9911796707
TMI Blog2012 (8) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheduled Tribes. Subsequently, on and from 3rd October, 1973, such reservation was increased to 16% and 12% for Scheduled Castes and Scheduled Tribes candidates, respectively. On 29th January, 1981, the Rules for promotion based on the criteria of seniority-cum-merit were introduced. In 1992, in the case of Indira Sawhney v. Union of India and Ors. [ (1992) Supp. 3 SCC 217], this Court had held that reservation in promotional posts for Scheduled Castes and Scheduled Tribes candidates was not permissible. The effect of the said decision was neutralized by the Constitution (Seventy Seventh Amendment) Act, enacted on 17th June, 1995, whereby Article 16(4-A) was inserted in the Constitution to provide for reservation in respect of Scheduled Castes and Scheduled Tribes candidates in promotional posts. 3. The aforesaid amendment led to a spurt of litigation. In 1996, while considering the said issue in the case of Ajit Singh Januja and Ors. v. State of Punjab and Ors. [ (1996) 2 SCC 715] (Ajit Singh-I), this Court held that even if the person in reserved category is promoted earlier than a general category candidate due to operation of roster, and subsequently, the general category cand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the seniority list. 6. After having introduced the same, the State of Rajasthan by its Notification dated 28th December, 2002, withdrew the catch-up principle after the introduction of the Constitution (Eighty Fifth Amendment) Act. From the Notification dated 28th December, 2002, it would be seen that an attempt was made to preserve the rights of general category candidates, who had already been promoted vide Notification dated 1st April, 1997. It was also indicated that persons who had already been promoted vide Notification dated 1st April, 1997, were not to be reverted. 7. The vires of Article 16(4-A), 16(4-B) and Article 335 of the Constitution was challenged and in M. Nagaraj's case (supra) it was considered by a Constitution Bench of this Court, which upheld the validity of Articles 16(4-A), 16(4-B) and the amendment to Article 335 of the Constitution, but imposed certain conditions regarding reservation in promotion and accelerated promotions. This Court directed that the State should collect quantifiable data, after which the Committee should also examine the requirements relating to backwardness, inadequacy in representation and efficiency for the purpose of grant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Contempt Petitions, the judgment of the High Court passed on 5th February, 2010, became final after the dismissal of the Special Leave Petitions, but despite the same, they were not being complied with by the concerned authorities of the State. The authorities were deferring compliance of the judgment dated 5th February, 2010, on the ground that they were undertaking the exercise of collecting quantifiable data required to enable the State of Rajasthan to exercise its powers under Article 16(4-A) of the Constitution. It was the further grievance of the Contempt Petitioners that the letter issued by the State on 14th February, 2011, was in purported compliance of the judgment dated 7th December, 2010, passed in SLP (C) No. 6385 of 2010, asking all the Departments to give information with regard to the SC/ST employees from 1.4.1997 onwards on year-wise basis, which was not contemplated in the M. Nagaraj judgment. It was also the case of the Contempt Petitioners that Article 16(4-A) is an enabling provision based on the Government's information with regard to the backwardness and inadequate representation of SC/ST employees, which could not be given retrospective effect. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment rendered in M. Nagaraj's case (supra). Immediately, thereafter, on 13th April, 2011, a further contempt petition was filed by Shri Bajrang Lal Sharma. The Bhatnagar Committee Report was submitted to the State Government on 19th August, 2011 and on 11th September, 2011, the State Government, in exercise of its powers under the proviso to Article 309 of the Constitution of India and on the basis of the Bhatnagar Committee Report, framed a Rule with retrospective effect from 1st April, 1997, so that the vacuum which had been created could be filled up. The Rule also provided for roster-based promotion based on the posts available and also preserved the rights of the general category candidates who had earned promotions between the period 1st April, 1997 to 28th December, 2002, or the promotions which had actually been given effect to in terms of the repealed Notification dated 1st April, 1997. 16. Appearing for the Appellants, the learned Attorney General pointed out that the Notification issued by the State Government on 11th September, 2011, had been declared void by the High Court by holding that the same did not amount to valid compliance and the Notification dated 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Notification dated 25th August, 2009, and the matter was referred to the Rajasthan State Backward Classes Commission, before whom the State Government was directed to place the quantifiable data within a period of one year. The stay granted was directed to continue till the matter was decided afresh. 20. Subsequently, contempt proceedings were taken, being No. 359 of 2011, challenging the letter dated 14th February, 2011, issued by the State of Rajasthan to the Heads of all Departments asking for information regarding representation of SC/ST employees. Ultimately, by the order impugned in these appeals, the High Court held the Appellants herein to be guilty of contempt of Court, inasmuch as, despite sufficient time having been given to the Respondents to comply with the order dated 5th February, 2010, the Appellants failed to do so even after a lapse of 14 months after their Special Leave Petitions were dismissed by this Court. The High Court also took note of the fact that the Appellant No. 1 herein, Shri Salauddin Ahmed, did not even reply to the show-cause notice issued to him, which the High Court interpreted to mean that the said Appellant had nothing to say in his defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the quantifiable data to comply with the judgment dated 5th February, 2010. 