SHRI N. K. JANU,DEPUTY DIRECTOR SOCIAL FORESTARY DIVISION, AGRA AND OTHERS versus LAKSHMI CHANDRA on 10 April 2019

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SUPREME COURT REPORTS

[2019] 5 S.C.R.

ASHRI N. K. JANU,DEPUTY DIRECTOR SOCIAL FORESTARYDIVISION, AGRA AND OTHERS

v.

LAKSHMI CHANDRA

(Civil Appeal No. 3740 of 2019)

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APRIL 10, 2019

[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]

Contempt of Court – Jurisdiction – Respondent filed writpetition – Disposed of – Judgment affirmed by Supreme Court interalia holding that the daily wagers are entitled to minimum pay scaleCas received by their counter-parts in the Government – Respondentagain filed writ petition – Directions passed vide order dtd. 23.10.08– In terms of such order, the Divisional Director, Social ForestryDivision Agra, passed order that the respondent was not eligiblefor regularisation/equal pay – Contempt Application (C) No.1632Dof 2009 filed by the respondent – Various orders passed seekingpersonal presence of the officers of the State – Appellants eventuallyfiled Special Leave to Appeal, which was dismissed as withdrawnwith liberty to approach the High Court by filing Review Petition –Appellants filed Review Petition – Dismissed for want of prosecutionon 06.12.2017 – Application for recall of said order – Dismissed –EOn appeal, held: Once an order was passed by the Department, itwas open to the respondent to challenge the said order by way ofwrit petition, but the contempt jurisdiction could not be invoked –Order of the Court on 23.10.2008 was to consider the case of therespondent for regularization of his services and for payment ofFminimum regular pay scale – Since the appellants considered theclaim of regularization and/or payment of minimum of pay scale,the only remedy of the respondent was by way of the writ petition –High Court exceeded the contempt jurisdiction to compel the officersof the State to appear in court – Grievance regarding regularizationof the service on account of break in service could not have beenGtaken up in contempt proceedings – High Court not justified inpassing orders from time to time to secure presence of the officers –Orders are generally presumed to be passed in good faith unlessproved otherwise – Contempt Application dismissed – Uttar PradeshRegularisation of Daily Wages Appointments on Group ‘D’ PostsHRules, 2001.

Allowing the appeal, the Court

HELD: 1.1 Once an order had been passed by theDepartment, it was open to the respondent to challenge the saidorder by way of a Writ Petition, but the Contempt Jurisdictioncould not be invoked. The Contempt Court is to ensure that theorder of the Court is complied with. The order of the Court on23.10.2008 was to consider the case of the respondent forregularization of his services and for payment of minimum regularpay scale. Since the appellants considered the claim ofregularization and/or payment of minimum of pay scale, the onlyremedy of the respondent was by way of the Writ Petition. TheHigh Court exceeded the Contempt Jurisdiction to compel theofficers of the State to appear in court and in fact, the High Courttravelled much beyond the orders passed by the Single Benchon 23.10.2008. [Paras 15, 16][627-B-D]

1.2 Grievance regarding regularization of the service onaccount of a break in service could not have been taken up inContempt proceedings, when such issue had attained finality inthe High Court. The High Court was not justified in passing ordersfrom time to time to secure presence of the officers. The officersof the State discharge public functions and duties. The ordersare generally presumed to be passed in good faith unless provedotherwise. The officers pass orders as a custodian of public money.Therefore, merely because an order has been passed, it doesnot warrant their personal presence. The summoning of officersto the court to attend proceedings, impinges upon the functioningof the officers and eventually it is the public at large who sufferon account of their absence from the duties assigned to them.The practice of summoning officers to court is not proper anddoes not serve the purpose of administration of justice in view ofthe separation of powers of the Executive and the Judiciary. If anorder is not legal, the Courts have ample jurisdiction to set asidesuch order and to issue such directions as may be warranted inthe facts of the case. Entire proceedings in Contempt ApplicationNo.1632 of 2009 were wholly unjustified and in excess ofjurisdiction vested with the Contempt Court. The ContemptApplication is dismissed. [Paras 21-23][630-A-E]

