JUDGMENT
O.P. Sharma, J.
1. The contempt Jurisdiction of this court has been invoked by the petitioners who had earlier challenged the selection of teachers made in the year 1989 in District Rajouri in SWP Nos. 1043/1989 and 1041/’89 titled Mohd Bashir and Ors. v. State and Ors.and Ravi Chand and Ors.v. State and Ors. respectively. These petitions were decided by a learned Single Judge of this court on 20.12.1993, holding as under:
…I, therefore, allow these writ petitions and by issuance of a writ of mandamus direct the respondent State and all its functionaries to re-consider the cases of all the Petitioners in both the petitions for fresh appointment as teachers in Govt Schools, as and when the next lot of vacancies for such appointment is proposed to be filled up. If in the meantime, the petitioners or any one of them has became over-aged, the State shall consider favourably the question of relaxing the age bar in each case because of the fact that the petitions were pending in this court for almost four years now.
So the selection made by the respondents was not disturbed and the petitioners were to be considered for appointment against the vacancies becoming available subsequent to the vacancies for which the interviews were held and selection made. Some of the petitioner, it appears, were not satisfied with the judgment of the learned Single Judge and, therefore, challenged the same in LPA (W) No: 50 of 1994. The Letters Patent Bench, while deciding the appeal, directed as under:
…Therefore considering the equity found in favour of the appellants, we allow this appeal holding that the appellants shall be entitled to be considered for selection as teachers to the posts available as on today without insisting upon the enhanced qualification prescribed for the said posts in January, 1994 and on the basis of eligibility prescribed at the time they applied for selection. This shall be confined, only to the benefit accrued to the writ petitioners/ appellants herein and this shall not be taken as a precedent to any other case….
Thus, the respondents were directed to consider the petitioners on the basis of their eligibility criteria, as prescribed at the time they were interviewed and not selected in 1989.
2. The complaint of the petitioners against the respondents is that although they were interviewed by the Selection Committee in compliance to the direction, but were not selected.
3. In the statement of facts filed on behalf of the respondents, it has been stated that the petitioners were considered in terms of the Judgment of the Division Bench of this court, but despite that they could not make the grade and, therefore, could not be selected.
4. Mr. Malik, learned Counsel appearing for the petitioners, argued that the respondents have failed to produce the record and, therefore, an adverse inference maybe drawn against them as a consequence of which the petitioners are deemed to have been appointed. In support of this, he relies on the interim order of the Division Bench of this court dated 19.12.1997, directing the respondents to produce the record. The said order reads as under:
…With a view to verify the fairness of selection undertaken by respondent No: 2, it is desirable that record of selection of these petitioners as well as those considered with them In the same selection though on the changed criteria be considered by this court. Accordingly respondent-2 is directed to place the record before this court on the next date of hearing….
The Division Bench of tills court directed the case to be listed before a Single Bench.
5. The question involved for consideration is, whether these contempt proceedings can be continued on the admitted factual position that the direction of Letters Patent Bench has been complied?
These admitted facts are that the petitioners were interviewed by the Recruitment Board, as is stated by the petitioners in para No: 6 of the petition. Para 6 of the petition reads as under:
That at the time Interviews were held In 1994-95 the petitioners were also called by the Committee of SSRB for interview during which course their Matriculation certificates with a view to ascertain the facts of their having passed Matriculation before 1988 and their being within the prescribed age limit. The Committee was fully satisfied with regard to both these facts in respect of each of the petitioners and the members had told each of them that he/she was eligible at the time advertisement notice for 1989 selections was issued.
So the petitioners admit that they were considered in terms of the Judgment of the Letters Patent Bench. But their grievance is that they were not appointed which cannot be a ground to initiate contempt proceedings. However, the respondent-Board has made a categorical statement that the petitioners were considered on the basis of eligibility criteria of 1989. This is clear from para 7 of the reply-affidavit, which reads as under:
In reply to para 7, it is submitted that the Selection Committee had duly considered the merit and suitability of the petitioners and the marks were awarded to them as per their Performance in the interview. It is further submitted that the petitioners were considered in accordance with the Previous eligibility i.e. matric. The enhanced academic qualification i.e. 10 plus 2 with 50% marks has not been insisted upon in, the case of the petitioners in compliance to the judgment of the Hon’ble court and they have been considered on the basis of the previous eligibility i.e. Matric and criteria of 75+5+20 (75% weightage for % of marks in matric and one mark each for higher qualification starting from PUC and 20 points for viva-voce) but the petitioners failed to get the writ as such could not be recommended for appointment.
