357918 RFN/ORL Madhuvendra Singh & Ors vs L.C. Goyal & Ors

H.S. Thangkhiew, J

This contempt petition has been pending for an unduly long period of time, due to the multiplicity of collateral proceedings concerning a large number of servicemen serving in the Assam Rifles in different trades, and the orders that had been passed in these proceedings, which were subject to various interpretations, as to their manner of implementation, apart from appeals which are pending against many such orders. The instant contempt application it is important to note, has been filed by 2269 petitioners and during the course of the proceedings, with the change of the incumbency in office of the respondents, necessary parties have been added from time to time.

In brief, this contempt application alleges the willful violation of this Court’s orders dated 08.05.2014 passed in WP(C) No. 56 of 2013, whereby it was held that a Judgment and Order dated 22.09.2011 passed in WA No. 50 (SH) of 2010, would also squarely cover the case of the writ petitioners, and the respondents were directed to extend the benefits of the said order, by giving appropriate rank and pay scale to the petitioners, as per the recommendations of the Fifth Pay Commission and OM dated 22.01.1998 within a period of 8(eight) months.

The petitioners’ case is that as per the recommendation of the Fifth Pay Commission, the technical personnel of the Paramilitary forces were categorized as Class-III (Havildar), Class-II (ASI/Warrant Officer) and Class-I (SI) in the scale of pay of 3200/-, 4000/- and 5500/- respectively, and that as per the Fifth Pay Commission, those who had completed Class-III, were to be put in the Rank and Pay of Havildar and likewise those who had completed Class-II, were to be put in the Rank and Pay of Warrant Officer. It has been submitted that the petitioners who had commenced their services as ORL/Rfn. in the technical wing of the Assam Rifles, and had completed Class-II as such, should have been put in the Rank and Pay of ASI/Warrant Officer, as was done in other technical grades. However, it is submitted though the Ministry of Home Affairs had accorded approval for the implementation of the Court’s order, instead of giving the petitioners the Rank and Pay of Warrant Officer (having completed Class-II), the benefit of being Havildar (Class-III) was only granted to ORLs, and they were placed in the pay of Rs. 3200/- even after completing Class-II, whereas other Trades, were put in the pay of Rs. 4000/-. However, it has been categorically submitted that this aspect is not being contested in the instant petition.

Mr. B. Pathak, learned counsel for the petitioners submits that the entire complexion of the matter changed due to a corrigendum dated 23.08.2016, whereby it was stated that the upgradation/re-designation is to be read as upgradation/promotion, which he contends is at variance with the order of the Ministry of Home Affairs. Consequently, he submits though the question of promotion does not arise as the post of Riflemen was only re-designated as Havildar, the respondents considered the petitioners in the ORL Trade to be promoted as Havildar. It has been submitted that great mischief has been done by introducing the word ‘promotion’ as the order of the writ court had categorically stated that the benefits of the Fifth Pay Commission were to be extended to the petitioners by the Assam Rifles. The respondents it is alleged, while implementing the order of the Court instead of granting the benefit of re-designation/upgradation, by making the same a promotion had violated the orders of this Court to nullify its effect and as such, cannot be said to be in compliance thereof. It is also been submitted that use of the word ‘promotion’ is misplaced and incorrect in view of the fact that if conferment of Rank and Pay of Havildar is considered a promotion, the petitioners would also lose their accrued ACP/MACP benefits, as the benefit will be washed away once the upgradation is treated as a promotion.

The learned counsel further submits that the respondents have adopted a pick and choose policy in the implementation of the Court’s orders, which is prima facie contemptuous. In support of his arguments, the learned counsel has placed reliance on the following judgments including two judgments on the powers of the Court to issue orders, while exercising contempt jurisdiction.

i) Kapildeo Prasad Sah & Ors vs. State of Bihar & Ors. reported in (1999) 7 SCC 569

ii) Anil Ratan Sarkar & Ors. vs. Hirak Ghosh & Ors. (2002 (4) SCC 21) also quoted in C. Elumalai & Ors. vs A.G.L. Irudayaraj & Anr. reported in (2009) 4 SCC 213

iii) Gauri Shankar PD Rai vs. Sajal Chakroborty, Chief Secretary, Government of Jharkhand & Ors. reported in (2015) 8 SCC 163

iv) Balwantbhai Somabhai Bhandari vs. Hiralal Somabhai Contractoe (Deceased) rep. by Lrs. and Ors. reported in 2023 SCC OnLine SC 1139

In reply Dr. N. Mozika, learned DSGI assisted by Ms. M. Myrchiang, learned counsel on behalf of the respondents has submitted that in accordance with the OM dated 20.10.2015, which provided for implementation of the Judgment and Order dated 08.05.2014 passed in WP (C) No. 56 of 2013, the DGAR had issued an order dated 23.10.2015, for compliance of the same. The process of implementation he submits involved three stages namely;

(a) First Stage- Holding of DPC of upgradation and redesignation of the post of Riflemen (ORL) in to Hav (ORL) for the petitioners;

(b) Second Stage- Fixation of pay as per 5th Pay Commission as applicable;

(c) Third Stage- Preparation of fresh IPS as per the 6th CPC due to increase of basic pay of affected individuals and calculation of arrears due to the petitioners.