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AState of U.P. and Others v. Putti Lal (1998) 1 UPLBEC313 ; State of U.P and Others. v. Putti Lal (2006) 9SCC 337 ; Deputy Director, Social Forestry Divisionand Another v. Lakshmi Chandra (2016) 4 SCC 721 ;State of U.P. and Others v. Chhiddi and Others 2016(1) ALJ 226 ; Chanchal Kumar Tiwari and Others v.BShri Hari Shankar (2011) ILLJ 581 All ; SurendraSingh and Another v. State of U.P. and Others Judgmentdated 24.9.2015 of Allahabad High Court in SpecialAppeal No. 1016 of 2005 ; Visheshwar v. PrincipalSecretary Forest Anubhag-3 and Others Civil Misc.CJudgment dated 29.11.2004 of Allahabad High Courtin Writ Petition No. 47568 of 2002 – referred to.

Case Law Reference

ECIVIL APPELLATE JURISDICTION : Civil Appeal No. 3740of 2019.

From the Judgment and Order dated 16.02.2018 of the High Courtof Judicature at Allahabad in Civil Misc. Recall Application No. 10605of 2018 in Special Appeal No. 261 of 2016.

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Ms. Aishwarya Bhati, Sr. Adv., Rajeev Dubey, Ms. Vaidruti Mishra,Kamlendra Mishra, Mrs. Rachna Gupta, Advs. for the Appellants.

Pankaj Srivastava (for Prashant Bhushan), Adv. for theRespondent.

GThe Judgment of the Court was delivered by HEMANT GUPTA, J. 1. Leave granted.

2. The challenge in the present appeal is to an order dated16.02.2018 whereby an application for recall of the order dated 06.12.2017dismissing the Review Application in default was dismissed.

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3. The case has a chequered history. The respondent initially fileda Civil Misc. Writ Petition No. 36896 of 1992. The said Writ Petitionwas disposed of in terms of the judgment of the Division Bench ofAllahabad High Court reported as State of U.P. and Others vs. PuttiLal[1]. The said judgment has been affirmed by this Court in State ofU.P and Others. vs. Putti Lal[2]decided on 21.02.2002. This Courtheld that the daily wagers are entitled to minimum pay scale as is beingreceived by their counter-parts in the Government and would not beentitled to any other allowances or increment so long as they continue asdaily wagers. It was further ordered that since statutory Rules, namely,the Uttar Pradesh Regularisation of Daily Wages Appointments on Group‘D’ Posts Rules, 2001[3] have been framed, therefore, question of framingany further scheme by the State does not arise.

4. The respondent again filed Civil Misc. Writ Petition No. 43443of 2004 after the said order was passed by this Court. The said WritPetition was disposed of on 23.10.2008 with the following directions:

“Rule 4 of the Uttar Pradesh Regularisation of Daily WagesAppointments on Group ‘D’ Posts Rules, 2001 has been interpretedby this Hon’ble Court in the case of Visheshwar Vs. PrincipalSecretary, Forest Anubbhag-3 and this Court in the said case hasheld that in case the employee is working on the cut off date andis continuing as such on daily wage post on the date of proclamationof the notification of the aforesaid Rules, he is entitled forregularisation, inspite of the fact that the employee workedintermittently. In the instant case, the petitioner, as stated by thecounsel for the petitioner, has been engaged in the year 1983,though has worked intermittently, but regularly till 2001 and assuch he is entitled consideration for regularisation of his Service,in view of the provision of Rule 4 of the aforesaid Rules asinterpreted by this Court in the Case of Visheshwar Vs. PrincipalSecretary, Forest (Supra). In view of above, without going intothe merits of the case the Opp. Parties are directed to considerthe case of the petitioner in accordance with the provision of theUttar Pradesh Regularisation of Daily Wages Appointments onGroup ‘D’ Posts Rules, 2001 for regularisation of his Services 1(1998)1UPLBEC 313

2(2006) 9 SCC 337

3Rules 2001

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622SUPREME COURT REPORTS

Aand with regard to the payment of minimum of the regular payscale in accordance with law as well as the law laid down by theApex Court and by this Court expeditiously, preferably within threemonths from the date of presentation of a certified copy of thisorder.”

