SALAUDDIN AHMED Vs SAMTA ANDOLAN
Bench: ALTAMAS KABIR,J. CHELAMESWAR
Case number: C.A. No.-002504-002505 / 2012
Diary number: 6767 / 2012
Advocates: IRSHAD AHMAD Vs
RUCHI KOHLI
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2504-2505 OF 2012
Salauddin Ahmed & Anr. … Appellants
Vs.
Samta Andolan … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. These appeals arise out of the common judgment
and order dated 23rd February, 2012, passed by the
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Division Bench of the Rajasthan High Court in D.B.
Civil Contempt Petition No.941 of 2010 and D.B.
Civil Contempt Petition No.359 of 2011, whereby the
alleged contemnors were held to be guilty of
contempt of court for having violated the order
passed by the Division Bench of the Jaipur Bench of
the Rajasthan High Court on 5th February, 2010, in
D.B. Civil Writ Petition No.8104 of 2008.
2. From the materials on record it transpires that
on 27th November, 1972, the State of Rajasthan
issued a Notification providing for reservation for
Scheduled Castes/Scheduled Tribes candidates to the
extent of 15% for Scheduled Castes and 7.5% for
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,
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in the case of Indira Sawhney Vs. Union of India &
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 & Ors. Vs.
State of Punjab & 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
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candidate was also promoted, the candidates in the
general category would regain their seniority as
existing in the cadre prior to promotion. This
method of allowing a subsequent promotee to regain
seniority came to be known as the “catch-up”
principle. On 30th January, 1997, the Union of India
issued a memorandum to all the various departments
asking them to implement the decision rendered by
this Court regarding regaining of seniority
pursuant to the said direction. Thereafter, on 1st
April, 1997, the State of Rajasthan followed suit
and introduced the “catch-up” principle. A
provisional seniority list of candidates belonging
to the Rajasthan Administrative Services was issued
on 26th June, 2000, on the basis of the Notification
dated 1st April, 1997. However, it was never given
effect to and was ultimately quashed by the
Rajasthan High Court in Writ Petition (Civil)
Nos.2968 of 2000, 2176 of 2000, 3373 of 2000 and
3385 of 2000.
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4. In 2001, the Parliament passed the Constitution
(Eighty Fifth Amendment) Act inserting the words
“consequential seniority” for members of reserved
category. Thus the said amendment removed the
basis of the judgment rendered by this Court in
Union of India & Ors. Vs. Virpal Singh Chauhan
[(1995) 6 SCC 684] and in Ajit Singh-I ’s case
(supra). The provisions of the said amendment were
given retrospective effect from 17.6.1995, in order
to remove the provision relating to the “catch-up”
principle with retrospective effect.
5. In 2002, a writ petition was filed before this
Court by the All India Equality Forum against the
State of Rajasthan, seeking to strike down the
Constitution (Eighty Second Amendment) Act and the
Constitution (Eighty Fifth Amendment) Act of 2001.
The writ petitioner claimed similar reliefs as in
M. Nagaraj & Ors. Vs. Union of India & Ors. [(2006)
8 SCC 212]. Thereafter, on 11th November, 2002, the
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interim order regarding implementation of Article
16(4-A) of the Constitution was clarified and it
was indicated that if certain candidates from
reserved category were entitled to promotion in
terms of the provisions of Article 16(4-A), they
would be promoted. It was, therefore, the stand of
the Union of India that the interim order could not
be construed to be a bar to implementation of the
amendment to Article 16(4-A). The order also
provided that no person was to be reverted from
their existing placement or standing 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
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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 of reservation in promotion and
accelerated promotions. One of the areas of dispute
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between the parties is that the State Government
also withdrew the “catch-up” principle in favour of
general category candidates with retrospective
effect, but without following the principles
enunciated in M. Nagaraj ’s case (supra). On 24th
June, 2008, a seniority list was drawn up without
considering the “catch-up” principle, which also
gave effect to the Notification dated 25th April,
2008.
