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1983 DIGILAW 17 (PAT)

Jayant Lal Pal v. State of Bihar

1983-01-14

HARI LAL AGRAWAL, K.B.N.SINGH, SINHA

body1983
BY COURT 1. This application under Article 215 of the Constitution of India read with section 11 of the Contempt of Court Act is for violation of the order dated 25.10.1979 passed in C.W.J.C. No. 2873 of 1979. 2. The petitioner, who is Research Officer in the Irrigation Research Institute. Khagaul, under the Department of Irrigation, Government of Bihar, had filed the said writ application to consider his case for promotion to the post of Additional Director (Scientific) in the said Institute at Khagaul, on the ground that he, alone, was, the eligible candidate for the said post which was lying vacant on the retirement of one Shri R.L. Dewan on 1.2.1979. On 25.10.1979 a Bench of this Court consisting of one of us (Hari Lal Agrawal, J.) on hearing Mr. Shyama Prasad Mukherjee. for the petitioner, and the then Standing Counsel No.5, Mr. B. P. Gupta, had disposed of the said writ application with a direction to "respondents 1, 2 and 3 to decide the matter of filling up of the aforesaid post of Additional Director (Scientific) within a period of three months from the date of the receipt of this order". Standing Council no. 5 had submitted before the Bench that one Shri J. Bahadur, respondent no. 4 was holding the said post of Additional Director on an officiating basis as a stop-gap arrangement as the authority has not yet decided the proper person who should be promoted to the said post and that the case of the petitioner will also be duly considered while considering the case of promotion to fill up the said post. 3. The present application was filed on 21.2.1980 after the expiry of the said period of three months with an allegation that the said respondents 1 to 3, namely, the state of Bihar, the Commissioner-cum- Principal Secretary, Irrigation Department (respondent no. 2) and Shri A.K. Sinha, Engineer-in-Chief-cum Special Secretary, Irrigation Department, Bihar (respondent no. 3) had not carried out the orders of this Court. Rule was ultimately issued by order dated 19.5.80 after several adjournments granted to the State counsel and cause was shown on behalf of the contemners much beyond the time allowed by the Court. Firstly the cause was shown on their behalf under the affidavit of a section Officer on 5.6.80 and when the attention of the Court was drawn to this fact under order dated 16.7.1980, respondent no. Firstly the cause was shown on their behalf under the affidavit of a section Officer on 5.6.80 and when the attention of the Court was drawn to this fact under order dated 16.7.1980, respondent no. 3 to the writ application-one of the contemners, namely, the Engineer-in-Chief, filed a show cause adopting the previous affidavit filled by the Section Officer mentioned above. 4. It may also be mentioned that in the writ application an application was filed on 11.4.1980 for review of the order dated 25.10.1979. The stand for modification of the order in question as well as in the show cause mentioned above, is that previously the Research Officer had been given a promotion to the post of Deputy Director which was in time scale pay at par with the Post of an Executive Engineer in the Bihar Engineering Service, Class 1, and held by Shri. R.L. Dewan till 30.1.75 when the post of Additional Director of Irrigation was created at par with the post of the Superientending Engineer to provide an avenue of promotion to Shri Dewan. It has further been stated that at the time of the hearing of the writ application the then Standing Counsel no. 5, “in the absence of adequate information and instruction from the State Government in the Department of Irrigation, assured the petitioner that his case would be duly considered while considering the case of promotion to fill up the said post on a regular basis, namely, the post of Additional Director". Thereafter it has been stated that after the said order of the Court the matter was examined by the Irrigation Department at different levels as well as the Law Department, and a modification of the said order was advised and the post of Deputy Director kept in abeyance since the year 1976, may be revived so as to provide an avenue of promotion to Research Officers including the petitioner. The statements made in the seventh paragraph of the review application are of great importance and may be quoted in verbatim: "7 That in as much as the post of Additional Director is in time scale pay and at par with that of Superintending Engineer, there could not be any question of considering the petitioner of any Research Officer holding a post at par with that of an Assistant Engineer for filling up the vacancy in the post of Additional Director. In fact the respondents are seized with the proposal to revive the old post of Deputy Director to provide an avenue of promotion by keeping the post of Additional Director in abeyance which also cannot be done so. long the order dated 25th October, 1979, passed by the Hon'ble Court stands." 5. When the case was taken up for hearing, the learned State counsel produced before us the resolution of the State Government dated 2.2.1980 to show that 10 posts of Deputy Directors (Scientific) were created in the Department. So far as the post of the Additional Director was concerned, which was the post under consideration in the C.W.J.C. No. 2873 of 1979, it was stated that it was necessary to down grade this post at present because in the said writ application it was directed that if this post was to be filled up, then the case of the petitioner also ought to be considered. It was further indicated that steps may be taken in the future for creating an ex cadre post of a Additional Director (Scientific). It may be stated that the post of Deputy Director had been kept in abeyance by an earlier order dated 30.1.75. 