I.A. Ansari, J.@mdashGovernment of India introduced a Scheme by the name of ""Prevention of Infiltration of Foreigners Scheme"" (in short, PIF
Scheme), for helping the State Government of Assam to detect and deport foreigners. The Scheme was introduced in the year 1960 and the same
has been extended from time to time and is still in force. By a subsequent communication, dated 03.06.1987, the Government of India sanctioned
some additional posts and agreed to reimburse the cost of pay and allowances of the persons, employed against the additional posts, provided that
all the additional posts were filled up by ex-servicemen only. The later Scheme, granting additional posts, is being referred to as PIF Additional
Scheme. On the basis of the PIF Scheme and Additional PIF Scheme, many persons, including the present petitioner, were appointed, the initial
appointment of the present petitioner being, a constable, but he was, later on, appointed as Sub-Inspector of Police. Thereafter, a Circular, dated
17.03.1995, was issued by the Inspector General of Police (Border), Assam. Under the said Circular, all the appointments were contractual and
for a period of one year. The appointments were to be terminated, under the said Circular, by giving a notice of termination, at least, 45 days
before the expiry of the contractual period of one year from the date of appointment and if any ad hoc employee desired or expressed his
willingness to continue, then, it was left to the authorities concerned to make fresh appointment or even to refuse to make such an appointment.
2. While the petitioner was working as Sub-inspector, pursuant to the PIF Scheme and Additional PIF Scheme, his service was terminated on
28.12.2001 w.e.f. 04.10.2001. The petitioner challenged his termination of appointment by filing a writ petition, which gave rise to W.P. (C) 196
of 2002. By, order, dated 04.01.2005, a learned Single Judge of this Court dismissed the writ petition on the ground that in another writ petition,
when order of termination, in a case covered by the PIF and additional PIF Scheme, was interfered with by a Single Bench, the Division Bench of
this Court set aside the order and upheld the termination.
3. Many persons, however, who had suffered from order of termination in the sense that their appointments were not renewed by applying the
aforementioned Circular, dated 17.03.95, they approached the Supreme Court, their appeal to the Supreme Court having been registered as Civil
Appeal No. 7922 of 2002, Md. Abdul Kadir & another v. Director General of Police, Assam & others. The Apex Court frowned on the artificial
termination of appointments of employees on the strength of the Circular, dated 17.03.95, while the PIF Scheme and Additional PIF Scheme
remained in force, and held that so long as the PIF and additional PIF schemes remain in force, the appointments shall continue. The Apex Court,
however, made it clear that the appointments shall be continued subject to the following conditions:--
(i) The circular dated 17.03.1995 is quashed. The appellants shall not be subjected to annual terminations and re-appointments (subject to
observations in para 8 above).
(ii) The benefit of this order will be available to others similarly situated ad hoc border staff even if they have not approached the Court for relief. In
view of the above, the interlocutory applications for impleading are disposed of as having become infructuous.
(iii) This order will not however come in the way of ad hoc employees working as Border staff, being subjected to any periodical medical
examination or service review.
(Cri) (Emphasis is added).
4. After the decision in the case of Abdul Kadir''s case (supra), as indicated above, the present petitioner put to challenge, by way of Writ Appeal
No. 387 of 2009, the order, dated 04.01.2005, whereby his writ petition, namely, W.P. (C) 196 of 2002, had been dismissed.
5. Referring to the Supreme Court''s order, dated 22.04.2009, passed in Civil Appeal No. 7922 of 2002, Md. Abdul Kadir & Another v.
Director General of Police (Border), Assam & Others, a Division Bench of this Court took the view that the relief, which has been extended to the
other appellants, by the Supreme Court, shall not be declined to the present petitioner. The appeal was accordingly allowed on 16-03-2010 and
the order of termination of the appellant''s service was interfered with. The Division Bench further directed that the petitioner shall be entitled to all
resultant service benefits under the Scheme as well as in terms of the judgment and order of the Supreme Court in Md. Abdul Kadir (supra). The
relevant observations made, and the directions given, by the Division Bench of this Court, in Writ Appeal No. 387 of 2009, allowing the appeal,
read as under:--
Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are inclined to sustain the plea taken on
behalf of the appellant. On a perusal of the judgment and order of the Apex Court, as above, we are of the view that the writ appellant ought not
be declined the relief extended to the writ appellants therein. As a result, this appeal stands allowed. The impugned order of termination of the writ
appellant''s service is interfered with. He would consequentially be entitled to all resultant service benefits under the Scheme as well as in terms of
the judgment and order of the Apex Court as referred to hereinabove. This direction, we have issued, having been apprised that the Scheme, as
above, as on date, is in subsistence and operation. No costs.