8. On 22nd August, 2008, D.B. Civil Writ Petition
No.8104 of 2008 was filed by Bajrang Lal Sharma and
others, challenging the said Notification dated 25th
April, 2008, and the seniority list drawn up
consequent thereto. While entertaining the writ
petition, the Division Bench of the High Court
stayed the said Notification dated 25th April, 2008.
9. On 4th March, 2009, a seniority list was
prepared, but the same was quashed by the learned
Single Judge. The Notifications dated 28th December,
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2002 and 23rd April, 2008, were challenged before
the High Court by several candidates belonging to
the general category and the same were ultimately
quashed by the High Court on 5th February, 2010, on
the ground that the conditions precedent laid down
in M. Nagaraj ’s case (supra), had not been
followed. The High Court was also of the view that
the right which had vested to the candidates by
virtue of the Notification dated 1st April, 1997,
and had been protected by Notification dated 28th
December, 2002, had been illegally taken away vide
Notification dated 25th April, 2008.
10. On 16th November, 2010, the general category
employees filed a contempt petition against the
Chief Secretary for not implementing the order
passed by the High Court on 5th February, 2010,
which was registered as D.B. Civil Contempt
Petition No.914 of 2010 in D.B. Civil Contempt
Petition No.8104 of 2009, titled as Samta Andolan
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Vs. Salauddin Ahmad & Anr . On an application filed
before this Court, this Court vide its order dated
16th November, 2010, stayed the contempt proceedings
pending before the High Court.
11. The case made out in the Contempt Petition was
that despite the judgment dated 5th February, 2010,
and the dismissal of the various Special Leave
Petitions filed by the State of Rajasthan and
others on 7th December, 2010, the State authorities
were not complying with the said judgment.
According to the Petitioners 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
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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. On account of the inaction of the alleged
contemnors on the said ground, the Contempt
Petitioners not only prayed for taking severe
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action against the Contemnors, but to also give
suitable directions to the said Respondents/
Contemnors to implement the judgment dated 5th
February, 2010, passed in D.B. Civil Writ Petition
No.8104 of 2008 and that the Petitioners be allowed
to regain their accrued and vested seniority.
13. As indicated hereinabove, the Division Bench of
the High Court found the Appellants herein to be
guilty of having committed contempt of Court for
deliberate and willful violation of the order
passed by the Division Bench of the Jaipur Bench of
the Rajasthan High Court on 5th February, 2010.
14. Thereafter, on 7th December, 2010, the State of
Rajasthan filed a Special Leave Petition against
the order passed by the High Court on 5th February,
2010, by which the Notifications dated 28th
December, 2002 and 25th April, 2008, had been
quashed. While upholding the judgment of the High
Court, this Court also observed that the claims of
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the reserved category candidates could be
considered after following the principles laid down
in M. Nagaraj ’s case (supra). On 22nd December,
2010, a substantive writ petition was filed by
Captain Gurvinder Singh & Ors. etc. challenging the
vires of the Rajasthan Scheduled Castes, Scheduled
Tribes, Backward Classes, Special Backward Classes
& Economically Backward Classes (Reservation of
Seats in Educational Institutions in the State and
of Appointments & Posts in Services under the
State) Act of 2008, hereinafter referred to as
“2008 Act”. The main ground of challenge was with
regard to the reservation exceeding the 50% ceiling
due to extension of reservation to Special Backward
Classes & Economically Backward classes. The High
Court by its order dated 22nd December, 2010,
restrained the State from giving effect to Sections
3 and 4 of the 2008 Act. It is the case of the
Appellants that the said order was directed against
the reservation in respect of Special Backward
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Classes & Economically Backward Classes and had
nothing to do with reservation in respect of
promotion for Scheduled Castes and Scheduled Tribes
candidates.
15. On 31st March, 2011, the State Government
constituted the Bhatnagar Committee to look into
the different aspects relating to reservation in
promotion and consequential seniority in terms of
the judgment 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
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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 April,
1997, should be given effect to. The learned
Attorney General submitted that since by the
Notification dated 11th September, 2011, the earlier
Notification dated 1st April, 1997 had been
withdrawn, the same could not be given effect to
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without first declaring the Notification dated 11th
September, 2011, to be ultra vires.
