1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Kanchan Sinha Choudhary Vs. The State of Raj. & Ors. (S.B. CIVIL WRIT PETITION NO. 3948/2001) Date of Order: 29/09/2008 PRESENT HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. R.D. Rastogi ] Mr. N.S. Chouhan ], for the petitioner. Mr. R.B. Mathur ] Mr. Amit Ratnawat ], for the respondent(s). By the Court: (Oral). In this writ petition, the petitioner has prayed that the respondents be directed to comply with the order dated 25.09.1992 passed by the High Court in Writ Petition No. 460/84. Further it is prayed that directions be issued to the respondents to give all monetary benefits to the petitioner in pursuance of the order dated 25.09.1992, alongwith interest thereon. 2. Broadly speaking, the facts of the case are that the petitioner had earlier filed a writ petition because he was denied the additional grade increment which was granted to other employees of the Union by resolution dated 05.10.1983. Subsequently, the same was withdrawn by another resolution dated 18.04.1984, passed by the Board of Directors. Therefore, the petitioner had filed a writ petition (460/84) with the following prayers:- 2 “(a) that your Lordships would be graciously pleased to admit and accept this writ petition, quash and set- aside the resolution dated 18.4.1984 of the Board of Directors of the respondent Union conveyed vide order dated 20.4.1984 (Annex.7); (b) that by issue of a writ, order or direction, operation of Annex.7 be stayed till the final disposal of the writ petition; (c) that by issue of a writ, order or direction any other relief deemed fit and appropriate in the facts and circumstances of the case may also be granted. Costs be allowed.” 3. The said writ petition was got filed by the petitioner through his counsel Mr. G.C. Mathur Advocate. The writ petition was considered and decided by the High Court on 25.09.1992. When the case was taken up for hearing, neither the counsel for the petitioner nor for the Department had appeared before the Court. Later on, Shri G.C. Mathur, Advocate expired. The petitioner was not informed about the said judgment by his counsel and obviously so because he himself was not present at the time of consideration of the writ petition by the High Court and later on he died. The Department had also not preferred any appeal against the judgment dated 25.09.1992 nor they had complied with the judgment on their own. 4. The petitioner came to know about the judgment only in the year 2000 and thereafter he applied for certified copy, which was received on 27.01.2001. After perusing the order of the High Court, the petitioner came to know that neither his counsel, namely G.C. Mathur, nor the counsel for the respondent-Department were present before the Court on 3 25.09.1992. Thereafter, the petitioner gave a representation to the respondents alongwith the certified copy of the order dated 25.09.1992 with the request to comply with the said judgment passed by the High Court. It was also mentioned in the representation that the petitioner was due to retire on 28.02.2001 and if the order dated 25.09.1992 is not complied with then it will cause great loss of gratuity and Provident Fund. The petitioner has also placed on record the copy of receipt of the speed post, through which the representation with the copy of the order of the High Court were sent (Annexure-3). The petitioner is also said to have sent the representation to the other respondents. But as the judgment of the High Court dated 25.09.1992 having not been complied with and against the inaction of the respondents in not doing so, the petitioner has preferred the present writ petition with the aforementioned reliefs. 5. The respondents have contested the writ petition by way of filing replies. The respondents No. 1 and 2 filed a joint reply and raised objections in respect of the maintainability of the writ petition against respondent No. 3 as not being 'State' under Article 12 of the Constitution of India and that there is alternative and efficacious remedy available under the Rajasthan Cooperative Societies Act, 1965. It has also been stated in the reply that the petitioner cannot file any writ petition for implementation of the order passed in another writ petition. The respondents have also stated that they have no control on the 4 functioning of respondent No. 3 which a registered Cooperative Societies. 6. Later on, the respondent No. 3 has also filed a separate reply to the writ petition. It has also raised similar objections like the other respondents, with regard to the maintainability of the writ petition that the respondent No. 3 is not 'State' as contemplated under Article 12 of the Constitution of India; an alternative remedy under the Rajasthan Cooperative Societies Act, 1965 is available and that the writ petition suffers from delay and laches, as the petitioner wants implemention of the order dated 25.09.1992 and the present writ petition has been filed in the year 2001. It has been stated in para 'F' of the reply that “It is further submitted that not a single employee has been given benefit of increment as claimed by the petitioner”. According to the respondent No. 3, the Cooperative Department has further made regulations which are known as “Cooperative Education and Training Fund Regulation, 2006”. The power, to now release and use the funds, is in the hand of Fund Management Committee which includes the following officials.:- 1.The Principal Secretary/Secretary, Cooperative Department, Government of Rajasthan, Jaipur-Chairperson. 