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1987 DIGILAW 67 (CAL)

Prithwish Kar v. Union of India

1987-03-03

SUHAS CHANDRA SEN

body1987
JUDGMENT All the contemners are personally present in Court to-day and they undertake to carry out the order to be passed to-day. 2. On 28tb June, 1984 an order was passed in the C.R. No. 12328 (W) of 1975 upholding the contentions of the petitioner in the writ petition and making the rule that was issued absolute in terms of prayers (a) and (b). Prayers (a) and (b) were as under:- "(a) A writ in the nature of Mandamus and commanding the Respondent Nos. 1, 2, 3, 4, 7, 9, 10 and 11 not to take into consideration any of the adverse remarks made against the petitioner for the years ending March 31, 1971, 1972 and 1974 (Annexures 'I', 'J' and' P') in the matter of successful completion of the period of probation of the petitioner and confirming him in the post of Director and to expunge the said adverse remarks from the service records of the petitioner; (b) A writ in the nature of Mandamus commanding the Respondent Nos. 1 to 4, 7, 9, 10 and 11 not to affect the seniority of the petitioner in the gradation list, nor to confirm any other incumbent in the post of Director, nor to promote any Director to any higher post in derogation of the interest of the petitioner." 3. The grievance of the petitioner made out in the writ petition was that the petitioner was appointed Senior Geologist (Probation) in the Indian Bureau of Mines on and from 10th January, 1957. He was confirmed as permanent Senior Mining Geologist on 2nd January, 1959. Thereafter, he was promoted to the post of Regional Mining Geologist on 17th November, 1961. After the work of mineral exploration was transferred from the Indian Bureau of Mines to the Geological Survey of India, the petitioner was transferred to Geological Survey of India at the Regional Mining Geological Survey of India as, the Regional Mining Geologist. The post was subsequently re-designated as Regional Geologist. As the petitioner had worked in a position equivalent to that of a Director and was the senior-most Regional Geologist, the petitioner was entitled to be considered for promotion to the post of Director in the Geological Survey of India after, his transfer to that organisation. 4. Between August, 1968 to January, 1969 seven Geologists, all junior to, the petitioner, were promoted to the post of Director. 4. Between August, 1968 to January, 1969 seven Geologists, all junior to, the petitioner, were promoted to the post of Director. On 1.11.1968 and again on 17.1.1969 the gradation list of Geologist (Senior) of the Geological Survey of India and of Senior Mining Geologist of the Indian Bureau of Mines, the petitioner's position was shown as ninth while the persons who were occupying the positions lower than the petitioner between 1960 and 1969 were shown in places higher than the petitioner. On 2.4.1970 the petitioner was ultimately promoted to the post of Director on an ad-hoc basis which was later on regularised. On 7th July, 1970 the petitioner was placed on probation for two years. Thereafter, the period of probation was extended from time to time; but the petitioner was not confirmed. On 20th December, 1971 the petitioner was informed by the respondents that because of the adverse remarks reported in the confidential report of the petitioner for the year ending March 31, 1971 the petitioner could not be confirmed in the post. 5. The grievance of the petitioner in the writ petition was that the adverse remarks were made behind the back of the petitioner. The petitioner was not given any opportunity to deal with those adverse comments. The comments were made malafide and without any basis and the petitioner should not have been denied due promotion and, seniority on the basis of those adverse reports. In the writ, petition the petitioner prayed for expunction of the adverse remark from the service book of the petitioner and also for an order directing the respondents to confirm the petitioner in the post of Director. The petitioner succeeded in the writ petition. Orders in terms of prayers (a) and (b) were made. The respondents were directed to confirm the petitioner in the post of Director as expeditiously as possible as the petitioner was due to retire on the 31st August, 1984. 6. After the disposal of the writ petition on June 28, 1984, the case of the petitioner is that the contemners neither gave due promotion to the petitioner nor did they, reconsider the promotions given to the Directors who were junior to the petitioner and whose appointments were made subject to the result of the writ petition. 