17. The learned Attorney General submitted that the
Notification dated 11th September, 2011, could not
have been declared ultra vires in the absence of a
substantive writ petition challenging the same,
and, in any event, it could not be questioned in a
contempt proceeding or be declared ultra vires
therein, particularly, when the Bhatnagar Committee
had been appointed in terms of the order passed by
this Court in M. Nagaraj ’s case (supra) and the
Notification dated 11th September, 2011, was issued
in pursuance of the Report of the said Committee.
18. The learned Attorney General urged that by the
order passed by the Division Bench of the High
Court in D.B. Civil Writ Petition No.8104 of 2008,
the Notifications dated 28th December, 2002, and
25th April, 2008, were declared to be ultra vires
the Constitution. As a result, the consequential
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orders passed by the State, including preparation
of the seniority list of the Super-time Scale
Officers and the Selection Scale of the Rajasthan
Administrative Service Officers, passed on the
basis of the aforesaid Notifications, were quashed.
Aggrieved by the said order, the State of Rajasthan
and Shri Suraj Bhan Meena filed separate Special
Leave Petitions before this Court which were
disposed of on 7th December, 2010. This Court
allowed the claim of Suraj Bhan Meena (SC/ST
candidates), subject to the conditions laid down in
M. Nagaraj ’s case (supra).
19. While the various above-mentioned proceedings
were being pursued, Writ Petition No.13491 of 2009
was filed challenging the vires of the 2008 Act. A
prayer was also made to review the ceiling limit in
favour of SC, ST and OBC candidates of 16%, 12% and
21%, respectively. The Notification dated 25th
August, 2009, was also questioned. The subject
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matter of the Writ Petition was focussed on
reservation to special backward classes and
economically backward classes. By an order dated
22nd December, 2010, passed in the said Writ
Petition, a Division Bench of the Rajasthan High
Court stayed the operation of Sections 3 and 4 of
the Act along with 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
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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 regarding the allegation of contempt of
Court made against him. The High Court further
noted that on several occasions time was sought for
by the State to comply with the order passed on 5th
February, 2010, but nothing was done in the matter.
Giving the Appellants 3 days’ time to purge
themselves of the contempt and to comply with the
orders passed by the Court, the Court further
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directed the Appellants to be present in person
before the Court for the purpose of sentencing in
case of non-compliance.
21. Aggrieved by the order of the Division Bench of
the Rajasthan High Court, the State Government
filed Civil Appeal No.2504-2505 of 2011 and on 27th
February, 2012, this Court issued notice and stayed
further proceedings before the High Court.
22. The learned Attorney General submitted that the
order dated 5th February, 2010, was in two parts.
While one part dealt with quashing of the
Notifications dated 28th December, 2002 and 25th
April, 2008, the other part was with regard to the
directions given in M. Nagaraj ’s case (supra) for
the collection of quantifiable data. It was
further submitted that the State of Rajasthan had
consistently acted as per the directions given in
paragraph 68 of the judgment rendered in Suraj Bhan
Meena’s case (supra), whereby it was directed that
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the claim of the Petitioners, Suraj Bhan Meena and
Sriram Chordia, in SLP (C) No.6385 of 2010, would
be subject to the conditions laid down in M.
Nagaraj’s case (supra).