6. Thereafter, a review petition was filed by the respondents to the writ petition pointing it out that in Writ Appeal No. 387 of 2009, the
petitioner''s service had been terminated for his unsatisfactory service and, hence, his case was covered by the exceptions, which had been carved
out by the Supreme Court/while granting reliefs in Civil Appeal No. 7922 of 2002. This review petition gave rise to Review Petition No. 128 of
2010.
7. The review petition was resisted by the present petitioner by contending that the ground, which had been taken by the respondents, in the
review petition, had not been taken by them in the earlier proceeding, though they ought to have agitated the matter earlier. Accepting this
contention, the Division Bench, while dismissing the review petition, by order, dated 24.02.2011, observed as under:--
Upon hearing the learned counsel for the parties and on a reading of paragraph 8 of the judgment of the Apex Court, the line on which reliance has
been made on behalf of the review-applicant deserves to be extracted.
Ad-hoc appointments under schemes are normally co-terminus with the scheme (subject of course to earlier termination either on medical or
disciplinary grounds, or for unsatisfactory service or on attainment of normal age of retirement).
Reading the text of the judgment as a whole, we are unable to persuade ourselves to accept the review applicants'' contention. The fact that such a
stand was not taken by the review applicant in its affidavit-in-opposition in a writ proceeding is also not disputed before us.
In the above view of the matter, we find no reason to accede to the prayer for review of the judgment and order dated 16.03.2010 passed by this
Court in W.A. No. 387/2009.
The review application stands rejected. No costs.
8. Contending that due to fact that the appeal was allowed and the petitioner had not been re-instated in service and had also not been paid his
dues and that the respondents have thereby committed Contempt of Court, the present application has been filed giving rise to Contempt Case (C)
No. 94/2012.
9. During the pendency of this Contempt Case, the respondents were allowed by this Court, on 28-06-2012, to pass the proposed order as
regards the termination of the petitioner''s service. The order, dated 28.06.2012, passed by this Court, reads as under.
Heard Mr. S.K. Talukdar, learned counsel for the petitioner and Mr. K.N. Choudhury, learned Senior Counsel for the sole respondent.
The learned Senior counsel for the respondent with reference amongst others to the order dated 16.03.2010 passed in Writ Appeal No.
387/202009, deliberate non compliance whereof has been alleged, as well as the relevant excerpts of the judgment and order dated 22.04.2009
of the Hon''ble Apex Court passed in Civil Appeal No. 7922/2002 has argued that as the service of the petitioner had been terminated on the
ground of unsatisfactory performance, in the comprehension of the respondent he was not entitled, in view of clause-(iii) of the operative portion of
the decision of the Hon''ble Apex Court, to the benefit of reinstatement in service. Accordingly, the petitioner who stands even otherwise
superannuated on 28.02.2011 though had been released his entitlements for the services rendered till 04.10.2001 no other benefit had been
accorded to him on the principle ""no work no pay"". The learned Senior Counsel has apprised this Court that though as on date there is no
administrative order to that effect, embodying the aforementioned reasons for not reinstating the petitioner and the resultant consequential benefits,
the respondent contemplates to do so amongst others in response to the notice issued in the present proceedings.
Mr. Talukdar without prejudice to the rights and contentions of the petitioners, has submitted that as desired the respondent may pass the order as
proposed subject to the reliefs to which the petitioner may be entitled in law.
In the above view of the matter, without expressing any final comment on the rival contentions in the instant contempt proceedings, we leave the
respondent at liberty to pass the order as proposed. This we, make it clear would not come in the way of adjudication of the issues raised in the
present proceedings and the petitioner''s pursuit for other reliefs to which he may be entitled in law.
