugu Pandit (un-aided post) with effect from 1.1.1984. For better appreciation, I may refer the relevant portion of the proceedings issued by the District Educational Officer, Guntur, which reads as hereunder:- “ On receipt of the judgment of the Hon’ble Court as mentioned above, this office has obtained the Service book of the above petitioner from the Correspondent of the (…..sic) by addressing in letter Rc.No.14931/93 Dt.15-07-2002. Thereupon, in this office proceedings (2) cited, the petitioner (Sri P.V.Bhardwaja) was also informed that the matter is receiving proper attention, and he was requested to await further orders from this office. Subsequently, he has submitted the representations referred to (3) cited, requesting to consider his case. As the undersigned was very busy in attending urgent matters such as D.S.C., Teachers transfers etc., immediate action could not be taken and orders could not be issued. Meanwhile, the above petitioner has filed Contempt Case No.1211 of 2002 alleging that this office did not implement the orders of the Hon’ble Court dated 02-04- 2002. In view of the above position, and in view of the fact that, even though there is no provision in the Departmental rules allowing promotion of the incumbents with retrospective effect, the promotion of Sri P.V.Bharadwaja (i.e., the petitioner in the above W.P & CC) made by the management of the petitioner’s school with retrospective effect i.e., with effect from 01-01-1984 to the cadre of Grade-I Telugu Pandit (Un- aided post ) is hereby approved as a special case. These orders are issued in pursuance of the judgment dt.02-04- 2002 of the Hon’ble High Court in the W.P.No.23338 of 1996 filed by the above said petitioner. The service book of the above incumbent is returned herewith, and the Correspondent of the petitioner’s school is requested to take further action in the matter”. 6. After issuance of the proceedings referred supra, PRC 2005 came to be implemented. The petitioner submitted representations to the authorities for considering the increments earned by him for fixation of his pay in the post of Grade-I Telugu Pandit with effect from 1.1.1984. His representations did not yield any fruitful result. Therefore, he filed this contempt case against the Commissioner & Director, School Education, District Educational Officer and the Correspondent/Secretary complaining disobedience of the order dated 2.4.2002 passed in W.P.No.23338 of 1996. 7. For better understanding of the grievance of the petitioner, I deem it appropriate to refer the relevant portion of the affidavit filed in support of the contempt case, which reads as hereunder:- “ It is submitted that, I made a representation to the D.E.O through proper channel on 12.6.2009, requesting him to implement the 2005 PRC pay–fixation and intimate the same. After that I also made another representation on 27- 12-2007 to the D.E.O through Correspondent requesting for the same and again on 14.2.2008, I made representation through proper channel to the D.E.O requesting him to give effect the P.R.C of 2005. In spite of all these representations, the D.E.O refused to and not taken any steps in this regard and I kept in darkness for all these days. Afterwards, I made representation on 1.5.2008 through Registered Post to the D.E.O and also I gave letter personally on 20.5.2008 to him requesting the same and again I gave another representation on 31.5.2008 requesting hi m to give pay scale of 2005 P.R.C but all these my requests in this regard went in vain. Therefore, after getting several orders from the Honourable High Court and having implemented the same in 2005 and not giving the same benefits from 2006 inspite of my representations which are pending is nothing but violation of the Hon’ble High Court orders. It is therefore prayed that this Honourable Court may be pleased to punish the 2nd respondent for disobedience and violation of the orders of this Hon’ble Court dated 2nd April 2002 in W.P.No.23338 of 1996 under Sections 10 to 12 of the Contempt of Court Act and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Pending disposal of contempt case the petitioner herein prays that this Hon’ble Court may be pleased to direct the 2nd respondent to revise and re-fix pay scales of the petitioner in the cadre of Grade-I Telugu Pandit as per revised P.R.C. 2005 without there being any reference to the provisions of Act 37 of 2005 and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case”. 8. Notice before admission came to be ordered on 14.7.2008. Subsequently, the Contempt Case came to admitted against the 2nd respondent-Y.Chandra Mohan, District Educational Officer, Guntur. 