B5. In terms of such order, the Divisional Director, Social ForestryDivision Agra, passed an order on 19.11.2008 that the respondent is noteligible for regularisation/equal pay. The relevant extract of the orderreads as under:

“Because, the aforesaid daily wager was not found workingCcontinuously. Therefore, Sri Lakshmi Chandra does not come underthe category of eligibility for regularisation/equal pay. There is aclear cut direction in S.L.P No. 3393/1999, SLP No. 91/03,01/95(Secretary of State of Karnataka & Others Vs. Uma Devi)of Hon’ble Supreme Court, order dated 10.04.2005 that thosepersons whose appointment has been made without any selectionDprocedure, cannot be eligible for regularisation against permanentpost.

Therefore, after due consideration the undersigned has decidedthat Sri Lakshmi Chandra S/o Sri Pati Ram is not found eligiblefor regularisation/equal pay and the benefits of U.P. Daily WagerEAppointment Rules 2001 Group-D cannot be accrued to him.Therefore, his representation dated 06.11.2008 is hereby disposedoff.”

6. The respondent instead of challenging the above order decliningthe claim for regularisation and/or minimum of pay scale filed a ContemptFApplication (C) No. 1632 of 2009. In such Contempt Petition, a noticewas issued to the present appellants when the following order was passedon 08.05.2009:

“It is alleged that the order dated 23.10.2008 passed by this Courthas been violated. From perusal of the petition, a prima facie caseGis made out.

Issue notices to the opposite parties within a week returnablewithin six weeks. The opposite parties need not appear in personat this stage.

The counter affidavit may be filed within the aforesaid periodsof else charges may be framed after summoning the notice.

However, one more opportunity is granted to the opposite partiesto comply with the order within a month, with the notices fixing adate after six weeks.”

7. It is thereafter, on 29.06.2009 an order was passed by theappellants that Rs. 2550/- as minimum of pay scale of Rs.2550 – 3200/- has been sanctioned to the respondent. Thereafter, an order on31.08.2009 was passed by the Court as to why the respondent is beingpaid minimum monthly wages at the rate of Rs. 2550/- though, minimumpay scale of Group ‘D’ employees has been fixed to Rs. 6050/-.Thereafter numerous orders were passed from time to time seekingpersonal presence of the officers of the State. An order was passed on03.12.2009, directing the Principal Chief Conservator of Forests, U.P. toensure that accurate eligibility and seniority list be drawn up in all thedivisions and be finalised after hearing the incumbents. The said orderreads as under:

“ Heard learned counsel for the parties.

The Principal Chief Conservator of Forests, U.P. and PrincipalSecretary (Forest) are present in person.

The Forest Department of the State use to employee daily wagersfor execution of its work in various schemes and projects andthey continue for decades together. The issue of their regularisationwas decided by this Court and affirmed by the Supreme Courtwhich directed the State to frame a scheme for regularisation ofsuch daily wagers. In pursuance thereof, the Government enactedU.P. Regularisation of Daily Wages Appointments on Group ‘D’Posts Rules, 2001. Under the Rules the Authorities were directedto draw an eligibility and seniority list for the purposes ofregularisation and the selection committee was to take decisionon its basis.

Issue of break in service was also considered by this Court invarious writ petitions and it was held that if the incumbent hasbeen working from the cut of date till the invoking of the Rules of2001, though with breaks, he should be considered in accordancewith the directions given. Large number of writ petitions had beenfiled and allowed on the basis of the aforesaid Rules and the A

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judgments. However, the Court has been flooded with contemptapplications alleging non-compliance in letter and spirit. In variouscases this Court has come across where either compliance hasbeen refused on imaginary ground or on the basis of fake seniorityand eligibility list and even if compliance was made, citing paucityof posts, the employee was given only the minimum scale.

