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Patna High CourtMJC/809/2012disposed

Bihar State Non Formal Cum Spe v. The State Of Bihar And ORS

2018-07-23Mr. Justice Rajeev Ranjan Prasad,The Chief Justice28 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Miscellaneous Jurisdiction Case No.809 of 2012 In Civil Writ Jurisdiction Case No.18813 of 2010 ======================================================

1. BIHAR STATE NON FORMAL CUM SPECIAL EDUCATION INSTRUCTOR UNION THROUGH ITS MEMBER - CUM - MEDIA IN - CHARGE, NAMELY ASHOK KUMAR DAS S/O SRI MAKUNDI DAS, STATE MEDIA PRABHARI, BIHAR R/O NAYACHAK, P.O. GOURA CHOUKI, P.S. KAJRAILI, DISTRICT - BHAGALPUR

2. RAM NARESH CHAUDHARY S/O LATE DENI CHOUDHARY R/O VILLAGE + P.O. SHAHDULLAPUR, P.S. GANGA BRIDGE, DISTRICT - VAISHALI

3. SHUBH NARAYN UPADHAYAY S/O LATE GANESH UPADHAYAY R/O VILLAGE - MESUDHA, P.O. PIPRAHI, DISTRICT - PIPRAHI, DISTRICT - SHEOHAR

4. RAJENDRA RAM S/O LATE JAWAHAR RAM R/O AT + P.O. DONE MOTIPURA, P.S. DAROULI, DISTRICT - SIWAN

5. KAUSHAL KUMAR SINGH S/O LATE DUKHA PRASAD SINGH R/O AT + P.O. + P.S. NAUHATTA, DISTRICT - SAHARSA

6. NITYANAND SINGH S/O LATE BHUDEO NARAYAN SINGH R/O AT + P.O. KAKWARA, P.S. BANKA, DISTRICT - BANKA

7. DEOPUJAN PRASAD S/O SRI MOTER SAH R/O AT + P.O. JHAKHARA, P.S. JAGDISHPUR, DISTRICT - WEST CHAMPARAN

8. LAKHINDRA PRASAD YADAV S/O SRI SITA RAM RAY R/O AT - SABLI, P.O. BARACHAKIA, P.S. MADHUVAN, DISTRICT - EAST CHAMPARAN

9. BINOD KUMAR SINGH S/O SRI SURAJ NARAYAN SINGH R/O AT + P.O. BRAIPATTI, P.S. YADAVPUR, DISTRICT - GOPALGANJ

10. RAJENDRA PRASAD SINGH S/O LATE RAMDUTT SINGH R/O AT + P.O. RAMGAR, P.S. AWTARNAGAR, DISTRICT - SARAN 11.SURENDRA MISHRA S/O LATE MAHADEO MISHRA R/O AT - KUSI, P.O. KARMA BHAGWAN, P.S. AURANGABAD, DISTRICT - AURANGABAD

12. KAUSHAL KISHORE ROY S/O LATE SHIVHARAN ROY R/O AT - CHINGITAKIA, P.O. BAJPATTI, DISTRICT - SITAMARHI

13. PANKAJ KUMAR SINGH S/O SRI BAL RAM SINGH R/O AT - NAYA TOLA FULWARI WARD NO. 36, P.S. + DISTRICT - KATIHAR, PRESENTLY SECRETARY, BIHAR STATE NON - FORMAL - CUM - SPECIAL EDUCATION INSTRUCTOR UNION

14. RANJIT SINGH S/O LATE PATI SINGH R/O VILLAGE - GAJADHAR GANJ, P.O. GAJADHAR GANJ, P.S. BUXAR, DISTRICT - BUXAR

15. VEENA VERMA W/O SRI ARUN KUMAR SINHA R/O VILLAGE - JANKI SCHOOL BARI BADALPURA, P.O. + P.S. KHAGAUL, BLOCK - DANAPUR, DISTRICT - PATNA

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16. GOPAL RAI S/O SHRI PARMATMA RAI R/O VILLAGE + P.O. RAJAURA, P.S. BEGUSARAI ( MUFASSIL ) DISTRICT - BEGUSARAI ... ... Petitioners