Since the direction was only to consider petitioners, the same stands complied and, therefore, judgment is implemented. What her consideration accorded was good or bad cannot be a ground to Initiate contempt proceedings. Assuming that the consideration was bad, this court will not be in a position to direct petitioners appointment by setting aside the consideration accorded even if it comes to a different conclusion on the basis of the record.
6. A similar question came up before their Lordships of the Supreme court in State of J&K v. Syed Zaffar Mehdi, Civil Appeal No: 1991 of 1997 decided on 07.02.1997, wherein their Lordships, while setting aside the direction given in contempt proceedings, observed as under:
It is true that by the Judgment delivered in writ petition No: 169/94 the court directed that the petitioner should be deemed to be in continuous service with all consequential benefits as admissible under rules. It was further stated, if any action is proposed to be taken on him for alleged over staying on leave, it shall be taken in accordance with the principles of law and of natural justice after making proper inquiry in the matter under the Rules. It is true that this order not having been carried in appeal become final. That, however, does not mean that the respondent when refused promotion can move the contempt application in the same matter and seek the court’s order for granting him promotion. The scope of the Original writ petition was limited and not include matters in regard to future promotion. In the contempt application it was not open to the court to enlarge the scope of the original petition and also direct promotion. It is necessary to impress upon the High court that contempt being a quasi criminal matter care should be taken to see that the scope of the original petition is not enlarged while making orders in contempt matters. The proper course for the respondent, was to challenge the decision of the Govt refusing to grant him promotion and examine the same in accordance with law. We therefore, set aside the impugned order dated 30th November, 1994 as well an the order of the Division Bench dated 11.10.1996 and hold that the contempt Application was, misconceived and not contempt. However, this will not preclude the respondent from questioning the refusal to grant promotion through proper process, if so advised….
However, if the grievance of the petitioners is that the consideration is bad, the same cannot be redressed by initiating contempt proceedings, as laid down by a Letters Patent Bench of this court in Amarpreet Singh v. P.G. Dhar Chakarverty COA (LPA) No: 28 of 1996 decided on 29.08.1996 holding that:
In our view there is a difference between “the consideration accorded wrongly” and the “non-consideration”, in the present case, petitioners believe that they have not been given the effective consideration. It cannot be said that their cases were not considered by the respondent as is indicative from the communication dated 27.4.1996, it may not have been considered in the right perspective or may have been wrongly considered but that is not the matter of which cognizance be taken in the present contempt proceedings. On an over all consideration, we find that in compliance to the Court direction cases of the petitioners had been considered. Whether the consideration is good or bad, is not matter to be take note of in the present contempt proceedings and for which the petitioners can re-agitate the matter in appropriate legal remedy available to them.
Since it is admitted case of the petitioners that they were considered in terms of the judgment of this court out could not be selected on the basis of old criteria, the mandate of the court stands complied and the respondents cannot be said to be in contempt.
On, almost identical facts, a learned Single Bench of this court, in Sunil Razdan and Anr. v. S.P. Kazal and Anr. COA (writ) No: 42 of 1992, decided on 07.07.1995, while dismissing a similar prayer, held that:
…All this, how ever, does mean that the consideration was accorded in terms of the mandate of the court directions. The mandate having been implemented, the respondents cannot be deemed to be in contempt. If the petitioners felt that the consideration was not good, they ought to have taken recourses to filing a separate petition for challenging their exclusion from appointment. Rather than doing that, they have filed the present contempt application.
7. In view of the above no contempt is made out against the respondents. So, this petition is dismissed and the contempt proceedings are dropped. The rule, if any, stands discharged.
