THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Contempt Case No.519 of 2008 (Dated : 19-12-2011) Between: N.Veeraju S/o N.Ramana Visalakshi Nagar, Visakhapatnam ...Petitioner A n d M.V.Reddy, Director of Animal Husbandry Dept., and others ...Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Contempt Case No.519 of 2008 ORDER: This contempt case has been filed by N.Veeraju, complaining wilful disobedience of the order dated 13-4-2007, as amended by order dated 19-7-2007, passed in Writ Petition No.21147 of 1997. 2. Background facts, in a nutshell, leading to filing of this contempt case, are:- The petitioner was appointed as a Technician on daily wage basis in Piggery Development Project, Government Dairy Farm, Animal Husbandry Department, Visakhapatnam on 21-6-1989 without any formal appointment order. He was paid Rs.76.80 paise per day, i.e., Rs.2,400/- per month. One S.V.Ranga Rao, a Refrigerator-cum-Compressor Mechanic was due to retire on 30-4- 1995. The petitioner made an application dated 17-4-1995 to the Director, Animal Husbandry Department, Andhra Pradesh, Hyderabad to consider his case for appointment in the said vacancy. Since his representation was not considered, he filed Writ Petition No.21147 of 1997 seeking a mandamus to the Director, Animal Husbandry Department, the Joint Director of Animal Husbandry, Government Dairy Farm, Visakhapatnam, the Deputy Director, Piggery Development Project, Animal Husbandry Department, Visakhapatnam and the Secretary, Ministry of Animal Husbandry and Fisheries, Hyderabad, to regularise his services by appointing him to the post of Refrigerator-cum-Compressor Mechanic in Piggery Development Project, Visakhapatnam with effect from 01-5-1995. The relief sought for in the writ petition reads as hereunder:- “ For the reasons stated in the accompanying affidavit the petitioner prays that the Hon’ble Court may call for the records in respect of the petitioners representation dated 17.4.1995 submitted to the first respondent i.e., the Director of Animal Husbandry, Hyderabad through the second respondent the Joint Director of Animal Husbandry, Visakhapatnam and also the petitioner’ s application dated 17.8.1997 submitted to the respondents 1 and 2 for appointment to the post of Refrigerator-cum-Compressor Mechanic in Piggery Development Project, Visakhapatnam and issue a writ of mandamus or order or direction in the nature of mandamus directing the respondents 1 and 4 to regularise the petitioner by appointing him to the post of Refrigerator-cum-Compressor Mechanic at Piggery Development Project, Visakhapatnam w.e.f 1.5.1995 the date of clear vacancy of the said post and also grant all the consequential benefits i.e., seniority in the said post and the monitory benefits to the petitioner from 31.5.1995 and pass such other order or orders as the Hon’ble Court deems fit in the circumstances of the case”. 3. Joint Director (Admn.), Animal Husbandry filed counter in the writ petition resisting the relief sought for by the petitioner. It is stated in the counter that the petitioner was only a casual labour and his candidature was neither sponsored by the Employment Exchange nor he was in an equivalent cadre to consider his claim for absorption in the post of Refrigerator-cum-Compressor Mechanic. It is further stated in the counter that the petitioner was not possessing the requisite qualifications, i.e., practical experience in Ice Plant, Cold Storage etcetera to consider his claim. For better appreciation, I may refer relevant portion of paragraph (5) of the counter affidavit, which reads as hereunder:- “........The petitioner after his dismissal and imposing fine for his dereliction of duties was reinstated on 20-1-1990. As such for all purpose, his service as Casual Labour w.e.f., 20-1-1990 only. Thus he has not fulfilled the conditions of having service of (5) years as on 25-11-1993. As such he is not eligible for conversion as Attender. Unless the petitioner become a regular Government employee his request for appointment to the post of RCCM by transfer which is an higher post cannot be considered. By virtue of acquiring qualification one cannot claim for appointment to the post in Government. The other terms and conditions prescribed by Government from time are also to be considered while filling up any vacant post either by direct recruitment or recruitment by transfer. It is further to mention that the incumbent is not having any practical experience in operation of cold storage, ice plant and Boiler. Due to lack of knowledge and practical experience he damaged the Ice Plant he removed from service on 20-11-1989 and was fined for Rs.300/- for his dereliction of duties. The petitioner Sri N.Veeraju is only a Casual Labour and his candidature was neither sponsored by the Employment Exchange nor he is in an equivalent cadre to consider his claim for absorption in the post of Refrigerator-cum-Compressor Mechanic. It is further to mention that the incumbent is not possessing the requisite qualification i.e., practical experience in Ice Plant, Cold Storage, etc., to consider his claim”. 