Versus

1. THE STATE OF BIHAR THROUGH THE COMMISSIONER - CUM - SECRETARY, HUMAN RESOUCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA, NAMELY SRI ANJANI KUMAR SINGH

2. THE COMMISSIONER - CUM - SECRETARY, HUMAN RESOUCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA, NAMELY SRI ANJANI KR. SINGH

3. THE DIRECTOR, MASS EDUCATION, GOVERNMENT OF BIHAR, PATNA , NAMELY SRI VINOD KUMAR ... ... Respondents ====================================================== Appearance :

For the Petitioner/s :

Mr. Y. V. Giri, Sr. Advocate Mr. Pramod Mishra, Advocate Mr. Prafull Chandra Thakur, Advocate For the Respondent/s :

Mr. Lalit Kishore, AG ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 23-07-2018 This contempt application has been listed along with a large number of analogous matters which includes several other contempt applications and writ applications preferred by either the Bihar State Non-Formal-cum-Special Education Instructor Union (hereinafter referred to as the Union) or by the individuals seeking reliefs by way of their absorption on Class III post under the respondent State. Apart from the various contempt applications and writ applications, there is one letters patent appeal bearing

3/28 No. 588 of 2017 arising out of MJC No. 4208 of 2016 listed as analogous matter.

2. After hearing learned Senior counsel(s) representing the various petitioners in all these matters, learned Advocate General for the State and other learned State Counsel, we are of the view that this Division Bench would be considering the present contempt application alone for the present but the Court will be taking into consideration various aspects of the matter. The judicial pronouncement on the subject by this Court as well as the Hon'ble Apex Court shall be dealt with and this Court would take note of the parameters which are required to be considered in the remaining contempt applications and the individual writ cases by the learned Single Judge of this Court.

Brief facts

3. The present contempt application has been preferred for initiation of a civil contempt proceeding against the contemnors/opposite parties for their willful disobedience and disrespect shown to the order dated 15.09.2011 passed in C.W.J.C. No. 18831 of 2010 (Bihar State Non-Formal-cum-Special Education Instructor Union Vs. The State of Bihar and others) passed by Hon'ble Mr. Justice Navin Sinha as His Lordship then was. It is stated that earlier the petitioners had come to this Court

4/28 in C.W.J.C. No. 18813 of 2010 for a direction to the respondents to absorb them on the post of Class III under the respondent State. The claim of the petitioners are that they are the ex-instructors of Non-Formal Education Scheme. The reliefs prayed in the writ application was based o the adjudication of this Court in a similar matter vide order dated 21.04.2011 passed in C.W.J.C. No. 8418 of 2010 in which the learned Single Judge of this Court directed the respondents to absorb the Non-Formal Education Instructor in regular government service within a period of four months. A copy of the judgment of the learned Writ Court passed in C.W.J.C. No. 8418 of 2010 has been brought on record as Annexure-1 to the contempt application. The petitioners submit that the writ petition filed by the petitioners was also disposed of in terms of aforesaid C.W.J.C. No. 8418 of 2010 on 15.09.2011 (Annexure-2).

4. It is pointed out that the order passed in C.W.J.C. No. 8418 of 2010 was challenged in Letters Patent Appeal bearing No. 1489 of 2011 but after considering all aspects of the matter the said Letters Patent Appeal was dismissed with one addition that the State policy in respect of Supervisors be adopted mutatis mutandis with only addition that it would apply to the Instructors, who were found working for three years continuously, at the time when the Non-Formal Education Scheme was abolished, in which

5/28 they were working. The Hon'ble Division Bench while disposing of the Letters Patent Appeal took note of the submissions of the respondent/writ petitioners that they do not insist for their absorption on Class III post and the State Government should take them in service even on Class IV as per the vacancies which may be available in the different departments. The Division Bench made it clear that the benefit cannot be extended to people, who, at any distinct point of time, had worked for a short period and then left the work.

