Rajendra Prasad Ojha and Another vs UOI and Others

Gita Mittal, J.—Learned counsel for the petitioners submits that the respondents have finally granted redressal to the petitioners by the order

dated 21st November, 2012 which was handed over in court on the last date of hearing. When the matter was listed before us on 16th November,

2012, we had noted the facts giving rise to the present petition and observed as follows:-

The instant case challenges the respondents'' decision to give the benefit of Assured Career Progression Scheme (hereinafter referred to as

''ACP Scheme'') only to persons who had approached the Delhi High Court by way of writ petition. As a result of this decision, the respondents

proceeded to take steps for withdrawal of the ACP Scheme benefits to persons who were granted the same.

This action brought displeasure to the respondents by way of an order dated 29th September, 2011 passed in WP (C) No. 7231/2011 Parmal

Singh & Ors. Vs. UOI & Ors. for selectively implementing the court''s order.

Despite the above decision and despite the petitioners being similarly situated as the other ITBP personnel who have been granted the benefit of

ACP scheme, the respondents have deprived the petitioners of the benefit therefrom. The petitioners had last made an application in this behalf on

11th January, 2011 which was returned by the adjutant of the petitioners'' unit despite the above noticed legal position.

A submission is made by Mr. S.N. Pandey, learned counsel for the petitioners today before us that by an order dated 1st November, 2012, the

respondents have accorded the benefit of ACP scheme to all other similarly situated personnel apart from the two petitioners before us.

Learned standing counsel for the respondents prays for a short adjournment to examine the correctness thereof.

Prima facie, we may note that the said action in deciding to selectively implement a judgment as well as to deprive the petitioners of the benefit

which has been accorded to similarly situated persons, borders on contempt of court. We may require to take appropriate proceedings against the

respondents for the same.

On request of Mr. B.V. Niren, learned standing counsel for the respondent-UOI who wishes to take instructions in the matter, list on 30th

November, 2012.

Conscious of the folly and illegality of their actions, the respondents proceeded to pass the order dated 21st November, 2012 only thereafter.

The Supreme Court has held that if the executive does not follow the well settled law, it shall create confusion in the administration of justice and

undermine the law laid down by the court and shall impair its constitutional authority. The disobedience of law laid down by the court shall also

amount to contempt of court. These principles would clearly apply to the instant case. In this regard, reference may be made to judicial

pronouncements of the Supreme Court reported in Shri Baradakanta Mishra Ex-Commissioner of Endowments Vs. Shri Bhimsen Dixit, . In this

case, the appellant, a member of Judicial Service of State of Orissa refused to follow the decision of the High Court. The High Court issued a

notice of contempt to the appellant and thereafter held him guilty of contempt which was challenged before the Hon''ble Supreme Court. The

Hon''ble Supreme Court held as under:-

The conduct of the appellant in not following previous decisions of the High Court is calculated to create confusion in the administration of law. It

will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore

comprehended by the principles underlying the law of Contempt. The analogy of the inferior court''s disobedience to the specific order of a

superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the

Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law

laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has

repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is

calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law

and engender harassing uncertainty and confusion in the administration of law"" (para 15)

In State of Gujarat Vs. Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya and Another, , the Gujarat High Court

held the Secretary, Labour and Social Welfare and Tribal Development Department, to be guilty of contempt for refusing to follow the law laid

down by the High Court. It was held as under:-

In Hasmukhlal C. Shah and Others Vs. State Of Gujarat and Another, , a Division Bench of the High Court consisting of J.B. Mehta and P.D.,

Desai, JJ., after examining several decisions of the point observed:

In a Government which is ruled by laws, there must be complete awareness to carry out faithfully and honestly lawful orders passed by a Court of

law after impartial adjudication. Then only will private individuals, organizations and institutions learn to respect the decisions of Court. In absence

of such attitude on the part of all concerned, chaotic conditions might arise and the function assigned to the Courts of law under the Constitution

might be rendered a futile exercise.

