HON'BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND HON'BLE SRI JUSTICE VILAS V.

AFZULPURKAR CONTEMPT APPEAL (SR) No.941 o”

26. 9.2012 N.

Veeraju.

M.V.Reddy, Director of Animal Husbandry Department, Hyderabad and three others.

Counsel for petitioner: MR.

T.

RAMAKRISHNA RAO Counsel for Respondents: ADDL.

ADVOCATE GENERAL HEAD NOTE: Cases referred 1) (2006) 5 SCC 39.2) (2009) 8 SCC 43.

JUDGMENT

: (Per the Hon'ble Sri Justice Vilas V.

Afzulpurkar) This contempt appeal is directed against the order of the learned single Judge dated 19.12.2011 in C.C.No.519 of 2008 under clause 15 of the Letters Patent Appeal and Section 19 of the Contempt of Courts Act, 1971 read with Rule 36 of the Rules framed under the Contempt of Courts Act, 1971.

2.

On 14.02.2012, when this appeal was preferred, the Registry raised certain objections, which were complied with and the counsel re-presented the appeal on 09.04.2012.

Thereafter, the Registry has raised question of maintainability of the appeal as well as other objections regarding limitation and other procedural deficiencies and the appeal was returned for rectifying the deficiencies on 13.04.2012.

Learned counsel for the appellant has, thereafter, re-presented the appeal on 16.04.2012 and the appeal, at this stage, was placed before the Court for consideration as to the maintainability of the appeal.

3.

On 24.04.2012, the learned counsel for the appellant was heard and in view of his reliance upon para 11 of the judgment of the Supreme Court in MIDNAPORE PEOPLES' COOP.BANK LTD.

v.

CHUNILAL NANDA1 notice to respondents was ordered.

We had, thereafter, heard the matter on 21.08.2012, 28.08.2012 and concluded the hearing on 05.09.2012 and had reserved the matter for judgment.

4.

The necessary facts leading to the filing of the present contempt appeal may be noticed as under: (a) Petitioner stated that he has passed Technical High School Certificate examination in the month of October 1978 and also passed Diploma in Mechanical Engineering in 1982 from the Government Polytechnic, Visakhapatnam.

He claimed that he had acquired experience while working in different establishments and lastly, he was appointed as Technician on daily wage basis in Piggery Development Project, Visakhapatnam with effect from 21.06.1989.

While so, he had applied for the post of Refrigerator-cum-Compressor Mechanic as notified by the Government of Andhra Pradesh under G.O.Ms.No.2359 Food and Agriculture (A.H.I) Department dated 30.07.1966, as amended by G.O.Ms.No.1902 Food and Agriculture (A.H.I) Department dated 20.09.1968.

The Refrigerator-cum-Compressor Mechanic, who was working with the Piggery Development Project, was about to retire on 30.04.1995 and the said vacancy was sought to be filled up through notification as above.

The said post was notified as temporary post and appointment was to be made among the qualified direct recruits or by transfer from the qualified Diploma holders in Electrical and Mechanical Engineering or having equivalent qualification with at least three years experience in operation and maintenance or construction work.

(b) Petitioner's application dated 17.04.1995 for the said post was, however, rejected holding that casual labour was not eligible for appointment by transfer and that petitioner was not eligible even for absorption as attender, since he had not completed five years of service as on 25.11.1993 in terms of the scheme of regularization under G.O.Ms.No.212 Finance and Planning Department dated 22.04.1994.

Petitioner, therefore, filed WP.No.21147 of 1997 seeking regularization of service as Refrigerator-cum-Compressor Mechanic with effect from the date of vacancy i.e.

01.05.1995 together with all benefits.

The said writ petition was disposed of by order dated 13.04.2007, the operative paragraphs thereof are as follows: "From the above, it is seen that the petitioner was working with effect from 21.6.1989 as Refrigerator-cum-Compressor Mechanic.

Admittedly, the petitioner has not fulfilled the criterian of 5 years of service as on 25.11.1993.

