Cont. Cas(C)/1/2006 of Hari Maya Chettri Vs State of Sikkim and ors. on 21 November 2006

JUDGMENT

A.P. Subba. J.

This application has been filed by Smt. Hari MayaChettri, a muster roll employee under Animal Husbandry &Veterinary Services Department, Government of Sikkim,under Sections 2(b),11 and 12 of the Contempt of CourtsAct,1971 read with Article 215 of the Constitution of Indiaagainst the Respondents for alleged violation of Order dated23.8.2005 passed by the Division Bench of this Court in WrilPetition (C) No. 34 of 2005.

2. It has been alleged that the Respondents weredirected vide, Order dated 23.8.2005 passed by a DivisionBench oE +h.is Cour+ .in Writ Petition (C) No. 34 of 2005 +oconsider the case of the Petitioner for regularization of herservice preferably within a period of six months from the dateof the Order and to communicate the result of the same to the Writ Petitioner. It is alleged that despite this Order theRespondents have not considered the case of the Petitionerfor regularization so far. The only communication receivedby the Petitioner, is the letter bearing No. 543/AH. LF & VSdated 30.1.2006 (Annexure 2), by which the Respondentshave only informed the Petitioner that any regularization ofmuster roll Peons and LDCs., are considered on the basis ofseniority in the Department and on fulfillment of the requirededucational and other qualifications in regular vacancies.Except this letter, it is further stated that no othercommunication has been received by the Petitioner as ondate.

Since a prima facie case for initiation of contemptproceedings against the Respondents. was found to havebeen made out on perusal of the documents on record, andon hearing the Petitioner, show cause notices were issued tothe Respondents for filing show cauf,e. All the Respondentsfiled a joint show cause denying the allegations that the\/have not considered the case of the Petitioner in terms of theDivision B€mch Order in question. It was contended that onreceipt of the Order, the case of regularization of the

Petitioner was processed for consideration of theGovernment. Since the Petitioner's seniority position wasfound at Sl. No. 53, the file was forwarded to the Departmentof Personnel Administrative Reforms & Training forconsideration and advice. The file was received back fromthe Department of Personnel, Administrative Reforms &Training with the remark that regularization of muster rollworkers are to be considered on the basis of seniority in theDepartment and on fulfillment of required educational andother qualification in regular vacancies. It was pursuant tosuch remarks of the Department of Personnel, AdministrativeReforms & Training, that the Petitioner was informed of thesaid position vide letter bearing No.543/AH.LF&VS dated30.1 .2006.

Further, it was brought to the notice of this Courtthat the matter regarding regularization of service of thePetitioner was once again put up to the Government forregularization after the receipt of the show cause notice inthe present contempt case. This proposal, according to theRespondents was mooted on the basis of the fact that thePetitioner was senior most in the category of Peon/Chowkidar against which she could be regularized.Thus considering her position and seniority in the grade ofPeon/Chowkidar and in view of the direction of this Courtpassed in the Writ Petition (C) No. 34 of 2005, the proposal forregularization was got approved by the Respondents on23.5.2006. However, before the Office Order could be issuedin the matter, the Judgment passed by the Hon'ble SupremeCourt on 10.4.2006 in the matter of Secretciry, Sfafe ofKarnataka & Ors -vs- uma Devi & Others reported in (2006) 4SCC J was received by the Department, and in view of thelaw laid down by the Constitution Bench touching upon thecase of the Petitioner, the issuance of appointment order inrespect of the Petitioner had to be kept in abeyance. It .isstated that the Department is presently seeking legal opinionon whether the order of appointment in respect of thePetitioner can be issued in the face of the aforesaidjudgment of the Constitution Bench. Accordingly, it wascontended that the Department had duly carried out thedirections of this Court contained in Order dated 23.8.2005passed in Writ Petition (C) No. 34 of 2005.

5. In support of the contention that the case of thePetitioner was taken up for consideration immediately onreceipt of the Order in question, the Respondents producedthe Department file for perusal of the Court. A perusal thesaid file shows that the matter regarding regularization of thePetitioner in terms of the Order passed by the Division Benchof this Court was initiated by the Under Secretary(Administration), Animal Husbandry & Veterinary ServiceDepartment (Contemnor/Respondent No.3) vide notingdated 29.11.2005. In this note it has been indicated that asper the seniority list maintained in the Department, thePetitioner who had joined the Department on 1.6.1984 onMuster Roll basis stands at Sl. No. 53. In view of this positionand since the subject matter was in relation to serviceconditions, personal file of the petitioner was forwarded tothe Department of Personnel, Administrative Reforms &Training seeking advice. The Department of Personnel,Administrative Reforms & Training on the basis of OfficeMemorandum No. 319/GEN/DOP dated 17.3.1998 opinedthat regularization of muster roll Peons and LDCs., are to beconsidered on the basis of seniority in the Depart ment and on fulfillment of required educational and other qualificationsin regular vacancies. It was on the basis of this opinion thatthe above letter bearing NO.543/AH LF&VS dated 30.1.2006was addressed to the Petitioner.

