N.K.Jain, J. - (1.) SINCE both the contempt petitions had been preferred for committing contempt of judgment dated 05.02.2010 passed by this Court in D.B. Civil Writ Petition No. 8104/2008, therefore, they were heard together and are being disposed off by a common order.
(2.) D.B. Civil Contempt Petition No. 941/2010, Samta Andolan Vs. Shri Salauddin Ahmed & Another was preferred on 26.10.2010, contending therein that this Court vide judgment dated 05.02.2010 quashed Notifications dated 28.12.2002 and 25.04.2008 and declared the same ultra vires to the provisions of Articles 14 and 16 of the Constitution of India. Further, this Court has also quashed and set aside all the consequential orders or actions taken by the respondents, including seniority list of Super Time Scale as well as Selection Scale of the Rajasthan Administrative Service Officers, issued on the basis of above notifications. The State of Rajasthan had then preferred a Special Leave Petition(Civil) No. 7716/2010 before the Hon'ble Apex Court, wherein no interim order had been passed in favour of State and despite all these, the respondents are sitting tight over the matter and proceeding with promotions in different departments. The hearing before the Hon'ble Supreme Court has been concluded and order is reserved, but despite all these, the respondents are not restraining themselves from convening the Departmental Promotion Committee for various posts in different departments. The petitioner had given representation to the respondents for complying with the judgment passed by this Court, but instead of complying with the same, the respondents are continuously making promotions in different services and issuing seniority lists in various departments; for illustraton, promotions made in Co-operative Department, PWD Department, Finance Department, etc. in violation of the judgment passed by this Court. The copies of representations, seniority lists, promotion orders have been annexed with the contempt petition. It is further averred in the contempt petition that the petitioner has also served upon respondents a legal notice for contempt of Court on 12.10.2010. But despite all these efforts of the petitioner, the respondents are continuously defying and violating the judgment passed by this Court. It was also contended that recently Principal Secretary, Department of Personnel issued a Circular dated 11.10.2010 to the Principal Secretaries of all the departments for convening the DPC, despite quashing of Notifications dated 28.12.2002 and 25.04.2008. Copy of Circular dated 11.10.2010 is also annexed with the contempt petition. The petitioner further stated that respondents/contemnors have shown scant regard for the judgment of this Court and inaction on their part amounts to contempt of order of this Court. It was further stated that an authority of any high position should not be permitted to flout the orders issued by this Court. The respondents, therefore, are guilty of committing contempt of judgment passed by this Court, as such, they are required to be punished severely under the provisions of Contempt of Courts Act. D.B. Civil Contempt Petition No. 359/2011 was filed on 08.03.2011, contending therein that this Court vide its judgment dated 05.02.2010 quashed Notifications dated 28.12.2002 and 25.04.2008, issued by State of Rajasthan. It was also contended that despite dismissal of SLP filed by State before the Hon'ble Supreme Court, the respondents are not making compliance of judgment dated 05.02.2010 passed by this Court. The petitioners are suffering on account of inaction of the respondents, as rights of the petitioners are being curtailed for being considered for promotion into IAS, because the maximum age for consideration for appointment on the post of IAS is 54 years and the petitioners are approaching the maximum age. The respondents are, now, duty bound to restore the seniority of the petitioners, who have a right of seniority, which has accrued/vested in them by virtue of seniority list dated 26.06.2000. The respondents are deferring the compliance of the judgment on the ground of collection of quantifiable data required for enabling the State of Rajasthan to exercise power under Article 16(4A) of the constitution of India. It is also contended that in pursuance of judgment dated 05.02.2010, the State is not required to collect quantifiable data for making compliance of the judgment, because enabling power, under Article 16(4A) of the Constitution of India, is the discretionary power of the respective State Government. The State Government is neither under any obligation to give reservation in promotion along with consequential seniority, nor the reserved category employees have any vested constitutional right for the same. The State has issued a letter dated 14.02.2011 in so-called compliance of judgment dated 07.12.2010 passed by the Hon'ble Supreme Court in SLP No. 6385/2010 and asked all the the departments to give information with regard to SC/ST employees from 01.04.1997 onwards, on year wise basis. The State has also directed all the concerned departments