But in a catena of decisions of this Court, it was held that completion of 5 years of service by the employee as on the date of consideration of his case as per G.O.Ms.212 dated 22.4.1994 is sufficient and the same was also upheld by the Apex Court.

Under those circumstances, the respondents are directed to consider the case of the petitioner for regularization of his service into any suitable post, within a period of two months, from the date of receipt of a copy of this order and communicate the same to the petitioner.

Till such time, the services of the petitioner shall not be disturbed." (c) On the further application of the petitioner in WPMP.No.18863 of 2007, this Court passed further order dated 19.07.2007 directing the respondents to consider the case of the petitioner for regularization in the post of Refrigerator-cum-Compressor Mechanic preferably from the date of occurrence of vacancy i.e.

01.05.1995 within a period of four weeks and meanwhile, not to disturb the petitioner's services.

(d) As per the ad hoc rules prescribed under G.O.Ms.No.2359 Food and Agriculture (A.H.I) Department dated 30.07.1966, as amended by G.O.Ms.No.1902 Food and Agriculture (A.H.I) Department dated 20.09.1968, the petitioner was not found eligible and accordingly his representation to appoint him in the vacancy was rejected under memo dated 28.08.2008.

Aggrieved by the non-implementation of the order of this Court, referred to above, the petitioner filed C.C.No.519 of 2008.

(d) This Court by order dated 01.02.2011 passed the following order: "Learned Government Pleader seeks time for compliance of the order of this Court.

List after ten (10) days.

If the order is not complied with, the respondents shall be present before this Court at 10-30 A.M.

Learned Government Pleader shall inform this to the respondents." (e) In order to comply with the order, the respondents issued orders appointing and posting the petitioner as Refrigerator-cum-Compressor Mechanic in the office of the Deputy Director, Animal Husbandry with immediate effect, as per the orders of this Court in WPMP.No.18863 of 2007 in WP.No.21147 of 2007 dated 19.07.2007 and reported compliance before this Court in the contempt case, which was pending.

(f) The contempt case was finally heard and dismissed by this Court by order dated 19.12.2011 and three paras of the order of the learned single Judge are required to be quoted here in order to appreciate the contentions of the learned counsel for the appellant.

"16.

The direction given in the writ petition to the respondents is to consider the case of the petitioner for regularization of his services in the post of Refrigerator-cum-Compressor Mechanic from the date of occurrence of the vacancy, i.e., 1.5.1995 within four weeks from the date of receipt of copy of the order.

The petitioner has been engaged as daily wage worker on 21-6-1989.

His services came to be discontinued on 20-11-1989 and re-engaged on 20-01-1990.

Appointment to the post of Refrigerator-cum-Compressor Mechanic is governed by A.P.Animal Husbandry Subordinate (Service) Rules issued in G.O.Ms.No.2359 Food & Agriculture, dated 30.7.1966 as amended by G.O.Ms.No.1902 F & A, dated 20-9- 1968.

The rules prescribe educational qualification, experience and the mode of recruitment.

There are two sources for filling up the post of Refrigerator- cum-Compressor Mechanic; one is by Direct Recruitment and another is Recruitment by Transfer.

The petitioner was not in the permanent cadre in any post in the Department of Animal Husbandry so as to claim appointment to the post of Refrigerator-cum-Compressor Mechanic by Transfer.

The only mode to which he can compete is by Direct Recruitment.

For a person to be appointed to the post of Refrigerator-cum-Compressor Mechanic, he must possess a diploma in mechanical or equivalent qualification with not less than three years practical experience in operation and maintenance or construction work as Refrigerator-cum-Compressor Mechanic.

The Director Animal Husbandry under Memo Roc.

No.8646/BV/B4/2007 dated 30-4-2008 instructed the petitioner to submit three years experience certificate.

