Rameshwar Dayal vs Iqbal Ahmed

This case has a chequered history and the petitioner claims that he has been denied his rightful claim for promotion right from the year 1983 and feels aggrieved by the manner in which his case has been considered.

Petitioner was working as an Assistant Surgeon in the Health and Family Welfare Department and in the year 1988 he filed a petition challenging his supersession. The applicant came out with a case in the said petition that he is entitled for promotion on the post of Specialist but ignoring his claim and in total violation to the rules of promotion, adopting a criteria of seniority-cum-merit his claim has been rejected. It was his contention that the criteria for promotion is merit-cum-seniority and not seniority-cum-merit and as the claim has not been properly considered, the petition was filed. After formation of the State Administrative Tribunal this petition was transferred to the Tribunal. The Tribunal dismissed the same and therefore, the matter came to this Court in W.P. No.669/1998 and a Division Bench of this Court on 15.10.2003 examined the matter and it was found during the course of hearing of the petition that while the matter was pending before the High Court, petitioner has been promoted on the post of Specialist in the year 2000. However, it was found that a representation highlighting the grievance of the petitioner is pending consideration before the State Government and after taking note of all these, a innocuous order was passed for deciding the representation in accordance with law. For the sake of convenience, we may reproduce herein under the entire order passed by the Division Bench :-

�During course of hearing we have been apprised at the Bar, that the petitioner has been promoted in the year 2000. He had visited this Court in the year 1987 which stood transferred to the Tribunal in the year 1988. It is submitted by Mr. Dixit that the promotions were governed by the principle of merit-cum-seniority. In view of the aforesaid we are inclined to grant him liberty to submit a representation highlighting that the petitioner at the relevant time when his juniors were promoted his case should have been considered as he would have come within the zone of consideration. If such a representation is made within a period of two months from the date of receipt of the order passed today the competent authority shall deal with the same and if required, shall convene a Departmental Promotion Committee to consider the case of the petitioner. We have said so as we have been told that these posts are filled on the basis of merit-cum-seniority. The matter would have stood in a different footing and the promotions were to be effected on the principle of seniority-cum-merit. The foundation for merit-cum-seniority being different, definitely the petitioner could have had a justifiable claim.

We have taken recourse to mode of disposal of this writ petition in this manner as promotees have not been made parties to the writ petition and we have not been apprised of the fact how many DPCs have been held in the meantime. We hope and trust that the competent authority shall scrutinise the representation from all angles and consider it in accordance with law by describing cogent and germane reasons. The aforesaid exercise shall be completed within a period of three months from the date of receipt of the representation preferred by the petitioner.

We may reiterate that the authority shall decide the representation without being influenced by the order passed by the Tribunal, and refrain from quashing the same on certain technical grounds.

With the aforesaid directions the writ petition stands disposed of. There shall be no order as to costs.

(Emphasis Supplied)

It seems that after the aforesaid order was passed, the respondents constituted a review DPC, considered the case of the petitioner and vide Annexure C/4 dated 10.9.2004 rejected his claim by saying that the promotion has to be held in accordance to the criteria of seniority- cum-merit and his claim was rejected. Petitioner, therefore, approached this Court in this contempt proceedings and submits that only to violate the directions of this Court for conducting the promotion under merit-cum- seniority, the impugned action has been taken and therefore, it was said that the same amounts to contempt. When the matter was so pending before this Court, it is seen that on 11.8.2006 Shri K. C. Ghildyal, learned counsel appearing for the respondents submitted that he has verified the records and has found that the claim of the petitioner seems to have not been properly considered and therefore, this Court gave opportunity to the respondent to reconsider the matter on the basis of merit and suitability. Thereafter, the matter has been considered, a review DPC was held on 9.2.2007 and it is said that after the review DPC considered the claim on merit, it has been rejected. Accordingly, taking note of all these facts on 24.3.2008 respondents were directed to produce the proceedings of DPC. Since then for some reason or the other the matter is kept pending and today during the course of hearing the DPC records of 9.2.2007 are produced before us which goes to show that consideration of the claim in accordance to the requirement of merit-cum-seniority and after allotting marks based on the gradings received for the past five years, petitioner has been allotted 10 marks on account of the fact that he had obtained �Kha� grading for all the years right from 1988 upto 1992. It was further found that the last person promoted had obtained 12 marks and therefore, the petitioner was found ineligible for promotion. The Original records of DPC has been produced which goes to show that consideration as indicated herein above has been made. Now the petitioner says that his case has not been considered right from the year 1982-83 and therefore, a contempt has been committed.

We have gone through the original noting of the DPC proceedings and it seems that various considerations have been made in the matter and a detailed observation running to more than six page are available to show why the petitioner is not entitled for promotion. His gradings from the year 1982 onwards have been taken note of and various reasons have been given which goes to show that on merit his claim cannot be considered.