List again on 03.08.2012.
Needless to say the respondent would ensure that once such order is passed, the same would be communicated to the petitioner forthwith.
As can be seen from the specific directions given by their Lordships above, the appellant had been directed to be re-appointed in service, subject
however to checking his service records and ascertaining whether he had been terminated on grounds of inefficiency or unsuitability in the lines of
Clause (iii) of the same Supreme Court judgment.
And after checking his service records, and finding that he had indeed been terminated on grounds of poor performance, S.I. (B) Ex-s Santa Ram
Das was informed accordingly and not re-appointed.
Accordingly the present petitioner S.I. (B) Ex-s Monoranjan Roy who stands even otherwise superannuated on 28.02.2011, and who has been
released his additional entitlements by way of arrears for his services rendered till 04.10.2001, is found, on the principle of ""no work no pay"", to
have no other benefits accruing to him.
(Cri) (Emphasis is added)
10. Subsequent to the dismissal of the review petition and leave granted, by the order, dated 28.06.2012, aforementioned, in this Contempt Case,
an order was made, on 17.07.2012, by the Superintendent of Police (Border), Assam, wherein it has been observed to the effect that the present
petitioner had been directed to be re-appointed in service subject to his scrutiny of the service records and ascertainment of the fact whether his
service had been terminated on the grounds of insufficiency or unsuitability as envisaged by Clause (iii) of Para 10, which we have re-produced
above. The order, dated 17.07.2012, further mentions that on re-examination of the service record of the petitioner, it was found that his service
had been terminated on the ground of poor performance and, hence, he cannot be re-appointed and since he has superannuated on 28.02.2011,
his dues, by way of arrears, for the services rendered by him till 04.10.2001 were being released, but between 04.10.2001, when his service was
terminated, until 28.02.2011, when he stood superannuated, the petitioner is not entitled to any benefit of pay and allowances on the principle of
no work, no pay"". The relevant part of the order, dated 17.07.2012, reads as under:--
Pursuant to the judgment and order dated 16-03-2010 passed by the Hon''ble Gauhati High Court in W.A. No. 387/2009, in which their
Lordships have opined as follows:
Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are inclined to sustain the plea taken on
behalf of the appellant. On a perusal of the judgment and order of the Apex Court, as above, we are of the view that the writ appellant ought not
be declined the relief extended to the writ appellant therein. As a result, this appeal stands allowed. The impugned order of termination of the writ
appellant''s service is interfered with. He would consequently be entitled to all resultant service benefits under the Scheme as well as in terms of the
judgment and order of the Apex Court....."" wherein the operative part of the judgment and order of the Supreme Court in Civil Appeal No.
7922/2002 says:
(i) The circular dated 17.03.1995 is quashed. The appellants shall not be subjected to annual terminations and re-appointments (subject to
observations in para 8 above).
(ii) ""The benefit of this order will be available to others similarly situated ad hoc border staff even if they have not approached the Court for relief.
In view of the above, the interlocutory applications for impleading are disposed of as having become infructuous"".
(iii) ""This order will not however come in the way of ad hoc employees working as Border staff, being subjected to any periodical medical
examination or service review to assess their fitness and suitability for continuation.
Accordingly, as per clause (i) & (ii) above, of the Supreme Court judgment, S.I. (B) (Ex-Serviceman) Monoranjan Roy, has been given the benefit
of continuous service w.e.f. the date of his initial appointment (instead of the earlier annual termination and re-appointment). He has also been given
time scale of pay (in place of the earlier fixed pay) and annual increments as admissible for the entire period i.e. from 01/06/1990 to 04/10/2001,
of his service in the Border Organisation. Accordingly arrears amounting to Rs. 83,436/- (Rupees eighty three thousand four hundred and thirty
six) has been additionally paid to him in March, 2012 as consequential service benefits, thereby also carrying out the direction of the Hon''ble High
Court in terms of the judgment of the Supreme Court, which said ""He would consequently be entitled to all resultant service benefit under the
Scheme as well as in terms of the judgment and order of the Apex Court..
