Vidhya Dhar Sharma Vs. G.B. Patnaik & Ors.
EmailAppeal: Contempt Petition Nos. 57-58 of 2001
In
Civil Appeal Nos. 5448 & 5452 of 1998
In
Civil Appeal Nos. 5448 & 5452 of 1998
Petitioner: Vidhya Dhar Sharma
Respondent: G.B. Patnaik & Ors.
Apeal: Contempt Petition Nos. 57-58 of 2001
In
Civil Appeal Nos. 5448 & 5452 of 1998
In
Civil Appeal Nos. 5448 & 5452 of 1998
Judges: B.N. KIRPAL & RUMA PAL, JJ.
Date of Judgment: Feb 26, 2001
Head Note:
CONTEMPT OF COURT
Contempt of Courts Act, 1971
Section 2(c) – Contempt – Direc-tion given to appoint ad hoc Medical Officer on 22.09.2000 – No appointment till 18.11.2000 – Letter was to be issued by 8.11.2000 – Legal notice on 18.11.2000 – Contempt notice given on 19.2.2001 – Letter given on 19.2.2001. Held that it was on fear of punishment that letter was issued. Appointment to be treated from 8.11.2000 with full salary. Other directions issued. (Paras 4,6)
JUDGEMENT:
ORDER
1. We have heard the learned Counsel for the parties.
2. By order dated 22nd September, 2000, the petitioner herein was directed to be appointed to the post of Medical Officer to which he had been selected. It was further ordered that the letter of appointment should be issued within six weeks from that day.
3. When the letter of appointment was not issued, a registered A/D legal notice dated 18th November, 2000 was sent to the re-spondents. The notice was sent to the Chief Secretary and two other officers. Not having received any response, the present petition for taking appropriate action against the respondents was filed. In response to the petition, affidavits of G.B. Pat-naik, IAS, Secretary, Medical Education and G.D. Tripathi, IAS, Director, Ayurvedic & Unani Services, have been filed. Though in paragraph 2 of the affidavit of G.B. Patnaik an unconditional apology is purported to be tendered, it is stated that the charge has been purged, inasmuch as a letter of appointment has been issued to the petitioner. A reading of the affidavit discloses that even though G.B. Patnaik was a Secretary in the Department in September, 2000, the matter was not brought to his notice till November, 2000 when the legal notice was received. A further explanation given by him is that the dealing assistant was repa-triated to the parent department and no action was then taken. It is then stated that the file was taken up again, office memoran-dum was prepared and vetted and the Minister gave his approval on 19th February, 2001. Appointment letter dated 19th February, 2001 was then issued.
4. It is pertinent to notice that it is on 2nd February, 2001 that notice in this contempt petition was issued. Action has been taken by the respondents only pursuant to the notice having been issued. We are quite convinced that but for this notice being issued, nothing would have been done by the respondents. As is evident from the fact, they did not even have the courtesy of responding to the lawyers notice dated 18th November, 2000 or applying to this Court for extension of time. It is only the pain and fear of being punished for contempt that seems to have per-suaded them to take action and comply with the direction of this Court.
5. Had our order been complied with, the letter of appointment would normally have been issued by about 8th November, 2000. It is from that date that the petitioner would have been entitled to seniority and salary in terms of our order dated 22nd September, 2000. The delay in issuing the appointment letter has caused prejudice to the petitioner as
well.
6. The selection of the petitioner was made pursuant to an adver-tisement of the State of U.P. wherein they had proposed to recruit 1400 doctors on ad hoc and temporary basis. It was in that selection that the petitioner was selected but appointment not given. It is true that the petitioner cannot be given perma-nent appointment because his selection was for one year or pend-ing selection of the regular candidates by the Public Service Commission. In the office memorandum now issued on 19th February, 2001, it is stated that the appointment of the petitioner is for a period of one year or until a candidate selected by the Public Service Commission is available, whichever is earlier. We see no justification for the expression “whichever is earlier” and direct that the petitioner’s appointment will continue as long as persons junior to him are allowed to continue pending selec-tion of a regular candidate by the Public Service Commission. In other words, the temporary and ad hoc services of the petitioner will continue till a regularly selected candidate is appointed and / or till the services of all those junior to him are termi-nated. His seniority for the purpose of termination will now, in the changed circumstances, count from the date of his initial selection as a Medical Officer. The petitioner will also be entitled to salary with effect from 8th November, 2000 and ar-rears will be paid within four weeks from today.