4. The writ petition came to be disposed of on 13-4-2007. The relevant portion of the order reads as hereunder:- “ Under those circumstances, the respondents are directed to consider the case of the petitioner for regularization of his services into any suitable post, within a period of two months from the date of receipt of a copy of this order and communicate the same to the petitioner. Till such time, the services of the petitioner shall not be disturbed. With the above direction, the writ petition is disposed of. No costs.” 5. Thereafter, the petitioner filed W.P.M.P.No.18863 of 2007 to take up the writ petition under the caption “for being mentioned’. The said WPMP came to be disposed of by order dated 19-7-2007 modifying the operative portion of the order dated 13-4-2007. The amended order reads as follows:- “ Under those circumstances, the respondents are directed to consider the case of the petitioner for regularization of his services in the post of Refrigerator-cum-Compressor Mechanic, preferably from the date of occurrence of vacancy i.e., 1-5-1995, within a period of four weeks from the date of receipt of a copy of this order and communicate the same to the petitioner. Till such time, the services of the petitioner shall not be disturbed”. 6. The contempt case has been filed by the petitioner on the ground that despite a direction given by this Court, the respondents have not considered his case for regularization/ appointment to the post of Refrigerator-cum-Compressor Mechanic in Piggery Development Project, Visakhapatnam and thereby, they wilfully disobeyed the order passed in W.P.No.21147 of 1997 rendering themselves liable for punishment under Sections 10 to 12 of the Contempt of Court Act, 1971. Para (4) of the affidavit filed in support of the contempt case needs to be noted and it is thus:- “4. I filed W.P.M.P.18863/2007 in the above writ petition for being mentioned for certain clarification. The respondent’s advocate neither filed any counter Affidavit nor argued at the time of the hearing WPMP 18863/2007 and the Hon’ble Court passed orders on 19.07.2007 amending the orders dt.13.4.2007 and gave direction to the respondents to consider my case for regularization of my services in the post of Refrigerator-cum-compressor Mechanic preferably from the date of occurrence of vacancy on 01.5.1995 within a period of 4 weeks from the date of receipt of the said orders and communicate the same to the petitioner. The amended order dt.19.7.2007 was received by the respondents by 26-09-2007, but the respondents had not complied with the direction of the Hon’ble High Court dt.19-07-2007 till today, as I was not communicated with any order by the respondents. I had sent a legal notice dt.21-12-2007 through Sri M.Padmakar Kumar, Advocate, Visakhapatnam to respondents 1 to 3 by registered post with ack. due to implement the said judgment of the High Court dt.13.04.2007 and 19.7.2007 in W.P.No.21147/1997 within 2 weeks, failing which Contempt Case will be filed in the High Court. The respondents have not so far sent any reply and have not complied with the said judgment of the High court. The 1st respondent is the appointing authority to the post of R.C Mechanic as per the rules in G.O.Ms.No.2359 Food & Agriculture dt.30-7-1966 as amended by G.O.Ms.No.1902 F & A dated 20.9.1968. Hence the said inaction on the part of the respondents, especially Respondent No.1 to comply with the aforesaid directions of the Hon’ble Court dt.13.4.2007 and 19.7.2007 is wilful and deliberate disobedience of the said judgment of the Hon’ble High Court and constitutes Contempt of Court under Sections 10 to 12 of the Contempt of Courts Act. “ 7. When the contempt case came up for admission on 22-4- 2008, learned Government Pleader for Animal Husbandry received notice on behalf of the respondents. On 21-10-2008, learned Government Pleader sought time for production of GOs relied upon by the respondents. On 26-11-2010, learned Government Pleader sought time for reporting compliance. On 10-12-2010, respondents 2 and 3 were directed to be present before the Court on 21-12-2010 at 10.30 AM. The respondents 2 and 3 appeared before the Court on 21-12-2010. Their presence came to be dispensed with on 18-01- 2011 and the contempt case stood posted to 01-2-2011 for reporting compliance. Again, an order came to be passed on 01-2-2011 directing the respondents to be present before the Court in case of non-compliance of the order passed in the writ petition. The respondents appeared before the Court on 15-2-2011 and sought time for reporting compliance. In the meanwhile, the learned Judge, who passed the order in the writ petition came to be retired on attaining the age of superannuation. Hence, this matter has been listed before me as per the orders of the Hon’ble the Chief Justice. 