******* ******** *******
As can be seen from the specific directions given by their Lordships above, the appellant had been directed to be re-appointed in service, subject
however to checking his service records and ascertaining whether he had been terminated on grounds of inefficiency or unsuitability in the lines of
Clause (iii) of the same Supreme Court judgment.
And after checking his service record, and finding that he had indeed been terminated on grounds of poor performance, S.I. (B) Ex-s Santa Ram
Das was informed accordingly and not re-appointed.
Accordingly the present petitioner S.I. (B) Ex-s Manoranjan Roy who stands even otherwise superannuated on 28-02-2011, and who has been
released his additional entitlements by way of arrears for his services rendered till 04-10-2001, is found, on the principle of ""no work no pay"", to
have no other benefits accruing to him.
(Emphasis is added)
11. Resisting the contempt proceeding, the respondents have contended that the respondents understood the judgment and order, in Writ Appeal
No. 387 of 2009 and Review Petition No. 128 of 2010, as having been passed in terms of the judgment and order of the Supreme Court, in
Abdul Kadir''s case (supra), and the respondents were, in the comprehension of the respondents, entitled to review the service was record of the
petitioner and if his services was found to be unsatisfactory, then, the petitioner would not be entitled to be re-instated in service and, with this
understanding, the petitioner was not re-instated in service, because his service was found to be unsatisfactory by the Superintendent of Police
(Border) before the order of termination of the petitioner''s service was made, but he has been paid, on 01.03.2012, by demand draft, all his
arrear dues till 04.10.2001 amounting to Rs. 83,436/-.
12. Appearing on behalf of the petitioner, Mr. S. Talukdar, learned counsel, has submitted that the respondents'' contention that they were allowed
to act and they acted in terms of the judgment of the Supreme Court, in Abdul Kadir''s case (supra), is wholly incorrect inasmuch as the
respondents had already contended, in their Review Petition, which had given rise to Review Petition No. 128 of 2010, that the petitioner''s
service had been terminated, because of the fact that his service was found to be unsatisfactory and the Division Bench, while dealing with the
case, did not allow the respondents to take this plea and precluded them from taking the plea on the ground that in the earlier proceedings (i.e. in
the W.P. (C) No. 196 of 2002 and Writ Appeal No. 387 of 2009), such a contention had not been raised and, hence, Mr. Talukdar, learned
counsel, submits that the respondents cannot, now, take recourse to the same plea, which they were precluded from taking by the Division Bench
and the respondents cannot deny thereby the relief to the petitioner, which the petitioner is entitled to by way of re-instatement in his service and
payment of his dues from the date of termination of his service, on 04.10.2001, till his superannuation.
13. Referring to the case of The Commissioner, Karnataka Housing Board Vs. C. Muddaiah, , Mr. Talukadar points put that the Supreme Court
has clearly laid down, at para 32, in C. Muddaiah''s case (supra), that once a direction is issued by a competent Court, it has to be obeyed and
implemented without any reservation inasmuch as there would be an end of the rule of law if an order passed by a Court of law is not complied
with or is ignored.
14. Controverting the submissions made on behalf of the petitioner, Mr. K.N. Chowdhury, learned Sr. counsel, has submitted that a careful
reading of the orders, which have been passed, in Writ appeal No. 387 of 2009 and Review Petition No. 128/2010, would show that the reliefs,
which the Division Bench granted were nothing more than the reliefs, which had been granted by the Apex Court in Abdul Kadir''s case (supra).
15. According to Mr. K.N. Chowdhury, learned Sr. counsel, the Supreme Court, while allowing the appeal, in Abdul Kadir''s case (supra), had
made it clear that the order, dated 22.04.2009, aforementioned would not come in the way of subjecting the ad hoc employees to periodical
examination or service review. Before, however, such an exception was carved out, in favour of the Government, by the Supreme Court, in Abdul
Kadir''s case (supra), the petitioner''s service, points out Mr. Chowdhury, had already been found unsatisfactory by the Superintendent of Police
(Border) and his service had been terminated accordingly. The respondents, therefore, took the view, submits Mr. Chowdhury, that since the
petitioner''s service had already been terminated, because of unsatisfactory service, he was not entitled to be re-instated inasmuch as his case, in
the comprehension of the respondents, fell within the ambit of Clause (iii) of Para 10 of Abdul Kadir''s case (supra), which we have already
noticed and which reads, ""(iii) This order will not however come in the way of ad hoc employees working as Border staff, being subjected to any
periodical medical examination or service review to assess their fitness and suitability for continuation.
