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2011 DIGILAW 427 (ORI)

ANIRUDHA ROUT v. ALKA SIROHI

2011-08-11

B.K.MISRA, L.MOHAPATRA

body2011
JUDGMENT : L. Mohapatra, J. - This is an application u/s 12 of the Contempt of Courts Act read with Article 215 of the Constitution of India. The facts leading to filing of this application are as follows:- The petitioner had filed Original Application No.817 of 2006 before the Central Administrative Tribunal, Cuttack Bench, Cuttack praying for appointment to Indian Administrative Service against the post available for the year 2005. 2. Case of the petitioner is that he is an officer of Orissa Civil Service in Super Time Scale. In the year 2003 he became eligible for promotion to I.A.S. under the provisions of Regulations 5 (5) of IAS (Appointment by Promotion) Regulations, 1955. Unfortunately, no selection was held for the years 2003, 2004 and 2005 as the selection for the years 2002 and 2003 was challenged in the High Court in various writ applications and the matter being subjudice, no steps were taken for selection. After the writ applications were disputed of by the High Court, D.P.C. was held on 5th and 6th October 2006. On the basis of the records of service, the petitioner was selected for appointment to I.A.S. in the year 2005. However, the said selection was made provisional on the ground that the disciplinary proceeding was pending against him. The said D.P.C. which selected him for the year 2005 carried forward his selection to 2006 but again kept it provisional for the very same reason. The petitioner thereafter was censured in the departmental proceeding. With the above background of the case, the Tribunal after taking into consideration the stand taken by the State Government as well as U.P.S.C. and the Union of India allowed the Original Application by judgment and order dated 24th August, 2007. The operating part of the judgment of the Tribunal is quoted below: With the above-mentioned consideration, we are of the view that there is merit in this O.A. which is allowed. We direct that the State Government will ignore the punishment of censure awarded to the applicant as it would relate to the period of commitment of the alleged irregularity and it should issue a clearance certificate in favour of the applicant. Thereafter, it should forward the same to the UPSC. We direct that the State Government will ignore the punishment of censure awarded to the applicant as it would relate to the period of commitment of the alleged irregularity and it should issue a clearance certificate in favour of the applicant. Thereafter, it should forward the same to the UPSC. On receipt of the clearance certificate, the UPSC should take further step to appoint the applicant to the IAS ignoring that as per rule is validity would have expired by 31st December, 2006. The entire exercise shall be completed within a period of three months from the date of receipt of copy of this order. There shall be no order as to costs. 3. Challenging the said judgment of the Tribunal, the State came up in a writ application vide W.P.(C) No. 581 of 2008. It is stated at the Bar that the said writ application was heard and judgment was reserved but before the judgment was delivered, the case was listed on the basis of a memo filed by the learned counsel for the State on 22.7.2009 praying for withdrawal of the writ application. When the matter was taken up by this Court on 22.7.2009, a memo was moved on behalf of the State for withdrawal of the writ application. The then Assistant Solicitor General appearing for the UPSC opposed withdrawal of the writ application and submitted that the list sent for filling up the vacancy in the Indian Administrative Service up to the year 2006 had been exhausted and names are only to be sent for the year 2007 onwards. On the basis of the above submission made by the learned Assistant Solicitor General, the Court directed that vacancy in the Indian Administrative Service from the year 2007 onwards to be filled up considering the names of all eligible persons including the petitioner. The above submission made by the learned Assistant Solicitor General at the time of hearing of the writ application on 22nd July 2009 was based on in correct information. From Annexure-3, it is very clear that for each of the year, 2004, 2005 and 2006 one post remained unfilled. The above submission made by the learned Assistant Solicitor General at the time of hearing of the writ application on 22nd July 2009 was based on in correct information. From Annexure-3, it is very clear that for each of the year, 2004, 2005 and 2006 one post remained unfilled. The chart indicated in Annexure-3 issued by the Government of India in the Ministry of Personnel, P.G. & Pensions Department of Personnel & Training dated 10th February 2010 is quoted below : Year No. of vacancies No. of officers appointed Date of appointment No. of unfilled vacancies 2003 09 06+02 17.11.2006 & 04.01.2007 01 2004 05 04 17.11.2006 01 2005 06 05 17.11.2006 01 2006 04 03 17.11.2006 01 4. Admittedly, for the years 2005 and 2006, the petitioner had been selected by DPC on the basis of his service records for promotion to I.A.S.. However, his selection was made provisional