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CASE NO.: Contempt Petition (civil)  512 of 2004

PETITIONER: Ram Preeti Yadav

RESPONDENT: Mahendra Pratap Yadav & Ors  Contemnors   

DATE OF JUDGMENT: 30/08/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CONTEMPT PETITION (CIVIL) NO. 512 OF 2004 IN  CIIVIL APPEAL NO. 4034 OF 2001

S.B. SINHA, J :

1.      This application for initiation of a contempt proceeding has been filed  for alleged disobedience of this Court’s order dated 03.09.2003, relevant  portion whereof reads as under :

       "We are also unable to issue any direction to the  first respondent to allow the third respondent to sit at the  Intermediate Examination at this stage; having regard to  the fact that relevant rules in this regard have not been  placed.  We may, however, observe that if he is entitled  to take the said Examination in law, he may be  permitted."

        2.      Respondent No.1 herein appeared as a private candidate in the  Intermediate Examination conducted by U.P. Board of High Schools &  Intermediate Education from Janta Inter College, Azamgarh (U.P.).  His  result was withheld.  A provisional mark-sheet was purported to have been  issued to him without showing that his result for Intermediate Examination  had been withheld.  On the basis of the said purported provisional mark- sheet, he pursued further studies and completed his Graduation as also Post  Graduation. He was also employed as a teacher.  The Principal of the  College informed him that his result in the Intermediate Examination has  been cancelled.  Questioning the said order, a writ petition was filed.  The  said writ petition was allowed by a learned Single Judge of the High Court.   Aggrieved, the petitioner herein preferred a special appeal before a Division  Bench which was summarily dismissed.  Petitioner herein  approached this  Court under Article 136 of the Constitution of India.  In Civil Appeal No.  4034 of 2001 arising out of the said special leave petition, this Court in its  judgment dated 03.09.2003, while allowing the same made the  aforementioned observations.

3.      Indisputably, taking advantage of the said observations, Respondent- Contemnor No. 1 filed an application on 28.09.2003 before the Contemnor- Respondent No.2 with a prayer to permit him to appear at the Intermediate  Examination as a private candidate.  No action was taken thereupon.  He  filed a writ petition before the Allahabad High Court which was marked as  CMWP No. 2088 of 2004.  The same was finally disposed of, directing :

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       "Having heard Sri S.K. Yadav, learned counsel for  the petitioner as well as learned Standing Counsel  appearing for the State-Respondent nos. 1 and 2 and on  perusal of the record, this writ petition is disposed of with  a direction to the Secretary, U.P. Board of High Schools  and Intermediate Education, Allahabad, Respondent no.  2, to pass suitable order on the application of the  petitioner dated 28.09.2003 in accordance with law as  expeditiously as possible preferably within a period of  two months from the date of filing of a certified copy of  this order along with a copy of the application dated  28.09.20-03 before the said Respondent no. 2."

4.      It is not in dispute that there does not exist any rule permitting a  candidate to appear at an examination at a later point of time and that too as  a private candidate.   

5.      Relying on or on the basis of the said purported  observations by the  High Court of Allahabad, a certificate was issued by Contemnor-Respondent  No.2 on or about 14.05.2004, in terms whereof Respondent No. 1 is said to  have passed the said Intermediate Examination and was placed in Second  Division.  Individual marks in individual subjects, however, were not  assigned.

        6.      It, however, appears that the said certificate was cancelled by an order  dated 22.11.2004.  A notice, in this behalf, was also published in the  newspaper, which is in the following terms :

       "General Public is informed that  the certificate  No. INT-002557  for Intermediate Examination for the  Year of 1984 issued earlier to the examinee Mahendra  Pratap Yadav bearing Roll No. 575203 \026 Dist. Ajamgarh  is cancelled.

       Use of the cancelled certificate will be illegal and  will be punishable offence."

