CIVIL WRIT JURISDICTION CASE No.1530 OF 2010 (Against the judgment and order dated 25th August, 2009 passed in CCPA 96 of 2007, arising out of O.A. No.477 of 2001, by the Central Administrative Tribunal, Patna Bench, Patna). ---------- 1. UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING. 2. RAHUL SARIN, SECRETARY, DEPARTMENT OF DO P & T (PERSONNEL), PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, GOVERNMENT OF INDIA, NEW DELHI. ………………………………………………………..........PETITIONERS. Versus 1. SHRI SUDHIR KUMAR, SON OF SHREE RADHA PRASAD, R/O SOUTH MATWARI GROUND (GANDHI NAGAR), P.S. & DISTRICT- HAZARIBAGH, AT PRESENT SECRETARY, BOARD OF REVENUE, GOVERNMENT OF BIHAR, OLD SECRETARIAT,PATNA. ……...………………………………………………….......RESPONDENT. 2. MR. ASHOK CHAUDHARY, THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, MAIN SECRETARIAT, PATNA. 3. MR. AMIR SUBHANI, THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS, MAIN SECRETARIAT, PATNA. 4. MR. P.P. SHARMA, THE STATE OF JHARKHAND, THROUGH THE CHIEF SECRETARY, AT RANCHI. ………………………………………….PROFORMA RESPONDENTS. ---------- For the Petitioners : M/s. Manan Kumar Mishra, Sr. Advocate, Senior Pannel Counsel & Dwivedy Surendra, Central Government Counsel. For the State : Mr. Abinash Kumar, A.C. to G.P.-I. For the Respondent No.1 : M/s. K.K. Upadhyay, S.K. Bariyar & S.K. Bhatnagar, Advocates. --------------- 2 P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR JUSTICE DR. RAVI RANJAN Shiva Kirti Singh & Dr. Ravi Ranjan, JJ Heard the parties. 2. Petitioners are the Union of India and Secretary, Department of Personnel and Training (Personnel), Government of India. They are primarily aggrieved by the order of Central Administrative Tribunal, Patna Bench, Patna, dated 25th August, 2009 passed in CCPA 96 of 2007, arising out of O.A. No.477 of 2001, as contained in Annexure-„4A‟. By that order, the Tribunal has held that there has been a wilful disobedience of the orders of the Tribunal dated 25th May, 2007 passed in O.A. No.477 of 2001 (Annexure-„1‟) and petitioner no.2, the Secretary, has committed contempt of the order of the Tribunal. He was given eight weeks‟ time to purge the contempt, failing which he has been directed to appear in person to face further proceeding in the contempt matter. In the situation created by the order noted above, the petitioners, apparently on a second thought, have also decided to challenge the order of the Tribunal dated 25th May, 2007 as contained in Annexure-„1‟. 3. According to the petitioners, the order of the 3 Tribunal, which has been allegedly violated by the petitioners, contained in Annexure-„1‟ does not contain any positive finding with regard to domicile of the applicant (respondent herein) and the only direction in the last paragraph of that order was to reconsider the case of the applicant in the light of the law relating to domicile as explained in the order and to take a note of the decision in the case of Union of India and others Vs. Dudh Nath Prasad, reported in 2000(1) PLJR 71 (SC). According to the petitioners, pursuant to the order of remand, the matter was considered with reference to the relevant passage as well as the ratio of the judgment in the case of Dudh Nath Prasad (Supra) and a reasoned order was passed on 31st October, 2007, which is contained in Annexure-„2‟. It has further been submitted that the order contained in Annexure-„2‟ has been passed bonafide on the basis of all the relevant materials and without any intention to flout the order of the learned Tribunal. Special emphasis was placed upon the fact that in Annexure-„1‟, the Tribunal has not given any positive finding that the domicile of the applicant was Jharkhand and he should be allocated to I.A.S. cadre of the newly created State of Jharkhand. It is the further stand of the petitioners that as per the policy governing cadre allocation, the insider direct recruits 4 for the newly formed States are to be determined only on the basis of domicile “as declared by the Officer at the time of initial appointment to the present All India Service”. 4. On the other hand, learned counsel for the respondent/applicant has submitted that reconsideration made by the order contained in Annexure-„2‟ is without any regard to the observations made by the Tribunal in paragraph-28 and more particularly in paragraph-31, where the Tribunal has expressed the view that the respondents “erred in treating the applicant as a domicile of Bihar as against that of Jharkhand on the basis of one document only and to allot him to Bihar Cadre.” Learned counsel for the Respondent has further objected to challenge made to the order contained in Annexure‟1‟ on the ground that the petitioners accepted that order and passed a reasoned order contained in Annexure-„2‟ and, now, when they have been found guilty of contempt, they should not be permitted to turn around and challenge the order passed in Original Application contained in Annexure-„1‟. Learned counsel for the respondent has also made a strong challenge to the propriety of challenging the order contained in Annexure-„4A‟ on the ground that the order is interlocutory and no order of punishment has yet been passed, rather 5 petitioners have been given an opportunity to purge themselves of the contempt within the fixed time. He has also objected to the maintainability of two prayers made in one writ petition so as to challenge the order contained in Annexue-„1‟ as well as Annexure-„4A‟. 5. We find merit in the objections raised by the learned counsel for the respondent that having passed a reasoned order after accepting the order contained in Annexure-„1‟, the petitioners should not be permitted to challenge that order only because of a pending contempt proceeding. The petitioners being the authorities of the State cannot be permitted to blow hot and cold at the same time. Hence, the prayer relating to the order contained in Annexure- „1‟ is rejected. 6. Now, the proceeding is confined only to the order passed in a contempt proceeding contained in Annexure- „4A‟. Clearly, that order is not a final order. Had it been a final order passed by the Tribunal, an appeal would have been maintainable and as a matter of right the petitioners could have moved the Supreme Court. But against an interim order the petitioners cannot be asked to go to the Apex Court. Hence, we have considered the matter on merits and in the interest of 6 justice, we were inclined to stay further proceedings in the contempt case in view of the proposed order to grant liberty to the respondent that if he is so advised, he may challenge the correctness, legality and propriety of the order passed by the petitioners dated 31st October, 2007 contained in Annexure-„2‟. 7. At this stage, we have been shown an order passed by the learned Tribunal on 4.10.2010, whereby CCPA 96 of 2007, i.e., the contempt proceeding has been dismissed on the ground that the matter is pending before this Court. However, a liberty has been given to the respondent to approach the Tribunal for contempt action after a decision in the present matter by this Court. In view of such order dated 4.10.2010 and the liberty given thereunder, we need not pass any order in respect of the order contained in Annexue-„4A‟ as the proceeding itself has been dropped, at least for the present. As indicated above, in the interest of justice, liberty is granted to the respondent that, if he is so advised, he may challenge the order contained in Annexue-„2‟ passed by the authorities pursuant to the remand before the learned Tribunal. In case, an original application challenging Annexure-„2‟ is preferred by the respondent within one month from today alongwith an application to condone the limitation, in that event, limitation 7 shall be condoned and original application shall be considered on its own merit. 8. This writ petition is disposed of accordingly. ( Shiva Kirti Singh, J) ( Dr. Ravi Ranjan, J) Patna High Court, Patna. Dated: The 3rd of December, 2010. Pradeep Srivastava/N.A.F.R.