Contempt Case (C) No. 866 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** **CON.CASE(C) NO. 866 OF 2021** **AGAINST THE ORDER/JUDGMENT IN WP(C) 9951/2021 OF HIGH COURT OF KERALA DATED 27.04.2021** ## **PETITIONERS/PETITIONERS:** - **1 MARY K.D., AGED 62 YEARS W/O. JOSEPH T.M., THAMARASSERIYIL, POOTHAKUZHI P.O., PIN- 686 521.** - **2 ANNIES VARGHESE, W/O.N.S.VARGHESE, NEELIYANICKAL, SOUTH PAMPADY P.O., PIN-686 521** - **3 RAMANI.K.N., W/O.V.A.CHANDRAN, KEEZHATTIL, PAMPADY P.O., PIN-686 502.** - **4 ALEYAMMA VARGHESE, AGED 998 YEARS W/O.LATE M.M.ABRAHAM, ETTITTUPARAMBIL, PANGADA P.O., PIN-686 502.** - **5 VIJAYAMMA M.N., W/O.SASI.K.K., MATTATHIL, PANGADA P.O., PIN-686 502.** - **6 KUNJUMOL. M.J., W/O.JAMES, NEDUMPOIKUYIL, MEENADOM P.O., PIN-686 516. BY ADV NOBLE MATHEW** **CON.CASE(C) 866/2021** **2** ## **RESPONDENT/1ST RESPONDENT:** **JINU BENJAMIN AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER KOPPRAYIL HOUSE, MANGANAM P.O. 686 018 WORKING AS CHILD DEVELOPMENT PROJECT OFFICER, PAMPADY BLOCK, POOVATHILAPPU P.O., KOTTAYAM DISTRICT 686 001. BY ADVS. SMT.NISHA BOSE, SR.GP K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING:** **CON.CASE(C) 866/2021** **3** BECHU KURIAN THOMAS, J …......…....................................... Contempt Case (C) No.866 of 2021 …......................................................... Dated this the 18[th] day of May, 2022 ## JUDGMENT Petitioners have initiated this contempt proceedings under Section 23 of the Contempt of Court Cases Act, 1971, alleging willful disobedience of the order dated 27.04.2021 in W.P.(C) No.9951/2021. 2. The circumstances that led to the present petition for initiating contempt are briefly stated as follows. Writ petitioners were Anganwadi workers, who were to retire on April 30[th] , 2021. They sought directions to engage them on a contract basis, paying the same wages received by them in the month of April 2021, even after their retirement; till regular recruitments are made in accordance with the procedure and to prohibit the respondent from making provisional selections to the post of Anganwadi Workers/Helpers, till the disposal of the **CON.CASE(C) 866/2021** **4** writ petition. 3. When the writ petition came up for admission on 27.04.2021, this Court issued a conditional interim order directing the petitioners to be engaged as contract employees after their retirement, if regular recruitment had not taken place, pending disposal of the writ petition. 4. Petitioners alleged that, though the aforesaid order of this Court was served on the alleged contemnor on 29.04.2021, she, in willful disobedience refused to comply with the specific directions and acting under the directions of her political bosses, appointed persons who were not selected through any regular recruitment Petitioners also that no list for process. alleged permanent appointments had been prepared and the respondent committed clear contempt of the orders of this Court. 5. After notice was issued and the contemnor **CON.CASE(C) 866/2021** **5** entered appearance, affidavits were filed. The contemnor filed an affidavit dated 03.09.2021 as well as additional affidavits dated 05.10.2021, 22.10.2021 and also a third additional affidavit dated 04.01.2022, controverting the allegations of contempt. 6. By order dated 22.10.2021, this Court found prima facie evidence of contempt and, thereafter, directed the respondent to appear in person. Subsequently, the contemnor engaged a private counsel through whom, the third additional affidavit dated 04.01.2022 was filed as mentioned above. 7. The gist of the contentions raised by the contemnor in the various affidavits filed by her is that she is a Child Development Project Officer at Pampady and that the selection process for appointment of persons, was in the place of petitioners after their retirement, completed, prior to the retirement of petitioners. It was stated that regular appointments were made with effect **CON.CASE(C) 866/2021** **6** from 03.05.2021 to the posts in question, based on the Government Order issued on 30.04.2018 and circular dated 22.02.2020. The contemnor further averred in the additional affidavits that the appointment of Anganwadi Workers was carried out based upon Annexures-R1(a) to R1(d) documents produced along with the additional affidavits and that the appointments were made, based on the list prepared by the selection committee, and reiterated that there was no willful disobedience of the orders of this Court. In the last affidavit filed by the contemnor, it was pointed out that the appointment of Anganwadi Workers is not governed by Special Rules and the creation of Anganwadi itself was based upon a scheme formulated in the year 1996 and that there is no regular recruitment or appointment through the Public Service Commission since there are no sanctioned posts or payment of salary on a scale of pay. According to her only Government Orders govern the