6. After the disposal of the writ petition on June 28, 1984, the case of the petitioner is that the contemners neither gave due promotion to the petitioner nor did they, reconsider the promotions given to the Directors who were junior to the petitioner and whose appointments were made subject to the result of the writ petition. It has been stated that the contemners gave promotion to three more Directors to the post of Deputy Director General sometime in August, 1984 while the petitioner was still in service. The case of the petitioner is that inconformity with the judgment passed on June 28, 1984 the respondents were duly bound to promote the petitioner with retrospective effect to the post of Deputy Director General not only with effect from a date prior to the date of promotions of the six Directors, but at least with effect from November 1, 1980, when Sri D.P. Dhoundial was promoted to the post of Deputy Director General between August, 1968 and January, 1969, inspite of being junior to the petitioner. The allegation was that the contemners had not confirmed the petitioner to the post of Director, had failed to expunge the adverse remark made against the petitioner in the confidential character role, had not corrected the petitioner's position in the, various gradation lists and had not conferred all required promotions to the petitioner with retrospective effect. It was alleged that the order of the Court was violated by giving promotions in August, 1984 to three more persons junior to the petitioner to the post of Deputy Director General, even after passing of the aforesaid judgment dated June 28, 1984 when the petitioner was still in service. 7. A rule of contempt was issued. The case of the contemners is that the Geological Survey of India is a subordinate, office under the Department of Mines, Ministry of Steel and Mines. A letter was issued by the Law Officer, Geological Survey of India to the Secretary, Department of Mines, New Delhi, about the legal position existing out of the judgment and also issued an express telegram on 22.8.1984. The Law Officer informed the Ministry in his letter in the telegram that the petitioner's confirmation had to be expeditiously issued and the adverse confidential role entries of 1971, 1972 and 1974 were not to be considered. The Law Officer informed the Ministry in his letter in the telegram that the petitioner's confirmation had to be expeditiously issued and the adverse confidential role entries of 1971, 1972 and 1974 were not to be considered. Thereafter, various formalities had to be complied with and ultimately, a gazette notification for the petitioner's confirmation on 15.5.1985, was issued, but the confirmation was given effect from 23.4.1973. The adverse remark in the confidential character roles for the years ending 31.3.1971, 1972 and 1974 were expunged. 8. But the grievance of the petitioner is that the order of the Court has not been fully implemented. In fact, by setting up various administrative practices as excuse, the respondents have really flouted the order of the Court. The Director General, Geological Survey of India, by a letter dated 10.1.1986 requested the Secretary to the Government of India, Ministry of Steel and Mines, to convene a meeting of Departmental Promotion Committee to review the case of the petitioner for promotion to the posts of (1) Deputy Director General, Geology; and (2) Senior Deputy Director General (Operation) in the Geological Survey of India pursuant to the judgment dated 28.6.1984. 9. From the minutes of the meeting of the Departmental Promotion Committee held on 24.2.1986 at 12-30 p.m. in the office of the Union Public Service Commission it appears that the following decision was taken :- "The committee were informed that Sri P. Kar, Director (Geology) was considered by the DPSs held in 1978 and latter on, for promotion to the grade of Deputy Director General in Geological Survey of India. He was, however assessed as not yet fit. The High Court of Calcutta ordered in 1984 that the entry of adverse remarks in the CRs of Sri P. Kar for the period ending March 31, 1971, 1972 and 1974 should be deleted. As a result of this judgment, Sri P. Kar's assessment for the DPC held in 1978 has to be reviewed. Accordingly, in pursuance of the judgment of Hon'ble High Court, Sri P. Kar has been assessed as good for the years 1973 and 1974 after ignoring the adverse remarks in his C.R. for these years. For years 1975 he is graded as 'Good' and adverse remark for 1975 have been ignored since these were not communicated. Accordingly, in pursuance of the judgment of Hon'ble High Court, Sri P. Kar has been assessed as good for the years 1973 and 1974 after ignoring the adverse remarks in his C.R. for these years. For years 1975 he is graded as 'Good' and adverse remark for 1975 have been ignored since these were not communicated. For the year 1976 the adverse remarks were duly communicated and the representation against the adverse, remarks were considered