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2013 DIGILAW 375 (BOM)

Terezinha Fernandes, Junior Stenographer (Regular Establishment) v. Principal Chief Engineer, Public Works Department

2013-02-14

U.V.BAKRE, V.M.KANADE

body2013
Judgment :- (V.M. Kanade, J.) Heard Mr. Pangam, learned Counsel for the petitioner and Mr. Kakodkar, learned Additional Government Advocate for the respondents. 2. Rule. Rule made returnable forthwith. Heard by consent. 3. By this petition which is filed under Article 226 of the Constitution of India, the petitioner seeks the following reliefs: “(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondents to pay to the Petitioner, all arrears of salary in terms of ACP Scheme Scale of Rs.4500-125-7000 with effect from 26/8/2004 and continue to pay the same with interest at the rate of 15% per annum; (B) This Hon'ble Court also be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondents to revise the Petitioner's Pay Scale in terms of the Sixth Pay Commission Recommendations with effect from 1/1/2006 on the basis of the ACP Scheme Scale of Rs.4500-15-7000 and pay to the Petitioner all the arrears with interest at the rate of 15% per annum; (C) Pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to direct the Respondents to grant to the Petitioner all arrears of salary in terms of ACP Scheme Scale of Rs.4500-125-7000 with effect from 26/8/2004 and continue to pay the same with interest at the rate of 15% per annum; (D) Pending the hearing and final disposal of this Petition, this Hon'ble Court be pleased to direct the Respondents to revise the Petitioner's Pay Scale in terms of the Sixth Pay Commission Recommendations with effect from 1/1/2006 on the basis of the ACP Scheme Scale of Rs.4500-15-7000 and pay to the Petitioner all the arrears with interest at the rate of 15% per annum; (F) For ad-interim ex-parte reliefs in terms of Prayer-Clauses © and (D) above; (G) For such other and further reliefs that this Hon'ble Court deems fit and proper; (H) For costs.” 4. This petition discloses a very pathetic state of affairs since the facts reveal that the petitioner who is a Junior Stenographer in Regular Establishment, Office of the Principal Chief Engineer, PWD, Goa had to come to this Court on three occasions for the purpose of seeking her rightful dues from the Government of Goa. The facts will reveal that though, on earlier two occasions, two Division Benches of this Court had passed specific directions directing the respondents to release her salary, after allowing her petitions, the first order being dated 21/3/2005 in Writ Petition No. 269/201 and the second order being dated 4/1/2010 in Writ Petition No. 781/2008, till today, these orders have not been complied with. 5. The present petition came up for hearing before the Division Bench of this Court on 3rd January, 2013. On that day, learned Additional Government Advocate, appearing on behalf of the respondents, took time to take instructions. The matter, thereafter, appeared before this Division Bench on 21st January, 2013 and again at the request of the Additional Government Advocate, the matter was adjourned to 4th February, 2013. On 4th February, again a request was made by the learned Additional Government Advocate to give him time and accordingly, this Court acceded to his request and granted time till 11th February, 2013. Again, thereafter, on 11th February, time was sought and, as such, as a last chance, the matter was kept on 14th February, 2013. Today, we are informed that the orders passed by this Court, till date, have not been complied with and, as such, we refused to grant any further adjournment to the learned Additional Government Advocate. We have heard learned Counsel appearing on behalf of the petitioner and the learned Additional Government Advocate appearing on behalf of the respondents. 6. A brief facts which are necessary for the purpose of deciding this petition, are as under: The brief facts are that the petitioner was appointed on the post of Work Assistant cum Stenographer on 16th August, 1986. The petitioner produced a Muster Roll Form for the month of April, 1988 which had clearly demonstrated that the petitioner was working as a Junior Stenographer with respondent No.1. The petitioner had also produced an Office Certificate which was given by the Assistant Engineer (Arb.) P.W.D. to the Executive Engineer, Works Division XVII-PHE-N dated 10th July, 1990. The petitioner produced a Muster Roll Form for the month of April, 1988 which had clearly demonstrated that the petitioner was working as a Junior Stenographer with respondent No.1. The petitioner had also produced an Office Certificate which was given by the Assistant Engineer (Arb.) P.W.D. to the Executive Engineer, Works Division XVII-PHE-N dated 10th July, 1990. The grievance of the petitioner was that she should be regularised as a Junior Stenographer by the respondent No.1. Since this was not done, the petitioner was constrained to knock the doors of this Court and file a writ petition being Writ Petition No.269/2001. The said writ petition was allowed by Division Bench of this Court (Coram : Dalveer Bhandari, CJ & N.A. Britto, J.) by order dated 21st March, 2005, directing the respondents to regularise the petitioner as Junior Stenographer from 12th August, 1999, along with consequential benefits. A direction was also given to the respondents that the said benefits should be given to the petitioner within eight weeks from the date of the order. The said order was not complied with within eight weeks. The petitioner, however, did not approach this Court by filing a contempt petition. 