# Santosh Kumar Srivastava v. M.D., U.P. Rajkiya Nirman Nigam and others

- **Citation:** (2001) 1 ILRA 328
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-srivastava-v-m-d-u-p-rajkiya-nirman-nigam-and-others-39623
- **Pages:** 6

## Text

1All] Santosh Kumar Srivastava V. M.D., U.P. Rajkiya Nirman Nigam and others
328
benefits and pay the same to the petitioner
treating the age of the retirement of the
petitioner to be sixty years, within a
period of four months from the date a
certified copy of this order is produced
before respondent no. 4.

Parties shall bear their own costs.

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By the Court

1. These are petitions under Section
12 of the Contempt of Courts Act for
initiating contempt proceeding against the
respondents for the alleged defiance of
Division Bench judgment and order dated
24.5.1996 of this Court in Special Appeal
No. 384 of 1993 and Writ Petition No.
16816 of 1993. Both the contempt
petitions arise out of the common
judgment and therefore, they were heard
together and are being disposed of by this
judgment

2. Heard Sri K.M.L. Hajela assisted
by Sri S.M.A. Kazmi, learned counsel for
the Petitioner and Sri Sunit Kumar,
learned
counsel
appearing
for
the
respondents.

3. The Short fact of the case giving
rise to the contempt petition is that U.P.
Rajkiya Nirman Nigam advertised 70
posts of Sub Engineers (Civil) in the year
1988 inviting application for appointment.
The vacancy was subsequently increased
from 70 to 146. The Petitioners were
diploma holders in civil engineering and
being eligible applied in the prescribed
proforma for selection and appointment.
They also appeared in the written test as
well as interview conducted in the year
1989. However, when their results were
not declared, the Petitioner, Santosh
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
329
Kumar Srivastava, filed Writ Petition No.
30071 of 1992 which was heard and
allowed vide judgment and order dated
21.5.1993. The operative portion of the
order is as under

"For the reasons given in writ
petition no. 5859 of 1991 Mahesh Kumar
Vs. U.P. Rajkiya Nirman Nigam Ltd.
Lucknow and another the respondents are
directed to declare the result of the
Petitioner within a period of two weeks
from the date of filing of a certificate
copy of this order, In case the Petitioner
qualifies in the said examination, then a
letter of appointment may be issued in his
favour within a period of one month from
the date of declaration of the result.

The writ petition is allowed.
There will be no order as to costs.

4. Rajkiya Nirman Nigam Limited
filed Special Appeal No. 384 of 199 for
setting aside the above order of the
learned Single Judge. The Division Bench
of this Court while hearing the special
appeal also summoned Writ Petition No.
16816 of 1993 filed by Sri Rakesh Kumar
Sharma and they were heard together and
disposed of vide judgment and order
dated 24.5.1996. The Division Bench in
view of the settled legal position that no
mandamus
can
be
issued
directing
issuance of appointment order to the
Petitioner even if he is successful in the
recruitment examination, and a selected
candidate cannot claim appointment as a
matter of right, quashed that part of the
order of the learned Single Judge whereby
mandamus was issued for issuing the
letter of appointment in favour of the
Petitioner.
However,
their
lordships
directed the appellant Rajkiya Nirman
Nigam Limited to declare the result of the
recruitment
examination
within
four
weeks. It was further pointed out that if
the Petitioners are declared successful,
they may be considered for appointment
in accordance with law. The operative
portion of the order of the Division Bench
is as under:

"Accordingly, it is ordered that the
respondents shall declare the result of the
recruitment
examination
within
four
weeks from the date of production of a
certified copy of the judgment and
thereafter if the petitioners are found be
successful in the examination consider
their cases for appointment in accordance
with law keeping in view the vacancy
position.

The Special Appeal and the writ
petition are disposed of on the above
terms. No costs."

5. Admittedly, the results have been
declared pursuant to the order of the
Division Bench in special appeal and
petitioner Rakesh Kumar Sharma has
been declared successful and he stands at
Serial No. 62 in the merit list but the
petitioner
Santosh
Kumar Srivastava
could not qualify the examination.

6. It is argued by the learned counsel
for the petitioner that the contemnor -
opposite party has not considered the
claim of appointment of petitioner Rakesh
Kumar Srivastava who was at Serial No.
62 of the successful candidate. It is also
contended that one Mahesh Kumar who
also appeared in the interview and
declared successful along with him has
been given appointment and, therefore,
the
respondents
cannot
deny
the
appointment to the petitioner. Learned
counsel also relying on two judgments of
the Apex Court rendered in the case of
1All] Santosh Kumar Srivastava V. M.D., U.P. Rajkiya Nirman Nigam and others
330
Jatinder Kumar and others Vs. State of
Punjab and others reported in (1985) 1
SCC 122 and in the case of State of Bihar
and others Vs. The Secretariat Assistant
Successful Examinees Union 1986 and
others reported in AIR 1984 SC 736
sought to argue that once the petitioner
has been declared successful, he has a
right to be considered for appointment
and, therefore, the respondents having
refused to consider the claim of the
petitioner for appointment has committed
gross contempt of this court.