9. The 2nd respondent appeared before the Court on 13.10.2008 and moved an application to dispense with his presence until further orders. His application came to be considered an on 10.11.2008. The petitioner filed C.A.No.458 of 2010 seeking impleadment of Smt. P.Parvathi, District Educational Officer, Guntur as 4th respondent in the contempt case. The said application came to be allowed on 3.6.2010. The presence of 4th respondent came to be dispensed with on 16.7.2010. Pending disposal of the contempt case, the petitioner attained age of superannuation and thereby, retired from service with effect from 31.1.2011. An order came to be passed on 8.2.2011 directing the respondents to process the pension papers without reference to the Contempt Case. 10. Respondents 1 and 2 filed counter affidavit. The sum and substance of the counter affidavit is: The order of this Court in W.P.No.23338 of 1996 has been implemented approving the appointment of the petitioner to the post of Grade-I Telugu Pandit with effect from 1.1.1984 and therefore, the contempt case does not survive. It is also stated in the counter affidavit that the service rendered by the petitioner in un-aided post prior to the admission of the post to the Grant-in-aid cannot be considered for the purpose of fixation of pay in the revised pay scales, as per the provisions of the Act 37 of 2005. It is specifically stated in the counter affidavit that the Government by way of Act 37 of 2005 issued orders that periodical increments prior to the date of admission of the post in Grant-in-aid cannot be taken into account for the purpose of fixation of pay in the revised scales. The Correspondent of the School has submitted proposal for approval of the fixation of pay of the petitioner in Revised Pay Scales 2005 duly excluding the un-aided service. The fixation of pay of the petitioner as made by the Correspondent of the school has been approved, vide proceedings Rc.No.4951/B4/2008, dt.1-10-2008. 11. The petitioner filed reply affidavit. It is stated in the reply affidavit that the District Educational Officer, Guntur issued proceedings dated 01.10.2008 pending the contempt case cancelling the increments granted to the petitioner treating the unaided period prior to admission of the post in Grant-in-aid and the said proceeding is in utter violation of the direction given by this Court in the writ petition. Since the proceeding dated 01.10.2008 is issued pending the contempt case, the District Educational Officer, Guntur is to be directed to cancel the said proceedings, revise and re-fix the pay scale with all consequential benefits with effect from 2005 to the petitioner. 12. Respondents 1 and 2 filed additional counter. The respondents took the plea in the additional counter that the Government passed Act 9 of 2000 whereby and whereunder, the increments earned by an employee of a Private Aided Educational Institution prior to the date of admission of the post into Grant-in-aid for the purpose of fixation of pay in the aided post shall stand cancelled. The said Act came into force with retrospective effect from 10.01.1980. It is also stated in the counter affidavit the Government through Act 37 of 2005 cancelled the orders issued earlier with regard to taking into account the increments earned by an employee in private un-aided educational institution prior to the date of admission of the post into Grant-in-aid for the purpose of fixation of pay in the aided post. In view of the said fact, the periodical increments earned prior to the date of admission of the post cannot be taken in to account for the purpose of fixation of pay. For better appreciation, I may refer paras 6 to 8 of the additional counter affidavit, which read as hereunder:- “6. In this connection, I submit that I have obeyed the orders issued by the Hon’ble High Court dated 2-4-202 in W.P.No.23338 of 1996 and issued proceedings approving the promotion of the petitioner as Grade-I Telugu Pandit (Un- aided) with effect from 1-1-1984 as prayed for by him in the said writ petition and those orders were never cancelled or modified to any extent and thus I did not disobey the orders of the Hon’ble High Court. 