field relating to **CON.CASE(C) 866/2021** **7** appointment of Anganwadi workers and further that Annexure-R1(a) Government Order prescribes the order of priority for making appointments to Anganwadi workers and that there were eight categories mentioned in the said order, based on which, persons were appointed in the place of petitioners after their retirement. It was also stated that the persons who had vacated or surrendered their property for functioning the Anganwadi were also made eligible to get every 10[th] vacancy on the basis of the rotation specified in Annexure-R1(a) and since appointments were made, based on Annexure R1(a) GO, there cannot be any case of contempt, having been committed by her. 8. I have heard Sri. Noble Mathew, the learned counsel for the petitioners and Senior Advocate K.P.Satheesan, duly instructed by Sri.Sudhin Kumar, on behalf of the respondent. 9. The sole question to be considered is **CON.CASE(C) 866/2021** **8** whether the respondent committed contempt of the order of this Court dated 27.04.2021 in appointing 6 persons, instead of retaining the petitioners after their retirement. 10. Before referring to the factual circumstances brought out in the pleadings, it is necessary to identify what constitutes contempt. The word 'civil contempt' is defined under Section 2(b) of the Contempt of Courts Act, 1971; as meaning 'willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or willful breach of an undertaking given to a court'. 11. It is trite law that mere disobedience of an order of a court is not sufficient to amount to civil contempt, since the element of willful disobedience is an indispensable requirement to bring home the charge under the Act. To constitute willful disobedience, it is necessary, as held in Ram Kishan v. Tarun Bajaj & Ors [(2014) 16 SCC 204] that there must be intentional, **CON.CASE(C) 866/2021** **9** conscious, calculated and deliberate act with full knowledge of the consequences flowing therefrom, excluding casual, accidental, bona fide acts or genuine inability. 12. The words 'willful' conduct’ infuses a requirement of a mental element to be satisfied. If the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation, it is not proper to infer that the party acting under a misapprehension of the correct legal position and in good faith, without any motive to defeat or delay the order, committed contempt of court. Reference to the judgments in Dinesh Kumar Gupta v. United India Insurance Company Ltd., and Others [(2010) 12 SCC 770] and Abhishek Kumar Singh v. G.Pattanaik and Others [2021 (7) SCC 613 is appropriate. 13. On an appreciation of the above decisions, it can be perceived when the order of the Court, which is the basis for the contempt proceeding, itself gives room **10** **CON.CASE(C) 866/2021** for a contrary action, and if such a different course is adopted, an action for contempt may not lie. The reason for such a conclusion is because such conduct cannot amount to willful disobedience as the order itself gave sufficient opening to adopt a different course of action. Of course, bonafides of the action is a relevant factor in which cases. 14. In the instant case, the contention of the respondent is that she assumed that the appointment was made on the basis of a regular recruitment process since there are no Special Rules governing the field of appointment to Anganwadi Workers and the Government Order that governs the field of appointment prescribes a process for selection of candidates. According to the respondent, she believed in all earnestness that she was complying with the regular recruitment process as prescribed by the Government in Annexure-R1(a) GO dated 30.04.2018. **CON.CASE(C) 866/2021** **11** 15. A perusal of Annexure-R1(a), the existence of which is admitted by both parties, gives an indication that the Government had prescribed a method of recruitment for appointment as workers to Anganwadi. Whether the said Government Order is 'valid or not' is an entirely different question. Since the respondent assumed that Annexure-R1(a) is the Government order governing the field of recruitment and appointment to the workers of Anganwadi were carried out in accordance with the said Government Order, in the absence of any contrary Special Rules that govern the field, it cannot be held that there was willful or contumacious conduct on the part of the respondent to commit contempt of the order of this Court. 16. It is also relevant to mention that the learned counsel for the petitioners submitted that W.P.