5. Being aggrieved by the judgment of the Hon'ble Division Bench in the Letters Patent Appeal bearing No. 1489 of 2011 and other analogous matters, the State of Bihar preferred a number of Special Leave Petitions before the Hon'ble Supreme Court of India. All the Special Leave Petitions came for consideration before the Hon'ble Apex Court on 26.02.2016 (emphasis is mine). The Hon'ble Apex Court disposed of all the Special Leave Petitions without interfering with the impugned orders of the Hon'ble High Court but with a rider that " The relief granted by the High Court shall be restricted to those who approached the High Court who were heard as well as who wanted to get themselves impleaded and those who have filed applications here at par with those former as well as all those

6/28 petitioner Instructors which are pending as on date before the High Court but shall not apply to any fresh case either here or before the High Court........."

6. After the judgment of the Hon'ble Apex Court, the State Government came with a order issued by the Department of Education, Govt. of Bihar in which a committee was constituted in all the districts under the Chairmanship of the District Education Officer to find out the actual and real number of Non-Formal Education Instructors. The exercise was undertaken keeping in mind the factors such as: (i) the Instructors must have been working at the time of abolition of the Non-Formal Education Scheme w.e.f. 31.03.2001, (ii) they must have worked for at least 3 years continuously before the abolition of the scheme and (iii) that the concerned Instructors must have moved either the Hon'ble High Court at Patna or before the Hon'ble Supreme Court of India by 26.02.2016.

A direction was issued to obtain affidavits from all such claimants and for the purpose of obtaining the applications from the ex-Instructors, the department had to issue information in the newspapers prescribing a date for receipt of the applications from the Instructors. The Department of Education also issued the list of total number of Non-Formal Instructors who were/are petitioners as per records available in the office.

7/28 available at page 50 of the paper book which has been supplied by learned Senior Counsel representing the petitioners in this contempt application.

7. In the aforementioned background the present contempt application came to be filed in the year 2012. A learned Single Judge of this Court took note of the grievance of the petitioners saying that the letter no. 934 dated 14.04.2016 issued by the respondents is against the interest of the petitioners and therefore, the said letter is required to be stayed and a direction be issued to the respondents to proceed in terms of the findings recorded in the Special Leave Petition.

8. The claim of the petitioners was contested by the learned Government Advocate who submitted that the letter has been issued to constitute a committee only to facilitate the compliance of the directions issued by the Court and there was no reason for the petitioners to apprehend anything else. The learned Single Judge held that the apprehension of the petitioner was only an imaginary apprehension without having any substance. The interlocutory application preferred by the petitioner was found to be premature and same was accordingly, rejected. The respondent State was expected to proceed in terms of direction provided under the Special Leave Petition by the Hon'ble Apex Court and would

8/28 acknowledge the court regarding the steps taken at their end in this regard.

9. When the matter was listed on 23.08.2016 before the learned Single Judge, the petitioner of this contempt application informed the Court about their furnishing the list of members and the Court recorded its expectation that the petitioner would furnish list of its members to the learned Government Advocate. It appears that during pendency of the contempt application certain issues arose with respect to the claim of the Union as to its number of members. The Union was claiming that several persons whose name have not been disclosed earlier in the writ application happens to be the member of the Union.

The learned Single Judge also found that an intervention application was filed at this stage in the contempt proceeding which was not a happy situation as the Court felt that certain persons are coming to the Court by way of intervenors only to create unnecessary disturbances in implementation of the order. The Court felt that it is not proper for the intervenors to create such disturbances and it was open for them to file separate writ applications for redressal of grievance or move the Court at appropriate time either in the earlier writ or in the matter pending before the Hon'ble Apex Court. The intervention application being I. A. No.

9/28 rejected. The Court was granting time to State respondents to comply with the orders passed in the Writ Court and as modified by the Hon'ble Division Bench and the Hon'ble Apex Court.

10. It appears that the contempt application was listed on 23.02.2017 before the learned Single Judge. After going through the show cause filed by the opposite parties, State of Bihar, the learned Single Judge was not convinced and it was taken as an attempt to justify the action of the State by way of various digression from the main issue only to defeat in letter and spirit the orders passed by this Court. Learned Single Judge, therefore, directed personal appearance of the Commissioner-cumPrincipal Secretary, Human Resources Department, Govt. of Bihar, Patna and the Director, Mass Education, Govt. of Bihar, Patna to show cause as to why the proceeding under the contempt be not initiated against them. The case was taken up on 04.08.