and rejected as time barred. For the year 1977 he has been graded as 'Good'. However, the DPC decided to ignore the adverse remarks for the year 1976 also and his overall performance during these 5 years has been assessed as 'Good'. Based on the above assessment the DPC recommended that Sri Kar's name could not be included in the panel for 1978 as he is at Sl. No. 13 in the seniority list. The first five officers in the seniority who were graded as "very good" were included in the panel. Thus, there is no change in the panel prepared in 1978. Sd. J.B. Bansal Sd. N.K. Panda Sd. R.N. Bose." 10. This decision taken by the Departmental promotion Committee overlooked the facts that the petitioner was originally senior to "the first five Officers" graded as "very good". 11. In fact, in the letter written by the .secretary to the Government of India on 5th May, 1986 to the Secretary, Union Public Service Commission, it was specifically stated "you are requested to consider the question of notional promotion of Sri Prithwish Kumar Kar taking into consideration that the Seniority of the petitioner fn the post of Director, Geological Survey of India, be fixed on the basis of his seniority in the next below post, that is Senior Geologist, as on 1.11.1968. 12. The order that was passed in the meeting of the Departmental Promotion Committee held on 24.2.1986 is erroneous on the face of it and must be quashed. It also appears that the setting up of the Committee was not in conformity with that directions given in the judgment dated 28.6.1984 but was a device of adopted to circumvent the judgment. In the writ petition there was no direction for setting up of a Board to consider the question of promotion of the petitioner. It also appears that the setting up of the Committee was not in conformity with that directions given in the judgment dated 28.6.1984 but was a device of adopted to circumvent the judgment. In the writ petition there was no direction for setting up of a Board to consider the question of promotion of the petitioner. Secondly, if a Board had to be set up to consider the case of the petitioner the Beard should have comprised of persons who would have been in the Board on the day when the Board originally should have been set up. Thirdly, in any event, the Board was wrong in treating the petitioner position in the gradation list as No. 13 whereas the petitioner in the original list prepared as on 1.11.1968 was shown as No. 9 and was senior to all the five persons who were considered by the Board to senior to the petitioner. Had the seniority list as on 1.11.1968 been maintained as it should have been done; the petitioner would have occupied a higher position than the above mentioned five persons. 13. It also appears that the respondent No. 2 in the affidavit-in-opposition has stated that the Departmental Promotion Committee had recommended the case of the petitioner on May 5, 1969. But the promotion could not be given to the petitioner because of merger of the streams of I.B.M. and G.S.I. notified on June 4, 1969. It is to be seen that the law Officer gave an opinion that the petitioner ought to be given seniority as per the combined gradation list as on 1.11.1968 as also notional promotion from the date from which his juniors in the list were promoted. 14. It is not, clear why this advice of the Law Ministry was ignored. In any event, I am of the view that a clear case of the violation of the Courts order has taken place. Since the respondents have undertaken to carry out any direction given by the Court, I direct the respondents to give notional promotion to the petitioner to the following effect with a period of six months. Post Pay Scale Date from which promotion to be effected Superintending Mining Geolo- gist/Director Rs. 1300-1600/- 9th Dec, 1967 Director (Selection Grade) Rs. 2000-125-2500/- A date earlier than 1st November, 80 e.g., the date of sanction of these posts. Deputy Director General Senior Deputy Director Rs. Post Pay Scale Date from which promotion to be effected Superintending Mining Geolo- gist/Director Rs. 1300-1600/- 9th Dec, 1967 Director (Selection Grade) Rs. 2000-125-2500/- A date earlier than 1st November, 80 e.g., the date of sanction of these posts. Deputy Director General Senior Deputy Director Rs. 2250-2500/- 1st Nov., 80. General Rs. 2500-2750/- 11th February, 1982. 15. The contempt Rule is disposed of as above. 16. There will be no order as to costs. I make it clear that I am of the view that the contemners have tried to fraustrate the order of the Court and a clear case of contempt has been made out; I do not pass any order of punishment only because of the assurance given in Court on behalf of the contemners by Mr. S.C. Bose, Advocate, that the order that has been passed to-day will be carried out faithfully and expeditiously.