Dismissed

Mahendra Kumar Singh and 7 Others v. Smt. Aradhana Shukla

Allahabad HC9 Nov 2022SPLA/676/2022

Case brief

AI extract

What is this about?

Two Special Appellants challenged a Single Judge's order dismissing their contempt application. The Single Judge held the State Government complied with a prior Writ Court direction by reframing its policy and assessing teachers against composite integrality tests. The Court held the appeal was not maintainable because the lower court did not adjudicate the merits of the dispute itself.

What did the court decide?

The special appeal filed by the appellants against the dismissal of the contempt application was dismissed as not maintainable.

Mahendra Kumar Singh and 7 Others Vs Smt… — Education and Admissions | Allahabad HC (2022)

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Court No. - 29

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Case :- SPECIAL APPEAL No. - 676 of 2022 Appellant :- Mahendra Kumar Singh And 7 Others Respondent :- Smt. Aradhana Shukla

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Counsel for Appellant :- Rajesh Kumar Singh,Devendra Pratap Singh

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Hon'ble Manoj Misra,J.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Devendra Pratap Singh for the appellants.

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This intra court appeal under Chapter VIII Rule 5 of the Rules of the Court, 1952 is against the judgment and order of the learned single Judge dated 21.09.2022 passed in exercise of contempt jurisdiction with reference to Contempt Application (Civil) No.7789 of 2019.

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The Contempt Application (Civil) No.7789 of 2019 was filed by the appellants by alleging non-compliance of the order dated 23.05.2019 passed by a Single Bench of this Court in Writ A No.36609 of 2017 connected with a group of petitions led by Writ A No.38992 of 2017. Those petitions were disposed off with certain directions. The operative portion of the order dated 23.05.2019 (supra) is extracted below :

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"Accordingly and for the reasons aforementioned, these petitions stand disposed of on the following terms:-

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Clause 1 of the Government Order dated 27 October 2016 to the extent of prescribing the cut off date of 21 June 1973 as well as Clauses 1.1 and 1.2 thereof are struck down as being as arbitrary and wholly irrational.

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The State shall in consequence revisit and reframe the impugned Policy in light of the observations made in this judgment. The orders of 13 July 2017 insofar as they defer reconsideration for a period of five years consequentially stand set aside to that extent.

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Writ Petitions in Group A insofar as they relate to primary sections attached to recognised and aided high schools or intermediate colleges covered by the provisions of the 1971 Act cannot be denied the protection of that statute. The petitions in this group falling under the aforesaid class shall stand allowed. The State is consequently directed to bring teachers falling in this class within the ambit of the 1971 Act subject to the requisite exercise being undertaken to assess that they satisfy the test of composite integrality.

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Writ Petitions in Group A relating to primary sections attached to junior high schools are not covered under the provisions of the 1978 Act. No relief can be granted to them in light of the 2017 Amendments. The petitions preferred at their instance shall stand disposed of subject to liberty being reserved to challenge the 2017 Amendments as introduced in the 1972 and 1978 Acts, if so chosen and advised.

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Writ Petitions falling in Group B are allowed. The State shall in consequence reconsider their claims for grant in aid in light of the policy that may be framed in light of the directions issued herein above.

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While Writ Petitions falling in Group C to the extent that they assailed the Government Order dated 27 October 2016 are disposed of in light of the directions issued above, no further consequential relief can be granted presently in their favour in the absence of a challenge to the 2017 Amendments introduced in the 1972 and 1978 Acts. Their right to assail these amendments is preserved to be raised in independent proceedings. Similarly writ petitions falling in group 'D' stand disposed of insofar as the challenge to the impugned Government Orders are concerned. The unaided primary sections thereof cannot

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be granted any relief in the absence of a challenge to the 2017 Amending Acts. Their right to assail the same is preserved. The junior high schools in this group shall however be entitled to assert their claims afresh for grant in aid in light of the conclusions recorded in the body of the judgment."

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The case of the appellants is that they were Group A category of writ petitioners in respect whereof the direction upon the State was to bring those teachers within the ambit of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (in short ‘1971 Act’) subject to the exercise to assess that they satisfy the test of composite integrality. The composite integrality tests were laid down in the order dated 23.05.2019. It is alleged that those tests were not appropriately applied hence the contemnors were liable for contempt.

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On a careful perusal of the record it appears to us that during the course of contempt proceedings to comply with the directions aforestated, on October 01, 2020, orders were passed. One was with regard to framing the policy and the other dealt with the claim of teachers of the institution concerned i.e. wherein the appellants were working. Learned single Judge after going through the rival contentions as also the materials on the record placed before it in the course of contempt proceedings, vide impugned order dated 21.09.2022, held that the contempt applications were misconceived and were liable to be dismissed. The operative portion of the order dated

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21.09.2022, as found in paragraphs 49 to 53 of the impugned order, is extracted below :

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"49. The writ Court had only required the State Government to revisit and reframe the policy pursuant striking down partially Clauses 1, 1.1 and 1.2, the State Government having reframed the policy on 01.10.2020, thus the order having been complied with, no case for contempt is made out.

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50. So far as second part of the order, which relates to the applicants is concerned, assessment having been undertaken by the State so as to satisfy the test of composite integrality, and finding having been recorded that applicants do not qualify the test, no case for contempt as to the second part of the judgment is made out.

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51. The contempt applicants are misconceived and are hereby dismissed.