7.      Legality of the said order was questioned by Contemnor-Respondent  No.1 before the Allahabad High Court by filing a writ petition, which was  marked  as CMWP No.20121 of 2004.  By reason of a judgment and order  dated 06.08.2004, the High Court dismissed the said writ petition, stating :          "\005Taking advantage of observations of the Supreme  Court that he may be permitted to appear in intermediate  examination, the petitioner made a representation to the  Madhyamik Shiksha Parishad and thereafter filed a writ  petition no. 20088/2004 which was disposed of on  22.1.2004, directing the Board to decide his  representation.

       Apparently without look into the order of Supreme  Court and without considering the concluded fact that the  petitioner’s  result of intermediate examination was  cancelled on 6.1.85 by Madhyamik Shiksha Parishad  passed an order was made by the Deputy Secretary of the  Board directing that the petitioner’s result of 1984,  examination which was withheld should be declared.   This order in my opinion is wholly without jurisdiction  inasmuch of the finding that the petitioner’s result was  cancelled was recorded by the Supreme Court.  The  Supreme Court had only observed that if he is entitled to  take the examination, he may be permitted to appear.

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       It is admitted to the petitioner that he did not  appear in the examination again and is again trying to  play fraud with the system by making false  representation i.e. result should be declared.  The District  Inspector of the Schools has found that the Supreme  Court had dismissed the matter and thus the petitioner is  not entitled to any benefit of reinstatement in service and  payment of salary and other service benefits.

       The petitioner cannot be permitted to pollute the  system any further.  With the finding of fraud concluded  against him by Supreme Court that he is not entitled to  any equitable relief from this Court.

       The writ petition is accordingly dismissed with  cost of Rs.10,000/- of which shall be recovered by  District Magistrate, Azamgarh from the petitioner.  The  cost shall be recovered within three months and sent to  the Registrar General of this Court for appropriate to the  account of Legal Aid Authority of this Court."         

        8.      The contempt petition thereafter was filed on or about 09.08.2004.

9.      Mr. Y.P. Singh, learned counsel appearing on behalf of the petitioner,  would submit that the aforementioned conduct on the part of Contemnor- Respondent Nos.1 and. 2, would clearly show that they had deliberately and  intentionally flouted the order of this Court.

10.     Mr. Dinesh Dwivedi, learned Senior Counsel appearing on behalf of  Contemnor-Respondent No. 2, submitted  that although a mistake was  committed by his client, but the same stood rectified by a letter  dated  22.11.2004, addressed to the Head Master/Principal of Janta Higher  Secondary School, as would appear from the following :

       "By cancelling the result of 1984 Intermediate  Examination of Student Mahendra Pratap Yadav bearing  Roll No. 575203 in W.B.  List.  The mark sheet and  certificate of the examinee had been sent to you vide  office letter no. Confidential/ 3,4,5, High  School/Inter/Head Quarter / 47 dated 11.03.2004 and  letter no. SEE/Certificate/Inter/191 dated 19.03.2004.

       In compliance of the order passed by the Hon’ble  High Court in Petition No. 4034 of 2001 and Petition No.  20121/2004 dated 21.05.2004, the decision was taken in  the meeting of the Examination Board held on  20.11.2004 that the result of Shri Mahendra Pratap  Yadav bearing Roll No. 575203 examinee of  Intermediate Examination 1984 should be immediately  cancelled and the original mark sheets and certificate of  Intermediate examination 1984 issued to him by the  Board should be returned immediately as per the  requirement legal proceedings should be initiated for  obtaining mark sheet and certificate.  The information  about the decision of the committee should be  immediately sent to the concerned persons by the special  messenger.

       Therefore direction is given to you kindly make  the District Inspector of School Ajamgarh available after  obtaining the original mark sheet and certificate from the  Examinee by making the concerned student aware about

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the said decision."                            It was urged that the apology offered by the alleged Contemnor- Respondent No. 2 may be accepted by this Court.