7. It is relevant to state that proposals for fixation of pay of the petitioner in RPS 2005 scales have been received from the Correspondent of the School on (i.e., 3rd respondent). The same proposals has been returned to the Correspondent of the school vide this office proceedings Rc.No.9682/B4/2008,dt.29-9-2008 informing that as per Act 37 of 2005 there is no provision for fixation of pay of the incumbent by taking the unaided services rendered by him. The Correspondent was requested to submit the proposals for fixation of pay of the petitioner in RPS 2005 duly excluding un-aided services of the incumbent. Accordingly the Correspondent of the school( i.e., 3rd respondent) has submitted proposals for approval of fixation of pay of the incumbent in RPS 2005 duly excluding unaided services. The fixation of pay of the petitioner as made by the Correspondent of the school (i.e., 3rd respondent) has been approved vide this office Proceedings Rc.No.4951/B4/2008, dt.1-10-2008. 8. I respectfully submit that I have great respect for the orders issued by the Hon’ble High Curt dated 2-4-2002 in WP No.23338 of 1996 were already implemented by issue of orders approving his appointment as Grade I Telugu Pandit (Un-aided) with retrospective effect from 1-1-1984 in this office Proceedings Rc.No.14931/B3/1993, dt.6-11-2002. Those orders were never cancelled nor modified at any time and thus the orders of the Hon’ble High Court were never disobeyed by me”. 13. The petitioner moved two applications pending the contempt case being C.A No.550 of 2008 and C.A.No.979 of 2008. The relief sought for in Contempt Application No.550 of 2008 reads as hereunder:- “ For the reasons stated in the affidavit accompanied to the contempt case, the petitioner prays that this Hon’ble court may be pleased to direct the 2nd respondent to revise and re- fix pay scales of the petitioner in the cadre of Grade-I Telugu Pandit as per revised P.R.C 2005 without there being any reference to the provision s of the Act 37 of2005 and pass such other order or orders as this Hon’ble court may deem fit and proper in the circumstances of the case”. The relief sought for in Contempt Application No. 979 of 2008 is:- “ For the reasons stated in the affidavit accompanied to the contempt case, the petitioner prays that this Hon’ble court may be pleased to suspend the operation of the proceedings L.Dis.No.4251/B4/2008, Dt.1-10-2008 of the 2nd respondent D.E.O pending disposal of the contempt case and pass such other order or orders as this Hon’ble court may deem fit and proper in the circumstances of the case”. 14. Heard learned counsel appearing for the petitioner and learned Government Pleader for School Education appearing for the respondents. 15. Learned counsel appearing for the petitioner submits that once the order passed by this Court in W.P.No.23338 of 1996 has been implemented by the District Educational Officer, Guntur by issuing proceedings dated 6.11.2002 promoting the petitioner to the post of Grade-I Telugu Pandit with retrospective effect i.e., from 1.1.1984, it is impermissible for the successor in office of the D.E.O to withdraw the benefit given to the petitioner, and therefore, the order passed by the District Educational Officer on 01.10.2008 is in utter violation of the direction given by this Court in W.P.No.23338 of 1996 in which case, the 2nd respondent who is the author of the proceeding dated 01.10.2008 is liable for punishment under the provisions of Sections 10 to 12 of the contempt of Court Act. He would also submit that the inaction of the respondents to consider the representation of the petitioner for fixation of his pay in P.R.C 2005 also amounts to violation of the order passed by this Court in W.P.No.23338 of 1996. The inaction of the District Educational Officer in passing the orders on the representations deprived the petitioner to expose his grievance with regard to re-fixation of his pay in P.R.C.2005. A further contention has been advanced by him that the District Educational Officer is bound to take into consideration of the service rendered by the petitioner as Grade-I Telugu Pandit with effect from 1.1.1984 for the purpose of fixation of pay in P.R.C 2005. In support of his contention, learned counsel placed reliance on the judgment of the Supreme Court in Prithawi Nath Ram v. State of Jharkhand[1] and Govt. of A.P and others v. G.V.K.Girls High School[2]. 16. In G.V.K.Girls High School case ( 2nd supra), the Supreme Court held that the legislature cannot overrule a judgment by passing a law to that effect unless it removes the basis of the legal rights upon which the judgment is based with retrospective effect and provided there is no violation of any constitutional provision in such withdrawal of rights retrospectively. In Prithawi Nath Ram’s case (1 supra); the Supreme Court held that while dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. If any party is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the Court that passed the order or invoke jurisdiction of the appellate Court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged . It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. 