8. Initially, the Contempt Case was filed against Mr.L.Mohan, Director of Animal Husbandry Department, Shantinagar, Hyderabad, P.Sriramulu, Joint Director of Animal Husbandry Department, Government Dairy Farm, Visakhapatnam, Y.Simhachalam, Deputy Director, Piggery Development Project, Animal Husbandry Department, Government Dairy Farm, Visakhapatnam and Priyaranjan Das, Secretary, Ministry of Animal Husbandry and Fisheries, Secretariat, Government of A.P. 9. Dr.L.Mohan, Director of Animal Husbandry Dept. filed counter affidavit on 8th July, 2008. It is stated in the counter affidavit that the petitioner did not possess the requisite experience prescribed for the post of Refrigerator-cum-Compressor Mechanic, as per the rules in G.O.Ms.No.2359 Food & Agriculture, dated 30.7.1966 as amended by G.O.Ms.No.1902 F & A, dated 20-9-1968. It is further stated in the counter affidavit that as soon as the petitioner produces experience three years experience certificate, suitable proposals will be submitted to the Government for regularising his services and to absorb him in the post of Refrigerator-cum-Compressor Mechanic at Piggery Development Project, Visakhapatnam and till then, he continues to be on daily wages. 10. Consequent on change of incumbents in the office of the Director, the Joint Director, the Deputy Director and the Secretary, the petitioner filed Contempt Application No.629 of 2011 seeking amendment of the cause title by substituting the names of respondents 1 to 4 as M.V.Reddy, Director of Animal Husbandry, Hyderabad, (2) Y.Simhachalam, Joint Director (A.H), Visakhapatnam, (3) B.Sanyasirao, Deputy Director (A.H), Piggery Development Project, Narava, Visakhapatnam and (4) S.Bhalerao, Special Chief Secretary, Department of Animal Husbandry, Hyderabad. The said application came to be ordered on 30th September, 2011. 11. Y.Simhachalam-3rd respondent filed counter affidavit. The counter in brief, is :- As per the rules in vogue, minimum experience required for the post of Refrigerator-cum-Compressor Mechanic is three years. The petitioner has been asked to submit three years experience certificate in operation and maintenance of construction work by issuing a Memo dated 30-4-2008. The petitioner submitted experience certificate covering the period of one year only and failed to produce the required experience certificate in spite of repeated reminders and therefore, the case of the petitioner for appointment to the post of Refrigerator-cum-Compressor Mechanic has been rejected under Memo Rc.No.8646/BV/B4/2007, dated 28.8.2008. However, the petitioner has been appointed temporarily to the post of Refrigerator-cum-Compressor Mechanic, vide Proceedings Roc. No.8646/BV/B4/2007, dated 11.12.2009 and posted to the office of Deputy Director, Animal Husbandry, Piggery Development Project, Visakhapatnam. Paragraph (6) of the counter affidavit needs to be noted and it is thus:- “6. It is respectfully submitted that the Government of Andhra Pradesh implemented Act No.2 of 1994 with effect from 15.01.1994 according to which regular appointment to the posts fallen vacant were prohibited under the control of State Government, Local Bodies etc. Consequently the post of Refrigeration-cum-Compressor Mechanic which fell vacant w.e.f 01.5.1995 due to retirement of the incumbent with effect from 30.04.1995 could not be filled. However, the petitioner who is the daily wage worker , it requires special Government Orders to appoint the petitioner against the vacant post of Refrigeration-cum-Compressor Mechanic with effect from 01.5.1995 by which date the Act 2 was prevailing. As such by letter dated 27.3.20011 the matter was referred to Government seeking orders for regular appointment. The Government issued orders in Memo No.3556/AH-II(2)/2010-1, dated 18.6.2011 for payment of pay and allowances to the petitioner w.e.f 01.4.2011 and consequently the same were paid to the petitioner. Aggrieved by the Government orders in payment of Pay and allowances w.e.f 01.4.2011 the petitioner again approached this Hon’ble Court for arrears of pay from his date of appointment. It is submitted that the Director of Animal Husbandry, A.P., Hyderabad has addressed the Government to issue orders for payment of pay and allowances from the date of his joining on notional basis w.e.f 12.12.2009”. 12. Heard learned counsel appearing for the petitioner and Sri G.Chandra Sekhar Rao, learned Government Pleader representing Additional Advocate General on behalf of the respondents and perused the material brought on record. 