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2008 DIGILAW 29 (CAL)

UNION OF INDIA v. Sudarshan Mondal

2008-01-10

KALYAN JYOTI SENGUPTA, MANIK MOHAN SARKAR

body2008
Judgment (1) THIS application is directed against two orders passed by the learned tribunal (respondent No. 2) herein on 15th September, 2006 in the original application No. 755 of 2005 made by the first respondent and another order dated 20th April, 2007 and 30th April, 2007 passed in C. P. C. No. 200 of 2006. The facts upon perusal of pleadings of both the sides, appear to be admitted and the same are briefly stated hereunder : the first respondent is a Medical Officer of the first writ petitioner. He has completed continuous 19 years of service as Medical Officer. Accepting recommendation of 5th Central Pay Commission, Government of India, ministry of Health and Family Welfare by circular dated 5th April, 2002 introduced a Dynamic Assured Career Progression Scheme (in short the said scheme). Under the said scheme the General Duty Medical Officer (G. D. M. O.) sub-cadre Medical Officer carrying pay scale of Rs. 8,000 - Rs. 12,500 will be promoted to the post of Senior Medical Officer, carrying pay scale of Rs. 15,000 - Rs. 15,200 on completion of 4 years of regular service. Senior Medical Officer with 5 years of regular service as Senior Medical officer will be promoted to the post of Chief Medical Officer carrying pay scale of Rs. 12,000 - Rs. 16,500 and after completion of 4 years of Chief medical Officer Grade, the officer will be promoted to the post of Chief Medical officer (Non-Functional Selection Grade) carrying pay scale of Rs. 14,300 - Rs. 18,300. In substance after completion of 19 years regular service in the g. D. M. O. sub-cadre of CHS, officer of G. D. M. O. sub-cadre will be promoted to the Chief Medical Officer (Non-Functional Selection Grade) carrying pay scale of Rs. 14,300 - Rs. 18,300. The aforesaid scheme for granting promotion will be made without linkage to vacancies. Under the relevant rules for granting promotion to Non Functional Selection Grade, in group 1. Departmental Promotion Committee would be constituted and it would consider last 5 years annual confidential report of the officers to satisfy itself that the overall performance is good and he/she has at least two Very good gradings in the last 5 years before recommending him or her for placement in Non-Functional Selection Grade (hereinafter referred to as NFSG). Departmental Promotion Committee would be constituted and it would consider last 5 years annual confidential report of the officers to satisfy itself that the overall performance is good and he/she has at least two Very good gradings in the last 5 years before recommending him or her for placement in Non-Functional Selection Grade (hereinafter referred to as NFSG). The said Departmental Promotion Committee would enjoy full discretion to devise their own method and procedure for objective assessment of the candidates who are to be considered by them. In case of each officer overall grading should be given. The grading shall be one amongst (i) outstanding; (ii) very good; (in) good; (iv) average; (v) unfit. The grading of those officers being done on the basis of the general remarks in the report should not be communicated even if it is adverse. Along with other candidates the first respondents case was considered by the Departmental Promotion committee and they found him to be unfit. The first respondent as such being aggrieved by the aforesaid decision of not granting promotion filed the aforesaid application being O. A. No. 755 of 2005 in the learned Central administrative Tribunal on various grounds. The said application was disposed of by the learned Tribunal along with other batch of matters who are similarly placed and aggrieved, by a common judgement and order dated 15th September, 2006. The applicants herein, however, challenged order passed in favour of the first respondent only leaving other persons out. (2) LEARNED Tribunal after considering the contention and rival contention of both the parties, considering large number of decisions of the Supreme court and the High Courts as well as the Tribunal assigning detailed reason granted relief to the applicant and the ordering portion of which is set out hereunder: ". . . . . . . . . The respondents are therefore directed to hold a review DPC within one month from the date of receipt of this order and consider the case of all the applicants for promotion w.e.f. 5.4.2002 the date on which their immediate juniors were promoted except Dr. Nilanjan Chattopadhyay who is to be given the benefit w.e.f. 5.9.2003 and give all the consequential benefits to the applicants w.e.f. that date i.e. 5.4.2002 and 5.9.2003 respectively. " (3) THE applicants did not challenge the aforesaid order (hereinafter called as parent order) until 14th June, 2007. Nilanjan Chattopadhyay who is to be given the benefit w.e.f. 5.9.2003 and give all the consequential benefits to the applicants w.e.f. that date i.e. 5.4.2002 and 5.9.2003 respectively. " (3) THE applicants did not challenge the aforesaid order (hereinafter called as parent order) until 14th June, 2007. On the contrary, in or about October, 2006 the applicants filed an application being M. A. No. 624 of 2006 for extension of time to implement the order dated 15th September, 2006. Learned Tribunal was inclined to grant extension for a month from 15th September, 2006, however, as recorded by the learned Tribunal, on prayer of the learned Counsel for the applicant (Union of India) time was extended till 20th December, 2006 from the date of the order. A copy of such application on which order