2017 when a supplementary show cause, earlier filed before the learned Single Judge, was placed for consideration. The court was not agreeing to accept the supplementary show cause as according to the learned Single Judge, the Authorities were indulged in filing show cause giving vague explanations regarding compliance.

10/28 date the Court shall seriously consider initiating contempt proceeding against the said officers.

11. Being aggrieved by the order dated 04.08.2017, passed in MJC No. 809 of 2012, the State of of Bihar and its authorities went to the Hon'ble Supreme Court of India in petition for Special Leave to Appeal bearing No. 21961 of 2017. The Special Leave Petition came for consideration on 28.08.2017 before the Hon'ble Apex Court. The Hon'ble Apex Court went through its order dated 26.02.2016, quoted relevant operative part thereof and then the order dated 22.03.2017 in Miscellaneous Jurisdiction Case No. 4208 of 2016 which was disposed of in the following terms:

"Contempt application is dismissed. Sangh has no role to play. Individual claims, however, can be entertained, provided they fulfill the requirement, keeping in view the direction, which was issued in the writ application."

12. The Hon'ble Supreme Court further quoted the order dated 18.08.2017 passed in Miscellaneous Jurisdiction Case No. 1999 of 2013 arising out of C.W.J.C. No. 13901 of 2008 and we quote hereunder:

"This application has been filed for initiating action for contempt on the ground that an order passed on 14.11.2011 by the learned Writ Court in CWJC No. 13901 of 2008 has not been complied with.

11/28 At the instance of the employees-Association the writ petition was disposed of in terms of an order passed on 21.04.2011 in CWJC No.8418 of 2010. After the orders were passed in the writ petition as indicated hereinabove, the matter with regard to issue a question travelled to the Supreme Court in Special Leave to Appeal (civil) No. 32079 of 2015 and by a detailed order passed on 26.02.2016 the Hon'ble Supreme Court disposed of rather dismissed the Special Leave to Appeal filed by the State Government with the following observations:- "The relief granted by the High Court shall be restricted to those who approached the High Court who were heard as well as who wanted to get themselves impleaded and those who have filed applications here at par with those former as well as all those petitioner instructors which are pending as on date before the High Court but shall not apply to any fresh case either here or before the High court.

Pending applications, if any, stand disposed of."

When the matter was taken up by this Court in this proceeding on 09.01.2017, it was indicated by the State Government that in the garb of various strangers being members of the Association benefit is being claimed, and the State Government raised serious objection. Accordingly, on 09.01.2017, this Court passed the following order:- "The problem has been raised by the State that even some strangers who are not the member of the Association are trying to get the benefit of the order passed by this court, which has been disputed by the

12/28 learned counsel for the petitioner and submits that it is the State who generates the litigation by refusing to accept the genuine person to be beneficiary of the order passed by this Court.

Let the State make an endeavour to find out and filter the genuine members of the Association and whoever is found to be a genuine member will be granted the benefit in terms of the order passed by this Court. For that purpose, learned counsel for the State prays for 8 (eight) weeks time.

Let this case be listed after 8(eight) weeks under the same heading.

This Court makes it clear that whatever steps the State desires to take, they should do it within the aforesaid period and implement the order in its true letter and spirit."

The State has now indicated that it has become impossible for them to find out who are the genuine office-bearers of the Association. That apart a perusal of the original records of CWJC No. 13901 of 2008 goes to show that the writ petition was disposed of on the very first date of listing without notice to the State Government and in the original records of the writ petition no names of individuals or members entitled for the benefit were mentioned and on whose behalf the application has been filed were indicated. That being so, now in the light of the order passed by the Supreme Court at the instance of the petitioner-Association, this Court does not deem it appropriate for initiating any contempt. If any individual employee, in the light of the order passed by the Supreme Court is entitled for any benefit, he

13/28 can take recourse to remedy available for seeking benefit. But in the peculiar facts and circumstances of the case, in view of the order passed by the Hon'ble Supreme Court, this Court does not wish to pursue this Contempt application.

This application is dismissed."