23. The learned Attorney General submitted that
pursuant to the directions given in Suraj Bhan
Meena’s case (supra), the State of Rajasthan issued
a letter to all the Departments on 14th February,
2011, to ensure compliance of the judgment dated 7th
December, 2010. In addition, the State Government
sought information with regard to representation of
SC/ST employees in public employment from 1.4.1997
to 1.4.2010 on a year-wise basis. The learned
Attorney General contended that on 8th March, 2011,
one more contempt petition was filed, viz.,
Contempt Petition No.359 of 2011, in relation to
the letter dated 14th February, 2011, referred to
hereinabove. It was submitted that the State cannot
collect data with retrospective effect in pursuance
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of the decision in M. Nagaraj ’s case (supra) and
the judgment dated 7th December, 2010. It was also
submitted that the State of Rajasthan was not
required to collect 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
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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 applications, both before this Court
and also before the High Court. All the
interlocutory applications were taken up for
consideration and disposed of by this Court on 20th
July, 2011. The learned Attorney General submitted
that in the said order, this Court had recorded the
fact that Mr. M.L. Lahoti, learned counsel
appearing for the Respondents, did not challenge
the formation of the Committee, but contended that
its findings should have prospective operation and
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could not affect the case of the writ petitioners,
Suraj Bhan Meena and others. It was also emphasized
that this Court took cognizance of the constitution
of the Bhatnagar Committee, but did not pass any
restraint orders with regard to its functioning.
On the other hand, while disposing of the several
interlocutory applications, this Court also
observed that the parties would be free to make
their submissions with regard to the action taken
by the State Government in the matter pending
before the High Court. The learned Attorney
General urged that the High Court had noticed the
order passed by this Court on 7th December, 2010,
but had not considered the directions contained
therein.
26. The learned Attorney General submitted that the
Bhatnagar Committee Report had been submitted on
19th August, 2011, and after due consideration of
the Report, a Notification was issued on 11th
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September, 2011. However, it was also noticed by
the High Court that the constitution of the
Bhatnagar Committee, as also the Notification
issued on 11th September, 2011, was not in
conformity with the judgment rendered by the High
Court on 5th February, 2010, without noticing that
the same was in compliance of the directions
contained in paragraph 68 of the judgment delivered
by this Court on 7th December, 2010. The learned
Attorney General submitted that the directions
contained in the aforesaid judgment dated 7th
December, 2010, recognizing the rights of the
reserved category (Petitioners therein) and
directing the determination of such rights, be
undertaken after completion of the exercise laid
down in M. Nagaraj ’s case (supra).
27. On maintainability, it was contended that it
was beyond the powers of this Court to declare a
law ultra vires in the contempt jurisdiction. It
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was also contended that in view of the decision of
this Court in State of U.P. vs. Hirendra Pal Singh
[(2011) 5 SCC 305], a judicial order could not 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 others 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
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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 Scheduled Tribes communities.
The Special Leave Petitions were, therefore,
disposed of by observing that the claim of the
Petitioners, Suraj Bhan Meena and Sriram Chordia in
SLP (C) No.6385 of 2010, would be subject to the
conditions laid down in M. Nagaraj ’s case (supra).
The Special Leave Petitions filed by the State of
Rajasthan were consequently dismissed. The learned
Attorney General urged that this Court had, in
fact, directed that the parties would be free to
make their submissions with regard to the action
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taken by the State Government in the matter pending
before the High Court.
29. The learned Attorney General concluded on the
note that as recently observed by this Court in
Dinesh Kumar Gupta Vs. United India Insurance Co.
Ltd. [(2010) 12 SCC 770], in order to establish
that a civil contempt had been committed, it would
have to be shown that the concerned authority had
willfully and deliberately disobeyed the orders
passed by the High Court without any reasonable or
rational interpretation of the order. It was also
observed that it would not also be correct to hold
that a contempt had been committed when the
disobedience was neither deliberate nor willful,
but the steps taken were on account of the
ignorance of the correct legal position and the
action taken was in good faith without any malafide
motive to defeat or defy the Court’s order.
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30. The learned Attorney General submitted that in
this case, in compliance with the decision in Suraj
Bhan Meena ’s case (supra) and the directions given
both in M. Nagaraj ’s case (supra)and in Suraj Bhan
Meena’s case (supra), the concerned authorities had
appointed the Bhatnagar Committee to enter into a
fact finding exercise in accordance with the
provisions of Article 16(4-A) of the Constitution.
It could not be said that there was any willful or
deliberate intention or malafide motive on the part
of the concerned authorities in not complying with
the directions contained in the judgment of the
High Court dated 5th February, 2010. The Contempt
Petition was, therefore, liable to be dismissed.