17. Learned Government Pleader for School Education would submit that the order passed in the writ petition has been complied with by the District Educational Officer, Guntur by issuing proceedings dated 6.11.2002 and indeed, the contempt case No.1211 of 2002 filed by the petitioner came to be closed on 31.12.2002 and therefore, there is no cause of action for the petitioner to approach this Court complaining disobedience of the order dated 02.4.2002 passed in W.P.No.23338 of 1996. He would also submit that the service rendered by the petitioner as Grade-I Telugu Pandit (Un- aided post) has not been considered in re-fixation of scales, in view of Act 37 of 2005 and therefore, proceedings dated 01.10.2005, whereunder, the proposal sent by the management of the school has been approved, cannot be said to be in violation of the order passed in W.P.No.23338 of 1996. In support of his submissions, he placed reliance on a judgment of this Court in J.S.Parihar v. Ganpat Duggar[3]. Much emphasis has been laid on para 6 clause (g) of the cited judgment, which reads as hereunder:- “ Once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions but that would be a fresh cause of action for the aggrieved part to avail of the opportunity of judicial review. However, that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the Single Judge could not be given to redraw the seniority list as in doing so the Single Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. 18. The only issue that calls for adjudication is: Whether the District Educational Officer, Guntur disobeyed the directions given by this Court in WP.No.23338 of 1996, dated 2.4.2002. ? 19. POINT: The direction given by this Court in the writ petition is to consider the proposal sent by the management with regard to appointment of the petitioner in the post of Grade-I Telugu Pandit with effect from 1.1.1984 uninfluenced by the proceedings issued by the Commissioner and Director of School Education, dated 14.5.1996. The District Educational Officer, Guntur, considered the direction given by this Court in the writ petition and issued proceedings dated 6.11.2002. The proposal sent by the management of the school promoting the petitioner to the post of Grade-I Telugu Pandit (un-aided post) with effect from 1.1.1984 came to be approved by the District Educational Officer under proceedings dated 6.11.2002. Keeping in view of the said proceedings, the earlier contempt case filed by the petitioner , i.e., C.C.No.1211 of 2002 came to be closed. The petitioner filed the 2nd (instant) contempt case dissatisfied with the re- fixation of scales in the post of Grade-I Telugu Pandit (un-aided post). Re-fixation of scale of pay is not the subject matter in the writ petition. The Government passed Act 37 of 2005, whereunder the periodical increments earned prior to the date of admission of the post in Grant-in-aid cannot be taken into account for the purpose of fixation of pay in the revised scales. The management of the school, wherein the petitioner worked as Grade-I Telugu Pandit sent proposals fixing the pay of the petitioner in revised pay scales P.R.C. 2005. The said proposal came to be approved by the District Educational Officer under proceedings dated 01.10.2008. For better appreciation, I may refer the relevant portion of the proceedings dated 1.10.2008 issued by the District Educational Officer, which reads as hereunder:- “ The proposals for revision of fixation of pay, subsequent periodical increments and further fixation done from time to time in terms of Act 37 of 2005 on behalf of Sri P.V.Bharadwaja, Grade-I Telugu Pandit as submitted by the Correspondent of the school vide reference 3rd cited, are hereby approved. The Teacher Service Register one bound (85 pages) of Sri P.V.Bharadwaja, Grade-I Telugu Pandit is herewith sent to the Correspondent, A.V.V.High School, Bapatla and he is requested to make necessary entries in the Teacher Service Register under proper attestation. The individual is hereby informed that the above fixation amount if any after later date, found to be in excess, due to erroneous fixation will be recovered in one lumpsum from him without any prior notice. The receipt of the proceedings along with Teacher Service Register should be acknowledged” 20. The grievance exposed by the petitioner in the present contempt case is beyond the scope of the relief sought for in the writ petition. The direction given in the writ petition has been complied by the 2nd respondent by issuing proceedings dated 6.11.2002. If there is any grievance for the petitioner with regard to his fixation of pay in the Revised Pay Scales, it is a