The Supreme Court also noted that unwarranted and frivolous litigations necessitated because of the unjust actions of the government and

statutory authorities are on increase. On this aspect, in Madras Port Trust Vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by

L.R.s, , the court observed as follows:-

2... It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating

legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the

Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be

taken up by a government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for

the purpose of resisting such a claim has become unavailable....

In Bhag Singh and Others Vs. Union Territory of Chandigarh through the land acquisition collector, Chandigarh, , the court observed as

follows:-

3.... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is

received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to

defeat the legitimate and just claim of the citizen.

Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They

are:

(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the

land.

(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and

secures a decision. The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the governments or

statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their

reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of

improper motives for any decision making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of

decision making to courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical

norms for defending cases filed against the government and for filing appeals and revisions against adverse decisions, thereby, eliminating

unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the

statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation.

Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide

easy and speedy access to justice to bona fide and needy litigants.

We may also note the observations of this court in the order dated 29th September, 2011 passed in W.P.(C)No. 7231/2011, Parmal Singh &

Ors. v. Union of India & Ors. which are to the following effect:-

Painfully would we note that the decision on the file taken by the Cadre Controlling Ministry records as under:-

The case pertaining to grant of 1st upgradation to head constables (Rs. 3200-85-4900) and 2nd ACP to constables (Rs. 3050-75-3950-80-

4590) in the pay scale of 5500-9000 in accordance with the then existing rank hierarchy and the provisions of original ACP scheme has been

examined in MOF. MOF vide their ID No. 50402-C/E-III(A) dated 11.04.2011 has agreed to extend the implementation of the courts judgment

to only the applicants of the various court cases filed by ITBP personnel as well as other CAPFs where the intermediary rank of ASI in the pay

scale of Rs. 4,000-6000 (pre-revised) did not exist.

ITBP and BSF/CRPF/SSB/AR may please see for information and necessary action. File is returned to ITBP?

The note has been signed by Sh. Pritam Lal, Under Secretary (Pr-V).

We are pained to note the bureaucratic stand taken by Sh. Pritam Lal, Under Secretary (Pr-V).

If a general issue of law affecting large number of persons is decided by a Court and a specific reference is made that the department should

consider extending the principle of law declared across the board to all so that others are not forced in litigation, it is expected that the bureaucrat

applies himself properly and does not foist litigation on the others.

The note extracted herein above says that the Ministry of Finance has agreed to extend the implementation of the Court judgment to only those

applicants who approach the Court and not the others.

The decision creates an artificial distinction not recognized by law for the reason it would be arbitrary to say that law means

A for those who go to the Court, and it means

B for those who do not.

While disposing of the writ petition and directing the respondents to treat the mandamus issued vide order dated 9.10.2009 passed in WP(C)

No. 12258/2009 as the mandamus issued in the instant writ petition, we censure Sh. Pritam Lal, Under Secretary, (Pr-V), Government of India,

Ministry of Home Affairs and direct that a copy of this decision would be placed in his service book and as and when his case is placed before a

Departmental Promotion Committee, it be highlighted that this Court has censured Sh. Pritam Lal, Under Secretary (Pr-V).

The action of the respondents in the present case was also in breach of the aforesaid directions passed by the court on 29th September, 2011.

We are assured by Mr. B.V. Niren, learned standing counsel for the respondents that appropriate action is being taken with regard to the

persons similarly situated as the petitioners. In case, such action is not expeditiously taken, the respondents would clearly be liable for appropriate

proceedings under the Contempt of Court Act.

Inasmuch as the respondents have finally granted the relief sought by the petitioner, we are not drawing up proceedings under the Contempt of

Court Act against them. However, each of the petitioners shall be entitled to costs in the present matter which are quantified at Rs. 25,000/- to be

paid by the respondents to each of the petitioners along with their next month''s salary. This writ petition is accordingly disposed of.