16. It is also submitted by Mr. K.N. Chowdhury that in the comprehension of the respondents, the order, which they have passed, is a correct
order and if the understanding of the decision and directions of this Court by the respondents are incorrect, it would not ipso facto make them
responsible for being held guilty of Contempt of Court unless it can be shown that they have, willfully and willingly, disobeyed or refused to carry
out the directions given by this Court. The order, which the respondents have passed and which the petitioners are aggrieved by, may become,
submits Mr. Chowdhury, a subject matter of adjudication in appropriate proceeding if the order is put to challenge; but the act of passing of order
aforementioned may not be treated, in the facts and circumstances of the present case, as having been passed in contemptuous disregard of the
directions issued by this Court.
17. As far as the case of C. Muddaiah, (supra) is concerned, Mr. Chowdhury has submitted that the facts of that case were quite different and the
observations of the Court, in C. Muddaiah''s case (supra), had been made in a different context inasmuch as in C. Muddaiah''s case (supra), the
contempt proceeding already stood dismissed, but the observations, which Mr. Talukdar relies upon, were made, when it was found, in
subsequent writ proceeding, that despite clear direction of the Court, the directions had not been carried out, though the same ought to have been
carried out.
18. Repelling the submissions made on behalf of the respondents, Mr. Talukdar, learned counsel, points out, once again, on behalf of the
petitioner, that the plea, which respondents have taken that the service of the petitioner had been terminated, because of his unsatisfactory service,
cannot be taken up by the respondents, when the said plea had been precluded by this Court from being taken. According to Mr. Talukdar, the
respondents were bound to comply with the directions of the Court and since they have not complied with the directions, they are liable to be
punished for Contempt of Court.
19. While considering the present contempt case, it needs to be, once again, noted that while directing the persons, who were appellants, in Abdul
Kadir''s case (supra), to be re-instated in service, the Supreme Court had made, as indicated above, at para 10, certain exceptions one of such
exceptions having been carved out in Clause (iii), which the respondents had relied upon, reads thus, ""(iii) This order will not however come in the
way of ad hoc employees working as Border staff, being subjected to any periodical medical examination or service review to assess their fitness
and suitability for continuation.
(Emphasis is supplied)
20. The Clause (iii) of para 10 clearly shows that the Supreme Court, in Abdul Kadir''s case (supra), was conscious of the fact that their decision
may be wrongly interpreted irrespective of the fact whether a person is or is not suitable for retention in service on the ground of efficiency or on
the ground of poor health condition or on the ground of his bad service record. Lest he may have to be continued despite ill-health or poor service
record, the Supreme Court carefully gave liberty to the Government by observing that their directions were subject to periodical examination or
service review. When the present petitioner''s appeal was allowed by this Court by order, dated 16.03.2010, this Court did not give to the
petitioner any relief other than what other appellants, in Abdul Kadir''s case (supra), had been granted. The implication was that the directions
given, in the writ appeal by this Court, did not debar the respondents from conducting periodical review of service records of the persons
appointed under the PIF scheme or Additional PIF scheme.
21. In the present case, however, the petitioner''s service, as contended by the respondents, had already been found to be unsatisfactory and
though his service was not, immediately, terminated, his service was not renewed on completion of the period of one year from the date of his
appointment. There was thus, prima facie, no artificial termination of the petitioner''s service. The respondents have placed on record the
observations of the Superintendent of Police (Border), as regards the fact that the petitioner''s service was found unsatisfactory. The observations,
so made, by the Superintendent of Police (Border), have not been put to challenge before us.
22. In the face of the fact that the petitioner''s service was not renewed or extended beyond 04.10.2001, because of the fact that his service was
found unsatisfactory, it cannot be contended that the respondents have, deliberately or willfully, refused to obey the directions of this Court.