because of pendency of a departmental proceeding. As is evident from Annexure-3, one vacancy for I.A.S. remained unfilled in 2005 and one vacancy also remained unfilled in the year 2006. Therefore, the learned Assistant Solicitor General could not have made a submission before the Court on 22.7.2009 that the list sent for filling up vacancy in the I.A.S. up to the year 2006 had been exhausted. After coming to know about the above vacancy, the petitioner filed an application for modification of the order dated 22.7.2009 vide Misc. Case No. 9036 of 2009. The said Misc. Case was taken up for orders on 22.10.2009. In the said order, the Court observed that the impugned order of the Tribunal could not have been confirmed in view of the direction issued by the Court in the first instance to proceed with the selection in the year 2007 and on the statement of the learned Assistant Solicitor General appearing for UPSC that the list sent for filling up the vacancy in the I.A.S. up to the year 2006 had been exhausted. However, the Court did not consider the question as to whether vacancies were available for the year 2005 and 2006 as indicated above but disposed of the Misc. However, the Court did not consider the question as to whether vacancies were available for the year 2005 and 2006 as indicated above but disposed of the Misc. Case on the statement of the learned counsel appearing for the State that even if the case of the petitioner is considered for the year 2007 it will not affect his seniority in view of the Regulations 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. Quoting the statement made by the learned counsel appearing for the State, the Court held that in view of the above submission, there was no need to modify the order dated 22.7.2009. When the petitioner found that the above statement of the learned counsel for the State was without any basis, again an application for modification of the said order was filed vide Misc. Case No. 17621 of 2009. The said Misc. Case was dismissed on the ground that after disposal of the writ application, no such petition is maintainable. Therefore, the petitioner has filed this application u/s 12 of the Contempt of Court Act read with Article 215 of the Constitution of India solely on the ground that because of wrong submissions made by the learned Assistant Solicitor General at the first instance as well as the wrong submission of the learned counsel for the State in the second instance, the petitioner has been deprived of promotion to IAS against the vacancy available to be filed in the year 2005. 5. Shri B.Routray, learned counsel appearing for the petitioner drew attention of the Court to the above documents to establish his claim that the petitioner has been a victim of wrong submissions made by the learned counsel appearing for the UPSC as well as the learned counsel for the State based on wrong information given by the respective departments. Shri Mishra, learned Senior Counsel appearing for the UPSC submitted that the petitioner though was selected in the year 2005 for promotion to IAS, in 2006 he could not be given promotion as a departmental proceeding was pending against him. He was found unfit for the year 2006 because of the punishment imposed on his in the departmental proceeding. Shri Mishra, learned Senior Counsel appearing for the UPSC submitted that the petitioner though was selected in the year 2005 for promotion to IAS, in 2006 he could not be given promotion as a departmental proceeding was pending against him. He was found unfit for the year 2006 because of the punishment imposed on his in the departmental proceeding. The DPC found him very good for the year 2007 and, accordingly, his case has been recommended by UPSC for inclusion at serial no.1 in the select list of 2007 and in terms of the said recommendation, the petitioner has already been appointed to IAS by the Government of India, DOPT Notification dated 24.4.2011 and therefore the State authorities cannot be found fault with. Learned Advocate General appearing for the State also submitted that the first order dated 22.7.2009 was passed by this Court because of the submission made by the learned Assistant Solicitor General when the State wanted to withdraw the writ application. 6. Having heard Shri Routray, learned Counsel appearing for the petitioner, Shri J.K.Mishra, learned Senior Counsel for UPSC and the learned Advocate General, we find that while allowing the Original Application filed by the petitioner, the Central Administrative Tribunal had specifically directed the State Government to ignore the punishment of censure awarded to the petitioner as it relates to the period of commitment of the alleged irregularity and further directed the State Government to issue a clearance certificate in favour of the petitioner. It was also directed that after issuing a clearance certificate, the case of the petitioner should be forwarded to UPSC and on receipt of the clearance certificate, the UPSC should take further step to appoint the petitioner to IAS ignoring that as per Rule its validity would have expired by 31st December, 2006. It is therefore clear from the said order that the Tribunal not only directed the State Government to