7. Thereafter, in November, 2005, the said order was implemented and by an order issued by the Principal Chief Engineer, PWD, pursuant to the directions given by this Court in Writ Petition No. 269/2001, the petitioner was regularised with effect from 12th August, 1999 on the initial pay of Rs. 4000/- per month in the pay scale of Rs.4000-100-6000, plus other admissible allowances with all consequential benefits and was posted in Division XXV, PWD, Margao in the existing vacancy. Though this Court had directed that the petitioner should be appointed as Junior Stenographer and this order was confirmed by the Principal Chief Engineer, PWD., by issuing order dated 22nd November, 2005, in consonance with the said directions to appoint the petitioner as Junior Stenographer, surprisingly, the respondents while giving her the benefit of Assured Career Progression Scheme, granted her the benefit not as Junior Stenographer, but as Work Assistant. This order was clearly contrary to the directions of the Division Bench of this Court in Writ Petition No.269/2001 and also contrary to the order passed by the Principal Chief Engineer, PWD. This order was clearly contrary to the directions of the Division Bench of this Court in Writ Petition No.269/2001 and also contrary to the order passed by the Principal Chief Engineer, PWD. The petitioner, had no other option but to again knock the doors of this Court on the second occasion by filing a fresh writ petition being Writ Petition No.718/2008. The principal prayer which was made by the petitioner in the said writ petition was as under: “a) issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondents to grant Assured Career Progression Scheme to the Petitioner as Junior Stenographer and not as Work Assistant.” The petition which was filed in 2008, came up for hearing on 4th August, 2010 and the Division Bench of this Court (Coram : N.H. Patil and N.A. Britto, JJ), was pleased to allow the said writ petition. The Court was of the opinion that the petitioner was entitled to the Assured Career Progression Scheme as Junior Stenographer with effect from 26th August, 2004. Thereafter, the Principal Chief Engineer, PWD passed an order dated 23rd May, 2011, mentioning therein that the petitioner was appointed as Junior Stenographer and her date of joining was 26th August, 1992 and the Assured Career Progression Scheme was to be given from 26th August, 2004. The order stated that the employee had to exercise option within one month for fixing her pay and only after the said option was exercised, pay fixation order would be passed. 8. It is an admitted position that the petitioner promptly exercised her option and requested that her pay fixation be done. Thereafter, the petitioner wrote a letter to the Dy. Director of Administration, Public Works Department, Panaji on 14th November, 2011, requesting him to kindly do pay fixation along with the arrears, as per the order passed by the High Court. No response was given to the said letter and, therefore, the petitioner was constrained to request the Principal Chief Engineer, PWD that inspite of the order being passed by the High Court, the directions had not been followed. No response was given to the said letter and, therefore, the petitioner was constrained to request the Principal Chief Engineer, PWD that inspite of the order being passed by the High Court, the directions had not been followed. To this letter also, there was no response and therefore, the petitioner had to write a third letter dated 26th February, 2012 to the Principal Chief Engineer, PWD, again requesting him, with folded hands, to comply with the orders passed by this Court. 9. Since the respondents had turned blind eye to the requests made by the petitioner by her letters and representations, she was constrained to send a legal notice through her Advocate dated 20th July, 2012, to the Principal Chief Engineer, PWD., Panaji, Goa, to the Deputy Director (Administration), and to the Chief Secretary, State of Goa pointing out various facts and circumstances of the case, the orders which were passed by this Court from time to time and the representations made by the petitioner. Despite this notice being served, again the respondents completely ignored and even the said legal notice which was sent and all her pleas and requests fell on deaf ears and as such, the petitioner had no other option, but to again come to this Court by way of filing the third writ petition being the present writ petition. 10. Despite several dates being given at the request of the learned Additional Government Advocate, no reply has been filed till today and we have declined the request made by the learned Additional Government Advocate to give him further time. 11. Learned Additional Government Advocate, appearing on behalf of the Government, has submitted that after the option was exercised by the petitioner as directed by the Principal Chief Engineer, PWD., PWD submitted the bills for release of the salary on 14th February, 2012. It was submitted that on submission of the pay fixation bill by the PWD for release of salary of the petitioner, the Directorate of Accounts raised the objections that (1) when the petitioner was regularised from 12th August, 1999, the reason for making payment from 1992 was to be stated; (2) pay fixation statements from time to time should be annexed to the bill; and (3) copies of previous approvals for fixation of payments be enclosed. Learned Additional Government Advocate submitted that had the Officers of PWD properly brought the facts to the notice of the High Court, the said orders would not have been passed. He submitted that this Court had taken into consideration relevant documents from 1986 onwards wherein her appointment shows that she was appointed as Work Assistant. It was submitted by him that the Department wanted to assail the orders passed by this Court. 