7.

On
the
other
hand
the
respondents- Nigam has filed affidavit
stating that it is true that in the merit list
the name of the petitioner Rakesh Kumar
Sharma finds place at Serial No. 62 but
there is no vacancy in the Nirman Nigam
for making fresh appointment. In the
supplementary counter affidavit they have
further stated that the result pursuant to
the aforesaid interview was not declared
earlier because of pendency of the Writ
Petition No. 5686 of 1990 filed by Muster
Roll Diploma Holders Engineering who
were seeking their regularisation but after
the judgment of this Court in Special
Appeal the result has been declared. It has
also been averred that the financial
position of the Nigam was not sound and
it was found that there are surplus
employees
in
Nigam
and
therefore
manpower planning was done by the
Nigam and a proposal was accordingly
sent to the State Government which was
subsequently approved Prior to the man
power planning the total posts of Sub
Engineers of all categories were 443
against which 304 regular Sub Engineers
and 177 on muster roll were working.
Thus against 443 posts of Sub Engineers
481 persons were working as Sub
Engineer. However, after man planning
the sanctioned posts of Sub Engineers
were reduced from 443 to 330 as a result
of which 168 Sub Engineers became
surplus. Therefore, the State Government
directed the Nigam not to make any
appointment unless all the employees who
have became surplus because of the man
power planning are regularised against the
sanctioned posts.

8. In pare-12 of the counter-affidavit
the Board has also given figure about
their financial position and it has been
submitted that the Nigam's financial
position does not permit to make any
fresh appointment. It has also been
averred in para-14 of the counter-affidavit
that the Nigam has considered the case of
the selected candidates but for the reason
that the surplus employees have to be
adjusted. It is not possible to make fresh
appointment from the selection held in the
year 1988.

9. In short the stand of the
respondents for not giving appointment to
the petitioners is firstly: their poor
financial condition, secondly; reduction of
sanctioned strength on account of man
power planning and thirdly; the staff
declared surplus on account of man power
planning is to be accommodated first.

10.

Learned counsel for the
petitioner vehemently contended that the
Division
Bench
has
made
specific
direction that if the petitioners are found
to be successful in the examination, the
respondents shall consider their case for
appointment in accordance with law
keeping in view the vacancy position.
Therefore, the respondents are duty bound
to consider the claim of the petitioner for
appointment.
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
331

11.

Inspite
of
my
anxious
consideration I am not persuaded with the
contention for the reason that the direction
of this Court was two fold. Firstly to
declare the result and secondly to consider
their cases for appointment in accordance
with law keeping in view the vacancy
position. First part of direction has been
complied with by declaring the result and
therefore, now the controversy centres
round to the second part only. The second
part of the order is clear and admits only
one interpretation, that to consider them
for
appointment
provided
there
is
vacancy. The order of the Division Bench
is "to consider their cases for appointment
in accordance with law keeping in view
the vacancy position." Therefore, in the
absence of vacancy they are not required
to
be
considered.
In
other
words,
consideration
of
their
claim
for
appointment in the event of their being
declared successful, is dependent on the
availability of the posts. Respondents in
their counter-affidavit have disclosed the
existing number of sanctioned posts of
Sub-Engineers and the number of SubEngineers who are already working in the
Nigam (Corporation), it appears that due
to financial constraint the Nigam with the
approval of the State Government decided
to down size their strength. Consequently,
they reduced the posts of Sub Engineers
from 443 to 330. Therefore, the second
part of the direction being dependent on
the vacancy position, in the absence of
any vacancy, was not possible to be
carried out and therefore, in the facts and
circumstances, it cannot be held that it
amounts to deliberate defiance of this
Court's order. Respondents have given
detailed explanation in their affidavit,
which in my opinion is convincing and
sufficient.

12. It is settled legal position that a
selected candidate has no right to the post
and he cannot claim appointment as a
matter of right but he is only entitled to be
considered. In the case in hand in view of
the fact that there was no vacancy and the
Nigam has decided not to make any
appointment unless the surplus employees
are adjusted against the vacancies, in my
opinion, it could not be held that the
respondents have wilfully flouted the
order of this Court. The authorities cited
by the learned counsel for the petitioner
are also of no help as in the case of
Jatinder Kumar & others Vs. State of
Punjab. (Supra), the Apex Court has held
that a selected candidate has no right to be
appointed which could be enforced by
mandamus. Similar view was taken in the
case of State of Bihar Vs. Secretariat
Assistant Successful Examinees Union
(Supra), wherein the Apex Court has
quashed that part of the order of the High
Court wherein mandamus was issued to
make appointment.