to give information in the proforma strictly, which was enclosed with the letter, on consolidated basis of the whole service and not separately with regard to different posts coming under that service. The letter dated 14.02.2011 is contemptuous because: (A) The State cannot collect data with retrospective date in pursuance of M. Nagaraj case and judgment dated 07.12.2010. (B) State has to collect data in each case i.e. each ladder of promotion in a service; otherwise the exercise would be a camouflage which will not show the conglomeration of SC/ST employees at higher echelons of the services. Article 16(4A) of the Constitution of India is an enabling provision, which is based on Government's opinion with regard to backwardness and inadequate representation of SC/ST employees. This opinion cannot be given retrospective effect in any possibility, rather such opinion will have prospective application. This aspect of the matter has further been discussed by the Hon'ble Supreme Court in the case of Shiv Nath Prasad Vs. Saran Pal Jeet Singh Tulsi and Others, (2008) 3 SCC 80 and the Hon'ble Apex Court directed the Government of M.P. To conduct any exercise, if they so wish, with prospective effect and from that very date of exercise, the powers, which are vested in Articles 16(4A) and 16(4B) of the Constitution of India, can be exercised. This approach of the State is impermissible and contemptuous to the judgment dated 05.02.2010 passed by this Court. It is, therefore, prayed that the respondents/contemnors are guilty of committing the contempt of judgment dated 05.02.2010 passed by this Court and as such, they are required to be punished severely. The petitioners filed an application on 11.05.2011 in D.B. Civil Contempt Petition No. 359/2011 for further initiating contempt proceedings contending therein that the State has constituted a High Level Committee on 31.03.2011 headed by Shri K.K. Bhatnagar(Retd. IAS) as Chairman and two Members namely Shri Ashok Sampatram, Principal Secretary, School and Sanskrit Education and Shri Govind Sharma, Principal Secretary, Mines and Petroleum Department for making compliance of and in accordance with judgment dated 07.12.2010 passed by the Hon'ble Supreme Court in SLP (Civil) No. 6385/2010. It was also stated that this is a further endeavour by the State of Rajasthan for deferring the compliance of judgments dated 05.02.2010 and 07.12.2010. It was further stated that neither this Hon'ble Court, nor the Hon'ble Supreme Court has directed the State to constitute a committee for making compliance of the judgments. It was also stated that it seems that this Committee is superior to the orders of the Court and the State Government has strangely stated that the compliance of Court judgments would be made only on the recommendations of the Committee. The constitution of the Committee is clearly an attempt to over-reach the process of the Court and to reduce the esteem of the judiciary, which is highly deplorable and contemptuous. The members of Committee are also liable to be punished for committing contempt of Court by participating in such an action. It is further mentioned in the application that the Committee has started functioning, which clearly brings them under the jurisdiction of contempt of Court. It is also stated that the Law Department of State of Rajasthan, in compliance of judgment dated 05.02.2010, has passed necessary orders for making reversions and issuing the amended seniority lists after giving the benefit of regaining of seniority to general category employees. It was prayed in the application that Chairman and Members of the Committee be impleaded as party in the array of respondents/contemnors and contempt proceedings may also be initiated against them.
(3.) THIS Court, in D.B. Civil Contempt Petition No. 941/2010, issued notice to respondents on 01.11.2010. The State of Rajasthan filed I.A. No. 5/2010 before Hon'ble Supreme Court contending that arguments in SLP preferred by the State were concluded on 04.08.2010 and a notice has been issued in contempt petition pending in the High Court. The Hon'ble Apex Court stayed the contempt proceedings pending before this Court on 16.11.2010/25.11.2010. The Special Leave Petition filed by the State was dismissed by the Hon'ble Apex Court on 07.12.2010. Later on I.A. No. 5/2010 came up for hearing and the Hon'ble Apex Court observed that since Special Leave Petitions have been dismissed, even I.A. does not survive and the same was dismissed vide order dated 20.07.2011. In D.B. Civil Contempt Petition No. 359/2011, notices were issued to respondents on 06.04.2011, but no proceedings took place in view of stay order passed by the Hon'ble Supreme Court in I.A. No. 5/2010. However, in view of dismissal of Special Leave Petition filed by the State before the Hon'ble Supreme Court, I.A. No. 5/2010 was also dismissed on 20.07.2011. The contempt petition was listed on 28.07.2011 and on the request of learned Advocate General, the matter was adjourned for three weeks to report the compliance of judgment passed by this Court and affirmed by the Apex Court. ;