was passed has also been read by us and it appears there from that prayer for extension was unequivocal and without any reservation and there has been clear intention to accept and implement the order. In spite of the said extension being granted no step was taken, as such a contempt application was filed on 22nd December, 2006 for wilful, deliberate violation of the order. The applicants herein again filed an application being M. A. No. 624 of 2006 for granting further extension of time to implement the order dated 15th September, 2006. (4) WE have also noted the copy of the second application for extension and it appears therefrom that Union of India, the applicant herein, prayed for extension unequivocally and without any reservation. The said second application for extension and contempt application were heard by the learned tribunal on 19th June, 2007. On 11th January, 2007, the learned Tribunal, hearing the matter, directed to file compliance report within two weeks. On 31st January, 2007 second application for extension was dismissed with direction to file compliance report within two weeks otherwise the respondent will have to appear personally to explain their position and the matter was adjourned till 15th March, 2007. On 7th February, 2007 promotion order along with other six applications were given effect from 5th April, 2002 but the promotion of the first respondent was given effect from 5th April, 2005. Upon considering everything on 20th April, 2007 learned Tribunal having found that order has not been carried out in true spirit and sense and direction given by the learned Tribunal initiated contempt proceedings. Upon considering everything on 20th April, 2007 learned Tribunal having found that order has not been carried out in true spirit and sense and direction given by the learned Tribunal initiated contempt proceedings. In fact, on 30th April, 2007 learned Counsel for the respondents prayed for time and undertook to implement the order. (5) ON the aforesaid admitted facts now the present application has been heard and the argument was advanced by both the learned Counsels. It appears from the argument of Mr. Roy Chowdhury, learned Senior Advocate for the Union of India, that order of the learned Tribunal has been implemented and carried out in accordance with law considering all the guidelines granting promotion. (6) DEPARTMENTAL Promotion Committee, following the norms laid down in this regard, has found that the applicant is fit for granting promotion with effect from 5th April, 2005. According to him, if the direction and order of the learned Tribunal are followed then all the well known principles of law laid down by the Supreme Court have to be ignored because the departmental Committee has been formed to make objective assessment. Upon reading and assessing the confidential report of the applicant it was found that he did not obtain very good in minimum two years during the last 5 years preceding the date of consideration. When his case was taken up pursuant to the direction of the learned Tribunal he achieved the 2006 the applicants filed an application being M. A. No. 624 of 2006 for extension of time to implement the order dated 15th September, 2006. Learned Tribunal was inclined to grant extension for a month from 15th September, 2006, however, as recorded by the learned Tribunal, on prayer of the learned Counsel for the applicant (Union of India) time was extended till 20th December, 2006 from the date of the order. A copy of such application on which order was passed has also been read by us and it appears there from that prayer for extension was unequivocal and without any reservation and there has been clear intention to accept and implement the order. In spite of the said extension being granted no step was taken, as such a contempt application was filed on 22nd December, 2006 for wilful, deliberate violation of the order. In spite of the said extension being granted no step was taken, as such a contempt application was filed on 22nd December, 2006 for wilful, deliberate violation of the order. The applicants herein again filed an application being M. A. No. 624 of 2006 for granting further extension of time to implement the order dated 15th September, 2006. 4. We have also noted the copy of the second application for extension and it appears there from that Union of India, the applicant herein, prayed for extension unequivocally and without any reservation. The said second application for extension and contempt application were heard by the learned tribunal on 19th June, 2007. On 11th January, 2007, the learned Tribunal, hearing the matter, directed to file compliance report within two weeks. On 31st January, 2007 second application for extension was dismissed with direction to file compliance report within two weeks otherwise the respondent will have to appear personally to explain their position and the matter was adjourned till 15th March, 2007. On 7th February, 2007 promotion order along with other six applications were given effect from 5th April, 2002 but the promotion of the first respondent was given effect from 5th April, 2005. Upon considering everything on 20th April, 2007 learned Tribunal having found that order has not been carried out in true spirit and sense and direction given by the learned Tribunal initiated contempt proceedings. In fact, on 30th April, 2007 learned Counsel for the respondents prayed for time and undertook to implement the order. 5. On the aforesaid admitted facts now the present application has been heard and the argument was advanced by both the learned Counsels. It appears from the argument of Mr. Roy Chowdhury, learned Senior Advocate for the Union of India, that order of the learned Tribunal has been implemented and carried out in accordance with law considering all the guidelines granting promotion. 