IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.2909 of 2009 HARI SHARAN THAKUR . Versus THE STATE OF BIHAR & ORS. . ----------- 3. 23.02.2011 Heard learned counsel for the petitioner and the Opposite Parties. The writ Court gave directions to consider the case of the petitioner for promotion in light of the recommendation by the BPSC for the post of Superintending Engineer with effect from 9.2.1982 when his juniors were promoted and to grant monetary benefits of the promotion with retrospective effect. The show cause filed on behalf of the opposite parties states that he has been granted such promotion with effect from 1.1.1997, the date when his junior in his category has been promoted. Learned counsel for the petitioner submits that the petitioner had pursued the matter for his promotion claiming the reserved category status as a “Lohar”, Scheduled Tribe. His reserved category status was affirmed by a Division Bench in 1992(2) PLJR 594 (Sri Hari Sharan Thakur Vs. The State of Bihar & Ors.) and upon challenge in S.L.P. (C) No. 8439 of 1992 disposed on 21.9.1992. His 2 reserved category status thus achieved finality. Noticing this, a Bench of this Court in 1997 (2) All PLR 576 (Hari Sharan Thakur Vs. The State of Bihar & Ors.), held that the reserved category status of the petitioner attained finality in litigation inter partes. The submission therefore is that the petitioner could not be considered for promotion other than in the reserved category status of a “Lohar” as a Scheduled Tribe and he had to be granted promotion from the date that his junior in that reserved category status has been granted promotion. The Departmental Promotion Committee considered the case of the petitioner in his reserved category status. The subsequent judgment of the Supreme Court in A.I.R. 1996 SC 2306 (Nityanand Sharma & Anr. Vs. State of Bihar & Ors.), could not disturb the inter partes finality attached to the declaration of the reserved category status of the petitioner given by the Court earlier. It is next submitted that the petitioner having obtained a mandamus that he was a Scheduled Caste “ Lohar”, the question of filing a fresh writ application to seek the same mandamus again and then to be considered for promotion from a date co-terminus with the promotion granted in that reserved category only multiplies litigation and 3 shall be an exercise in futility. Reliance has been further placed on A.I.R. 1978 SC 803 ( Madan Mohan Pathak & Ors. Vs. Union of India & Ors.) to urge that once a mandamus had been issued, a subsequent amendment in the law also was not held sufficient to dislodge the mandamus. Counsel for the Opposite Parties submits that they only acted in accordance with the true spirit of the direction of the Supreme Court in the case of Nityanand Sharma (supra) as contained in Paragraph-19, which the Court considers proper to quote hereinafter:- “19. Accordingly, we hold that Lohars are other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are Blacksmiths. We approve the said view laying down the correct law.” The issue of non-compliance of an order of the Court may have two facets. The first may be when there is no explanation in law for non-compliance. That shall make it a clear case for flouting of the orders of the Court. If the grounds taken to justify 4 non-compliance are frivolous and of a nature no reasonable person could urge or only a ruse for non compliance, it shall again fall within the definition of flouting of the order of the Court. But, if the opposite parties urge a ground for non-compliance or implement the order of the Court in a manner, but different and put forth an explanation which cannot be rejected outright as frivolous or de void of material raising debatable issues, it may not be possible to outright hold flouting of the order of the Court to initiate contempt proceeding. If the defence taken by the opposite parties raises issues for consideration, requires an enquiry, a discussion of a legal position interpretation of Court orders, the matter clearly goes out of the purview of the contempt Court. This contempt application seems to be raising issues of interpretation of the Division Bench judgment of this Court affirmed by the Supreme Court with regard to the petitioner, the issues of inter partes finality and to what extent the subsequent judgment of the Supreme Court in Paragraph-19 affects such inter partes finality more so in light of the observations contained in Paragraph-19 of the judgment with regard to the 5 earlier judgment of the Supreme Court itself on basis of which it is submitted that the litigation attained finality inter partes. The issues of law as discussed above and the enquiry required in pursuance thereof cannot be pursued in the contempt application. If the petitioner is so advised, he may prefer a fresh writ application to seek a declaration of the finality of the matter with regard to his reserved category status in light of the earlier judgments of this Court as affirmed by the Supreme Court and the latter judgment of the Supreme Court, as asserted on his behalf. In AIR 1997 SUPREME COURT 113 "J. S. Parihar v. Ganpat Duggar" it has been held at paragraph 5 as follows:- “5….. The question is : whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that 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 he right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re- exercising the judicial review in 6 contempt proceedings, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned 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….” In view of the statement made in Paragraph-10 of the second supplementary show cause filed on behalf of the opposite party no. 3, if the monetary benefits of the promotion as may have been granted to the petitioner by the opposite party presently are not made available to the petitioner fully and finally within a maximum period of 8 weeks from the date of receipt and/or presentation of a copy of this order, the petitioner shall be eligible to claim interest on the same from the date he became eligible till the date of payment when responsibility for the interest shall lie on the concerned officials of the State Government and not on the State Government. The application stands disposed. P. Kumar ( Navin Sinha, J.)