Be it as it may be, the question now before us is as to whether on the basis of the consideration made and the report submitted can we initiate action for contempt in the matter?

Shri K. C. Ghildyal submits that the only direction issued in the writ petition was to consider and decide the representation. The representation was considered and rejected but the department itself offered for reconsideration of the matter before this Court on 11.8.2006. Thereafter, it was considered on 9.6.2007 and once after such consideration, the claim is rejected, the manner of consideration cannot be a subject matter of dispute in a contempt proceeding and thereafter on the ground that consideration has not been made in accordance to the requirement of law, the respondents cannot be punished. Shri K. C. Ghildayal points out that in the order originally passed in the Writ Petition on 15.10.2003 except for a direction to decide the representation and observing that the petitioner contends that the promotion should be on the principle of merit-cum-seniority, there is no specific direction given indicating the manner in which the consideration is to be made. It is said that there being no deliberate disobedience or violation of the Court''s order, no action for contempt can be initiated.

However, Shri D. K. Dixit refuted the aforesaid and argued that the petitioner is agitating the matter since 1987. He was entitled for consideration from 1983. In the DPC held on 9.2.2007 only the C.R. gradings for the five years from 1988 to 1992 is considered. C.R. gradings from 1983 onwards have not been considered and when the juniors were promoted in the year 1983 it is said that respondents have committed deliberate breach of this Court''s order.

We have taken note of the submissions made by learned counsel for the parties and we find that in the order passed by this Court on 15.10.2003 in W.P. No.669/1998 after noting down the submissions made by learned counsel for the parties, the directions issued and the observations made by the Court are the one which we have reproduced herein above. This Court has clearly observed that the Court is inclined to grant liberty to submit a representation highlighting the petitioner''s grievance and the competent authority was directed to deal with the same, convene a Departmental Promotion Committee and thereafter, take a decision. There is no positive mandate or direction of this Court indicating any specific procedure, method or manner in which the consideration has to be made. Once the only direction is to consider the matter and if on consideration a decision is taken, the justification or otherwise of the decision cannot be a subject matter of adjudication in a proceeding under Section 12 of the Contempt of Courts'' Act. In this regard, we may take note of the principles of law laid down by the Supreme Court in the case of J. S. Parihar Vs. Ganpad Duggar and others � 1999 (6) SCC Page 291. In this case certain contempt proceedings were initiated on the ground that inspite of directions issued by the High Court a seniority list has not been drawn in accordance to the directions issued. The Supreme Court found that once the seniority list was drawn, the question as to whether the seniority list is properly drawn and further review of the seniority list so drawn in a contempt proceeding was not permissible. It was held by the Supreme Court that preparation of the seniority list may be wrong or may be right or may not be in conformity with certain directions given but the justification or otherwise in the matter of drawing of the seniority is not a cause which gives rise to initiating action for contempt. It is a separate cause of action which has to be adjudicated in a proper forum but any error in redrawing the seniority will not amount to willful disobedience for which contempt action can be taken. If the aforesaid principle is applied in the present case and if we analyze the entire facts in the backdrop of the aforesaid principle, we find that in the order passed on 15.10.2003, the only direction issued is to decide the representation without being influenced by the order passed by the Tribunal and once the same was done and when this Court granted liberty to the respondents to conduct a review DPC, while passing the order on 11.8.2006 and when in pursuance to the same when a DPC is held on 9.2.2007 and the claim is rejected, now the tenability, propriety, legality or otherwise of the proceeding of the DPC held on 9.2.2007 cannot be subjected to judicial review in a contempt proceeding under Section 12 of the Contempt of Court''s Act. There is no willful disobedience as claimed by Shri D. K. Dixit. The question as to whether the proceedings of the DPC held on 9.2.2007 and the consideration made in the said proceeding is in accordance to the statutory rules or the rules of promotion has to be adjudicated in an appropriate forum and this is a separate cause of action which cannot be adjudicated in these proceedings for contempt.

Accordingly, taking note of the manner in which the original writ petition was decided and directions were issued by this Court on 15.10.2003, we do not deem it a fit case where action for contempt can be initiated. In the absence of any specific direction issued by this Court contemplating or directing the manner in which the proceedings of DPC or proceedings for consideration of representation has to be made, we are not inclined to initiate any action for contempt. In case the petitioner has any grievance with regard to manner in which consideration is made, it gives a fresh cause to the petitioner to agitate the matter in accordance with law but does not give a cause for initiating action for contempt.

Accordingly, finding no ground, we discharge the respondents and grant liberty to the petitioner to challenge the action afresh in accordance with law.

Original records of DPC produced for perusal of the Court are returned back to Shri K.C. Ghildyal.