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2019 DIGILAW 1954 (ALL)

Rajendra Bahadur Saxena v. Neeta Chaudhari

2019-08-14

ALOK MATHUR

body2019
JUDGMENT : 1. Heard learned counsel for the parties. 2. The applicant has preferred the instant contempt petition alleging non-compliance of the directions issued by this Hon’ble Court in Writ Petition No. 548 (SB) of 2004 -Dr. RB Saxena Vs. State of U.P and Others (decided on 29/07/2005) whereby certain directions were issued by this Court with regard to the promotion of the petitioner. That similar directions were issued with regard to other persons who had approached the High Court with regard to the promotion and seniority, and similar directions issued by the High Court in Writ Petition No. 1543 (SB) of 2004 and other connected matters. It is necessary to mention that all the directions passed by the High Court were in pursuance to the judgment of the Hon’ble Supreme Court in the case of Writ Petition Civil No. 43 of 1998 - Dr. Chandra Prakash and Others Vs. State of U.P. and Another, decided on 04.12.2002. 3. The State Government in pursuance of the judgement in the case of Dr. Chandra Prakash (supra), prepared a revised seniority list and the applicant was given notional promotion on the post of Joint Director. 4. This Court in similar matters regarding non-compliance of the judgment of the High Court passed in pursuance to the directions issued by the Hon’ble Supreme Court in the case of Dr. Chandra Prakash (supra), was pleased to consider the entire factual matrix as is involved in the present case and the for the sake of common convenience relevant portion of the judgment passed in Contempt Petition No. 579 of 2008 - Dr. Raghuveer Prasad Dixit and 12 Others Vs. Ms. Neeta Chaudhary and 2 Others (decided on 24.04.2019), is as follows:- “In this contempt application the applicants are Doctors working in the Post Graduate Medical Services of the State of U.P. and with regard to their grievance relating to the seniority list they had preferred Writ Petition No. 1543 (SB) of 2004 before this Court praying for following reliefs : "(A) To issue a Writ, Direction or Order in the nature of Mandamus commanding the opposite parties to consider and promote the petitioners to various posts and grade viz. senior grade pay scale, the grade and post of Joint Director, the grade and post of Additional Director, the grade and post of Director and also the grade and post of Director General from the dates his juniors were promoted on such post and grade as indicated against each in the statement filed as Annexure-4 to the writ petition, if need be, by creating supernumerary posts and consequently to grant and make payment of salary and allowances as admissible under the Rules and given benefits of increments, revision of pay scale etc. as and when due minus the salary/allowances which may have been paid in the aforesaid grade, if any, together with interest at the market rate to be compounded periodically from the date the same became due till the dates of actual payment. (B) To issue a Writ, Direction, or Order in the nature of Mandamus commanding the opposite parties also to make revision of pensionary benefits of petitioners No. 1, 2 and 28 with effect from the dates of their retirement on superannuation on the basis of grant of notional promotions to the grade and posts as mentioned in the statement filed as Annexure-4 to the writ petition and consequently to make payment of arrears of pension, gratuity and commutation as found due together with interest at the market rate to be compounded periodically from the date on which became due till the date of its actual payment." The Division Bench of this Court by means of order dated 18th September, 2007, disposed of the aforesaid writ petition observing that since the State Government has already finalised the seniority list in pursuance of the judgment and order passed by the Hon'ble Supreme Court, the respondents were directed to grant consequential benefits including notional promotion etc. to the petitioners within two months from the date certified copy of the order is produced. The applicants have submitted that the judgment and order was sent to the respondents by speed post on 22nd October, 2007 followed by reminder on 16th March, 2008 and despite the order having been duly communicated, the directions of the Writ Court were not complied with. It was contended that the respondents have not extended benefit of notional promotion to applicant no. 11 namely Dr. Virendra Singh Pachahara despite the fact that his name finds mention at serial no. It was contended that the respondents have not extended benefit of notional promotion to applicant no. 11 namely Dr. Virendra Singh Pachahara despite the fact that his name finds mention at serial no. 2724 and therefore he was entitled for all the incidental and consequential benefits at par with Dr. Daya Shanker. Applicants have further submitted that the question of seniority of Medical Officers of the Medical and Health Department has been determined by Hon'ble Apex Court in Writ Petition Civil No. 43 of 1998 - Dr. Chandra Prakash and Others Vs. State of U.P. and Another, vide judgment and order dated 04.12.2002. The operative portion of the judgment is reproduced herein below :- "We accordingly allow the writ petitions and declare that (1) the writ petitioners are not within the purview of the 1979 Rules (2) the