Chief Justice's Court Case :- SPECIAL APPEAL DEFECTIVE No. - 71 of 2010 Petitioner :- Yogendra Kumar Saroha Respondent :- Girwar Singh Dist. Basic Edu. Officer And Others Petitioner Counsel :- Shailendra Respondent Counsel :- S.K.S. Kushwaha,H.N. Pandey,K.S. Kushwaha Hon'ble Chandramauli Kumar Prasad,Chief Justice Hon'ble Arun Tandon,J.
Order on Civil Misc. Delay Condonation Application No.15157
of 2010
This application has been filed for condoning the delay in filing
the appeal.
According to the Stamp Reporter, appeal is barred by limitation by
37 days.
Various reasons, which prevented the applicant/appellant from
filing the appeal within time have been enumerated in the affidavit
filed in support of the delay condonation application.
We are of the opinion that the same constitute sufficient cause for
condoning the delay in filing the appeal.
Accordingly, the delay in filing the appeal is condoned.
Application stands allowed.
Order on Special Appeal.
This appeal is directed against an order dated 11.11.2009 passed
by learned Single Judge in Civil Misc. Contempt Petition No.2483
of 2009, whereby he has dismissed the contempt petition.
Short facts giving rise to the present appeal are that the appellant
earlier filed a Civil Misc. Writ Petition No.45568 of 2002 being
aggrieved by the stoppage of his salary. The learned Single Judge
dismissed the writ application. Thereafter, appellant preferred
Special Appeal No.1699 of 2007 before this Court and by order
dated15th of January, 2008 said appeal was disposed of, and the
order of the learned Single Judge was modified to the extent that
the appellant will continue till the regular selection is made and
shall be paid his salary. Complaining disobedience of the said
order, appellant filed the contempt petition, which has been
dismissed by the impugned order.
While dismissing the contempt petition, the learned Single Judge
has observed as follows :
“It is apparent that the opposite parties are not contemplating
regular selections inasmuch as no sanctioned post is available for
regular selection. It has been demonstrated that in the institution
11 posts have been sanctioned including one of Headmaster and
10 Assistant Teacher which is disclosed in paragraphs no.11, 12
and 13 of the counter affidavit. Similar is the stand of the
management of the institution.
Thus, if there is no pending regular selection, the applicant has no
right to work against a non existing post and accordingly the
modification granted by the Division Bench is incapable of
compliance. It has been held in the case of Santosh Kumar
Srivastava Vs. M.D. Rajkiya Nirman Nigam [2001 (42) ALR
467] that where a post was not available, non compliance of an
absorption order cannot be said to be wilful default.”
Mr. Shailendra, learned counsel appearing on behalf of the
appellant submits that the finding recorded by the learned Single
Judge that no sanctioned post is available for regular selection is
erroneous. He further submits that appellant is entitled for payment
of salary at least from the Committee of Management.
The Committee of Management has not been impleaded as a party
and in its absence we are not inclined to go into this question in the
present appeal.
We are of the opinion that the aforesaid observations made by
learned Single Judge while dismissing the contempt petition shall
not to be construed as a concluded finding and the said finding
shall not preclude the authority to proceed with regular selection in
accordance with law in case any post exists.
Contempt is a matter between the Court and the Contemnor and
when this Court on the facts of a given case has declined to
intervene, no interference is called for in the present appeal.
We dismiss the appeal with the observation aforesaid.
Order Date :- 28.1.2010
VMA
(Arun Tandon, J.) (C.K. Prasad, C.J.)