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52. Contempt notice stand discharged.

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53. However, it is open to the applicants to challenge the policy so framed by the State Government as well as the order passed rejecting their application for grant in aid, if so advised, before the appropriate Forum."

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While hearing this appeal an issue arose as to how this intra court appeal would be maintainable as no appeal would lie under section 19 of Contempt of Courts Act, 1971 against an order either discharging the contemnor or dismissing the contempt application. Learned counsel for the appellants submitted that this appeal is not under Section 19 of the Contempt of Courts Act but under Chapter VIII Rule 5 of the Rules of the Court, inasmuch as, learned single Judge has touched upon the merits of the decision taken by the State-respondents while dismissing the contempt application thereby affecting the

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rights of the parties. To elaborate upon the submission above, it was contended that the observation of the learned single Judge that the State has acted in terms of the writ court's order by itself touches upon the merits of the decision and affects the rights of the parties therefore, this intra court appeal is maintainable. To buttress the aforesaid submission, learned counsel for the appellants has placed reliance on the decision of the Supreme Court in Midnapore Peoples’ Coop. Bank Ltd. and others V. Chunilal Nanda & others, (2006) 5 SCC 399 wherein in paragraph 11, on the issue of maintainability of an appeal against orders in contempt proceedings, it was observed :

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“11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarized thus :

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I. An appeal under section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.

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II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.

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III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.

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IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of 'jurisdiction to punish for contempt' and, therefore, not appealable under section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under section 19 of the Act, can also encompass the incidental or inextricably connected directions.

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V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).”

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(Emphasis supplied)

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On the strength of the observations contained in sub paragraph (v) of paragraph 11 extracted above, the learned counsel for the appellants urged that if while rejecting the claim of the writ petitioners for the benefit of salary from State fund the State has not properly followed the composite integrality test as was laid down by the writ Court in its judgment and order dated 23.05.2019, the State officers were liable to be proceeded for contempt of the writ Court's order therefore, any observation by the learned Single Judge that the order has been complied decides an issue relating to the merits of the dispute

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between the parties hence the intra court appeal would be maintainable under the Rules of the Court.

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The issue that arises for our consideration is whether the learned single Judge has decided an issue relating to the merits of the dispute between the parties as to make this intra court appeal of the appellants against the order of learned single Judge dropping the contempt proceedings and discharging the notice issued to the contemner maintainable under Chapter VIII Rule 5 of the Rules of the Court in light of the Supreme Court’s decision in Midnapore’s case (supra) .

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In Midnapore's case (supra) the law has clearly been laid down that no appeal lies against the order discharging a contempt notice while exercising contempt jurisdiction. In case where the Rules permit of an intra court appeal, the intra court appeal may lie where the learned single Judge exercising contempt jurisdiction enters upon the merits of the case and passes an order affecting the rights of the parties. We would have therefore to ascertain whether the learned single Judge has entered on the merits of the dispute between the parties and the order passed has the potentiality of affecting the rights of the parties.

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In this context the submissions of learned counsel for the appellants is that the direction given by the writ court in its order dated 23.05.2019 mandated the State Government to revisit and re-frame the policy in light of the observations made in the judgment and to bring

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teachers falling in Group A category of the writ petitions within the ambit of 1971 Act subject to the requisite exercise to assess whether they satisfy the test of composite integrality. It is not disputed that in so far as re-framing of the policy is concerned, the State re-framed the policy and that policy can appropriately be challenged in separate proceeding and, therefore, it may not be appropriate for the court to examine the correctness of the policy in the contempt jurisdiction. But, in so far as the compliance of the second part of the direction is concerned, it is alleged that the same has not been complied inasmuch as the State has not properly applied the test of composite integrality laid down in the judgment and order of the writ court to come to the conclusion that the primary section of the institution does not satisfy the test of composite integrality. It has been urged that since the learned single Judge in the order impugned has held that the State has recorded a finding that the applicants had not cleared the test of composite integrality, the impugned order to that extent affects the merits of the case and has the potentiality to affect the rights of the parties hence the intra court appeal is maintainable.

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Having noticed the submissions above, even if we accept the submission of the learned counsel for the appellants that while complying with the direction of the writ court, the contemnor-opposite party had not properly applied the composite integrality test as laid down in the judgment of the writ court, the issue that concerns us is

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whether in an intra court appeal against an order dismissing the contempt petition, can we go into and decide that question when the learned single Judge has not touched upon its merit. Notably, the learned single Judge has not held that the test has been correctly applied by the contemnor-opposite party. Rather, the learned single Judge has left it open for the applicants to challenge the policy so framed by the State Government as well as the order passed rejecting their claims for grant-in-aid before the appropriate forum. In such circumstances, we are of the view that the order of the learned single Judge does not address the merits of the dispute inter se the parties and, therefore, it does not have the potentiality to affect the rights of the parties as to enable us to entertain this intra court appeal against an order dismissing the contempt petition.

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In view of the discussion above, this appeal is dismissed as not maintainable.

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Order Date :- 9.11.2022. Rks.

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Digitally signed by RAJESH KUMAR SINGH Date: 2022.11.16 10:23:10 IST Reason: Location: High Court of Judicature at Allahabad

Mahendra Kumar Singh and 7 Others v. Smt. Aradhana Shukla

Case brief

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Mahendra Kumar Singh and 7 Others v. Smt. Aradhana Shukla

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