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2003 DIGILAW 1045 (PAT)

Naresh Kumar Singh v. State Of Bihar

2003-09-24

SHIVA KIRTI SINGH

body2003
Judgment 1. Heard the parties. 2. Petitioner has prayed for initiation of a contempt proceeding and for punishing the opposite parties, particularly opposite party no. 2 who is Director-cum-Special Secretary, Government of Bihar, Civil Aviation Department, Bihar Flying Institute, Civil Aviation Department, Patna for their wilfuldis-obedience and dis-regard of order of this court dated 15.3.2000 passed in C.W.J.C. No. 3705 of 1999. A copy of the aforesaid order of this Court dated 15.3.2000 has been annexed as Annexure. 4. A perusal of the said order shows that the petitioner had raised a grievance that the respondents have illegally and arbitrarily not considered his case for regular promotion to the post of Flight Instructor and thereafter to the post of Chief Flight Instructor although petitioner has worked as Incharge of those posts since long and the posts have remained vacant since 18.9.1995 and 7.6.1996 respectively. This court decided the issues and finally directed the respondents to consider the case of petitioner for promotion to the post of Flight Instructor and thereafter to the posts of Chief Flight Instructor from the dates those posts had Become available The consideration was required to be done keeping in view the observations made by the court and in accordance with law as expeditiously as possible and in any case within a period of three months from the date of production/communication of a copy of that order before the concerned respondents. 3. When directions contained in Annexure-4 issued in exercise of writ jurisdiction were not complied with within time the present contempt petition was filed on 18.8.2000. The matter was heard on various dates and in view of stand taken by the opposite parties that enquiry into some old charge was pending, this court fixed further time limits for disposal of the pending enquiry and proceeding so that final decision could be taken in respect of petitioners claim for promotion as per directions in Annexure-4. Ultimately, on 21.5.2003 this court was informed on behalf of the opposite parties that a punishment of censor had been awarded to the petitioner in respect of old charges and hence there was no impediment in taking a final decision in respect of claim for promotion as per order contained in Annexure-4. Ultimately, on 21.5.2003 this court was informed on behalf of the opposite parties that a punishment of censor had been awarded to the petitioner in respect of old charges and hence there was no impediment in taking a final decision in respect of claim for promotion as per order contained in Annexure-4. On grant of further time ultimately the Departmental Promotion Committee held a meeting on 27.8.2003 and after considering the claim of the petitioner for promotion to the two posts in question it further decided to keep its decision/proceeding in a closed envelope till receipt of a verdict of the concerned court on a criminal case against the petitioner and till receipt of findings in receipt of another departmental proceeding pending against the petitioner. Such decision was claimed to be in accordance with the policy decision of the State of Bihar as contained in a resolution of Personnel and Administrative Reforms Department dated 11.9.2002. The decision of the Departmental Promotion Committee and the resolution dated 11.9.2002 have been annexed as Annexure-D to a supplementary show cause filed on behalf of opposite party no.2. 4. Learned counsel for the petitioner has tried to persuade this Court to go into the merit of decision of the Departmental Promotion Committee to keep the result of their deliberations in a seal cover. For this purpose submissions were advanced to the effect that an administrative resolution of September, 2002 cannot be applied to the case of the petitioner which was required to be considered, as per order contained in Annexure-4, on the basis of facts existing on the relevant date and as per law. It was further submitted that as per settled law a charge in a criminal case or in a departmental proceeding is necessary before it can be held by the authority that criminal and departmental proceedings were pending against the petitioner on the date he became eligible for consideration on account of vacancy in the concerned posts. According to learned counsel for the petitioner since in the subsequent departmental proceeding charge sheet was served only in the year 2002 and the criminal proceeding was also of the year 2000 hence they could not have been taken into consideration for the purpose of resorting to sealed cover procedure even if actual meeting of the Departmental Promotion Committee took place on a later date. In support of the aforesaid plea reliance has been placed upon a judgment of this court in the case of Shri Krishna Ram vs. State of Bihar, reported in 1998 (2) PLJR 440, particularly upon paragraph-16 of the judgment. It was further submitted on the basis of judgment of the Apex Court in the case of R.M. Ramaul vs. State of Himachal Pradesh ( AIR 1991 S.C. 1171 ) and a Division Bench Judgment of this court in the case of Ram Vilas Mishra vs. State of Bihar, reported in 1993 (1) PLJR 437, that in the interest of justice this court can pass appropriate order even in exercise of jurisdiction under Contempt of Courts Act if it is found that there had been a wilful violation of courts order. 5. On the other hand, learned counsel for the opposite parties has placed reliance upon clause (11) of the resolution dated 11.9.2002 and on that basis he has submitted that the Departmental Promotion Committee has no option in the matter unless and until the decision contained in clause (11) is decided to be arbitrarily or against law. A perusal of clause (11) of the said resolution discloses that even in a situation where the Departmental Promotion Committee has taken a decision for grant of promotion and thereafter but before the issuance of order of promotion the situation changes so as to be covered bythe various situation described in clause (2) which justify the recourse to sealed cover procedure, the promotion shall not be released and the matter shall be treated as a matter covered by sealed cover procedure. 6. Having given anxious consideration to all the facts and circumstances and the submissions advanced by both the parties, this court is of the opinion that in exercise of power in a contempt proceeding it would not be proper to decide the issues noticed above and unless those issues are decided, no directions can be issued even in the interest of justice so as to compel the opposite parties to open the sealed cover and act as per resolution of the Departmental Promotion Committee forthwith. In such circumstances this court finds no justification to further continue with this contempt matter and the same is accordingly dropped. In such circumstances this court finds no justification to further continue with this contempt matter and the same is accordingly dropped. It is made clear that it will be open to the petitioner to challenge the sealed cover procedure resorted to in respect of his claim for promotions through appropriate proceedings in accordance with law.