24. It was also contended that the contempt Petitioner had misunderstood the import of the judgment dated 5th February, 2010, passed by the Division Bench of the High Court in relation to the judgment of this Court dated 7th December, 2010. The learned Attorney General submitted that it was on account of the confusion in the mind of the Petitioner that a prayer had been made in the Contempt Petition for suitable directions upon the contemnors to implement the judgment dated 5th February, 2010, passed in D.B. Civil Writ Petition No. 8104 of 2008 and to allow the Petitioners to regain their accrued and vested seniority given to them in pursuance of the seniority list of 26.6.2000. It was submitted that the seniority list of 26.6.2000 had already been quashed by the High Court in a dispute between direct recruits and promotees and the said matter is pending in this Court by way of a Special Leave Petition. 25. The learned Attorney General submitted that the constitution of the Bhatnagar Committee in pursuance of the order passed by this Court on 7th December, 2010, was challenged by filing of interlocutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be passed to give effect to a repealed law or a law which was no longer in existence, as has been done in the instant case. The learned Attorney General reiterated that the High Court had erroneously declared the Notification dated 11th September, 2011, to be ultra vires without any challenge being made to such Notification. 28. The learned Attorney General submitted that the Bhatnagar Committee had been formed pursuant to the directions given by this Court in Suraj Bhan Meena's case (supra) and this Court while disposing of the Special Leave Petitions filed by Suraj Bhan Meena and Ors. categorically indicated that the impugned order of the High Court was, in fact, based on the decision in M. Nagaraj's case (supra) as no exercise had been undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of representation of the Scheduled Castes and Scheduled Tribes communities in public service and that the Rajasthan High Court had rightly quashed the notifications dated 28th December, 2002 and 25th April, 2008, issued by the State of Rajasthan providing for consequential seniority and promotion to the members of the Scheduled Castes and Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra)and in Suraj Bhan Meena's case (supra), for identifying such members of the SC/ST communities who would be entitled to the benefits provided under Article 16(4-A) of the Constitution. Mr. Vaidyanathan reiterated the submissions made before the High Court that the Contempt Petitions were, in fact, not maintainable as the orders out of which the same had arisen had merged in the order of this Court when the Special Leave Petitions were dismissed by a reasoned judgment. Accordingly, by virtue of the doctrine of merger, the said orders do not exist and, if any contempt is alleged, it would be with regard to the orders passed by this Court and the High Court had no jurisdiction to entertain the matter. 32. Mr. Vaidyanathan further submitted that on account of non-compliance with the three requirements indicated in M. Nagaraj's case (supra), the notification dated 28th December, 2002, stood vitiated. However, with the quashing of the said notification dated 28th December, 2002, the notification dated 1st April, 1997, which stood deleted by notification dated 28th December, 2002, stood revived and continued to be in operation. 33. Mr. Harish Salve, learned Senior Advocate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be contended that by appointing the Bhatnagar Committee, the alleged contemnors had not willfully violated the directions given by this Court in Suraj Bhan Meena's case (supra). 35. Dr. Dhawan fairly conceded that an order may be violated without any willful intent to disobey the same. Referring to paragraph 459 of Halsbury's Laws of England, dealing with unintentional disabilities , Dr. Dhawan pointed out that sometimes it may so happen that an order of Court is breached without any intention on the part of the offender to do so. Dr. Dhawan submitted that this could be such a case and, accordingly, the contemnors could be directed to purge themselves of the contempt by withdrawing all the Notifications, including the Notification dated 11th September, 2011, and implementing the order dated 5th February, 2010, and also to punish the contemnors without sentence. 36. In order to establish that a person had deliberately and willfully committed contempt of Court, two essential ingredients have to be proved. Firstly, it has to be established that an order has been passed by the Court which either directs certain things to be done by a person or to restrain such person or per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omotion, but if they did wish to exercise their discretion in that regard, the State had to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, in addition to compliance with Article 335. The same not having been done, the said Notifications were quashed. 38. Inasmuch as, no further action was taken by the State and its authorities after the said Notifications were quashed, the contempt petition was filed mainly on the ground that the State and its authorities had by their inaction in complying with the requirements set out in M. Nagaraj's case (supra), committed contempt of Court and the same was accepted and the Appellants herein were found guilty of having committed contempt of Court by such inaction. 39. The next thing that we are required to consider is whether such inaction was on account of any circumstances which prevented the State Government and its authorities from taking action in terms of the observations made by the Division Bench of the High Court in its judgment dated 5th February, 2010, or whether such inaction was on account of the deliberate intention of the State and its authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Nagaraj's case subsequently reiterated in Suraj Bhan Meena's case. 43. The various submissions advanced by Mr. Salve, Dr. Dhawan and Mr. Sanjeev Prakash Sharma in support of the decision of the Division Bench of the High Court, holding the Appellants guilty of contempt of Court and, in particular, the alleged inaction to implement the judgment and orders in M. Nagaraj's case and Suraj Bhan Meena's case are not very convincing, since in order to comply with the findings in M. Nagaraj's case and Suraj Bhan Meena's case, necessary data was required to be collected, in the absence of which it was not possible for the State and its authorities to act in terms of the observations made in M. Nagaraj's case and in Suraj Bhan Meena's case (supra). 44. Accordingly, we are of the view that despite the fact that there has been delay on the part of the State and its authorities in giving effect to the observations made in the two aforesaid cases, there was no willful or deliberate intention on their part to defy the orders of this Court. The very fact that the Bhatnagar Committee was appointed indicates that the State and its authorities had every intention t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