6. That the Respondents processed the file regardingregularization of the Petitioner within the time frame of sixmonths is thus borne out by the above notings on the file.Even the letter dated 30.1.2006, the receipt of which is notdenied by the Petitioner, was issued to the Petitioner beforethe expiry of six months. The only grievance made by thePetitioner is that this letter dated 30.1.2006 is not the result ofany consideration of the Petitioner's case for regularization ofher service. In order to ascertain whether this contention ofthe Petitioner is well founded, it would be necessary toglance through the contents of the letter dated 30.1.2006.Relevant extract of the said letter is as follows: - "Subject: WRIT PETITION fcI No. 34 Of 2005

As per directives conveyed by theDepclrtmenl Of personnel, Administrative Reforms,Training, Public grievances, Career Options andEmployment Skill Development and ChiefMinister's Self Employment Scheme vide OfficeMemorandum No. 10020/GEN/DOP dated3.3.1?97, any regularization Of Muster Roll Peons clnd L.D.Cs are considered on the basis Of Seniorityin the Department and on I:u[fillment of the requiredEducational and other qualification in regularvacancies."

A bare reading of the above letter makes it clearthat what was conveyed to the Petitioner was that, anyregularization of Muster Roll Peons and L.D.Cs are consideredon the basis of seniority in the Department and on fulfillmentof the required educational and other qualificationprescribed for regular vacancies. The letter is thusindisputably silent on whether the matter was taken up forconsideration. Therefore, even though the letter mentionsabout the conditions to be fulfilled for regularization of MusterRoll Peons and LDCs., it does not spell out in any specificterms whether the case of the Petitioner was taken up forconsideration in terms of the orders passed by this Court. Itmay, therefore, be conceded that on a mere reading of theletter addressed to the Petitioner by the Respondents, itwould be difficult to c_o_ng_e___tg get any idea that theDepartment had considered the case of the Petitioner forregularization and letter in question was the result of suchconsideration. To this extent, the contention raised by thePetitioner seems to be well founded. It is also very fairly conceded on behalf of the Respondents that the letter wasnot happily worded so as to convey the factual position.However, the factual position has now beenclarified by contending in the show cause that the case ofthe Petitioner was considered and by producing relevant filein support thereof. Therefore, when the letter dated30.1.2006 is read along with the noting referred to above, itwould be clear that the Department took up the case of thePetitioner for regularization within time fixed by the DivisionBench of this Court.

8. The question that arises for consideration of thisCourt is whether the Respondents are guilty of any contemptof this Court in the circumstances of the case. In this regard,it may be noted that the facts of the case already narratedabove indisputably go to show that the Petitioner was dulyconsidered for regularization in terms of the order dated23.8.2005 passed by the Division Bench of this Court in theaforementioned case, and since she was not found to havefulfilled the requisite qualification prescribed for the post, shewas not regularized. Note in this regard must also be taken ofthe nature of the order the violation of which is alleged. It is

not disputed that there was no mandate to offer regular(appointment to the Petitioner. The order which is alleged tohave been violated is only a direction to the Respondents toconsider the case of the Petitioner for regularization within aspecific time frame and, as already noted above, the actiontaken by the Respondents pursuant to the order in questionamounts to substantial compliance with the direction inquestion. In a similar case, namely, Choru Ram vs. Urvash;Gu/ofi. a Another reported in (200J) 7 SCC 530, where theRespondents were directed to consider the case of thePetitioner for promotion by treating him to be qualified on acut off date, but where the Respondents could not offerpromotion since the Petitioner was not found to havequalified for the said post on the cut off date, the Apex Courtheld that denial of promotion by the Respondents would notamount to contempt of Court in such cases. While makingthe observation, note was particularly taken of the fact thatthe order in question was only for consideration and not amandate issued to offer promotion to the Petitioner. Inaddition to the above, the Apex Court in Director of Edn.utlaranchal vs. Ved Prakash Joshi (2005) 6 SCC 98, whiich .is a later decision, has laid down the parameters of a Courtexercising contempt jurisdiction. It has been observed thatwhile dealing with an application for contempt, the Courtcannot traverse beyond the order non-compliance withwhich is alleged.

?. The facts in the present case being identical, theabove observation of the Apex Court squarely apply to it.Thus, when the matter is considered in the light of the aboveprinciple of law and the parameters laid down by the ApexCourt, conclusion is irresistible that the Respondents in thepresent case have not rendered themselves liable forcontempt of this Court in the case. Accordingly, I am of theview that the contempt petition is devoid of merit.

In the result, the petition stands dismissed.

( A. P. Subba )Juedg±21 . 1 1 .20_06