State Government will fix the seniority of the all doctors in the PMHS cadre from the date of the orders of their initial appointment within a period of Six Weeks from the date of this order and given all consequential benefits including promotion and position on the basis of such seniority list (3) those doctors who were selected in 1972 and 1977-78-79 by the PSC and who were not issued any orders of appointment and joined the service on the basis of Tandon's case, will be treated as having been appointed on the date they actually joined the service and their seniority will be counted from the date. There will be no order as to costs." It has also been submitted that number of other persons had also approached the Supreme Court alleging that directions passed by the Hon'ble Supreme Court in Contempt Petition No. 105 of 2003 and 403-404 of 2003, and after hearing both the parties, vide judgment dated 17.11.2003, the Court was pleased to drop the contempt proceedings and dispose of the contempt petition by passing following order :- "In the circumstances having regard to the facts of the case, we drop the contempt proceedings against the respondent. However, we make it clear that we have not gone into the question whether the seniority list has in fact being prepared in terms of the this Court's judgment. Several I.As have been filed by the persons having individual grievances, in respect of the seniority list which they claim has not been prepared in accordance with this Court's decision in Dr. Several I.As have been filed by the persons having individual grievances, in respect of the seniority list which they claim has not been prepared in accordance with this Court's decision in Dr. Chandra Prakash's case (Supra). These individuals claimed that they have filed writ petition of this context before the High Court. Since we are not determining the validity of the Seniority List as such the applications are infructuous and are disposed of accordingly." The grievance of the applicants is that they are not being given consequential benefit of promotion to the post of Joint Director (JD Grade/Post, Additional Director (AD) Grade/Post, Director Grade/Post and also to the post of Director General, which the applicants are actually entitled, but the respondents are not considering the case of the applicants for promotion at par with the juniors. The applicants have also alleged that in order to comply with the order of the Supreme Court, passed in the aforesaid writ petition, the respondents issued order dated 02.02.2005, whereby they have notionally promoted the Medical Officers, in Medical and Health Department U.P. to the cadre post of Joint Director, but they have not fixed pay scale and pension of the Officers, and for such non compliance the respondent have committed contempt of the order of the Court. In response to the notice issued, the respondents have filed detailed counter affidavit and supplementary counter affidavit. Against the judgment dated 18.09.2007 passed in Writ Petition No. 1543 (SB) of 2004, the State of U.P. has filed Review Petition No. 100 of 2008, which was dismissed vide judgment and order dated 31.07.2008. The State of Uttar Pradesh thereafter preferred Special Leave Petition before the Apex Court being SLP No. 30263 of 2008 before the Apex Court, impugning the judgment and order dated 08.09.2007, passed in Writ Petition No. 1543 of 2004 as well as Judgment and order dated 31.07.2008, dismissing the review petition. The said Special Leave Petition was converted into Civil Appeal No. 3043 of 2010 and was decided by means of judgment and order dated 24.07.2014. The portion of judgment dated 24.07.2014, where Civil Appeal No. 3043 of 2010 is dealt with is reproduced herein below :- "This appeal has been preferred by the State of U.P. & Ors. The said Special Leave Petition was converted into Civil Appeal No. 3043 of 2010 and was decided by means of judgment and order dated 24.07.2014. The portion of judgment dated 24.07.2014, where Civil Appeal No. 3043 of 2010 is dealt with is reproduced herein below :- "This appeal has been preferred by the State of U.P. & Ors. against the judgment and order dated 18th September, 2007 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in W.P. No. 1543 (SB) of 2004. The High Court by impugned judgment directed the State to grant notional promotion and consequential benefit of notional promotion in favour of the respondent from the date from whom his juniors were promoted. But no direction as to payment of arrears of salary was made in the impugned judgment. Having heard learned counsel for the parties, we find no ground made out to interfere with the impugned order as the respondent-State has already implemented similar order in respect of similar situated persons and granted them notional promotion. The appeal is dismissed." Perusal of aforesaid judgment and order dated 24.07.2014, passed by the Apex Court reveals that the Civil Appeal filed by the State of Uttar Pradesh was dismissed on the ground that the State has already implemented similar orders in respect of similarly situated persons and granted them notional promotion. Hon'ble Supreme Court further observed that in the impugned order i.e. judgment and order dated 18.09.2007 passed in Writ Petition No. 1543 (SB) of 2004, no direction for payment of arrears of salary was made by the High Court and therefore, the applicants cannot claim any arrears