For better appreciation, I may extract the relevant portion of the Memo dated 30-4-2008, which reads as hereunder:- "Sri N.Veeraju, Daily Wage Worker, Piggery Development Project, Vizag is informed that, the prescribed qualification for the post of Refigerator-cum- Compressor Mechanic includes (3) years experience in operation & Maintenance of construction work and he is informed that unless he produces (3) years practical experience as prescribed for Refrigerator-cum-Compressor Mechanic, he cannot be considered as eligible for appointment as Refrigerator-cum- Compressor Mechanic.

He is therefore instructed to submit the same as enunciated above at once for taking further necessary action in the matter".

17.

It is not the case of the petitioner that he submitted three years experience certificate pursuant to the Memo dated 30-04-2008 served on him.

Since the petitioner failed to produce the experience certificate covering three years, the Director, Animal Husbandry, Hyderabad issued Memo Roc.

No.8646/BV/B4/2007, dated 28-8-2008 rejecting the case of the petitioner for appointment to the post of Refrigerator-cum-Compressor Mechanic.

For better appreciation, I may refer the relevant portion of the Memo dated 28-8-2008, which reads as hereunder:- "According to the Adhoc rules framed for the temporary post of Refrigerator-cum- Compressor Mechanic in the original Pig breeding Station, vide G.O.Ms.No.2359, Food and Agricultural (A.H.1) Department, dated 30/07/1966 as amended vide G.O.Ms.No.1902, Food and Agricultural Department dated:

20. 09/1968, the qualification prescribed for appointment to the said post by Direct recruitment by transfer shall be a Diploma in Mechanical and Electrical Engineering or equivalent qualification with at least three years of experience in operation and maintenance or construction work on refrigerator-cum-compressor as mechanic.

According to these Adhoc rules, the Director of Animal Husbandry shall be the appointing authority.

These rules were in force as on 01/05/1995 the date from which the Hon'ble High Court directed the petitioner to be considered for appointment to the above post, as such those rules are to be made applicable in his case.

In order to consider his case for the post of Refrigerator-cum-Compressor Mechanic, Sri N.Veeraju daily wage worker has been directed to submit certificates of Education qualifications and experience certificate showing a minimum period of 3 years experience, vide this office Memo dated 30/04/2008.

Sri N.Veeraju, in his representation 4th cited has submitted experience certificates covering the period of one year and eleven months only and promised to submit relevant other experience certificates, soon after tracing the same in his house.

But in spite of repeated reminders issued to him in the reference 5th cited, he failed to submit relevant experience certificates covering the 3 years experience.

Therefore, Sri N.Veeraju is considered not eligible for appointment to the post of Refrigerator-cum-Compressor Mechanic, in terms of G.O.Ms.No.2359, Food and Agricultural (A.H.1) Department, dated:

30. 07/1966 as amended vide G.O.Ms.No.1902, Food and Agricultural Department dated :

20. 09/1968.

Hence, the application of Sri N.Veeraju, Daily wage worker office of the Piggery Development Project, Visakhapatnam for appointing him to the post of Refrigerator-cum-Compressor Mechanic, is hereby rejected.

" 18.

The representation of the petitioner to consider his case for appointment to the post of Refrigerator-cum-Compressor Mechanic came to be rejected for his not producing the requisite experience certificate.

The rejection memo cannot be said to be in violation of the direction given in the writ petition.

The Director, Animal Husbandry has issued proceedings dated 11- 12-2009 appointing the petitioner temporarily to the post of Refrigerator-cum- Compressor Mechanic under Rule 10(a) of A.P.State and subordinate Services Rules, 1996, keeping in view of the fact that he has been working as daily wage worker for a quite considerable time." 5.

The present contempt appeal is preferred against the said order and the primary contention of the learned counsel for the appellant is based upon the findings recorded by the learned single Judge in dismissing the contempt case.

According to the learned counsel, the said findings are contrary to the findings of this Court in the final order in the writ petition and seeks to justify the maintainability of the appeal under Clause 15 of the Letters Patent as well as under Section 19 of the Contempt of Courts Act, 1971.

6.

RE - MAINTAINABILITY: (1) Under Section 19 of the Contempt of Courts Act, 1971, it is well settled that an appeal lies only against the order of the conviction/punishment and appeal per se is not maintainable against dismissal of a contempt case.

