1 S.B. CIVIL CONTEMPT PETITION NO.129/2006 Deepak Vaishnav & Ors. vs Shri J.P. Chandeliya & Ors. DATE OF ORDER: 19.5.2009 HON'BLE MR. PRAKASH TATIA, J. Mr. PR Mehta, for the petitioners. Mr. RL Jangid, Addl. Advocate General. <><><> Heard learned counsel for the parties. The appellants-petitioners preferred SBCWP No.4586/2004, which was allowed by this Court vide order dated 29th Sept., 2005 and following directions were issued : “In view of the admission made by the respondents themselves, the writ petition filed by the petitioners no.1, 9, 19,11 and 12 is allowed. The respondents are directed to offer appointments to the petitioners no.1,9,10,11 and 12, if they do not suffer from any other disqualification and they are otherwise found eligible, within two months. On their appointments, the aforesaid petitioners shall not be entitled to any emoluments of the post for the past. However, they shall be entitled to claim seniority over the persons who were lower in merit, but have been offered appointment prior to them. The writ petition filed by the petitioners no.2 to 8, is hereby dismissed.” The order passed by this Court dated 29th September, 2 2005 is not complied with by the respondents then this contempt petition was submitted by the petitioners on 12th May, 2006. Notices were issued on 18th May, 2006 which was duly served upon the respondents. However, because of the transfer of the contemnors, the new person who came to be appointed on the post were added except respondent no.1 and notices were served upon newly added respondent and lastly upon the respondent no.2 Tikam Chand Bohra also. On 16.2.2009, this Court noticed that order of the Court dated 29th September, 2005 has not been complied with then this Court directed the respondents to appear before the Court on 24.2.2009. On 24.2.2009, the contemnors Shri JP Chandeliya and Shri Tikam Chand Bohra appeared in person in court. Shri JP Chandeliya submitted that presently he is not holding the post of Director, Elementary Education and on the contrary he is holding the post of Divisional Commissioner, Jodhpur. However, time was sought for filing reply, which was allowed by this Court by same order dated 24.2.2009. The petitioner was permitted to implead the person who was holding the post of Director, Elementary Education, but it appears that, that order has not been complied with. On 22.4.2009 it was informed that presently Shri Alok Gupta is the Director, Elementary Edcuation, Bikaner in place of JP Chandeliya. Then after noticing that fact this Court observed that despite lapse of 3 approximately 3 years, neither any reply to the contempt petition has been filed nor the directions of this Court in the order dated 29.9.2005 have been complied with so far. The respondents are also not in a position to submit anything as to whether the judgment of learned single judge dtd.29.9.2005 has been stayed or over-turned in any appeal. This Court granted time on payment of cost of Rs.500/- on each of the contemnor i.e., upon Shri Alok Gupta, Dierctor, Elementary Education, Government of Rajasthan, Bikaner and Shri Ram Nath Chahil, Chief Executive Officer cum Secretary, Zila Parishad, Banswara and court specifically observed that they have filed to comply with the direction of this Court within the stipulated time of two months and cost shall be borne personally by these officers and not by the State Government. Then finally the order has been issued on 4th May, 2009 giving appointment to the petitioners on the post concerned. The copy of the order has been placed on record alongwith the reply to the contempt petition and according to learned counsel for the petitioners he has submitted rejoinder thereto. According to learned counsel for the petitioners firstly the order has not been complied with by the respondents in time, which was given by the order dated 29th Sept., 2005 by this Court in SBCWP No.4586/2004. The contempt petition was filed in the year 2006 and yet the respondents failed to comply with 4 the order. Not only this, when this Court took very strong view then only, the order has been passed appointing the petitioner and that order was passed on 4th May, 2009. Therefore, so far as disobedience of this Court's direction is concerned, that is proved fact and it is submitted that the respondents may not have complied with the order if this Court would not have taken the strong view. Learned counsel for the petitioners further submits that order dated 4th May, 2009 is also not full compliance of the order of this Court as the petitioners have not been assigned the seniority with the persons who were lower in merit. Thus, this is a deliberate non-compliance by the respondents of the order passed by this Court dated 22nd Sept., 2005. Learned Addl. Advocate General Shri RL Jangid submits that the respondents have tendered unconditional apology and there is delay in implementation of order, but that was due to fact that Shri. JP Chandeliya who was holding the post of Director Elementary Education at the relevant time was transferred and, thereafter, none of the other Director could have any knowledge of the order and further in spite of the fact that another Director was appointed, but he was not impleaded as party in the contempt petition. It is submitted that looking to the fact that order has been complied with, the delay caused in giving appointment to the petitioner may be not treated to be 5 deliberate disobedience of the Court's direction. It is also submitted that, as per his knowledge, the petitioners have no interest in joining duties which is clear from the fact that the petitioners have not joined the duties yet. Learned counsel for the respondents submits that appeal has been preferred against the order passed in SBCWP No.4586/2004 dated 29th September, 2005. However, it is admitted that no interim order has been passed in that special appeal. Learned counsel for the respondents submitted that the order dated 29th September, 2005 is based on earlier judgment of this Court delivered in DB Civil Special Appeal No.580/2003 (Rajendra Singh Udawat Vs. State of Raj. & Ors) decided on 25.11.2003 and against the order passed by Division Bench, SLP is pending before the Hon'ble Apex Court. However, no details and particulars have been placed on record with respect to SLP and whether any interim order as such has been passed by the Hon'ble Apex Court. I considered the submissions of learned counsel for the parties and perused the facts of the case. Undoubtedly, the order of this Court has not been complied with in more than three and half years and that too, without any reason. Undoubtedly, Shri Alok Gupta who is Director, Elementary Education, Bikaner at present is not party in this contempt petition. Shri JP Chandeliya respondent no.1 is also 6 not holding the post of Director Elementary Education since long. The only persons who were holding the post at relevant time and could have processed the matter were the contemnors – S/Shri Ram Nath Chahil, Rakesh Kumar Jaiswal and Tikam Chand Bohra have not acted to comply with the order of this Court, but since the order has been complied with and the Special Apepal is pending, therefore, instead of passing any harsh order, this Court taking a lenient view imposing cost of Rs.5,000/- upon each of the said three persons namely, S/Shri Ram Nath Chahil, Rakesh Kumar Jaiswal and Tikam Chand Bohra. The cost shall be payable to each applicant by each of the contemnors named above from their own pocket and it will not be from the State exchequer. So far as contention of learned counsel for the petitioners that the petitioners have not been given seniority over the persons who were lower in merit, but have been offer appointment prior to the petitioners is concerned, that is a subject matter entirely different and petitioners cannot presume that they have not been given that seniority because of the reason that the seniority is assigned separately and it is not necessary to mention the seniority of the appointee in the appointment order. The issue which has already been decided by this Court in the writ petition of the petitioners that where the petitioners will stand in the seniority neither can be 7 reopened nor can be reexamined by this Court in contempt petition nor the respondents can says that they have not given the seniority to the petitioners over the persons who were lower in merit and have been given appointment prior to the petitioners, therefore, the petitioners' seniority can be assigned subsequently when petitioner joins on the post because of the reason that unless petitioners join on the post they cannot claim any seniority without there being any appointment. In view of the above reasons, the contempt petition is disposed of with cost of Rs.5,000/- upon each of the contemnor referred above payable to each of the petitioners. The petitioners if wishes to join on the post offered to them by the appointment letter dated 4th May, 2009, they may join within one month from today and in case they will not join the offer will come to an end because of the conduct of the petitioners and the petitioners in that situation shall not entitled to the cost also. (PRAKASH TATIA), J. c.p.goyal/-