6. Departmental Promotion Committee, following the norms laid down in this regard, has found that the applicant is fit for granting promotion with effect from 5th April, 2005. According to him, if the direction and order of the learned Tribunal are followed then all the well known principles of law laid down by the Supreme Court have to be ignored because the departmental Committee has been formed to make objective assessment. According to him, if the direction and order of the learned Tribunal are followed then all the well known principles of law laid down by the Supreme Court have to be ignored because the departmental Committee has been formed to make objective assessment. Upon reading and assessing the confidential report of the applicant it was found that he did not obtain very good in minimum two years during the last 5 years preceding the date of consideration. When his case was taken up pursuant to the direction of the learned Tribunal he achieved the benchmark, very good and then he was given the promotion. It is the norms that adverse remark if round, need not be communicated and such norms was not challenged by the applicants, therefore, the learned Tribunal went wrong while holding that the same is contrary to the principle of natural justice, and therefore, such a norm should be ignored and any adverse remark which has got the effect of downgrading should be ignored altogether. He contends that, in fact, the learned Tribunal has substituted its own assessment regarding the eligibility of the first respondent in place of that of the Departmental Committee who is the expert body and as such sole and absolute judge for assessment to see whether a candidate has achieved the benchmark for getting promotion or not. (7) IN support of his contention he has relied following large number of decisions of the Supreme Court which are stated hereunder as follows: 1970 (2) SCC 876 , R. L. Butail vs. Union of India and Ors., AIR 1971 SC 40 , union of India vs. J. N. Sinha and Anr. and 2007 AIR SCW 1235. Union of India and Anr. vs. S. C. Goel and Ors. (8) LEARNED Counsel, Mr. Samanta, appearing for the first respondent, contends that the present application should be dismissed, in limine, as the parent order cannot be challenged since the same has been accepted and implemented, however, the same has not been implemented in terms of the direction expressly given by the learned Tribunal. Hence, contempt application has been filed. In order to stall hearing of the contempt application the present application has been filed. Hence, contempt application has been filed. In order to stall hearing of the contempt application the present application has been filed. So far as the order passed in the contempt proceeding is concerned, the same is at the present moment unassailable because by reason of the fact that under the provision of section 19 of the Contempt of Courts Act which has been adopted in the Central administrative Tribunal Act, order of this nature is not appellable one. (9) WE have carefully considered the arguments of both the learned counsels and gone through the respective cases made out. We are of the view that Mr. Roy Chowdhury conceded in his submission that the parent order dated 15th September, 2006 has been accepted and in fact implemented. On two occasions, if not three. Union of India prayed for extension of time to implement the said order. Indeed, in case of other petitioners, the said order has been carried out and implemented and as such contempt proceedings was dropped in respect of those applications, which are initiated by them. It is sad to note that the Central Government can adopt such extreme policy of approbate and reprobate. We observed at the ad interim stage that the stand taken by the Union of India is a double standard and this should not be encouraged by the Court. Before the learned Tribunal, union of India, on each and every occasion, has given an impression and understanding by making successive applications for granting extension that order has been accepted on one hand and on the other hand, before this court, the aforesaid order is sought to be challenged. Erratic and misdirected conduct, on the part of the Union of India, is deprecated. Therefore, the challenge against the parent order dated 15th September, 2006 fails and the application and the relief sought for is therefore rejected. (10) AS far as the order passed in the contempt proceedings dated 20th April, 2007 and 30th April, 2007 are concerned we are of the view that at this stage this Court should not interfere with the same and the same will remain as it is. Whether the order has been carried out in true and correct sense or not can only be examined and adjudicated by the learned Tribunal and tribunal alone having jurisdiction and not by this Court at this stage. Whether the order has been carried out in true and correct sense or not can only be examined and adjudicated by the learned Tribunal and tribunal alone having jurisdiction and not by this Court at this stage. If we decide the point raised before us or observe anything else that will be unjust, usurpation of jurisdiction by this Court. Therefore, we refrain ourselves from making any comment or deciding the issue at this stage. All points are kept open. We do not pass any order on this application. The learned Tribunal will proceed in accordance with law. (11) THERE will be no order as to costs. Interim order, if any, stands vacated. Appeal rejected.