2.Registrar-Vice Chairperson 3.Managing Director, Rajasthan State Cooperative Bank-Member 4.Managing Director, Rajasthan Cooperative Dairy Fed.- Member 5.Managing Director, Raj. State land Development Bank-Member 6.Managing Director, Rajasthan State Cooperative Consumer's Federation-Member 7.Managing Director- Rajasthan State Cooperative Marketing Federation-Member 8.Chief Executive Officer, State Union-Member 10 Principal, ICM- Member 11.Joint Registrar (Human Resource Development) Cooperative Department, Rajasthan, Jaipur- Member Secretary. 5 7. The instant case is definitely very strange and shocking. It is amazing that an order passed by the High Court while deciding a writ petition, on 25.09.1992 has not been complied with till date, even though the same has attained finality. Moreso, the respondents were made to know about the said judgment, by the petitioner, in the year 2001 and a request was made to them for compliance of the said judgment passed by the High Court. There is no dispute about the fact that the respondents had known about filing of the earlier writ petition (406/84), as much as they had contested the same by filing a detail reply which had been taken note of by the High Court while deciding the writ petition. Even if, the writ petition was decided by the High Court when the counsels for the parties had failed to appear at the time of hearing, a copy of the judgment was obtained on 27.01.2001 and same was very much sent to the respondents alongwith a request that compliance of the same be made, as the petitioner was due to retire on 28.02.2001. It was also made clear to the respondents that non- compliance of the said order would result in severe monetary loss to the petitioner in the amount of gratuity and Provident Fund. Even then the respondents have dared not to comply with the order of the High Court, till date. 8. It is also an undisputed fact that even after having come to know about the order of the High Court passed in the earlier writ petition, specifically through the petitioner, the 6 respondents had not taken any steps whatsoever to challenge the said judgment at any level. But still the respondents have the courage not to comply with the order of the High Court dated 25.09.1992 and on the contrary they have filed replies, contesting the claim of the petitioner, and raised objections in respect of filing of the present writ petition, so much so, the respondents have stated that the petitioner cannot file any writ petition for implementing the order passed in other writ petition. In my considered view, in the facts and circumstances of the present case, the fact that the judgment passed by the High Court in the earlier writ petition has not at all been complied with and the stands taken by the respondents in their replies, are no less contemptuous in nature. 9. Besides, the points raised by the respondents in their replies are not sustainable in law. The objection taken by the respondents with regard to the maintainability of the writ petition on the ground that respondent No. 3 is not 'State' within Article 12 of the Constitution of India deserves to be rejected, for the reason that the respondent State very much has the control over respondent No. 3. The State Government gives grant to them for salary etc. Moreover, funds are received from the Government for day to day expenses and salary, as has been mentioned in para 'F' of the reply of respondent No. 3. Furthermore, the respondents have also stated in the reply that the Cooperative Department of the State Government has made Regulations of 2006 and the funds are controlled by the Fund Managing 7 Committee which includes the representatives/nominees of the State like Principal Secretary, Cooperative Department, Registrar of the Cooperative Societies, etc. etc., as mentioned above. It is also noteworthy to mention here that the respondents had stated in their reply to the earlier writ petition that “राÏय सरकार के िवƣ िवभाग के ूितिनिध ने कमर्चािरयों को िवशेष वेतन वृिƨ का लाभ िदए जाने के आदेश में आपिƣ उठायी थी और िवƣ िवभाग के ूितिनिध का पऽ िदनांक 12.4.84 संचालक मंडल की बैठक िदनांक 18.4.84 में िवचाराथर् रखा गया था |”. Hence, it is amply clear that the respondent State has control, including financial, over the respondent No. 3. Therefore, the objection about maintainability of the writ petition which has been filed against, inter alia, the State Government through its authorities, cannot be accepted. 10. The objection raised by the respondents with regard to the alternative remedy under the Rajasthan Cooperative Societies Act, 1965 is equally frivolous. Firstly, as stated above, the State Government is duty bound to have the order dated 25.09.1992 passed by the High Court be complied with. Secondly, for the purpose of compliance of the order of the High Court no alternative and efficacious remedy can be said to lye under the Societies Act, 1965. Thirdly, when the very issue has been considered and decided by the High Court directly in a writ petition under Article 226 of the Constitution of India then there is no justification for the respondents to raise objection in respect of the remedy under the Societies Act of 1965. 