11.     The learned counsel appearing on behalf of Contemnor-Respondent  No. 1,  however, urged that the contempt petition is not maintainable as this  Court in its order dated 03.09.2003 having not issued any direction and,  thus, the question of violation thereof would not arise.  It was argued that  direction, if any, having been made in favour of Contemnor-Respondent  No.1, the proceeding is not maintainable.  It was also contended that  Contemnor-Respondent No. 1 merely asked for permission to sit in the  examination.  If the Board had granted a certificate, he is not responsible  therefor.

12.     We have been addressed on the conduct of Contemnor-Respondent  Nos. 1 and 2. Contemnor-Respondent No. 2 being a Secretary of the  statutory board is expected to act in accordance with law.  Before acting on  the purported application filed by Contemnor-Respondent No.1, he should  have applied his mind to the extant rules.  Application of mind on his part  was also necessary on the purport of the order dated 03.09.2003 passed by  this Court.

13.     On a plain reading of the said order, it would be evident that the fraud  practiced by the alleged Contemnor-Respondent No. 1 was not condoned by  this Court.  His result was declared to be set aside.  The judgment of the  Allahabad High Court was expressly reversed.  An observation, however,  was made only to the effect that in the event, any rule permits Contemnor- Respondent No. 1 to appear at the examination, the Board would be free to  take a decision thereon.  It now stands admitted that there does not exist any  rule in terms whereof, Contemnor-Respondent No. 1 could appear at the  examination.  Even otherwise his application was confined to only appearing  at the examination.  On what basis the certificate was granted has not been  disclosed.  It is not an ordinary mistake, as was submitted by Me. Dwivedi.   The said certificate, if had not been withdrawn, would have restored the  status of Contemnor-Respondent No. 1.   He would have got back his  service.  He would have claimed even other benefits from the College,  where he had been serving.  The conduct of Contemnor-Respondent No. 1  is, therefore, not free from blemish.  He made a representation before this  Court.  The basis of said representation, it now transpires, is non-existent.   What he could have done was to search out the relevant rule, which was  applicable in this case.  He filed a writ petition before the High Court only  because no action was taken.  He did not inform the High Court that there  did not exist any rule.  We, therefore, are of the opinion  that Contemnor- Respondent No. 2 must have issued the certificate on extraneous  consideration.  Contemnor-Respondent No. 1 is a beneficiary of the said  illegal and fraudulent certificate.

14.     The certificate was issued on 14.05.2004.  The decision had been  taken only by the Examination Board to cancel the said certificate.  We,  therefore, are of the opinion that it is not a case where apology tendered by  the alleged Contemnors should be accepted.            15.     Submission of the learned appearing on behalf of Contemnor- Respondent No. 1 that the contempt petition is not maintainable is not  correct.  Although no direction had been issued by this Court, evidently the   earlier certificate was directed to be cancelled.  If that be so, Contemnor- Respondent No. 1 could not have been indulged in any act which would  amount to act of  camouflage of the record thereof.  Taking undue advantage  of the observations made by this Court also amounts to interference with the  order passed by this Court in imparting justice.   

16.     It is well-settled that what cannot be done directly, cannot be done  indirectly.  

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17.     Apart from the provisions of the Contempt of Courts Act, this Court  has a constitutional duty in terms of Article 129 as also Article 142 of the  Constitution of India to issue such directions, as are necessary for the ends  of justice.  We, therefore, are of the opinion that Contemnor-Respondent  Nos. 1 and 2 are guilty of commission of contempt of this Court.

18.     However, having regard to the facts and circumstances of this case,  we are of the opinion that the interest of justice would be subserved, if both  of them are directed to pay a fine of Rs.2,000/- each.  They shall deposit the  amount of fine in the Registry of this Court within four weeks from date,  failing which appropriate action shall be taken.   

19.     Contemnor-Respondent Nos. 3 and 4 admittedly are not parties to the  aforementioned order.   Rule against them is discharged; while making the  rule absolute against Contemnor-Respondent Nos. 1 and 2.

20.     This Petition is allowed with the aforementioned directions.