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This petition has been heard at length and on pointed queries theofficers present admit that seniority and eligibility list has not beenprepared in various divisions. It has also been brought on recordthat persons who had never worked in the department have alsobeen appointed and regularized:

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The Principal Chief Conservator of Forests, U.P. shall ensurethat accurate eligibility and seniority list is drawn up in all thedivisions and be finalized after hearing the incumbents and Courtbe duly informed on the next date. Reply of rejoinder affidavit bealso filed.

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List for further orders on 25.2.2010.”

8. The said order was challenged by the appellants in SpecialAppeal No. 215 of 2010 in the High Court of Judicature at Allahabad.The Special Appeal No. 215/2010 was dismissed. The orders passed byEthe High Court became subject matter of challenge before this Court.This Court in a judgment reported as Deputy Director, Social ForestryDivision and Another vs. Lakshmi Chandra[4] directed the PrincipalSecretary to the Department of Forests, U.P. and Principal ChiefConservator of Forests to file separate affidavits before the High Courton the implementation of the orders to ensure that the wages are paid toFthe workmen in terms of orders passed within three months. This Courtalso requested the High Court to take into consideration all the subsequentdevelopments to reach a logical conclusion in terms of the orders passedby this Court. The parties were directed to appear before the High Courton 17.02.2016.

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9. The Contempt Application (C) No. 1632 of 2009 was againtaken up for hearing by the High Court on 30.3.2016. It was orderedthat it is no longer open to the Department to take plea that all the dailywage employees, whether they have been considered for regularizationor not, are not entitled to the minimum of the pay scale. The plea of the H4(2016) 4 SCC 721

Department on the strength of Division Bench judgment in State ofU.P. and Others vs. Chhiddi and Others[5] may not be available inview of the order of this Court.

10. The said order was challenged by the appellants before theDivision Bench in Special Appeal No. 261 of 2016 – N.K. Janu andOthers vs. Lakshmi Chandra. The Court observed that the order inChhiddi’s case (supra) is contrary to another Division Bench judgmentin Chanchal Kumar Tiwari and Others vs. Shri Hari Shankar[6]andthat there is no occasion for the Court to intervene in the matter now onthe strength of order in Chhiddi’s case (supra) in view of the order ofthe Supreme Court in Lakshmi Chandra’s case (supra). It wasobserved that it is open to the State to approach this Court to seekclarification. The Court observed as under:

“The Order passed by Apex Court dated 02.02.2016, in effectclearly reflects for ensuring enforcement of orders passed onearlier occasion, in view of this in our considered opinion it is truethat there is a Division Bench judgement in the case of State ofU.P. Vs. Chhiddi and others, Special Appeal No. 1530 of 2007that takes altogether contrary view to the judgment in the case ofSpecial Appeal No. 1205 of 2010, Chanchal Kumar Tiwari Vs.State of U.P. In normal course of business, in case there are twojudgments on the same subject matter holding altogether contrarydirections, the matter would have been referred to Full Bench forreconciliation of the situation but here fact of the matter is thatmatter is emanating out of an order passed by Apex Court dated02.02.2016.

In view of this in the facts of the case once reliance has beenplaced by the State on the orders passed by Division Bench ofthis Court in Special Appeal No. 1530 of 2007 to which it hasbeen informed by Sri Pankaj Srivastava, Advocate that reviewapplication has already been filed. Once the order passed bylearned Single Judge is in tune with the order passed by ApexCourt, in Civil Appeal No. 879-883, then there is no occasion forus to intervene with the said order, and it is always open to theState and its agencies to approach Apex Court alongwithclarificatory application in the light of the judgment passed by 52016 (1) ALJ 226 (Special Appeal No. 1530 of 2007 decided on 24.09.2015)

6(2011) ILLJ 581 All

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ADivision Bench on subsequent occasion in Special Appeal No.1530 of 2007 so that situation may be reconciled.”

11. In terms of the liberty granted, the State filed IA 29-33 of2016 in Lakshmi Chandra’s case (supra). The said applications werewithdrawn on 25.07.2016. It is thereafter, the appellants filed SpecialBLeave to Appeal (C) No……. /2016 CC No. 25207 of 2016. The SpecialLeave to Appeal was dismissed as withdrawn with liberty to approachthe High Court by filing Review Petition. The order reads as under:

“After some arguments, Mr. Harin P. Raval, learned SeniorCounsel appearing for the petitioners, seeks permission to withdrawthis petition with liberty to approach the High Court by way offiling review petition to establish that the respondent was notcontinuously employed from 1992 to 2001.