13. After quoting the aforesaid part of the order dated 18.08.2017, the Hon'ble Apex Court held that since the impugned order in the present contempt case did not refer to the above orders, before proceeding with the contempt, the Hon'ble Supreme Court determined the issue with regard to the above order after duly hearing the parties. At last the Hon'ble Supreme Court expressed its desire that the matter is required to be heard by a Division Bench. It is, in this view of the matter and the desire of the Hon'ble Supreme Court that the present contempt application has been listed before us.

14. After remand from the Hon'ble Supreme Court when Letters Patent Appeal bearing No. 588 of 2017 arising out of the order dated 23.02.2017 passed in M.J.C. No. 4208 of 2016 along with M.J.C. No. 809 of 2012, M.J.C. No. 3604 of 2012 and M.J.c. No. 6259 of 2013 came for consideration before this Bench, the Bench took note of the judgment of the Hon'ble Supreme Court in SLA and the subsequent writ application filed before this Court and in the order passed on 22.03.2017 in M.J.C. No. 4208 of 2016, this Court held as under:

14/28 "Once having allowed the writ petition and having directed the State Government to examine the claim of the petitioner association, meaning thereby the individual claim of the employees whom the petitioner association represented, the impugned order dated 22.3.2017 in the contempt proceedings amounts to review or recall of the order akin to the power available to a Writ Court under Article 226 of the Constitution and, therefore, in view of the law laid down in the case of Midnapore People's Corp. Bank Ltd. & Ors. Vs. Chunilal Nanda & Ors., AIR 2006 SC 2190, Ram Vilas Mishra vs. State of Bihar & Ors., 1993 (1) P.L.J.R. 437 and Maninderjit Singh Bitta vs. Union of India & Ors.

, (2012) 1 SCC 273, an appeal under Clause 11 is maintainable and we have no hesitation in holding that the learned Writ Court committed an error in passing the impugned order in the contempt proceedings which amounts to exercising its original jurisdiction under Article 226 of the Constitution and, in fact, reviewing the earlier order passed on 11.8.2016 in C.W.J.C. No.3460 of 2016 which was not permissible.

Accordingly, we allow this appeal, recall the order dated 22.3.2017, restore M.J.C. No.4208 of 2016 to its original file and direct for its listing along with M.J.C.

Nos.809/12, 6259/13 and 3604/12."

15. Further while considering the present contempt application along with the batch of contempt applications, this Court found that in view of the order passed on 28.08.2017 in

15/28 SLP (c) No. 21961 of 2017, the matter has to be considered by the Division Bench and hence, making them analogous applications, this Court further recorded as under: "Although various affidavits, counter affidavits and additional affidavits filed by the parties, for the purpose of examining the question of violation of the orders passed by the Writ Court and the manner in which the directions issued by the Single Bench, by the Division Bench and by the Hon'ble Supreme Court in various S.L.P's.

Filed have been complied with, we direct the State Government to file a consolidated show cause in all the cases indicating as to how and in what manner the Instructors or the association representing the Instructors approached this Court within the cut off date fixed, what action has been taken by the State Government to examine the individual claim of not only the individuals who had approached this Court, but also the members who are represented by the petitioner association and in how many cases it is the opinion of the State Government that the employees are entitled to benefit and in how many cases, according to the State Government, they are not entitled to benefit and, if not entitled to, the reasons and grounds for the same."

On 19.02.2018 when the contempt applications were taken up before this Court , the following order was passed:

16/28 "List the matter on 8th March, 2018, as prayed for by learned counsel for the State Government.

In the meanwhile, the State Government and the competent authority should also consider the claim of individual members of the associations of the employees who are representing the case of the employees before this Court. If an employee submits an application in his individual capacity also with relevant document, their case should also be considered."

Submission of the petitioners

16. Pursuant to the aforesaid orders passed by this Court from time to time, the State Government has taken steps to examine the individual claims of the members of Non-Formal Education Instructors. The petitioners in this contempt application is, however, not satisfied with the exercise undertaken by the Government. Mr. Y. V. Giri, learned Sr. Counsel representing the petitioners has referred the various judgments of this Court and the Hon'ble Supreme Court. It is submitted that the Government is obliged to consider the claims of the members of the Union on the basis of the list of members supplied to the Government. It is submitted that the respondents are not complying with the orders of the learned Writ Court in its terms and spirit.