of salary during the period they were notionally promoted by the State Government. From a perusal of the order of the Apex Court dated 24.07.2014, it is clear that the applicants cannot claim any arrears of salary as has been specifically denied to them by the Apex Court and in this regard allegations of non compliance deserve to be rejected out rightly. The respondents have stated that the applicant nos. 2 to 8 had claimed for senior grade with effect from April, 1983 and Joint Director Grade with effect from 27.04.1995. They have already been granted senior grade with effect from 27.05.1982 and Joint Director Grade from 10.05.1990. While applicant nos. The respondents have stated that the applicant nos. 2 to 8 had claimed for senior grade with effect from April, 1983 and Joint Director Grade with effect from 27.04.1995. They have already been granted senior grade with effect from 27.05.1982 and Joint Director Grade from 10.05.1990. While applicant nos. 9 to 11 have been granted senior grade with effect from 04.12.1982 and Joint Director Grade with effect from 10.05.1990. Whereas applicant nos. 12 and 13 of this application have been granted senior grade with effect from 15.12.1985 and Joint Director grade from 10.05.1990. With regard to allegations of not promoting the applicants on the post of Additional Director and Director and Director General it has been submitted that as per Rule 4 of the U.P. Government Servants Criteria for Recruitment by Promotion, Rules, 1998, provide that criteria for promotion to the posts will be based on merit and therefore, promotions to the post of Additional Director, Director and Director General would not be a direct consequence of the judgment of the Apex Court. The respondents have further stated that the State Government on its own did not consider any one for notional promotion for the posts of Additional Director, Director and Director General, but have only complied with and promoted certain persons where there were specific/implied orders passed by the various Courts. Heard learned counsel for the parties and perused the record. It is clear that in compliance of the judgment of the Hon'ble Apex Court seniority list was prepared by the respondents and notional promotion up to the post of Joint Director was granted. With regard to the arrears of salary after being notionally promoted to the higher post is not admissible to the applicants, inasmuch as the same was disallowed by the Supreme Court in the case of respondents in Civil Appeal No. 3043 of 2010. The respondents after preparation of seniority list have been duly promoted to the post of Joint Director and even their salary has been fixed, contrary to what has been alleged by the applicants." 5. In the light of the above, this Court is satisfied that there has been substantial compliance of the orders of the Hon'ble Supreme Court and in this regard it will be relevant to consider the pronouncement of the Apex Court in the case of Bihar State Government Section Scl. Teachers Assn. Vs. In the light of the above, this Court is satisfied that there has been substantial compliance of the orders of the Hon'ble Supreme Court and in this regard it will be relevant to consider the pronouncement of the Apex Court in the case of Bihar State Government Section Scl. Teachers Assn. Vs. Ashok Kumar Sinha and Ors., reported in MANU/SC/0438/2014, wherein the Apex Court has held as under :- "19. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the Respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non-implementation. ..........." 6. The State Government in the facts of the present case have clearly demonstrated that they have complied with the orders of Hon'ble Supreme Court and the seniority list as directed was duly prepared. After preparation of the seniority list the applicant was granted notional promotion and also salary on the said post has been fixed. The allegation that the applicant was not promoted to the higher post of Additional Director, Director and Director General is also bereft of any reason or substance inasmuch as the said posts were to be filled in on the basis of merit and therefore, it cannot be said that the applicant had any right to be promoted on the said posts without being duly considered by the Selection Board and found fit. Admittedly there were no directions of any Court for promotion to the posts higher then Joint Director. 7. From the detailed affidavits filed by the respondents it is clear that they have taken effective steps at all stages of the proceedings and they have made efforts to comply with the judgments of the High Court and Supreme Court. For the compliance of the orders, the matter the proceedings were taken up to the level of Supreme Court and as stated hereinabove, the Supreme Court also directed that the applicant need not be granted arrears of salary as having been notionally promoted and the petitions were dismissed. 8. In the light of the discussion made herein above it can be concluded that the respondents have not deliberately and willfully disobeyed any of the orders passed by the High Court or the Supreme Court and therefore the contempt application preferred by the applicant is devoid of merit. 9. That in light of the above the grievance of the applicant does not survive, and substantial compliance of the judgments have already been made by the State Government, accordingly the contempt petition is dismissed.