12. The submissions made by the learned Counsel appearing on behalf of the respondents cannot be accepted. The chronology of events clearly reveals that insptie of two orders being passed by this Court, the respondents have not complied with the order dated 21/3/2005 in Writ Petition No. 269/201 and the order dated 4/1/2010 in Writ Petition No. 781/2008, which are binding on the respondents and it is not open for the Accounts Department to sit in appeal over an order which is passed by this Court. Attitude of the respondents' Officers in PWD, as well as in the Accounts Department is deplorable and despicable and such attitude has to be deprecated and an appropriate action, therefore, will have to be taken against them for deliberately and willfully not complying with the orders passed by this Court. The Officers of the PWD had an audacity to question the correctness of the order dated 21.3.2005 passed the Division Bench headed by Dalveer Bhanadari, Chief Justice as He then was. The said order was passed in 2005, directing that the petitioner should be treated as Junior Stenographer. Officers of the Accounts Department and PWD, while sitting in appeal over the orders passed by the Hon'ble the Chief Justice, have questioned the wisdom of this Court in directing the respondents to appoint the petitioner as Junior Stenographer, when, in fact, the said order was confirmed by the Principal Chief Engineer, PWD. This attitude clearly reflects the mindset of these officers of deliberately and willfully not complying with the orders of this Court only with an intention to harass the petitioner and even with an intention to make her to run from pillar to post, despite she having obtained two orders in her favour. This attitude clearly reflects the mindset of these officers of deliberately and willfully not complying with the orders of this Court only with an intention to harass the petitioner and even with an intention to make her to run from pillar to post, despite she having obtained two orders in her favour. A complete callous approach on the part of the PWD and Accounts Officers is reflected from the fact that even after the petitioner exercised her option, after the Division Bench passed the order in 2010, and the bills were sent by the PWD in February, 2010, the salary and arrears of the petitioner have not been released till date. 13. In our view, therefore, the submissions made by the learned Counsel appearing on behalf of the respondents will have to be rejected. 14. The writ petition, therefore, is allowed in terms of prayers (A) and (B). The respondents are directed to comply with this order within four weeks from today. Rule is made absolute in the above terms. 15. Before parting, we would like to point out that this is a clear case of willful and deliberate non-compliance of the two orders passed by this Court, the first dated 21/3/2005 in Writ Petition No. 269/201 and the second dated 4/1/2010 in Writ Petition No. 781/2008. The Officers of PWD have shown that they can flout the orders of this Court with impunity and they are under impression that they can get away by not complying with the orders and by giving frivolous reasons for non-compliance. Ample opportunity and time was given by this Court to the respondents to comply with the said orders. No reply even has been filed by the respondents, on oath, till today. 16. In the result, therefore, in our view, this is a clear case where the respondents have, prima facie, committed a contempt of this Court. We, therefore, direct the office to issue contempt notices under the provisions of the Contempt of Courts Act, 1971 to: (1) Ms. Madhura Naik, Deputy Director (Administration), PWD., Goa, and (2) Mr. 16. In the result, therefore, in our view, this is a clear case where the respondents have, prima facie, committed a contempt of this Court. We, therefore, direct the office to issue contempt notices under the provisions of the Contempt of Courts Act, 1971 to: (1) Ms. Madhura Naik, Deputy Director (Administration), PWD., Goa, and (2) Mr. Gurudas Potekar, Director of Accounts, Government of Goa, Panaji, Goa as to why action should not be taken against them for not implementing the orders passed by this Court and why they should not be punished and convicted under the provisions of the Contempt of Courts Act, 1971, and in misinterpreting the orders passed by this Court dated 21/3/2005 in Writ Petition No. 269/201 and dated 4/1/2010 in Writ Petition No. 781/2008. Apart from issuing the notice under the provisions of the Contempt of Courts Act, 1971, the said notice is also issued by exercising the powers vested in this Court under Article 215 of the Constitution of India. The notice is made returnable on 21st February, 2013. The petitioner is permitted to serve the respondents/contemnors by humdustand/or personal service. 17. After the order was dictated, learned Counsel appearing for the petitioner submitted that taking into consideration the conduct of the respondents, heavy costs may be ordered. In our view, this is a fit case where costs can be ordered in favour of the petitioner, which are quantified at Rs.10,000/-.The said amount to be recovered from the Officers who are responsible for not complying with the said orders and an inquiry may be held as to who was responsible for non-compliance of the said orders of this Court and thereafter, costs should be recovered from them. In the meantime, the Government shall pay the said costs to the petitioner within four weeks from today. Parties to act on authenticated copies of this order.