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2005 DIGILAW 753 (RAJ)

Avinash Kant Gaur v. R. K. Singh

2005-03-04

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.- Heard the learned Counsel for the parties. This application is filed for initiating contempt proceedings against the respondents for non-copliance of directions issued by this Court in D.B. Civil Writ Petition No. 991/1998 decided on 212.2000 as clarified by order dated 11.2003 passed in D.B. Civil Contempt Petition No. 196/2002. SLP against the order dated 212.2000 has been dismissed on 17.08.2001 by Honble the Supreme Court and the Special Leave Petition against the order dated 11.2003 was also dismissed on the ground of limitation as well as on the ground of merit on 27.08.2004. 2. This application was filed on 110.2004 contending that the aforesaid orders are not being implemented. 3. The respondents in rely to the contempt petition have stated that the directions issued in the aforesaid writ petition as affirmed by the Supreme Court has since been complied with by them after the SLP was rejected by the Supreme Court against the Judgment dated 11.2003. Compliance orders have been placed on record. However, the learned Counsel for the petitioner still contends that compliance has been made in defiance of the order and the respondents are trying to avoid compliance of aforesaid directions. 4. In order to appreciate the controversy it will be needed to go back to the original controversy and the directions issued by this Court in that regard. 5. The applicant had appeared in selection test for appointment to the post of Clerk Gr. I in the year 1985 and after undergoing the selection process, he was included in a panel issued on 27.08.1985 amongst selected candidates and in the said list the petitioners name was at Serial No. 57. In pursuance of the said panel, the appointment was given to the petitioner only on 04.08.1987 and subsequently he was promoted to the post of Accounts Assistant. Thereafter, in the year 1990 test was again held for appointment/promotion to the post of Section Officer in which the petitioner was declared successful on 31.07.1991 and a panel was prepared on 11.05.1992. In the said panel, the name of the petitioner was at Serial No.17 on the basis of placement of his name in the panel for Clerk Gr. I dated 27.08.1985. 6. The aforesaid panel position was subsequently changed and the petitioner was assigned his position on the basis of his name in the panel of Clerks Gr. In the said panel, the name of the petitioner was at Serial No.17 on the basis of placement of his name in the panel for Clerk Gr. I dated 27.08.1985. 6. The aforesaid panel position was subsequently changed and the petitioner was assigned his position on the basis of his name in the panel of Clerks Gr. I issued by the Railway Recruitment Board, Ajmer on 27.05.1987. 7. The petitioners contention was that he having been selected for appointment on the grade of Clerk Gr. I and informed of such selection for appointment vide order dated 27.08.1985, his date of selections remains 27.08.1985 and it could not have been changed to the date of panel issued in the year 1987 when actual posting orders were issued. 8. The respondents have contended that the panel dated 27.08.1985 has been wrongly prepared and, therefore, was not given effect to and ultimately when the fresh panel was prepared on 27.05.1987 in pursuance of which the petitioner was given appointment, the petitioners placement on the basis of panel dated 27.05.1987 was correctly made. 9. The Tribunal has dismissed the original application filed by the petitioner. This Court vide its Judgment dated 212.2000 referred to above, accepted the contention of the petitioner that no fresh selection process having taken place after the panel on 27.08.1985 merely because supplementary process undergone in 1987, the date of selection cannot be altered. It was stated by the Court:- "The petitioner was selected for appointment in 1985 and he was informed about it on 27.08.1985. No other selection for the petitioner has taken place. He was also never informed about cancellation of his selection dated 27.08.1985.” 10. The Court also took notice of the fact that if the panel of 1985 would have been cancelled, nobody in any way, could have been appointed. On this premise, the Court concluded clearly that: “If the selection of 1985 is deemed to be cancelled as contended by the respondents, the petitioner or for that matter any person declared successful in 1985 alongwith petitioner could at all have been appointed. No body could have been appointed in pursuance of a selection that has been cancelled. Therefore, if the petitioner has been appointed, he could have been and has been so appointed only in pursuance of selection made in 1985 as intimated vide letter dated 27.08.1985. 11. No body could have been appointed in pursuance of a selection that has been cancelled. Therefore, if the petitioner has been appointed, he could have been and has been so appointed only in pursuance of selection made in 1985 as intimated vide letter dated 27.08.1985. 