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2011 DIGILAW 1299 (CAL)

Abdul Latif v. Ashvini Kumar

2011-09-20

TARUN KUMAR GUPTA

body2011
Judgment : TARUN KUMAR GUPTA, J. The private respondents of W.P. No. 248 of 2007 have filed the instant application under Article 215 of the Constitution of India read with Contempt of Courts Act, 1971 and rule framed thereunder for initiation of a contempt proceeding against Shri Ashvini Kumar, Chief Port Administrator, Port Management Board, Adaman & Nicobar Islands for violation of order dated 14th January, 2011 passed by Hon’ble Justice P.K. Chattopadhyay while disposing W.P. No.248 of 2007. It is alleged that at the time of disposing of the said Writ Petition by the solemn order dated 14th January, 2011 the Hon’ble Court protected the promotion already granted to the present petitioners being private respondents and that present contemnor never challenged the said order rather filed an application being CAN No.077 of 2011 for extension of time for compliance of the said order of this Court. But, inspite of that the contemnor passed an order being No.1846 dated 17th July, 2011 wherein he deliberately and willfully violated the said order dated 14th January, 2011 by not keeping the present petitioners in the respective promotional posts. The respondent-contemnor has filed an Affidavit-in-opposition stating that the authorities interpreted Para 7 of the judgement which was passed in relation to the present petitioners being private respondents of the writ petition as an order to consider the candidature of the private respondents sympathetically. It was further submitted that in terms of the said order dated 14th January, 2011 the authority has prepared the seniority list of Tally Clerks afresh strictly on the basis of the results of the selection made on 26th July, 1991 which was published vide the order No.1731 dated 21st June, 2011. It is further submitted that in the said seniority list of Tally Clerks names of the present petitioners (private respondents in the writ petition) appeared from Serial nos. 16 to 20, whereas the names of the writ petitioners appeared in Serial nos.10 and 11 and that there were four persons in between writ petitioners and present petitioners-private respondents, who are senior to the present petitioners. 16 to 20, whereas the names of the writ petitioners appeared in Serial nos.10 and 11 and that there were four persons in between writ petitioners and present petitioners-private respondents, who are senior to the present petitioners. It is further submitted that in terms of said seniority list prepared as per direction of the solemn order of the Hon’ble Court, subsequent promotions to the post of Assistant Shed Master and then to the post of Shed Master were made as per rule subject to availability of the vacancies and that there was no willful violation of the solemn order of the Hon’ble Court. It is further submitted that if interpretation of Para 7 of such order dated 14th January, 2011 is otherwise then the authority shall certainly act in accordance with the same within the time to be extended as prayed for and that the authority did not make any willful violation or disobedience of the said order and that in case of violation of the Court order on account of misinterpretation of Para 7 of the same, the authority tender unconditional apology and prays for pardon. Mr. Arul Prasanth, learned advocate for the petitioners has filed Affidavit-in-reply. He has submitted that though the Hon’ble Court directed the authority to prepare the seniority list of Tally Clerks afresh strictly on the basis of the result of the selection made on 26th July, 1991 and thereafter to consider the claims of the writ petitioners for promotion to the promotional posts accordingly and to grant notional promotion to the writ petitioners to the promotional posts with retrospective effect after relaxation of the seniority and without granting any financial benefit for the past period, if the said writ petitioners were found otherwise fit and eligible for the said promotional posts. It is further submitted that in Para 7 of said solemn order the Hon’ble Court gave directions to this authority that while giving notional promotions to the writ petitioners the authority can also protect the interest of the private respondents (present petitioners) by not removing them from their promotional posts, if necessary, by creating supernumerary posts in order to accommodate both the petitioners and the private respondents in the said promotional posts. According to Mr. According to Mr. Prasanth, learned advocate, said order of the Hon’ble Court relating to the present petitioners was also mandatory in nature and that authority should have complied with the same and that by violation of the same they committed contempt of court. Mrs. Anjili Nag, learned advocate for the respondent-contemnor has submitted that there was no willful violation of the solemn order of this Hon’ble Court and that authority is bound to obey said order and that if on interpretation of Para 7 of the said order it is found that the authority is bound to give promotion to the present petitioners by creating supernumerary posts then the authority undertakes to comply the same. I have perused the petition, Affidavit-in-opposition, Affidavit-in- reply and the order dated 14th January, 2011 of this Court. I also considered the submission made by learned advocates of both sides. At the time of interpretation of any part of any order (here Para 7 of the order dated 14th January, 2011) one has to read the same in perspective of the remaining parts of the order and not in isolation. If said Para 7 is read in perspective of the remaining parts of the order, it is clear that this Court gave direction upon the concerned authority not only to prepare the seniority list of Tally Clerks afresh strictly on the basis of the results of the selection made on 26th July, 1991 but also to grant notional promotion to the writ petitioners to the promotional posts with retrospective effect and also to protect the interest of the private respondents (present petitioners) by not removing them from their present promotional posts, if necessary by creating supernumerary posts in order to accommodate both the petitioners and the private respondents in the said promotional posts. It is thus clear that this court gave a direction to the authority to accommodate both the writ petitioners and the private respondents (present petitioners) in the promotional posts if necessary by creating supernumerary posts. As such, the interpretation alleged to be made by the authority was not correct. However, it appears that the violation of the order was made on account of wrong interpretation of the order and not willfully. In view of the above, the instant Contempt petition should be dropped. As such, the interpretation alleged to be made by the authority was not correct. However, it appears that the violation of the order was made on account of wrong interpretation of the order and not willfully. In view of the above, the instant Contempt petition should be dropped. However, the concerned authority and particularly the contemnor is hereby directed to comply the order dated 14th January, 2011 in letter and spirit within six weeks from this date positively, failing which, the present petitioners will be at liberty to move this Court again for appropriate relief. The contempt petition as well as Application for extension of time being CAN No.077 of 2011 stand disposed of accordingly.