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CASE NO.: Appeal (civil)  3553-3554 of 2008

PETITIONER: State of Uttaranchal Thru. Secretary

RESPONDENT: Sehnaz Mirza & Ors.

DATE OF JUDGMENT: 12/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T [Arising out of  SLP (Civil) Nos. 21238-21239 of 2005]  REPORTABLE

S.B. SINHA, J :          1.      Leave granted.

2.      Application of the provisions of the Uttar Pradesh  Reorganisation Act, 2000 (for shor-t \023the 2000 Act\024) falls for  consideration in these appeals which arise out of a judgment and  order dated 20.07.2005 passed by the High Court of Uttaranchal at  Nainital in Civil Contempt No. 14 of 2004. 3.      Respondents herein have filed a writ petition before the  Allahabad High Court for regularization of their services in the  Nagar Palika Balika Intermediate College situated at Haldwani,  Kathgodam, District Nainital.           The said writ petition was allowed by a judgment and order  dated 29.05.1997 in part, directing: \023(1) The posts against which the petitioners  are working on part time basis for more than  five years should be considered for sanction/  creation by the appropriate authority and the  management of the institution shall, if the  necessity of employment still exists, notify  to the proper authority the requirement of  sanction such posts and the authority shall,  as expeditiously as possible, consider the  question of creation of such posts in  accordance with law. (2)     The services of the petitioners shall  not be terminated after the expiry of 58 days  or any such limited period and shall continue  till the exigency of employment exists and if  the posts are permanently sanctioned till a  duly selected candidate joins against each  respective post.  When such a post is created  sanctioned and advertised, the petitioners  shall have the right to apply against the  respective post notwithstanding the age bar. (3)     Till the petitioners remain in service  in terms of the foregoing directions, they  will be paid their salary and other benefits  at par with the regularly appointed teachers  in case they are performing equal work.\024 4.      The said order is said to have not been complied with.  An  application under Section 12/14 of the Contempt of Courts Act, 1970  was filed by the respondents.

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5.      On or about 25.08.2000, the Parliament enacted the 2000 Act.   By reason of the said Act, the new State of Uttaranchal (now known as  Uttarakhand) came into being with effect from the appointed day,  specified therein, i.e., 9.11.2000.   

6.      By an order dated 29.10.2003, a learned Single Judge of the  Allahabad High Court directed as under: \023During the pendency of this contempt  petition, the State of Uttaranchal was  created and Haldwani and Nainital are now  included in that State as such presently the  U.P. Educational Authorities cannot execute  the orders passed by the writ court.  The  proper remedy for the applicant at this stage  is to approach the Uttaranchal High Court.\024

7.      Respondents thereafter filed a contempt petition before the  Uttaranchal High Court which was marked as Contempt Petition No. 15  of 2004, which was entertained.           Before the said High Court, time was sought for, for complying  with the said direction.  The matter was adjourned.  It came before  another learned Judge of the said High Court on 20.07.2005.  It was  directed to be listed after one month.  Although no final order has  yet been passed by the High Court, the State of Uttarakhand has filed  this appeal inter alia on the premise that the High Court had no  jurisdiction to entertain the second contempt application in view of  Section 35 of the 2000 Act.

8.      Section 26 of the 2000 Act provides for constitution of a  separate High Court on and from the appointed day.         Section 35 of the 2000 Act reads as under:

\02335 - Transfer of proceedings from Allahabad  High Court to Uttaranchal High Court  (1) Except as hereinafter provided, the High  Court at Allahabad shall, as from the  appointed day, have no jurisdiction in  respect of the transferred territory. (2) Such proceedings pending in the High  Court at Allahabad immediately before the  appointed day as are certified, whether  before or after that day, by the Chief  Justice of that High Court, having regard to  the place of accrual of the cause of action  and other circumstances, to be proceedings  which ought to be heard and decided by the  High Court of Uttaranchal shall, as soon as  may be after such certification, be  transferred to the High Court of Uttaranchal. (3) Notwithstanding anything contained in  sub-sections (1) and (2) of this section or  in section 28, but save as hereinafter  provided, the High Court at Allahabad shall  have, and the High Court of Uttaranchal shall  not have, jurisdiction to entertain, hear or  dispose of appeals, applications for leave to  the Supreme Court, applications for review  and other proceedings where any such  proceedings seek any relief in respect of any  order passed by the High Court at Allahabad  before the appointed day: Provided that if after any such proceedings  have been entertained by the High Court at  Allahabad, it appears to the Chief Justice of  that High Court that they ought to be

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transferred to the High Court of Uttaranchal,  he shall order that they shall be so  transferred, and such proceedings shall  thereupon be transferred accordingly. (4) Any order made by the High Court at  Allahabad-- (a) before the appointed day, in any  proceedings transferred to the High Court of  Uttaranchal by virtue of sub-section (2), or (b) in any proceedings with respect to which  the High Court at Allahabad retains  jurisdiction by virtue of sub-section (3), shall for all purposes have effect, not only  as an order of the High Court at Allahabad,  but also as an order made by the High Court  of Uttaranchal.\024