6. The stand of the contemners is that the post that the petitioner has been holding, entitled him for his consideration only to the post of a Deputy Director as that was the next avenue of promotion, and to the post of Additional Director which was still further superior post which the petitioner could not get directly before first being promoted to the post of Deputy Director. There might be some force in this contention, but the question that falls for our consideration is the effect of tile action of the State Government in coming to tile resolution dated 2.2.1980 instead of complying with the order dated 25.10.79 where a clear direction was made on agreement will the then Standing Counsel no. 5, that tile post of tile Additional Director has to be filled up and to that the eligibility and fitness of the petitioner would also be considered. We may also state that the resolution dated 2.2.1980 has also since been challenged by tile petitioner in C.W.J.C. No. 2537 of 1981 on various grounds and it has been postponed awaiting the disposal of this contempt matter. At One stage it was also argued by Mr. We may also state that the resolution dated 2.2.1980 has also since been challenged by tile petitioner in C.W.J.C. No. 2537 of 1981 on various grounds and it has been postponed awaiting the disposal of this contempt matter. At One stage it was also argued by Mr. Jha that the post of Additional Director has since been abolished, but later on he had to concede that the post has not been abolished so far. The argument of Mr. Jha for the contemners is that the effect of the revival of the post of Deputy Director in the light of the suggestion for down grading the posts of the Additional Director amount to the abolition of the post of Additional Director, although no specific order in this regard has been passed. 7. Firstly it is not possible to accept the contention that merely because the post of Deputy Director was revived, the post of the Additional Director must be deemed to have been abolished, but even assuming for the sake of argument that this meaning or interpretation can be given to the Government resolution, we are of the opinion that in view of the clear direction of this Court in the writ application on 25.10.79 to fill up this post within a period of three months in terms of the direction, its, abolition amounted to overreaching the Court and there by circumventing its compliance. If any anomaly might have been felt after the consent order was passed, the propriety demanded that the State should have made an application for modification of the said order within the final time fixed for its compliance, and after filing of the contempt case. In any view of the mater, when the Government thought that modification of the order Was necessary, and an application, although out of time, was filed in the writ application for reviewing the said order, it was desirable that it should have waited till the disposal of that matter before taking steps to frustrate the consent order by through a subterfuge. It is important to notice that at the time when the post was being considered to be filled up, the post of Deputy Director was not in existence, therefore, the next promotional avenue for the petitioner was of Additional Director and as such it does not lie in the mouth of the State counsel that the Government resolution dated 2.2.1980 has been passed in order to create promotional avenue to the petitioner and similarly placed officers. On reading the resolution dated 2.2.1980 and the statements made in the review application, the only impression that is created in our mind is that the respondents were not in a mood to carry out the said direction which was so simple as only to consider the fitness of the petitioner for his promotion. The respondents were not agreeable even to consider the petitioner for promotion and even before the review application could be disposed of they came with a resolution dated 2.2.1980 with clear intention, as already stated earlier, to make the order of this Court inoperative. 8. We, therefore, do not feel any doubt in our mind to come to the conclusion that the act of the contemners amounts to a wilful disobedience of the order dated 25.10.1979 passed in C.W.J C. No. 2873 of 1979, which is punishable under section 12 of the Contempt of Court Act, 1971. 9. In the cause shown by respondent no. 3 or, for that matter, any of the respondents nothing has been shown to purge the contempt; rather it has been asserted that it was "impossible to consider the promotion of the petitioner directly to the post of Addl. Director, Irrigation Research Institute, Khagaul". After stating that it has further been stated that they are "prepared to consider the case of the petitioner along with others" in order of merit-cum' seniority in the event the post of a Deputy Director at the aforesaid institute is revived". We have already said that at the time when the order was passed the post of Deputy Director was not in existence and the next higher post available was that of the Additional Director. The above statement is declaration in clear terms to defy the order of the Court as such and the respondents deserve the highest condemnation and displeasure of this Court for adopting this attitude and making those statements in the show cause. The above statement is declaration in clear terms to defy the order of the Court as such and the respondents deserve the highest condemnation and displeasure of this Court for adopting this attitude and making those statements in the show cause. However, taking still a somewhat lenient view in the matter, we would impose a punishment of a fine of Rs.500/- only on respondents 2 and 3 each, which must be paid or deposited within four months from today. The rule of contempt against the respondent State of Bihar is hereby discharged. Application allowed.