IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.3250 of 2009 1. MITHILA KUMARI W/O SRI SURESH KUMAR SINGH R/O VILL.- JAJAULI, P.O.- BALSOHI, P.S. MASRAKH, DISTT.- SARAN Versus 1. THE STATE OF BIHAR 2. SRI ANJANI KUMAR S/O NOT KNOWN THE SECRETARY, DEPTT. OF HUMAN RESOURCES, GOVT. OF BIHAR, PATNA 3. SRI BALA MURGAN S/O NOT KNOWN THE DISTRICT MAGISTRATE, SIWAN 4. SRI B.N. JHA S/O NOT KNOWN THE DISTRICT SUPERINTENDENT OF EDUCATION, DISTT.- SIWAN 5. SRI SUBHASH NARAYAN S/O NOT KNOWN THE BLOCK DEVELOPMENT OFFICER, BLOCK- BHAGWANPUR HAT, DISTT.- SIWAN 6. SRI BIRENDRA KR. SINGH S/O NOT KNOWN THE BLOCK EDUCATION EXTENSION OFFICER, BLOCK BHAGWANPUR HAT, DISTT.- SIWAN 7. SRI NAND KISHORE TIWARI S/O NOT KNOWN THE PANCHAYAT SECRETARY, SAGHAR, SULTANPUR DAKSHINI PANCHAYAT, BLOCK BHAGWANPUR HAT, DISTT.- SIWAN 8. SRI MAN MOHAN MISIR S/O SRI PARAS MISIR THE MUKHIYA, SAGHAR SULTANPUR DAKSHINI PANCHAYAT, BLOCK BHAGWANPUR HAT, DISTT.- SIWAN 9. SRI SHASHI PRABHA S/O NOT KNOWN THE HEAD MASTER, LOWER PRATHMIK VIDYALAY, MAGHAR, BLOCK BHAGWANPUR HAT, DISTT.- SIWAN ----------- 05. 06.04.2011 Heard learned counsel for the petitioner and opposite parties 4, 7 and 8. One Vinita Kumari came to be appointed as Panchayat Shikshak at the Saghar, Sultanpur Dakshini Panchayat, Block Bhagwanpur Hat District- Siwan, in the physically handicapped category. She was stated to be untrained. The petitioner staked a claim for appointment in the same category on the ground that she was trained. Once Vinita Kumari had joined, right or wrong, a right had accrued to her. It was not but an indefeasible 2 right. If it was found that the appointment was wrong, she could have been removed. But, before removing her, she had a right to be noticed and given an opportunity to defend her appointment. This was no new law. It is only a facet of a rudimentary principle governing administrative action that no person should be condemned unheard. Yet on a complaint by the petitioner, for reasons best known to the opposite parties Vinita Kumari was terminated by an ex-parte order on 3.4.2007. It is not known whether it was done deliberately to enable her to approach the Court and obtain relief which she successfully did in C.W.J.C. No. 9219 of 2007 disposed on 19.2.2008. She had already been reinstated on 3.10.2007. No counter affidavit was filed by the official respondents. The officials of the State did not consider it their duty to inform the Court. The writ application had become infructuous, yet the Court was persuaded to pass an infructuous order unopposed. Vinita Kumari thereafter approached in C.W.J.C. No. 5154 of 2007 with a claim for salary. This Court observed that if she had been reinstated she was entitled to salary in accordance with law. After termination of Vinita Kumari on 3.4.2007, the petitioner was appointed on 4.4.2007. She joined on 5.4.2007. On 7.5.2007 she is stated to have suffered a paralytic attack and proceeded on medical leave. She 3 applied for extension of leave from 8.5.2007 to 31.5.2007 and then again from 31.5.2007 to 4.6.2007 followed by another application from 1.6.2007 to 30.6.2007. It was her case that she had undergone treatment in Kailash Hospital and Research Centre, Noida. On recovery she went to resume duty, it was informed that Vinita Kumari had been appointed in her place (on 3.10.2007). The petitioner then filed C.W.J.C. No. 2040 of 2008 on 24.1.2008. Despite adjournment granted for the purpose no counter affidavit was filed. The Court disposing the matter on 25.3.2009 observed that, if an employee had gone on leave and took a defence of illness, it was for the respondents to first examine the defence, to be satisfied that it was frivolous or genuine and then act in accordance with law. The manner of dispensing her services was unjustified. She was to be permitted to resume duty in accordance with law. The respondents were not restrained from proceeding against her in the manner observed. If Vinita Kumari had already joined on 3.10.2007 and the vacancy was not available, it was the duty of the opposite parties to have filed a counter affidavit or at least informed the Court on 25.3.2009 in C.W.J.C. No. 2040 of 2008 filed by the petitioner. The Court was again denied proper assistance for adjudication by the concerned officials. A chaotic situation 4 was created by the opposite parties. It was deliberately nursed and now a defence is taken that opposite parties are helpless in view of specific orders passed by this Court in the case of Vinita Kumari and the petitioner. Conscious of their callous and irresponsible conduct, in a desperate face saving measure, Civil Review No. 29 of 2010 was filed by the opposite parties on 10.2.2010 arising out of C.W.J.C. No. 9219 of 2007 filed by Vinita Kumari. Issues which should have been brought up by a counter affidavit in C.W.J.C. No. 9219 of 2007 and C.W.J.C. No. 2040 of 2008 were now sought to be put forth as a defence. The Civil Review application at paragraph-12 states that counter affidavit could not be filed in the writ petition and the entire matter could not be placed before the Court. Why no counter affidavit was filed is refused to be answered and explained even in the Review Application. The Court observed that the situation was the creation of the respondents themselves and it was for them to resolve issues. If they had created administrative chaos, it was not for the Court to resolve the administrative chaos. The Court decides issues of law and does not undertake untangling of administrative knots created by the administrator. The Review Application was dismissed on 11.8.2010. The show cause filed on behalf of the opposite 5 party no.4, the District Superintendent of Education, states that he had sought records from the Block Education Officer, who was not submitting the records to him hindering compliance. Administrative procedures are no defence in a contempt