13. Learned counsel appearing for the petitioner submits that the respondents have flagrantly violated the direction given by this Court in W.P.No.21147 of 1997 by not considering the petitioner to the post of Refrigerator-cum-compressor mechanic in Piggery Development Project, Visakhapatnam despite the petitioner possessing requisite qualification and experience. Therefore, the respondents are liable for punishment for disobedience of the order dated 13-4-2007. He would also contend that the Deputy Director, Piggery Development Project(Animal Husbandry) and the Joint Director, Government of A.P., having sent proposals for appointment of the petitioner to the post of Refrigerator-cum-Compressor mechanic cannot be permitted to contend that the petitioner lacks necessary experience for being considered to the post of Refrigerator-cum-Compressor mechanic. He would further contend that the respondents had given an undertaking to this Court in the contempt case to comply the direction given by this Court in W.P.No.21147 of 1997 and violation of the said undertaking is nothing short of a contemptuous act rendering themselves liable for punishment under Sections 10 to 12 of the Contempt of Courts Act. According to the learned counsel, the eligibility of the petitioner for appointment to the post of Refrigerator- cum-Compressor mechanic cannot be gone in the contempt case and it is no longer open to the Government to go behind the orders and truncate the effect of the order dated 13-4-2007 passed by this Court in W.P.No.21147 of 1997 by hovering over the rules to get round the result, to legitimise legal alibi to circumvent the orders passed by this Court. Though there was no mandamus to the respondents in the writ petition such a relief was implicit in the reasoning of the order. Subsequent repudiation of the claim of the petitioner on the ground of petitioner’s ineligibility constitute deliberate and wilful disobedience of the order dated 30-04-2007 passed in W.P.No.21147 of 1997. In support of his submissions reliance has been placed on the following decisions:- 1) H.M.Ramaul v. State of Himachal Pradesh and Others[1] 2) T.R.Dhananjaya v. J.Vasudevan[2] 3) R.Narayanan v. Union of India and Another[3] 4) T.N.Godavarman Thirumulpad v. Ashok Khot and Another[4] 14. Per contra; learned Government Pleader submits that the case of the petitioner has been considered for appointment to the post of Refrigerator-cum-Compressor Mechanic in accordance with A.P.Animal Husbandry Subordinate (Service) Rules issued in G.O.Ms.No.2359 Food & Agriculture, dated 30.7.1966 as amended by G.O.Ms.No.1902 F & A, dated 20-9-1968 and found him not possessing the requisite experience of three years, as on the date of his engagement as daily wage worker and therefore, his representation to appoint him in the vacancy occurred on 01-5- 1995 has been rejected under Memo Roc.No.8646/BV/B4/ 2007, dated 28-8-2008. Therefore, there is no disobedience of the direction given by this Court in W.P.No.21147 of 1997. He would further contend that the 1st respondent issued notice to the petitioner in Roc.No.8646/BV/B4/2007, dated 30-4-2008 to produce the requisite experience certificate but the petitioner for the reasons best known to him, failed to produce the same, in which case, the respondents cannot be found fault in rejecting the case of the petitioner for appointment to the post of Refrigerator-cum-Compressor Mechanic. It is also contended by him that the proceeding issued by the respondent rejecting the case of the petitioner for appointment as Refrigerator-cum-Compressor Mechanic gives him a separate cause of action to challenge the said memo and the validity of the said memo cannot be gone into in the present contempt proceedings. In support of his submissions, reliance has been placed on the decision of Supreme Court in J.S.Parihar v. Ganpat Duggar [5], wherein it has been held that once there is an order passed on the basis of the direction issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate Forum. 15. Learned counsel also placed reliance on the decision of the Supreme Court in State of Karnataka v. M.L.Kesari[6], wherein a distinction has been made between irregular and illegal appointments. The Supreme Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and the Courts cannot direct their absorption, regularisation or re-engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution of India should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the Courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. 16. The direction given in the writ petition to the respondents is to consider the case of the petitioner for regularization of his services in the post of Refrigerator-cum-Compressor Mechanic from the date of occurrence of the vacancy, i.e., 1.5.1995 within four weeks from the date of receipt of copy of the order. The petitioner has been engaged as daily wage worker on 21-6-1989. His services came to be discontinued on 20-11-1989 and re-engaged on 20-01- 1990. Appointment to the post of Refrigerator-cum-Compressor Mechanic is governed by A.P.Animal Husbandry Subordinate (Service) Rules issued in G.O.Ms.No.2359 Food & Agriculture, dated 30.7.1966 as amended by G.O.Ms.No.1902 F & A, dated 20-9-1968. The rules prescribe educational qualification, experience and the mode of recruitment. There are two sources for filling up the post of Refrigerator-cum-Compressor Mechanic; one is by Direct Recruitment and another is Recruitment by Transfer. The petitioner was not in the permanent cadre in any post in the Department of Animal Husbandry so as to claim appointment to the post of Refrigerator-cum-Compressor Mechanic by Transfer. The only mode to which he can compete is by Direct Recruitment. For a person to