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Permission, as sought for, is granted.

Accordingly, the special leave petition is dismissed as withdrawnDwith the aforesaid liberty.”

12. It is thereafter, appellants filed a Review Petition No. 313796of 2017 in the High Court of Judicature at Allahabad against the orderdated 07.04.2016 passed in Special Appeal No. 261 of 2016. The ReviewPetition along with an application for condonation of delay in filing of theEReview Petition was dismissed by the Allahabad High Court for want ofprosecution on 06.12.2017. It is the said application for recall of orderdated 06.12.2017 which remained unsuccessful which is the subjectmatter of the challenge in the present appeal.

13. Learned Senior Counsel for the appellants argued that theFrespondent has been paid minimum of pay scale and that he attained theage of superannuation on 31.7.2018 and stands retired. It is contendedthat the direction of this Court is in two parts- (i) to pay minimum of payscale to all daily wagers as per the direction of this Court in Putti Lal’scase (supra) and (ii) to consider regularization of the workers in termsof statutory Rules framed. Since the minimum of pay scale stands paidGto the respondent, the dispute in such respect does not survive.

14. However, in respect of regularization of the services, it isargued that there is no evidence that the respondent has worked on dailywages from the year 1994 to 2000 i.e. for approximately seven years.

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Thereafter, he has worked intermittently from 2001 to 2003 as a dailywager and that there is no record available that the respondent workedfrom December 2003. Therefore, his claim for regularization was notaccepted when an order was passed on 19.11.2008.

15. Once an order has been passed by the Department, it wasopen to the respondent to challenge the said order by way of a WritPetition, but the Contempt Jurisdiction could not be invoked. TheContempt Court is to ensure that the order of the Court is complied with.The order of the Court on 23.10.2008 was to consider the case of therespondent for regularization of his services and for payment of minimumregular pay scale.

16. Since the appellants have considered the claim of regularizationand/or payment of minimum of pay scale, the only remedy of therespondent was by way of the Writ Petition. The High Court has exceededthe Contempt Jurisdiction to compel the officers of the State to appearin court and in fact, the High Court travelled much beyond the orderspassed by the Single Bench on 23.10.2008.

17. It is contended by the learned Senior Counsel for the appellantsthat the question of regularization has been considered by the DivisionBench of the High Court in a judgment in Chhiddi’s case (supra)wherein, issue of minimum of pay scale as well as artificial break inservice was examined in the matter of regularization of the services interms of the Rules framed. In respect of break in service the Court heldas under:

“Thus, for all the reasons stated above, the directions issued bythe learned Judge on 17 October 2005 to the State Government,while partly allowing the writ petitions, to reconsider the cases ofthe writ petitioners for regularisation of their services by ignoringthe minimum educational qualifications or the physical endurancerequirement prescribed in the service rules with a further directionthat until then all the petitioners who were still working should beallowed to continue on a daily wage basis and be paid the minimumof the pay-scale, cannot be sustained and are, accordingly, setaside. The State Government shall consider the cases of the dailywagers in the light of the observations made above and by ignoringthe artificial breaks in their engagement as daily wagers.”

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18. Still further, Allahabad High Court in a judgment reported asSurendra Singh and Another vs. State of U.P. and Others[7] heldthat period of two years cannot be treated as an artificial break whichcan be overlooked for the purpose of claim of regularization. The Courtheld as under:

B“The learned Judge found that in the chart giving details of theengagement of the writ petitioners as daily wagers, the columnrelating to working in the year 2001-02 was left blank and againstthe year 2013, it was mentioned that both the writ petitioners wereworking from February 2003 and July 2003 respectively. Thelearned Judge also recorded a finding that the writ petitioners hadCfailed to discharge the burden of establishing that they were workingon daily wages in the Forest Department during the relevant periodand the contention of the writ petitioners that they had beenworking without payment of any wages was also not acceptedfor the reason that it was difficult to believe that the writ petitionersDwould be actually working for two years without payment ofwages.