ignore the punishment of censure but also directed for issuance of a clearance certificate and sending the name of the petitioner to UPSC for taking further step for appointment to IAS. Had the writ application been allowed to be withdrawn on the basis of a memo filed by the learned counsel for the State, the petitioner would have got the benefit of the order of the Tribunal and would have got promotion to IAS in the year 2005 against the unfilled vacancy available. Had the writ application been allowed to be withdrawn on the basis of a memo filed by the learned counsel for the State, the petitioner would have got the benefit of the order of the Tribunal and would have got promotion to IAS in the year 2005 against the unfilled vacancy available. Because of the submission made by the learned Assistant Solicitor General that vacancy for the years 2005 and 2006 had been exhausted, this Court directed to consider the case of the petitioner for the year 2007. The petitioner has been a victim of such submission made by the learned Assistant Solicitor General on the basis of wrong information imparted to him by UPSC. It is clear from Annexure-3 that one vacancy remained unfilled in the year 2005 and one vacancy also remained unfilled in the year 2006. While hearing the application filed by the petitioner for modification of the order dated 22.7.2009, again a wrong submission was made by the learned counsel for the State that even if the petitioner is given promotion in the year 2007 to I.A.S., there shall be no loss of seniority. On the basis of such a wrong submission, the Court declined to modify its earlier order dated 22.7.2009. Though it is stated by the learned Advocate General that another Misc.Case has been filed to delete that portion of the order dated 22.10.2009, no other has been passed on that Misc.Case. With the above background and considering the fact that the vacancy was available to be filled up for the years 2005 and 2006, we are of the view that grave injustice has been done to the petitioner because of a wrong submission made by the learned counsel for the UPSC at the first instance as well as the learned counsel for the State in the second instance specially when the petitioner was found suitable for promotion in both the years. The question that arises for debate is as to whether in a contempt application, the Court can issue any direction to rectify the injustice done to the petitioner. In the case of M.M. Thomas Vs. State of Kerala and Another, the Apex Court held that the High Court as a court of record as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. In the case of M.M. Thomas Vs. State of Kerala and Another, the Apex Court held that the High Court as a court of record as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior Court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. The Court further observed that that if the power of correcting its own record is denied to the High Court, when it notices the apparent errors, its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record. The case of U.P. Residents Employees Cooperative House Building Society and others Vrs. New OKHLA industrial Development Authority and another reported in (2004) 9 Supreme Court Cases 670 is relevant for the purpose of this Case. The facts leading to filing of this case before the Hon'ble Supreme Court were that for development of NOIDA, land belonging to the applicant Society and its members were acquired. The State Government formulated a policy to allot some developed plots to the members of the Society. As disputes arose during implementation of that policy, writ petition was filed in the Allahabad High Court. Against orders in that writ petition a civil appeal was filed in this Court. By an order dated 3.5.1990, certain directions were issued on the basis of a consensus arrived at between the parties. It was agreed and so recorded that allotments be made either in Sectors 40, 41 or 42. The plots were to be developed by NOIDA within a period of nine months and the price of the plots was to be at the rate of Rs. It was agreed and so recorded that allotments be made either in Sectors 40, 41 or 42. The plots were to be developed by NOIDA within a period of nine months and the price of the plots was to be at the rate of Rs. 1000 per square metre. 242 members could not be accommodated and again approached the Hon'ble Supreme Court. On 4.4.1991 the statement of counsel for NOIDA was recorded and an order was passed. Subsequently, it was found that the submission made by the learned counsel appearing for the NOIDA was not based on correct facts. Therefore, in the contempt application, the Hon'ble Supreme Court issued orders for allotment of land. 7. The aforesaid two decisions clearly lay down the powers of the High Court under the Contempt of Courts Act as well as under Article 215 of the Constitution of India. Since we have already held that grave injustice has been done to the petitioner because of the circumstances stated earlier, we dispose of this contempt petition directing the contemnors to take steps immediately to promote the petitioner to IAS against the vacancy which remained unfilled in the year 2005. The contempt petition is disposed of.