13. During the course of submission
Mr. Hajela, learned counsel sought to
argue that there was a clear direction of
the Division Bench to consider the
petitioner against the existing vacancy for
appointment.
I
am
afraid
such
interpretation, if accepted, will amount to
restore that part of the judgment of the
learned Single Judge which has been
quashed by the Division Bench. The
learned Singhl Judge vide order dated
21.5.1992 directed the Nigam to declare
the result of the petitioners within a
period of two weeks from the date of
filing of the certified copy of the order
and in case they have qualified, the letter
of appointment may be issued in their
favour within a period of one month from
the date of publication of the result. The
1All] Santosh Kumar Srivastava V. M.D., U.P. Rajkiya Nirman Nigam and others
332
Division Bench, on appeal, by the Nigam
quashed the second part of the order
directing to appoint the petitioners in view
of the settled legal position that such a
direction could not be appropriately
issued.

14. In a contempt proceeding it is to
be seen as to whether there is any wilful
disobedience or not and if such wilful disobedience is found to be on account of
compelling circumstances the contemnor
may not be held liable for contempt.

In the case of Dushyant Somal Vs.
Sushma Somal reported in AIR 1981 SC
1026
the
Hon'ble
Supreme
Court
observed as under:

"Nor is a person to be punished for
contempt of court for disobeying an order
of court except when the disobedience is
established beyond reasonable doubt, the
standard of proof being similar, even if
not the same, as in a criminal proceeding.
Where the person alleged to be in
contempt is able to place before the court
sufficient material to conclude that it is
impossible to obey the order. The court
will not be justified in punishing the
alleged contemnor."

15. In the case of Niaz Mohammad
and others Versus State of Haryana
and others reported in (1994) 6 Supreme
Court Cases 332 the Apex Court has
observed as under:

"9 Section 2(b) of the Contempt of
Courts Act, 1971 (hereinafter referred to
as 'the Act') defines "civil contempt" to
mean
"wilful
disobedience
to
any
judgment decree direction order writ or
other process of a court....." Where the
contempt consists in failure to comply
with or carry out an order of a court made
in favour of a party, it is a civil contempt.
The person or persons in whose favour
such order or direction has been made can
move the court for initiating proceeding
for
contempt
against
the
alleged
contemner, with a view to enforce the
right flowing from the order or direction
in question. But such a proceeding is not
like an execution proceeding under Code
of Civil Procedure. The party in whose
favour an order has been passed, is
entitled to the benefit of such order, the
court while considering the issue as to
whether the alleged contemner should be
punished for not having complied with
and carried out the direction of the court,
has to take into consideration all facts and
circumstances of a particular case. That is
why the framers of the Act while defining
civil contempt, have said that it must be
wilful disobedience to any judgment,
decree, direction, order, writ or other
process of a court. Before a contemner is
punished for non-compliance of the
direction of a court, the court must not
only be satisfied about the disobedience
of any judgment, decree, direction or writ
but should also be satisfied that such
disobedience was wilful and intentional.
The civil court while executing a decree
against the judgment debtor do not
concerned and bothered whether the
disobedience to any judgment or decree
was wilful. Once a decree has been
passed, it is the duty of the court to
execute the decree whatever may be
consequence
thereof.
But
while
examining the grievance of the person
who has invoked the jurisdiction of the
court to initiate the proceeding for
contempt for disobedience of its order,
before any such contemner is held guilty
and punished, the court has to record a
finding that such disobedience was wilful
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
333
and intentional. If from the circumstances
of a particular case, brought to the notice
of the court, the court is satisfied that
although there has been a disobedience
but such disobedience is the result of
some compelling circumstances under
which it was not possible for the
contemner to comply with the order, the
court
may
not
punish
the
alleged
contemner."

16. Therefore, before holding guilty
for the alleged defiance of the order, the
court is required to take into consideration
all facts and circumstances of a particular
case and has to be satisfied that such disobedience
is
wilful,
deliberate
and
intentional
before
punishing
the
contemnor under the Contempt of Courts
Act. If however, it is found that there is
dis-obedience but such dis-obedience is
on
account
of
some
compelling
circumstances
under
which
it
is
impossible for the contemnor to comply
with the order, the contemner may not be
punished. In the case in hand as noticed
earlier there was only direction to
consider the petitioner for appointment in
accordance with law keeping in view the
vacancy position. In the absence of any
vacancy there is no occasion to consider
the
petitioner
for
appointment
and
therefore, no part of the order of this
Court can be said to have flouted by the
respondent-contemner.

17. Having heard learned counsel
for the parties at length and having regard
to all the facts and circumstances of the
case, in my opinion, there is no wilful
obedience on the part of the respondents
by not considering their claim for
appointment in view of the fact that no
vacancy exists. In such a circumstances, it
cannot be held that the respondents have
wilfully disobeyed the order of this Court
and as such liable to be punished for
committing contempt of this Court.

For the discussions made above, the
contempt petition is dismissed. The
respondents are discharged from the rule.
However, there will be no order as to
costs.
Petition Dismissed.

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