Learned counsel for the appellants has submitted that even ifthe writ petitioners had not worked for some period, then too thebreak should be treated as artificial break and should have beenEoverlooked for the purpose of considering their claim forregularisation.

In the present case, the writ petitioners had not worked on dailywage basis for a long period of two years. This break cannot betreated to be an artificial break in the service. The writ petitionersFdid not satisfy the essential requirements contained in the 2001Rules. They were, therefore, not entitled for regularisation underthe 2001 Rules.”

19. The learned Single Bench of Allahabad High Court passed anorder reported as Visheshwar vs. Principal Secretary ForestGAnubhag-3 and Others[8], wherein, it was held that artificial break inthe case of regularization has to be ignored. The Court held as under:

“In all these cases, I find that the consideration for regularisationwas denied by the Selection Committee on the ground of short H

7Special Appeal No. 1016 of 2005 decided on 24.9.2015

8Civil Misc. Writ Petition No. 47568 of 2002 decided on 29.11.2004

breaks in service. According to the stand taken in the counteraffidavit, a policy was adopted at the Divisional Level to excludeall those persons, who had not contemplated 240 days of work inone calendar year. This consideration in my opinion was whollyarbitrary as we are not dealing with the question of retrenchmentunder the Industrial Disputes Act, 1947. On the contrary I findthat in Allahabad Division the Conservator of Forest/RegionalDirector, Social Forestry, U.P. Allahabad in the matter of similarlysituate persons for regularisation ignored this policy and directedthat in interpreting the word ‘continuing in service’, any short beakmay be ignored with the condition that the person has beenemployed subsequent on daily wages. Sri M.C. Chaturvedi,Additional chief Standing Counsel submits that this order wasimmediately recalled. Sri Pankaj Srivastava submits that even alienrecalling of the order, the regularisation obtained with interpretationgiven in the order were not cancelled. Be that as it may, since Iam the holding that an artificial break in case of regularisation hasto be ignored I need not to decide this question.”

20. The said order was also a subject-matter of challenge inSpecial Appeal No. 305 of 2015. The Court allowed the appeal in respectof payment of minimum pay scale but upheld the finding in respect ofbreak in service. The relevant extract from the order reads as under:

“The writ petitioner had contended that there was no justificationfor excluding his case for regularisation under the Rules only forthe reason that there were some breaks in service while workingas daily wagers. The learned Judge held that artificial breaks haveto be ignored and, therefore, directed the respondents to considerthe case of the writ petitioner for regularisation afresh. It wasfurther directed that in case the petitioner was still in employment,he should be continued and should be paid the minimum of thepay scale till his case was considered as had been directed by theSupreme Court in State of U.P & Ors. Vs. Putti Lal.

Learned Additional Advocate General for the appellants hasstated that the appellants are not aggrieved by the direction issuedfor ignoring the artificial breaks in the service but the direction bythe learned Judge to pay the minimum of the pay scale to the writpetitioner should be set aside.”

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A21. Thus, we find that the grievance regarding regularization ofthe service on account of a break in service could not have been takenup in Contempt proceedings, when such issue has attained finality in theHigh Court.

22. Having said so, we find that the High Court was not justifiedBin passing orders from time to time to secure presence of the officers.The officers of the State discharge public functions and duties. Theorders are generally presumed to be passed in good faith unless provedotherwise. The officers pass orders as a custodian of public money.Therefore, merely because an order has been passed, it does not warranttheir personal presence. The summoning of officers to the court to attendCproceedings, impinges upon the functioning of the officers and eventuallyit is the public at large who suffer on account of their absence from theduties assigned to them. The practice of summoning officers to court isnot proper and does not serve the purpose of administration of justice inview of the separation of powers of the Executive and the Judiciary. IfDan order is not legal, the Courts have ample jurisdiction to set aside suchorder and to issue such directions as may be warranted in the facts ofthe case.