8 11. Similarly, the objection in respect of delay raised by the respondents is wholly baseless and without any justification. Firstly, this writ petition was filed in the year 2001 and is pending in due course after being admitted. In my view, there is no just reason for not deciding the writ petition on merits but to throw it out on technical grounds. Secondly, taking into consideration the unique facts and circumstances of the case, I deem it just and proper to exercise the discretion under Article 226 for deciding the present writ petition on merits then to uphold the objections of delay raised by the respondents. 12. The respondent No. 3 have exceeded all limits by stating in para 'F' of the reply that “It is further submitted that not a single employee has been given benefit of increment as claimed by the petitioner.” A perusal of judgment dated 25.09.1992 goes to show that the High Court had held in the earlier order, that “यह पऽावली पर उबलब्ध तथ्यों से अत्यंत ही ःपƴ है िक ःवयं अूाथȸ संख्या-३ Ʈारा पािरत िकये गये आदेश की अनुपालना में कमर्चािरयों को िवशेष वेतन वृिƨ का लाभ िदया गया था|” Therefore, it appears that the respondents instead of complying with the order of the High Court dated 25.09.1992, have contested the writ petition and that too on the ground which are not only baseless but also appears to be false on the face of it. 13. It would not be out of place to mention here that the 9 High Court while allowing the earlier writ petition held that “उनके Ʈारा पािरत आदेश से ूाथȸ को एक वािषर्क वेतन वृिƨ ूाƯ करने का वैधािनक अिधकार ूाƯ हो गया है|” Consequently, while allowing the writ petition, it was ordered by the High Court that the order dated 20.04.1984 (Annexure-7) is set aside. The petitioner was held entitled to all consequential benefits. 14. For the aforesaid reasons, I am of the considered opinion that the judgment passed by the High Court, in the earlier writ petition, on 25.09.1992 has to be complied with. The reply given and the submissions made by the respondents cannot be sustained on any ground. In fact a perusal of the earlier judgment passed by the Hon'ble Mr. Justice G.S. Singhvi, as he then was, goes to show that all aspects of the matter had been taken into consideration. The respondents, in the present writ petition, have gone to the extent of raising contentions which are contrary to the facts mentioned and also the finding arrived in the earlier judgment passed on 25.09.1992. The stands taken by the respondents in this writ petition and the submissions made, makes it clear that it is not a case where on account of lack of information to the respondents that the judgment of 25.09.1992 could not be complied with. But it appears that the respondents never made any effort to comply the said judgment passed by the High Court which they could have done atleast after the year 2001, when the petitioner had duly informed them by sending a representation alongwith the certified copy of the same on 29.01.2001. Therefore, the 10 inevitable conclusion is that respondents have not complied with the judgment passed by the High Court on 25.09.1992 which was their bounden duty, despite of the knowledge and awareness which was brought to them by the petitioner. 15. In this regard, it would be relevant to mention here the principle laid down by the Apex Court in the case of Commissioner,Karnataka Housing Board vs. C. Muddaiah, reported in 2007 (7) SCC 689. In that case, after taking into consideration the facts and circumstances, the Hon'ble Court held in para 25 that “We are unable to hold the arguments. In our judgment, the submission of the learned counsel for the writ petitioner is well founded that in the instant case also, express and unequivocal direction was issued by the Court to grant to the writ petitioner “such other consequential benefits that he might get consequent upon the revision of ranking.” 16. Further, in para 32, the Hon'ble Court held that “We are of the considered opinion that once direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specific plea that no such directions could have been issued by the Court. In 11 our judgment, upholding of such argument would result in chaos and confusion and would seriously affected and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected”. 17. In view of the above, this writ petition succeeds and it is hereby allowed. The respondents are given following directions:- (1)That they would comply with the order dated 25.09.1992 passed by the High Court in Writ Petition No. 460/1984, in letter and spirit; (2)That the respondents would give all monetary benefits to the petitioner, which flows in pursuance of the order dated 25.09.1992. (3)That the respondents, alongwith the monetary benefits which are to be paid to the petitioner in accordance to order dated 25.09.1992, shall pay interest at the rate of 9% per annum from January 2001 upto the date of payment. 18. In the facts and circumstances of the case, the respondents shall pay to the petitioner a cost of Rs. 2,000/-. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A.