31. Mr. C.S. Vaidyanathan, learned Senior Advocate,
who had appeared for the second contemnor, Khemraj
Chaudhary, while adopting the submissions made by
the learned Attorney General, submitted that the
steps taken by the Respondents were in keeping with
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the directions given both in M. Nagaraj ’s case
(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
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(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, who
also appeared for the Respondents, contended that
Civil Appeal No.171 of 2002, filed by the State of
Rajasthan against Hanuman Singh Bhati & Ors., was
pending before this Court, but this Court had not
stayed the operation of the orders either of the
Single Bench or the Division Bench. As a result,
even by sheer inaction in carrying out the
directions contained in the judgment of this Court
dated 7th December, 2010, the contemnors had
violated the orders of this Court, as there was no
justification for the contemnors not to give effect
to the directions contained in the said order. Mr.
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Salve submitted that in Maninderjit Singh Bitta Vs.
Union of India & Ors. [(2012) 1 SCC 273], this
Court had held that even inaction to implement the
orders of the Court amounts to disobedience within
the meaning of civil contempt. Mr. Salve urged
that in the absence of any stay, the contemnors
ought not to have sat over the matter, but should
have taken steps to implement the directions
contained in the said order. Mr. Salve submitted
that so long as the catch up principle in terms of
the Notification dated 1st April, 1997, continued to
be in existence, no change could be made in matters
of promotion, unless the requirements set out in M.
Nagaraj’s case were fully satisfied. Mr. Salve
urged that in the facts and circumstances of this
case, contempt was writ large on account of
inaction of the contemnors in giving effect to the
directions contained in the judgment dated 5th
February, 2010.
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34. Dr. Rajeev Dhawan, learned Senior Advocate, who
also appeared for the Respondents, approached the
matter from a slightly different angle. Arguing
that the doctrine of merger could not be applied to
a contempt proceeding, Dr. Dhawan referred to
Kunhayammed & Ors. Vs. State of Kerala & Anr.
[(2000) 6 SCC 359]. Dr. Dhawan urged that the
doctrine of merger depends on the facts of each
case. Dr. Dhawan submitted that even in Suraj Bhan
Meena’s case (supra), this Court upheld the
judgment of the High Court dated 5th February, 2010,
without making any changes, which could have
altered the purport of the said judgment. Dr.
Dhawan also contended that so long as the “catch-
up” doctrine continued to be in force under the
Notification dated 1st April, 1997, which stood
revived on account of the quashing of the
Notifications dated 28th December, 2002 and 25th
February, 2008, it could not be contended that by
appointing the Bhatnagar Committee, the alleged
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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.
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35
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 persons from doing certain
acts and that the person or persons had knowledge
of the said order. Secondly, it has to be
established that despite having knowledge of such
order, the person concerned deliberately and
willfully violated the same with the intention of
lowering the dignity and image of the Court. We
have to see whether in the facts of this case the
said two tests are satisfied.
37. Admittedly, Civil Writ Petition No.8104 of
2008, along with several other writ petitions, were
disposed of by the Division Bench by its judgment
and order dated 5th February, 2010, by quashing the
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36
Notifications dated 25th April, 2008 and 28th
December, 2002, issued by the State Government
without following the exercise indicated in M.