proceeding. No further orders of any administrative authority were required over the orders of the Court which was final. The defence that he had told the Mukhiya, Panchayat Secretary, opposite party no. 7 and 8 to allow the petitioner to resume duty is belied by his letter dated 28.1.2011 only telling the Mukhiya to file a show cause notice in the contempt matter. The Court finds the conduct of the District Superintendent of Education contumacious and unfortunate. The show cause by opposite party no.7 & 8, the Panchayat Secretary and the Mukhiya acknowledges joining of the petitioner on 4.4.2007 and then abruptly jumps to her termination on 16.7.2007. The observations of this Court that there had to be a finding on the ground of her illness finds no mention in the show cause. A desperate confused defence is sought to be raised that the petitioner had been wrongly appointed and had wrongly joined in the office of the Block Education Officer or given leave applications before him as he was not competent for the purpose. The issue in this application is of non- 6 compliance of the order dated 25.3.2009 in C.W.J.C. No. 2040 of 2008. The Court in the facts and circumstances of the case is satisfied that further proceedings in the contempt jurisdiction shall not be wholly appropriate in view of the orders passed by this Court in the separate writ applications of Vinita Kumari and the petitioner at the behest of the opposite parties. Though the Court in a contempt proceeding can simultaneously order rectification of the wrong done also as the contempt jurisdiction was not only for imposition of punishment, but that perhaps shall be to the prejudice of Vinita Kumari who is not present before the court. The imbroglio created by the opposite parties between the petitioner and Vinita Kumari shall undoubtedly push the petitioner and Vinita Kumari in another round of litigation by way of a fresh writ petition. The credit for generating such avoidable litigation is attributable exclusively to the opposite parties, burdening the Court with what was essentially administrative deficiency simplicitor. The observations of the Supreme Court as far back as (1994) 2 SCC 600 (Union of India V. Rahul Rasgotra) at paragraph-14 aptly reflect that there has been no change in this situation:- “14. Before parting with this case, we are constrained to place on record our deep distress at the manner 7 in which the cases on behalf of the Government are generally conducted even in this Court and also when the Government comes to this court to overcome the consequence of an adverse order made against it. We do so with a feeling almost of despair since our constant lament orally and, at times, even in writing has so far evinced no appropriate response for improvement. ………. Material documents to negative the same must be in possession of the Government of India but they were not produced before the Tribunal or even before us, in spite of opportunity given by us. The learned Additional Solicitor General expressed his utter helplessness in the matter and informed us that his efforts to obtain and produce those documents from the authorities concerned had failed. This shows the apathy of the persons responsible for the conduct of the case on behalf of the Government of India. We are not sure whether such lapses of the persons responsible for conduct of the case on behalf of the Government are deliberate or inadvertent but they are certainly culpable which need to be investigated by the authorities concerned to identify the delinquents and punish them in public interest. It is time that the derelicts are also held accountable and liable for the loss of public money due to their lapses. The stage is now reached for taking drastic steps to arrest further decadence and to implement the avowed promises held out for improvement of the working of the system. Governments being the largest litigants, radical improvement is needed in the functioning of their machinery by reducing frivolous litigation and ensuring proper conduct of the necessary litigation. Unless the desirable steps in this behalf are taken in the right earnest, any number of seminars and conferences to devise means for reducing the backlog in courts is an exercise in futility and the resolutions made therein, are empty slogans. We 8 reiterate this with the fond hope that the authorities concerned would wake up to the true malaise and work to make the programme of improving its machinery, a reality.” The court does take due notice of the conduct of the opposite parties. The Court leaves the issue open whether it was deliberate or not. Even it was not deliberate it certainly was negligent bordering on callousness to the extent of being irresponsible. By their conduct the state has been pushed into the litigation by those in whom the state placed trust to protect its interests. Not only has the time of the Court been wasted, the funds of the State Government have been callously frittered away in luxury litigation by opposite parties. Answerability and accountability of the opposite parties shall have to be fixed by the Administrator. It is perhaps time for the State to wake up to the conduct of its officials by framing a State Litigation Policy to prevent such litigations and also such deviant conduct by its officials. The Court does consider the present a fit case to impose exemplary costs on the opposite parties quantified at Rs. 30,000/- on each of the opposite parties 4, 7 and 8 to be deposited by them before the Patna High Court legal Services Committee within a period of two weeks. This shall be without prejudice to the rights of 9 the State to take such other administrative and disciplinary action against the opposite parties concerned under the service Rules or the Bihar Panchayat Raj Act 2006 as the case may be. The contempt proceeding stands disposed. P.K ( Navin Sinha, J.)