7. While absolving respondent nos. 2 and 3, we dispose of these contempt petitions by directing respondent no. 1 to pay Rs. 5,000/- as costs. The costs be paid within two weeks from today.
1. We have heard the learned Counsel for the parties.
2. By order dated 22nd September, 2000, the petitioner herein was directed to be appointed to the post of Medical Officer to which he had been selected. It was further ordered that the letter of appointment should be issued within six weeks from that day.
3. When the letter of appointment was not issued, a registered A/D legal notice dated 18th November, 2000 was sent to the re-spondents. The notice was sent to the Chief Secretary and two other officers. Not having received any response, the present petition for taking appropriate action against the respondents was filed. In response to the petition, affidavits of G.B. Pat-naik, IAS, Secretary, Medical Education and G.D. Tripathi, IAS, Director, Ayurvedic & Unani Services, have been filed. Though in paragraph 2 of the affidavit of G.B. Patnaik an unconditional apology is purported to be tendered, it is stated that the charge has been purged, inasmuch as a letter of appointment has been issued to the petitioner. A reading of the affidavit discloses that even though G.B. Patnaik was a Secretary in the Department in September, 2000, the matter was not brought to his notice till November, 2000 when the legal notice was received. A further explanation given by him is that the dealing assistant was repa-triated to the parent department and no action was then taken. It is then stated that the file was taken up again, office memoran-dum was prepared and vetted and the Minister gave his approval on 19th February, 2001. Appointment letter dated 19th February, 2001 was then issued.
4. It is pertinent to notice that it is on 2nd February, 2001 that notice in this contempt petition was issued. Action has been taken by the respondents only pursuant to the notice having been issued. We are quite convinced that but for this notice being issued, nothing would have been done by the respondents. As is evident from the fact, they did not even have the courtesy of responding to the lawyers notice dated 18th November, 2000 or applying to this Court for extension of time. It is only the pain and fear of being punished for contempt that seems to have per-suaded them to take action and comply with the direction of this Court.
5. Had our order been complied with, the letter of appointment would normally have been issued by about 8th November, 2000. It is from that date that the petitioner would have been entitled to seniority and salary in terms of our order dated 22nd September, 2000. The delay in issuing the appointment letter has caused prejudice to the petitioner as
well.
6. The selection of the petitioner was made pursuant to an adver-tisement of the State of U.P. wherein they had proposed to recruit 1400 doctors on ad hoc and temporary basis. It was in that selection that the petitioner was selected but appointment not given. It is true that the petitioner cannot be given perma-nent appointment because his selection was for one year or pend-ing selection of the regular candidates by the Public Service Commission. In the office memorandum now issued on 19th February, 2001, it is stated that the appointment of the petitioner is for a period of one year or until a candidate selected by the Public Service Commission is available, whichever is earlier. We see no justification for the expression “whichever is earlier” and direct that the petitioner’s appointment will continue as long as persons junior to him are allowed to continue pending selec-tion of a regular candidate by the Public Service Commission. In other words, the temporary and ad hoc services of the petitioner will continue till a regularly selected candidate is appointed and / or till the services of all those junior to him are termi-nated. His seniority for the purpose of termination will now, in the changed circumstances, count from the date of his initial selection as a Medical Officer. The petitioner will also be entitled to salary with effect from 8th November, 2000 and ar-rears will be paid within four weeks from today.
7. While absolving respondent nos. 2 and 3, we dispose of these contempt petitions by directing respondent no. 1 to pay Rs. 5,000/- as costs. The costs be paid within two weeks from today.
