IN THE HIGH COURT OF JHARKHAND AT RANCHI
Contempt Case(Civil) No. 92 of 2008
Sushil Kumar Gupta ... ... ... ... Applicant/Petitioner
Versus
The State of Jharkhand & Ors. ... ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SUSHIL HARKAULI
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For the Petitioner: Mr. S.S. Prasad
Mr. Pankaj Kr. Mishra
For the Opposite Parties: Mr. J.C. to G.P.I
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2/3.7.2009
This application alleged civil contempt by disobedience of
the order of this Court dated 28-11-2007 passed in W.P.S. No.
3439 of 2007. By that order this Court had directed the Deputy
Commissioner-cum-Chairman, Sarwa Shiksha Abhiyan, Palamau to
decide the claim contained in the representation to be filed by the
petitioner within eight weeks of the filing of the representation.
The response filed by the respondents encloses a copy of
the decision dated 3-3-2008 taken pursuant to this Court’s order
dated 28-11-2007. It is a reasoned decision rejecting the
petitioner’s claim. The petitioner claims this to be an attempt to
circumvent this Court’s order, and in the alternative to be a biased
decision by way of a vindictive response by the respondent.
I have heard both sides.
For appreciating the petitioner’s contention, the original
issue between the parties needs to be examined, which is briefly
stated below.
Under the Sarwa Shiksha Abhiyan (education for all
programme) certain teachers of the primary level are appointed on
contractual basis. These are known as para teachers. Given the
backdrop that these are short term contractual appointments, it has
been provided that the selection for such appointment is to be
made at a general meeting (aam sabha) of the village, which
means that it is some kind of an election. The two embargos are
that (1) the candidate should have passed class 10 at least, and (2)
the person selected /elected should be a resident of the same
village/tola; and only if an eligible/qualified person of the same
village/tola is not available, then a resident of adjoining village/ tola
may be selected. Residence in the same village/tola can be
expected to ensure personal knowledge on part of the teacher
about the students, their families, their circumstances etc., which
2.
may be an important aid in dealing with the students at that
primary level.
The rest of the conditions prescribed are only guidelines and
not mandatory if the selection is by the general meeting. These
other guidelines would become relevant only in the selection is by
the education committee. The reason is that while the committee
cannot act arbitrarily, but the policy of selection by general meeting
has been provided on the supposition that the residents of the
village are in the best position to democratically look after their
own interest by deciding who is the best person to teach their own
children having regard to the candidate’s character, ability and
other antecedents. The candidates being from the same small local
area, it can be safely assumed that the villagers would be fully
aware about the candidates. It is more than obvious that (1) such
guidelines are not capable of enforcement when selection is by
election, and (2) if selection has to be a mere ministerial exercise
by appointing the person having highest qualification or highest
marks according to the guidelines, then the general meeting will
become purposeless.
The above view is also reinforced by the fact that the
committee has been given limited grounds for interfering with the
general body decision e.g. Where the general meeting is unable to
select or selects a candidate not eligible.
The petitioner had moved this Court by W.P.S. No. 3439 of
2007 on the ground that he had secured higher marks in the
intermediate examination as compared to the selected candidate. It
was not disputed that both the petitioner as well as the selected
candidate were eligible for the appointment.
As stated above these higher marks may have been a
relevant consideration if the selection was being made by the
committee, but not when the selection/election is by the general
meeting.
Moreover according to the decision dated 3/3/08 the
candidate selected at the general meeting was a resident of the
same Tola where the school is located, while the petitioner was a
resident of the western Tola of the village Rabda. The
selection/election has been justified in the decision dated 3/3/08 on
the ground of proximity of residence. Higher marks in intermediate
3.
examination was not a ground on which the general meeting
decision could be interfered with.
Civil contempt, which means “willful” disobedience of an
order of the Court, arises either upon a clear non-compliance with
the Court’s order ie. if no decision has been taken as directed by
the Court. It may also include cases where the purported
compliance is a mere eye wash. However, where the Court’s order
has been complied with by taking a decision which may not be
strictly justifiable in law, it may give rise to a cause of action for
challenging that legally unsustainable order but it will not give rise
to a cause of action for civil contempt. If, however, the order so
passed by the authority in purported compliance of the court’s
direction shows that (1) it is a mere eye wash and no genuine
attempt by the authority to take a decision, or (2) an attempt to
circumvent to this court’s direction by a mere sham exercise, it may
still amounts to civil contempt subject of course to other
circumstances. The above cases are illustrative and not necessarily
exhaustive.
In this case, far from the order dated 3.3.2008 passed by
the Opposite Party no.3 being of a kind as to be called an eye
wash, it is legally correct.
In the circumstances, it cannot be said to be a case of civil
contempt by way of willful disobedience of the direction of this
Court.
This contempt petition is accordingly dismissed.
(Sushil Harkauli, J.)
Sudhir/FA