11. With this conclusion, the Court was of the opinion that actual date of posting for the present and its date of empanelment which is relevant. For the purpose of assignment of seniority, the following directions were issued:- “The assignment of the seniority to the petitioner in the orders passed by the respondents dated 012.1992 and 15.02.1993 on the basis of empanelment in 1987 vis a vis persons selected after 27.08.1985 is held to be invalid and the respondents are directed to fix the seniority of the petitioner in the panel of candidates for promotion to the post of Section Officer (Accounts) on the basis of his selection for appointment to the post of Clerk Gr. I published on 27.08.1985. 12. Thereafter, Contempt Petition was filed before this Court about non-compliance of the aforesaid directions. It was pointed out by the petitioner that assignment of seniority by the respondents after the aforesaid direction, below the person selected after 27.08.1985 was contravention of the aforesaid directions. Specific reference was made to Sheo Karan Agarwal, who was appointed as Clerk Gr. I w.e.f. 012.1985 his seniority was assigned above the petitioner. 13. The respondents took the contention that seniority is to be decided from the actual date of joining which the petitioner in fact, has attained only in August, 1987 and, therefore, the persons who had actually joined prior to the date of joining of the petitioner would rank senior to him. 14. The aforesaid plea of the respondents was not found justified by the Court in its order dated 11.2003 in which it was clearly stated that once the date of appointment has been pre-dated and it has been held that for determining the inter se seniority, Rule 302 gives way to other special provision, the consequence must follow that the petitioner must be deemed to be Clerk Gr. I for all purposes w.e.f. 27.08.1985 and his case would be considered in that light. I for all purposes w.e.f. 27.08.1985 and his case would be considered in that light. However, finding that the respondents were under bona fide misinterpretation of the Judgment the Court did not find it a case of willful defiance of the order and left the matter for the respondents to give effect to the order dated 212.2000 by assigning the petitioner proper seniority. 15. As noticed above, the SLP against the said order was rejected on 27.08.2004 and almost within a month, the Contempt Petition was filed after serving the notice on the respondents. 16. The respondents in their reply have stated that they have complied with the directions by issuing order dated 011.2004 giving the petitioner seniority over Shri S.K. Agarwal and that his seniority as Section Officer has also been revised by placing him below Shri Babu Lal and above Shri S.K. Agarwal. It has also been pointed out in the reply that respondents have also revised the seniority of the petitioner in the panel of candidates for promotion to the post of Section Officer vide Annexure R/3 and petitioners name has been mentioned above Shri S.K. Agarwal. It has categorically stated in the reply: “The revision in the panel seniority has been undertaken by considering his date of panel of 27.08.1985 as its deem date of appointment and as submitted above in the process, the petitioner has come to be placed above persons recruited as CG I through RRB panel prior to that of petitioner viz. 27.08.1985 but appointed later than 27.08.1985, as such the petitioner has been made senior to incumbents selected out of the panel of April, 1985 and July, 1985 for the reason that they joined the Rlys. Subsequent to deemed date of appointment of Shri A.K. Gaur (petitioner).” 17. Thus, according to the respondents, the seniority position of the petitioner has not only been revised in the North Western Railway amongst clerks as well as section officer as well where the petitioner is presently serving but has also been revised in his parent Railway namely, North Railway before its restructuring on the basis of his deemed appointment to be as 27.08.1985. The three documents have been submitted alongwith reply to the Contempt Petition. The three documents have been submitted alongwith reply to the Contempt Petition. In view of the categorical statement made in the reply, the contention that the respondents are not treating the date of selection of the petitioner to be 27.08.1985 does not appear to be correct. The respondents have categorically stated that the seniority has been assigned to the petitioner after considering his deemed date of appointment to be 27.08.1985. However, the actual date of joining on either post has not been changed and consequently while dating back date of appointment as Clerk Gr. I and the Section Officer, notional revision of the fixation has taken place respectively w.e.f 27.08.1985 and 14.07.1993 but actual arrears have not been granted prior to the date of actual appointment. In that view of the matter, so far as directions issued by the Court for giving the petitioner position in seniority on the basis of appointment as Clerk Gr. I by deeming his date of appointment/selection as 27.08.1985 stands complied with. Obviously, the deemed date of appointment in the present circumstances, would not alter the date of actual joining of the services. 18. If apart from the aforesaid, the petitioner has any grievance about the determination of the consequential entitlement of the arrears or any other grievance, the same would not be subject matter of determination in contempt petition. The petitioner may seeks his remedy in respect of such grievance before the appropriate authority as may be available to him including making representations to the respondents in accordance with law. 19. The notices are discharged.