be appointed to the post of Refrigerator-cum-Compressor Mechanic, he must possess a diploma in mechanical or equivalent qualification with not less than three years practical experience in operation and maintenance or construction work as Refrigerator-cum-Compressor Mechanic. The Director Animal Husbandry under Memo Roc. No.8646/BV/B4/2007 dated 30-4-2008 instructed the petitioner to submit three years experience certificate. For better appreciation, I may extract the relevant portion of the Memo dated 30-4-2008, which reads as hereunder:- “ Sri N.Veeraju, Daily Wage Worker, Piggery Development Project , Vizag is informed that, the prescribed qualification for the post of Refigerator-cum-Compressor Mechanic includes (3) years experience in operation & Maintenance of construction work and he is informed that unless he produces (3) years practical experience as prescribed for Refrigerator-cum-Compressor Mechanic, he cannot be considered as eligible for appointment as Refrigerator-cum-Compressor Mechanic. He is therefore instructed to submit the same as enunciated above at once for taking further necessary action in the matter”. 17. It is not the case of the petitioner that he submitted three years experience certificate pursuant to the Memo dated 30-04-2008 served on him. Since the petitioner failed to produce the experience certificate covering three years, the Director, Animal Husbandry, Hyderabad issued Memo Roc. No.8646/BV/B4/2007, dated 28-8-2008 rejecting the case of the petitioner for appointment to the post of Refrigerator-cum-Compressor Mechanic. For better appreciation, I may refer the relevant portion of the Memo dated 28-8-2008, which reads as hereunder:- “ According to the Adhoc rules framed for the temporary post of Refrigerator-cum-Compressor Mechanic in the original Pig breeding Station, vide G.O.Ms.No.2359, Food and Agricultural (A.H.1) Department, dated 30/07/1966 as amended vide G.O.Ms.No.1902, Food and Agricultural Department dated : 20/09/1968, the qualification prescribed for appointment to the said post by Direct recruitment by transfer shall be a Diploma in Mechanical and Electrical Engineering or equivalent qualification with at least three years of experience in operation and maintenance or construction work on refrigerator-cum-compressor as mechanic. According to these Adhoc rules, the Director of Animal Husbandry shall be the appointing authority. These rules were in force as on 01/05/1995 the date from which the Hon’ble High Court directed the petitioner to be considered for appointment to the above post, as such those rules are to be made applicable in his case. In order to consider his case for the post of Refrigerator-cum-Compressor Mechanic, Sri N.Veeraju daily wage worker has been directed to submit certificates of Education qualifications and experience certificate showing a minimum period of 3 years experience, vide this office Memo dated 30/04/2008. Sri N.Veeraju, in his representation 4th cited has submitted experience certificates covering the period of one year and eleven months only and promised to submit relevant other experience certificates, soon after tracing the same in his house. But in spite of repeated reminders issued to him in the reference 5th cited, he failed to submit relevant experience certificates covering the 3 years experience. Therefore, Sri N.Veeraju is considered not eligible for appointment to the post of Refrigerator-cum-Compressor Mechanic, in terms of G.O.Ms.No.2359, Food and Agricultural (A.H.1) Department, dated : 30/07/1966 as amended vide G.O.Ms.No.1902, Food and Agricultural Department dated : 20/09/1968. Hence, the application of Sri N.Veeraju, Daily wage worker office of the Piggery Development Project, Visakhapatnam for appointing him to the post of Refrigerator- cum-Compressor Mechanic, is hereby rejected. “ 18. The representation of the petitioner to consider his case for appointment to the post of Refrigerator-cum-Compressor Mechanic came to be rejected for his not producing the requisite experience certificate . The rejection memo cannot be said to be in violation of the direction given in the writ petition. The Director, Animal Husbandry has issued proceedings dated 11-12-2009 appointing the petitioner temporarily to the post of Refrigerator-cum-Compressor Mechanic under Rule 10(a) of A.P.State and subordinate Services Rules, 1996, keeping in view of the fact that he has been working as daily wage worker for a quite considerable time. 19. In that view of the matter, I find that the petitioner failed to make out a case that the respondents disobeyed the order dated 13-4-2007, as amended by order dated 19-7-2007, passed by this Court in W.P.No.21147 of 1997. 20. Accordingly, the Contempt Case is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt. 19-12-2011 Note:- Furnish CC within a week (B/o) RAR [1] 1991 Supp (1) Supreme Court Cases 198 [2] (1995) 5 Supreme Court Cases 619 [3] 1989 (2) Supp SCC 581 [4] (2006) 5 Supreme Court Cases 1 [5] (1996) 6 Supreme Court Cases 291 [6] (2010) 9 Supreme Court Cases 247