23. Mr. Talukdar''s contention is that in the writ appeal, which the appellant had preferred, the respondents were not allowed to raise the plea that
the petitioner''s service was terminated, because of unsatisfactory service. It needs to be pointed out, in this regard, that there was no adjudication
by this Court on the issue as to whether the petitioner''s service was terminated artificially as observed by the Supreme Court in Abdul Kadir''s
case (supra) or it was not extended, because of the fact that his service was found unsatisfactory. The review petition was dismissed essentially on
the ground of constructive res judicata inasmuch as the respondents could have taken the said plea in the writ petition, but had not taken the said
plea in the writ petition. In applying constructive res judicata, there is no decision; rather, a issue is not allowed to be raised, because the issue
might or ought to have been raised in the earlier proceeding between the same parties. By legal fiction, therefore, adjudication is barred by the
principle of constructive res judicata.
24. In the case at hand, we are not really concerned as to whether the order, which has been made by the respondents, is legal or not. What
concerns us, in the present case, is whether the respondents have willfully not abided by the directions given by this Court.
25. Having gone through the pleadings and the materials on record, particularly, the order, dated 17.07.2012, we are of the view that though the
respondents may be said to have wrongly understood the observations and directions of this Court in Writ Appeal No. 387 of 2009 and Review
Petition No. 128 of 2010, it cannot be, confidently and boldly, held that the respondents had, deliberately and willfully, refused to obey the
directions of this Court by not reinstating the petitioner and by not making available to him the financial benefits, which would have accrued to him,
had the petitioner been reinstated and superannuated, while in service.
26. We need to bear in mind that unless a Court comes to an unhesitant and definite conclusion that directions passed by it have not been
deliberately abided by, it would be too hazardous and wholly in appropriate to hold a person guilty of Contempt of Court. In the case at hand, we
have given our anxious consideration to the submissions made on behalf of the petitioner vis-a-vis the submissions made on behalf of the
respondents and after hearing the submissions, which have been made before us, and the materials, which have been placed on record, we have
not been able to exclude the possibility that the respondents have acted under the belief that the order, which they have passed, on 17.07.2012, is
in tune with the correct interpretation of the observations made, and directions given, by this Court in Writ Appeal No. 387 of 2009.
27. We are, therefore, not inclined to proceed further with this Contempt case.
28. With regard to the case of C. Muddaiah (supra) which Mr. Talukdar, learned counsel, has heavily relied upon, we need to point out in C.
Muddaiah''s case (supra), the petitioner had to put to challenge the seniority list by filing a Writ petition under Article 226. The Writ petition was
allowed by a Single Bench directing Karnataka Housing Board (for short, the Board) to reassign the seniority of the petitioner by placing him
above respondent Nos. 2 to 34 and to grant other consequential benefits. Though the Board carried the matter to the Supreme Court, the SLP
was also dismissed. The order, passed by the Single Bench, became, thus, final. The grievance of the Writ petitioner was that he had not been
granted consequential benefits as had been directed by the Court. On the ground that he had not been granted the consequential benefits/the Writ
petitioner filed a Contempt Case, which was dismissed. The petitioner, then, filed a Writ petition claiming that he was entitled to the consequential
reliefs, which had not been granted to him. The Board resisted the Writ petition and it was in this context that the Supreme Court has observed, in
C. Muddaiah''s case (supra), that when an order is passed by the Court, it must be obeyed without any reservation unless the party, against whom
the order has been made, challenges the order by taking recourse to appropriate proceedings known to law.
29. In the present case, too, though we are unable to hold the respondents guilty of the Contempt of Court, it would not bar the present petitioner
from challenging the order, dated 17.07.2012, if the said order has given rise, in the opinion of the petitioner, a separate and independent cause of
action.
30. Because of what have been discussed and pointed out above, we are of the considered view that the present proceeding shall not be continued
any further and that the proceedings need to be closed. We order accordingly.
31. Before parting with the records, we make it clear that we express no opinion on the legality or otherwise of the order, dated 17.07.2012,
which has been passed by the respondents and the petitioner shall remain at liberty to put to challenge, in appropriate proceeding, in accordance
with law, the legality and/or validity of the order, dated 17.07.2012, aforementioned.
32. With the above observations and directions, this contempt proceeding shall stand disposed of. No costs.