Nagaraj’s case (supra). As has been mentioned
hereinbefore, by its Notification dated 25th April,
2008, the Government of Rajasthan in exercise of
its powers conferred by the proviso to Article 309
of the Constitution of India, amended the Rajasthan
Various Service Rules, as mentioned in the Schedule
appended therewith, with effect from 28th December
2002. By such amendment, the existing proviso to
the Rule providing that a candidate, who had got
the benefit of the proviso inserted vide
Notification dated 1st April, 1997, on promotion to
an immediate higher post, would not be reverted and
his seniority would remain unaffected, subject to
the final decision of this Court in Writ Petition
(C) No.234/2002, was deleted. For the sake of
record, it may be indicated that before the
Division Bench of the High Court it had been
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conceded by the learned Advocate General that the
exercise as contemplated in M. Nagaraj ’s case
(supra), had not been undertaken by the State
before issuing the Notifications dated 25th April,
2008 and 28th December, 2002. It is on that basis
that the said two Notifications and all
consequential orders or actions taken by the
Respondent State, including preparation of
seniority list of Super Time Scale and Selection
Scale Officers of the Rajasthan Administrative
Service, on the basis thereof, were also quashed
and set aside. While quashing the said
Notifications, the Division Bench took note of the
observations made in M. Nagaraj ’s case (supra) that
Clause (4-A) of Article 16 was only an enabling
provision and the State was not bound to make
reservations of Scheduled Castes and Scheduled
Tribes in the matter of promotion, but if they did
wish to exercise their discretion in that regard,
the State had to collect quantifiable data showing
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38
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
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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 not to give effect to the same.
40. The learned Attorney General, who had appeared
for the State of Rajasthan and its authorities, had
submitted that the Order dated 5th February, 2010,
was in two parts. While one part dealt with the
quashing of the two Notifications, the other was
with regard to the observations made in the said
order with regard to the directions given in M.
Nagaraj’s case (supra) for collection of the
quantifiable data before giving effect to the
provisions of Article 16(4-A) of the Constitution.
The learned Attorney General has also emphasized
that in order to give effect to the second part of
the judgment and order of the Division Bench of the
Rajasthan High Court and the directions given in
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40
paragraph 68 of the judgment in Suraj Bhan Meena ’s
case (supra), the Government of Rajasthan had
appointed the Bhatnagar Committee to obtain the
quantifiable data to comply with the directions
given in the two aforesaid judgments. The learned
Attorney General has also pointed out that
directions have been given to all the different
departments on 14th February, 2011, to ensure
compliance with the directions contained in Suraj
Bhan Meena ’s case (supra).
41. Although, it has been urged on behalf of the
Respondents that there was a restraint order on the
State and its authorities from giving effect to the
observations made in the order passed by the
Division Bench of the High Court on dated 5th
February, 2010, or even in the order passed in
Suraj Bhan Meena ’s case (supra), the State and its
authorities remained inactive on the plea that it
had appointed the Bhatnagar Committee to collect
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41
the data necessary in terms of the judgment and
order passed in M. Nagaraj ’s case, which had been
reiterated by this Court in Suraj Bhan Meena ’s case
(supra).
42. The explanation given on behalf of the State
and its authorities cannot be discounted, since in
order to act in terms of the sentiments expressed
by the High Court and this Court, it was necessary
to collect the quantifiable data in respect of
Scheduled Castes and Scheduled Tribes candidates.
For collection of such data, the State appointed
the Bhatnagar Committee which was entrusted with
the work of obtaining such quantifiable data so
that the provisions of the amended Clause (4-A)
included in Article 16 of the Constitution could be
given effect to in terms of the directions given in
M. Nagaraj ’s case subsequently reiterated in Suraj
Bhan Meena ’s case.
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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
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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 to implement the
aforesaid observations, though the progress of such
implementation has been tardy. Accordingly, we are
unable to sustain the impugned judgment and order
of the Division Bench of the High Court holding the
Appellants guilty of contempt of Court for
purported violation of the order passed by the
Division Bench of the Jaipur Bench of the Rajasthan
High Court on 5th February, 2010, while disposing of
the Civil Writ Petition No.8410 of 2008.
Consequently, the judgment and order under appeal
has to be set aside.
45. We, accordingly, allow the appeals and set
aside the aforesaid judgment, but with the further
direction that the State and its authorities act in
terms of the Report of the Bhatnagar Committee, in
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accordance with the decision rendered in M.
Nagaraj’s case and in Suraj Bhan Meena ’s case
(supra), within two months from the date of
communication of this judgment and order.
46. There will be no order as to costs.
………………………………………………………J. (ALTAMAS KABIR)
………………………………………………………J. (J. CHELAMESWAR)
New Delhi Dated:29.08.2012.