17/28 Submission of Respondent No. 3

17. In course of hearing of the present application, our attention has been drawn towards the supplementary show cause filed on behalf the Opposite Party No. 3 on 20th July, 2018 (sworn on 18.04.2018). It is stated in the supplementary show cause that the claims of absorption has been made by two sets of petitioners. So far as the individual petitioners are concerned, the claims of those who have filed individual writ petitions in their personal names, have been examined individually. A list containing details of the claims of the individual petitioners, consideration thereof and, the status of their claims have been shown in the said list which has been marked as Annexure-A to the supplementary show cause. The stand of respondent no. 3 is that in case of individual petitioners only the claim of the petitioners of MJC No.

54 of 2013 (Shiv Pujan Sahay & Ors. V. State of Bihar & Ors.) is fit to be considered. According to them, there are three petitioners in this case out of which one has already been adjusted and rest are in the waiting list who will be adjusted against the available vacancies.

18. It is further stated that about 293 individual petitioners of the different contempt petitions i.e. MJC No. 143 of 2018, MJC No. 404 of 2018, MJC No. 1749 of 2017 and MJC No.

18/28 3303 of 2017 respectively of the present batch of cases were not a party to the writ petitions for whose compliance the contempt petitions have been filed. A list containing names of such petitioners saying that the claims of these petitioners cannot be examined in view of the order passed by the Hon'ble Supreme Court on 26.02.2016 in SLP (Civil) 32079 of 2015 has been enclosed as Annexure-B to the supplementary show cause.

19. As regards, the petitioners of MJC No. 6259 of 2013 and MJC No. 2028 of 2016 arising out of C.W.J.C. No. 97 of 2013, it is stated that these petitioners belong to NGO and their names have not been recommended by the District Level Committee. These NGOs, it is stated, were directly funded by the Central Government and these petitioners never worked for Government of Bihar. It is further stand of respondent no. 3 that as per order of the Hon'ble Supreme Court, adjustment of Instructors are to be done like that of Supervisors and in case of Supervisors no member of NGO was adjusted as Supervisors, so these petitioners are not fit for adjustment.

20. An issue has been raised with reference to the claims being filed by the Association and the Employees Union. It is stated that as per the direction of this Court, the names of those members of the Association whose names were indicated to the

19/28 Writ Court when the writ petition was pending and whose names were available on record before the date of disposal of writ petition, were examined. The three contempt petitions filed by the Associations are MJC No. 809 of 2012 (the present one), MJC No. 3604 of 2012 and MJC No. 4208 of 2016 and the number of petitioners in the writ cases were 18, 1 and 3 respectively. A list containing details of the claims of the members of Association is annexed as Annexure-C to the supplementary show cause.

21. It has been brought to our notice in the supplementary show cause that the list of members which was submitted by the order of this Hon'ble Court, the Bihar State Non-Formal-cum-Special Education Instructor Union (MJC No. 809 of 2012) has submitted a list of 6413 member Instructors and and the Chapra District Non-Formal Education Instructor and Special Education Instructor Sangh (MJC No. 3604 of 2012) has submitted a list of 1639 members. In the case of MJC No. 4208 of 2016, the Anaupcharik Shiksha Anudeshak Seva Sangathan has submitted a list of total 5156 members. It has also tried to get these members included as petitioners in C.W.J.C. No. 3460 of 2016 through supplementary affidavits and Interlocutory Application filed after the cut off date i.e.

20/28 26.02.2016, however, their claim was rejected by the Hon'ble court and they were not allowed to intervene as petitioners vide order dated 11.08.2016. With respect to these members who are now claiming their absorption, it is the stand of the respondent no. 3 that because of these lists of members Instructors submitted by the Associations were given after the cut off date i.e. 26.02.2016, therefore, their claims cannot be examined in the light of the order of the Hon'ble Supreme Court.