Section 19 of the Act, extracted hereunder, itself clarifies the said position and this aspect is no more res integra in view of the judgment of the Supreme Court in MIDNAPORE PEOPLES' COOP.BANK LTD.'s case (1 supra).

"19.

Appeals.

(1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt- (a) where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court; (b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court." The present appeal, being directed against the dismissal of the contempt case, is per se not maintainable in view of Section 19 of the Act, as above.

(2) Basing on the decision of the Supreme Court in MIDNAPORE PEOPLES' COOP.

BANK LTD.'s case (1 supra), learned counsel contended that the appeal is maintainable even under Clause 15 of the Letters Patent, as a contrary finding and a different order is passed by the learned single Judge, while deciding the contempt case, than the findings reached in the original order in the writ petition.

The decision in MIDNAPORE PEOPLES' COOP.BANK LTD.'s case (1 supra) has reiterated the legal position in paras 10.5 and 11 of the judgment, which are extracted hereunder: "10.5.

J.S.

Parihar v.

Ganpat Duggar (supra) is nearest to this case, on facts.

A contempt petition was filed alleging that the seniority list drawn pursuant to the order of the High Court was not in conformity with the said order.

The High Court found it to be so, but held that the disobedience was not willful and, therefore, did not punish for contempt.

But the High Court gave a direction to redraw the seniority list.

The State Government challenged the said direction in an intra court appeal.

The Division Bench held that the appeal was not maintainable under Section 19 of the CC Act, but was maintainable as an intra- court appeal as the direction issued by the single Judge would be a "judgment" within the meaning of that expression in Section 18 of Rajasthan High Court Ordinance.

Accordingly, the Division Bench set aside the direction of the learned Single Judge to re-do the list.

The said order was challenged before this Court.

This Court confirmed the decision of the Division Bench and held as follows: "Therefore, an appeal would lie under Section 19 when an order in exercise of the jurisdiction of the High Court punishing the contemnor has been passed.

In this case, the finding was that the respondents had not wilfully disobeyed the order.

So there is no order punishing the respondent for violation of the orders of the High Court.

Accordingly, an appeal under Section 19 would not lie.

The question is whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with-the directions issued by the earlier Benches.

It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of act on to seek redressal in an appropriate forum.

The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions.

But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review.

But that cannot be considered to be the wilful violation of the order.

After re- exercising the judicial review in contempt proceedings, a fresh direction by the learned single Judge cannot be given to redraw the seniority list.

In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings.

It would not be permissible..." 11.

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

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.

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.

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 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.

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).

The first point is answered accordingly." While the contention of the learned counsel for the appellant is that the order challenged in this appeal falls under conclusion V of para 11, extracted above, in our view, the impugned order, in fact, squarely falls under conclusion IV in para 11, extracted above.

The reasons therefor are mentioned in the following paragraph.

(3) In the written arguments filed in support of the maintainability of the appeal, learned counsel for the appellant has stated that vide judgment in WP.No.21147 of 2007 dated 13.04.2007, as clarified on 19.07.2007, the finding is given that the petitioner was working with effect from 21.06.1989 as Refrigerator-cum-Compressor Mechanic and that he has completed five years of service on the date of consideration and therefore, a direction was given to the respondents to consider the case of the petitioner for regularization.

However, the successor Judge, while deciding the contempt case, has proceeded to hold that the petitioner was not qualified to hold the said post and upheld the rejection of petitioner's case for regularization.

According to the learned counsel for the appellant, therefore, the aforesaid finding by the successor Judge, while dismissing the contempt case, impliedly reverses the directions given by the learned single Judge while disposing the writ petition and on that ground contends that intra-court appeal is maintainable under Clause 15 of the Letters Patent.

(4) We find difficulty in accepting the said submission that there is any contra finding recorded by the successor Judge while dismissing the contempt case.

The learned successor Judge, who decided the contempt case, had to go into the question as to whether the respondents have wilfully disobeyed the directions of this Court.