9.      The said provisions are clear and explicit.  Whereas on and  from the appointed day, the Allahabad High Court ceased to have any  jurisdiction, the proviso appended to Sub-section (3) of Section 35  of the 2000 Act carves out an exception thereto.           The learned Single Judge of the Allahabad High Court,  therefore, having regard to the aforementioned proviso, committed a  serious error in discharging the contemnor.         The second contempt application was filed before the  Uttaranchal High Court pursuant to the leave granted by the Allahabad  High Court.  Technically, such leave could not have been granted.  It  was for the Chief Justice of the High Court to transfer the records  to the Uttaranchal High Court but the learned Single Judge also could  have continued to hear the matter.

10.     Dr. J.N. Dubey, learned senior counsel appearing on behalf of  the respondents, however, would submit that in a case of this nature,  the cause of action would be a continuing one and the bar of  limitation as provided for under Section 20 of the Contempt of Courts  Act would not apply in the facts and circumstances of the case.  It  was furthermore submitted that the State of Uttarakhand has no locus  standi to maintain the special leave petition.

11.     We, in this proceeding, at this stage, do not intend to  determine the effect of the judgment of the Allahabad High Court, the  same having attained finality.  We also do not intend to enter into  the question as to whether Section 20 of the Contempt of Courts Act,  1971 would apply to the facts of this case or not.  We may, however,  notice that a Division Bench of this Court held so in Pallav Sheth v.  Custodian [1989 Supp 2 SCC 418] stating:    \0237. Another point was taken about  limitation of this application under Section  20 of the Act. Section 20 states that no  court shall initiate any proceedings for  contempt, either on its own motion or  otherwise, after the expiry of a period of  one year from the date on which the contempt  is alleged to have been committed. In this  case, the present application was filed on or  about 3-11-1988 as appears from the affidavit  in support of the application. The contempt  consisted, inter alia, of the act of not  giving the possession by force of the order  of the learned Senior Sub-Judge, Narnaul  dated 12-2-1988. Therefore, the application  was well within the period of one year.  Failure to give possession, if it amounts to  a contempt in a situation of this nature is a  continuing wrong. There was no scope for

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application of Section 20 of the Act.\024      12.    The correctness of the said decision came up for consideration  before another Bench of this Court in Pallav Sheth v. Custodian  [(2001) 7 SCC 549] wherein this Court refused to pronounce its  judgment thereupon opining:     \02348. The provisions of Section 17 of the  Limitation Act are applicable in the present  case. The fraud perpetuated by the appellant  was unearthed only on the Custodian receiving  information from the Income Tax Department,  vide their letter of 5-5-1998. On becoming  aware of the fraud, application for  initiating contempt proceedings was filed on  18-6-1998, well within the period of  limitation prescribed by Section 20. It is on  this application that the Special Court by  its order of 9-4-1999 directed the  application to be treated as a show-cause  notice to the appellant to punish him for  contempt. In view of the abovestated facts  and in the light of the discussion regarding  the correct interpretation of Section 20 of  the Contempt of Courts Act, it follows that  the action taken by the Special Court to  punish the appellant for contempt was valid.  The Special Court has only faulted in being  unduly lenient in awarding the sentence. We  do not think it is necessary, under the  circumstances, to examine the finding of the  Special Court that this was a continuing  wrong or contempt and, therefore, action for  contempt was not barred by Section 20.\024     

13.     We, as at present advised, leave the matter at that. 14.     We, however, do not agree with the submission of Dr. Dubey that  the State of Uttarakhand has no locus standi to maintain the  application.  It may be that the contempt petition has been filed  against individuals.  They, however, could not have maintained this  appeal in terms of Section 19 of the Contempt of Courts Act as  neither any order of punishment has been passed nor any final order  has yet been passed.   

       The State of Uttarakhand is required to comply with the order.   The financial burden would be on it.  We, therefore, are of the  opinion that it could maintain the special leave petition keeping in  view the question of law arising herein, as it is otherwise a person  aggrieved.

15.     The order of the learned Single Judge of the Allahabad High  Court dated 29.10.2003 being not in conformity with Sub-section (3)  of Section 35 of the 2000 Act, evidently, the Uttaranchal High Court  could not have entertained the second contempt petition.  But,  setting aside the said order, by itself, would not subserve the ends  of justice.  Justice would be subserved if one High Court or the  other goes into the merit of the contempt application.  We,  therefore, in exercise of our jurisdiction under Article 142 of the  Constitution of India, while setting aside the impugned orders as set  aside the order dated 29.10.2003 passed by the learned Single Judge  of the Allahabad High Court and direct that the proceedings before  the Allahabad High Court, shall stand revived.  The Allahabad High  Court either may continue to proceed in the matter or the Chief  Justice of the said High Court may transfer the proceedings before  the Uttaranchal High Court.

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16.     The appeals are allowed to the aforementioned extent.  No  costs.