(C) No.9951/2021 was disposed of by judgment dated 16.12.2021, wherein it was observed as follows: **CON.CASE(C) 866/2021** **12** 10. In the light of the above facts, it is true that, the committee is not in place for selection of the candidates. However, it seems that several G.Os have been issued regarding the service conditions of the employees and their selection process. By virtue of G.O No.1/2020 of Social Justice Department dated 6/1/2020, Rules in relation to the Anganwadi workers/helpers Welfare Fund Act, were framed by the Government and published. The Government had noticed that, Central Government had issued direction that 25% of the Anganwadi workers shall be reserved for appointment by promotion of qualified helpers. Such a direction was issued by the Central Government by G.O No.1/9/2006-CD-1 dated 6/10/2006. It was reiterated in G.O.(MS) No.74/2012 of Social Welfare Department dated 22/12/2012. Hence, G.O.No.254/2018 dated 30/4/2018 was issued to ensure that specific and separate reservations were made for various categories of persons. 25% for the helpers who had completed 10 years of service and who passed SSLC/SSLC equivalency course was also provided. Thereafter, the priority list for fixing the process of filling up the vacancies by rotation for various eligible candidates was issued by G.O B2/406/2019 of Social Justice Department dated 22/2/2020, which was also placed on record. These show that specific portion of the vacancies are set apart for certain specified categories. Having considered this, though the selection committee is not put in place, the method of selecting the candidates by various preferences stands fixed. In the light of the above, I am inclined to direct that wherever, persons who are available by virtue of the priority list and requested for posting at places wherein other candidates are available, it shall be dealt with in accordance with law. _[emphasis supplied]_ ## 17. This Court has observed that the method of **CON.CASE(C) 866/2021** **13** selecting candidates by various preferences stands fixed. The respondent has presumably followed the recruitment on the basis of the preferences fixed and the measures were taken even before the order of this Court was issued. It is relevant to notice that till date, petitioners have not challenged the appointment of persons which is the basis for this contempt action. 18. In this context, it is relevant to bear in mind Section 13 of the Contempt of Courts Act, 1971, also, which provides that no Court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. 19. For the various reasons mentioned above, I am unable to conclude that the order issued by the respondent substantially interferes with the due course of justice. The respondent acted upon the apparent belief **CON.CASE(C) 866/2021** **14** that she was carrying out a regular recruitment process, as contemplated in the Government Order. Viewed in the above perspective, this Court is of the opinion that the conduct of the respondent in appointing the persons other than the petitioners based on Annexure-R1(a), does not amount to willful contempt of the Order of this Court in W.P.(C) No.9951/2021 dated 27.04.2021. In the result, the contempt of court case is dismissed. Sd/BECHU KURIAN THOMAS JUDGE AMV/18/05/2022 **CON.CASE(C) 866/2021** **15** ## **APPENDIX OF CON.CASE(C) 866/2021** **PETITIONER ANNEXURES ANNEXURE A1 CERTIFIED COPY OF THE INTERIM ORDER OF THIS HONBLE COURT DATED 27.04.2021 IN WPC NO. 9951 OF 2021. ANNEXURE A2 PHOTOSTAT COPY OF THE LEGAL NOTICE DATED 07.05.2021. ANNEXURE A3 PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE POSTAL DEPARTMENT EVIDENCING THE SENDING OF LEGAL NOTICE ON 11.5.2021. ANNEXURE A4 PHOTOSTAT COPY OF THE LETTER ISSSUED BY THE DIRECTOR WOMEN AND CHILD DEVELOPMENT DEPT. TO THE RESPONDENT DATED 30.4.2021. ANNEXURE A5 COPY OF THE CIRCULAR ICDS B424506/18 DATED 23.02.2021. ANNEXURE A6 COPY OF THE JUDGMENT OF THIS HON'BLE COURTDATED 26.11.2019 IN WP(C) NO.24893/2018. ANNEXURE A7 COPY OF THE DRAFT SPECIAL RULES PREPARED BY THE SOCIAL JUSTICE DIRECTOR. RESPONDENTS ANNEXURES ANNEXURE R1(A) COPY OF GO NO.254/2018/SJD DATED 30.04.2018. ANNEXURE R1(B) COPY OF THE CIRCULAR NO.SJD/B2/406/19 SJD DATED 22.02.2020. ANNEXURE R1(C) COPY OF THE SENIORITY LIST APPROVED BYT HE DISTRICT SOCIAL JUSTICE OFFICER, KOTTAYAM DATED 30.01.2016. ANNEXURE R1(D) COPY OF THE SELECTION LIST APPROVED BY THE ORDER NO.DWCDO(K)C/1587/2020 DATED 29.12.2020. ANNEXURE R1(E) COPY OF THE DECISION NUMBER 7/1 DATED 27.04.2018 OF AKALAKKUNNAM GRAMA PANJAYATH. ANNEXURE R1(F) COPY OF THE DECISION NUMBER 6 DATED 26.08.2016 OF ELIKULAM GRAMA PANCHAYATH. ANNEXURE R1(G) COPY OF THE DECISION NUMBER 7 DATED 11.08.2016 OF PALLIKKATHODU GRAMA PANCHAYATH. ANNEXURE R1(H) COPY OF THE DECISION NUMBER 14/20 DATED 16.05.2018 OF MANARKAD GRAMA PANCHAYATH ANNEXURE R1(I) COPY OF THE DECISION NUMBER 4/4 DATED 29.07.2017 OF PAMPADY PANCHAYATH.** **CON.CASE(C) 866/2021** **16** |**ANNEXURE R1(J)**|**COPY OF THE DECISION NUMBER 10/2 DATED**| |---|---| ||**15.06.2017OF KOOROPADA GRAMA PANCHAYATH.**| |**ANNEXURE R1(K)**|**COPY OF THE VIDE ORDER NO.C1616/2016**| ||**DATED 02.07.2018 OF DISTRICT SOCIAL**| ||**JUSTICE OFFICER.**| |**ANNEXURE R1(A)**|**COPY OF THE REPLY GIVEN BY THE 2ND**| ||**RESPONDENT DATED 30.04.2021 IN W.P.(C)**| ||**9951/2021**| TRUE COPY