While on the said issue, the learned successor Judge has examined the admitted events, on record, including the finding in the order in the writ petition that the petitioner had not fulfilled the criteria of rendering 5 years service as on 25.11.1993 (hereinafter referred to as 'cut off date') and keeping that in view, the learned successor Judge came to the conclusion that there is no wilful disobedience on the part of the respondents.

The said conclusion of the learned successor Judge under the impugned order is, therefore, intricately linked with and incidental to the adjudication of the issue as to whether any case for taking cognizance under the Contempt of Courts Act is made out against the respondents.

The said cut off date was stipulated under the scheme of regularization under G.O.Ms.No.212 dated 22.04.1994.

The said scheme of regularization including the cut off date prescribed, as above, was upheld by the Supreme Court in A.

MANJULA BHASHINI & OTHERS v.

THE MANAGING DIRECTOR, A.P WOMEN'S COOOPRATIVE FINANCE CORPORATION LTD.2 overruling the view of the Division Bench of this Court that completion of five years of service by the date of consideration is sufficient.

Thus, it would be noticed that the learned single Judge's direction was given on the basis of the petitioner having completed five years of service on the date of consideration.

However, that legal position is reversed as per the decision of the Supreme Court in A.

MANJULA BHASHINI's case (2 supra) and as per the paragraphs extracted below, the employees, who do not satisfy the requirement of G.O.Ms.No.212 dated 22.04.1994, are not eligible for regularization.

"102.

The declaration made by the Division Bench that the ban on regularisation will be effective from 19.8.1998 i.e.

the date on which Act No.

27 of 1998 came into force and that all persons who have completed 5 years service as on that date would be entitled to be considered for regularisation of service is set aside.

It is, however, made clear that the daily wage employees and others who are covered by Section 7 of the 1994 Act (amended) and whose services have not been regularised so far, shall be entitled to be considered for regularisation and their services shall be regularised subject to fulfillment of the conditions enumerated in G.O.

dated 22.4.1994.

103.

With a view to obviate further litigation on this issue, we direct the Government of Andhra Pradesh, its officers and agencies/instrumentalities of the State to complete the exercise for regularisation of the services of eligible employees within four months of the receipt/production of copy of this order, without being influenced by the fact that the application, writ petition or appeal filed by any such employee may have been dismissed by the Tribunal or High Court or this Court.

Since some of the appeals decided by this order relate to part time employees, we direct that similar exercise be undertaken in their cases and completed within four months keeping in view the conditions enumerated in G.O.(P).

No.

112 dated 23.7.1997." 7.

The successor Judge, who decided the contempt case by the order impugned herein, has held in para 16, extracted above, that filling up the post of Refrigerator-cum-Compressor Mechanic was permissible under the rules either by direct recruitment or by transfer and since the petitioner was not in the permanent cadre, his claim cannot be considered for recruitment by transfer and so far as direct recruitment is concerned, the petitioner could not fulfil the requisite criteria, as he failed to produce his experience certificate in spite of memo dated 30.04.2008, on account of which his case was ultimately rejected on 28.08.2008.

Learned single Judge, therefore, has come to the conclusion that the said memo of rejection of petitioner's case dated 28.08.2008 cannot be said to be in violation of the direction given in the writ petition.

Consequently, the learned single Judge recorded the finding that no case is made out that respondents have disobeyed the orders of this Court in WP.No.21147 of 1997 dated 13.04.1997, as clarified on 19.07.2007.

8.

We, therefore, do not find that there is any contra finding recorded, as is sought to be contended by the learned counsel for the appellant and on the contrary, the learned successor Judge, while deciding the contempt case, found that respondents have considered the case of the petitioner, as directed by this Court, in accordance with law.

The contempt appeal is accordingly dismissed.

As a sequel, the miscellaneous applications, if any, shall stand disposed of as infructuous.

There shall be no order as to costs.

_________________________ PINAKI CHANDRA GHOSE, ACJ _____________________ VILAS V.

AFZULPURKAR, J September 26, 2012