The learned DSGI has submitted that all the three stages of compliance had been completed i.e. from the First Stage of holding of DPC for upgradation and re-designation of the post of Rifleman (ORL) to Havildar (ORL) on 03.11.2015 and promotion orders issued. The Second Stage (Fixation of pay as per 5th CPC) and preparation of fresh IPS as per 6th CPC he submits, on the increase in the basic pay of affected individuals, calculation of arrears have also been completed and the revised Initial Pay Statement (IPS) in respect of 2404 upgraded/re-designated (ORL) has been prepared and issued. The Third and last Stage he submits, i.e. preparation of fresh IPS as per the 6th CPC has also been completed and issued to the petitioners and the enhanced pay paid to them from the month of May 2016. He thus submits that there has been no disobedience of the orders of the Court. It is also submitted that only a few of the 2269 writ petitioners, have filed the instant contempt case alleging non-compliance of the order dated 08.05.2014, and that the contention is primarily that the upgradation/re-designation granted by the Assam Rifles vide order dated 03.11.2015, to the rank of Havildar is from the date of passing Technical Trade Test-III and not from 10.10.1997 and further that the said upgradation/re-designation granted vide order dated 03.11.2015, to the rank of Havildar cannot be set off against ACP/MACP.

It is further submitted that the issue of upgradation/re-designation granted to the rank of Havildar, and as to whether it can be set off against ACP/MACP, was not a subject matter of WP(C) No. 56 of 2013, nor was there any adjudication on this aspect and the direction in the order dated 08.05.2014, was only to give appropriate Rank and Pay scale to the petitioners as per the recommendation of the Fifth Pay Commission and OM dated 22.01.1998, which has already been complied with. The other matters raised it is contended, requires substantive adjudication which cannot be decided in contempt proceedings. It is further submitted that several ORL personnel who were petitioners in WP(C) No. 56 of 2013, but not petitioners in the instant contempt case have also filed independent writ petitions before this Court, which are currently under adjudication in review proceedings. The petitioners he submits, by the instant contempt application are seeking to achieve the benefit which was neither the subject matter in WP(C) No. 56 of 2013, and further urges that it has to be kept in mind that the instant contempt petition had been filed as far back as in August, 2015, and since then from the respondents’ side, several incumbents over this period, have taken over and also demitted the post. He therefore, submits that the petitioners having been unable to make out any case of contempt in all these years, he prays that the contempt be closed and the petitioners be allowed to file fresh writ petitions, or to institute any other appropriate proceedings for adjudication of their claims.

On hearing the learned counsel for the parties, this Court has to firstly keep in mind that the proceedings are confined to exercise of powers under contempt jurisdiction, which are in a narrow compass and before contempt proceedings are initiated to discern and come to a finding, that there has been willful and deliberate violation of the orders of this Court. A perusal of the contempt application would show that the prayer is confined to an allegation of non-compliance which for the sake of convenience is reproduced hereinbelow:-

“In the premises aforesaid it is most humbly prayed that Your Lordships may be pleased to issue Notice to the Respondents to Show Cause as to why Contempt proceedings be not initiated against her under the Contempt of Court’s Act, 1971 for the willful violation of this Hon’ble Court’s Orders dated 8.5.2014 passed in WP (C) No. 56 of 2013 and on hearing the parties be further pleased to punish the Respondent as per law and/or pass any such further or other Orders as Your Lordships may deem fit and proper.”

The petitioners thus it can be seen at the time of filing the instant contempt application were only aggrieved with the non-implementation and non-compliance of the order dated 08.05.2014 passed in WP(C) No. 56 of 2013. Since the filing of the contempt application as observed earlier, much water has flowed under the bridge, inasmuch as, various proceedings and writ petitions have been preferred by some of the petitioners herein, as well as servicemen serving in other Trades seeking to derive the benefits of the orders of this Court. Added to this fact is the defence put up by the respondents that the order dated 08.05.2014, has since been complied with and that there has been no willful disobedience. This contention also cannot be ignored by this Court in view of the fact that there has been action taken on the basis of the orders of this Court and what may be the substantial issue that remains, is with the interpretation and the manner of compliance and implementation.

At the cost of repetition, since the passing of the order of this Court, the subsequent developments have changed the complexion and dimension of the entire case and though issues may still remain, the same cannot be covered under the scope of the present contempt petition to make out any case of willful disobedience. No doubt, the legitimate rights of the petitioners if any, cannot be deprived or extinguished, but however to pursue the same by way of the instant contempt application will not suffice and in the considered view of the Court, is incompetent.

Accordingly, without further lingering with the matter, the instant contempt application is dismissed, leaving it open to the petitioners to pursue fresh remedy if so advised or desired. In view of the discussions made hereinabove, the decisions placed by the parties not being relevant, are not elaborated upon.

The contempt application is closed and disposed of.