22. The respondent no. 3 has further informed us that some of the Instructors filed a writ petition through a registered 'Sangh' namely, Aupcharik Shiksha Anudeshak cum Special Education Sewi Sangh (registered) and others (C.W.J.C. No. 14302 of 2014) which was disposed of by this Court vide order dated 26.10.2016 with a direction that the matter will be covered by the decision of the Hon'ble Apex Court in S.LP. No. 32079 of 2015. In these writ application there were only 2 individual petitioners. The 'Sangh' in MJC No. 564 of 2017 when filed a modification application to include more persons as petitioners for claiming the relief who were the so called members of the said registered 'Sangh', the same was dismissed by this Court vide order dated 19.04.2017 stating that no clarification/modification was required over and above the

21/28 direction issued in the writ application. The 'Sangh' then went in Special Leave Petition filed before the Hon'ble Supreme Court in which again vide order dated 19.11.2017 the Hon'ble Supreme Court clarified that the relief granted shall be restricted to only those who approach the Hon'ble High Court or Hon'ble Supreme Court as on or before 26.02.2016 and shall not apply to any fresh list. A copy of the order passed by the Hon'ble Apex Court has been brought on record. The order passed by the Hon'ble Apex Court on 26.02.2016 reads as under:- "We find no infirmity in the order impugned herein. The Special Leave Petitions are dismissed.

The relief granted by the High Court shall be restricted to those who approached the High Court who were heard as well as who wanted to get themselves impleaded and those who have filed applications here at par with those former as well as all those petitioner instructors which are pending as on date before the Hihg Court but shall not apply to any fresh case either here or before the High Court......."

23. In the supplementary show cause it is further stated that there are about 263 writ petitions and 72 contempt petitions including the present batch of cases which are identical in nature and amongst which some of them were filed after the cut off date. 13 contempt petitions out of 72, it is stated, have been filed by those who were not party to the writ petitions. The list of

22/28 those cases have been enclosed as Annexure-F in the supplementary show cause. Finally, it is the stand of respondent no. 3 that the Department has examined the claims of those petitioners who fulfill the conditions as per the direction of this Court and the Hon'ble Supreme Court. The claim of any petitioner who was not a party to the writ petition and filed a petition or application after the cut off date, have not been considered. The respondent no. 3 has brought on record an action taken report in the present case.

Considerations

24. We have perused the action taken report in connection with the present contempt application and the tagged cases. A perusal of the summary of action taken report in the present contempt application would show that the respondent no. 3 has given the descriptions and the number of petitioners in the contempt application, the status of those petitioners who were found fit or not fit with reasons thereof. It is apparent from perusal of this report that the various Union/Association have now come forward with a large number of names of Instructors for purpose of consideration of their cases for absorption. Admittedly, when the writ application was preferred by the Unions and Associations, they had not enclosed the list of

23/28 members and no court fee was paid while seeking benefits/reliefs on behalf of each of the members. Recently, this aspect of the matter came for consideration before the Kerala High Court in the case of MARADU MARKET TRADERS' ASSOCIATION vs STATE OF KERALA & ORS. in WP(C).No.18450/2015(E) when an application filed by an Association for the benefit of its members was taken up for consideration. The petition was filed by the Union by paying court fee of Rs. 100 for the petitioner on the ground that the Association shall the sole petitioner but the Hon'ble Division Bench of the Kerala High Court held that when an Association filed a writ petition for benefit of its members, court fee at the prescribed rate for each members of the Association has to be paid. The Court did not accept the course adopted by the Association.

Relying upon the earlier judgment of the High Court in the case of Kerala Electric Traders Association Vs. The State of Kerala reported in 2010(1) KHC 248 the Hon'ble High Court held that the court fee has to be paid for each of the beneficiaries. Recently, in the case of Jang Bahadur Prasad Kesri & Ors. Vrs. The State of Bihar & Ors.

(2) PLJR 677 one of us (Mr. Justice Rajeev Ranjan Prasad) sitting singly had occasion to consider the issue of court fee by

24/28 petitioners who had moved collectively for release of their respective vehicles. Relevant extract i.e. paragraph 12 of the aforesaid judgment is quoted hereinbelow for ready reference:- "An application under Article 226 of the Constitution of India whether registered as a Civil Writ Application or a Criminal Writ Application has to be examined for purpose of chargeability of court fee by taking into consideration as to whether granting of relief to one petitioner will automatically result in granting of relief to another petitioner. What has been held by the learned co-ordinate bench of this Court in Paragraph 6 in the case of Shiv Shankar Pandey (Supra) has to be adhered to.

Wherever more than one petitioner move this Court in one application, the Stamp Reporter has to look into the guiding factor as to whether the relief of each of the petitioners is individual and each of them has his own cause of action granting relief to one of them shall not result into granting relief to each of the petitioners and where it is found that the relief of each of the petitioners is individual and grant of relief to one of them would not result in granting relief to the other petitioners the same benefits, in law, each of the petitioners will be taken to have preferred the application individually and they will be liable to pay separate court fee."

25. Taking a que from the several judgments of this Court, it has been held that where the reliefs prayed in one writ

25/28 application is seeking individual benefits to the various writ petitioners, joined together, separate court fee would be paid.

26. What we find from the facts of the present contempt application that the various Unions/Associations did not disclose the name of their members at the writ stage or even before the Hon'ble Supreme Court when the order dated 26.02.2016 was being passed. We are inclined to agree with the stand taken on behalf of the respondent no. 3 that all such members whose name was not disclosed either before this Court or before the Hon'ble Supreme Court and who had not moved this Court on or before 26.02.2016 (hereinafter referred to as the cut off date), they cannot maintain a contempt application before this Court alleging willful disobedience or disregard to the order passed by the Writ Court as respect them. Thus, the contempt application at their instance cannot proceed.

27. In course of hearing of the present application some of the individual writ petitioners have raised their grievance stating that in their case(s) even though their individual claims have been considered but those have been rejected mechanically without looking into the materials which are available on the record to satisfy that they had moved this Court earlier before the cut off date. We are of the considered opinion that instead of

26/28 going into the grievance of the writ petitioners individually while considering the present contempt application, it would be just and proper to send back all the writ applications to the Hon'ble Single Judge of this Court as per roaster to consider the individual writ applications challenging the decision of the respondents, on their own merit.

28. We have already quoted the relevant parts of the judgments and order of this Court and that of the Hon'ble Supreme Court of India, hereinabove which will be the guiding factor for the learned Writ Court. The learned Writ Court shall consider the individual writ applications where the petitioner(s) would be first obliged to demonstrate that he/they had earlier moved this Court or the Hon'ble Supreme Court of India on or before the cut off date. Once this condition is satisfied, the learned Writ Court may in such cases where the claim of the individual has not been considered by the respondent, proceed with the contempt application but where considerations have been given by the respondents but the individual claim of the petitioner has been rejected for any reason whatsoever, the reasons so prescribed would be required to be tested by the learned Writ Court on the basis of the pleadings and submissions in accordance with law. So far as the various Associations and

27/28 Unions are concerned, they cannot allege willful disobedience or violation of the order of the learned Writ Court as respect the persons whose names were not disclosed by those Associations or Unions either before this Court or before Hon'ble Supreme Court of India by the cut off date.

29. In result, the present contempt application and the intervention application are disposed of giving liberty to the individual petitioner, in the aforementioned terms. All the remaining contempt application and the writ applications which were earlier tagged with this case shall go back to the respective Bench of the learned Single Judge for consideration.

30. Even though Mr. Binod Kanth, learned Senior Counsel representing the petitioners in M.J.C. No. 4208 of 2016 and the appellants in L.P.A. No. 588 of 2017 has prayed for an adjournment of these two matters, we find that L.P.A. No. 588 of 2016 was preferred by the appellants who were aggrieved by the order passed by the learned Single Judge in MJC No. 4208 of 2016. The order passed by the learned Single Judge was already recalled by this Court vide order dated 12.10.2017 and the letters Patent Appeal was allowed, as a consequence thereof the MJC No. 4208 of 2016 was restored and tagged for hearing along with other analogous matters. It is evident that the Letter

28/28 Patent Appeal No. 588 of 2017 was already allowed by this Court while restoring MJC No. 4208 of 2016, hence it has to be treated as disposed off. In the light of the discussions hereinabove, MJC No. 4208 of 2016 shall also go to the learned Single Judge for a fresh consideration.

31. The contempt application is thus, disposed of. (Rajendra Menon, CJ) ( Rajeev Ranjan Prasad, J) avin/- AFR/NAFR CAV DATE Uploading Date Transmission Date