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2020 DIGILAW 821 (MP)

Achintya Deb Dasgupta v. Iqbal Singh Bains

2020-08-20

G.S.AHLUWALIA

body2020
JUDGMENT G S Ahluwalia, J. - This contempt petition under Article 215 of the Constitution of India has been filed against the respondents, alleging non compliance of order dated 20/03/2018 passed by this Court in W.P.No.1062/2016. 2. It is submitted by the counsel for the petitioner that The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short "Act, 1995") came into force with effect from 07/06/1996. It is the case of the petitioner that as the petitioner suffers from physical disability therefore he was entitled for the benefits, which are admissible to the physically disabled person under the provisions of Act, 1995. 3. Since, the petitioner was not granted promotion to the post Assistant Engineer (Electrical), therefore, he filed a Writ Petition No.1174/2010 which was disposed of by this Court by order dated 01/12/2015 as an assurance was given by the respondents, that they shall consider the case of the petitioner for promotion under the Act, 1995 and Rules framed under and therefore, the following direction was given:- "In view of the submissions made by learned counsel for the respondents and in the light of the provisions of said Act of 1995, the writ petition is disposed of with direction to the competent authority to consider the case of the petitioner for promotion to the post of Assistant Engineer within a period of three months from the date of receipt of certified copy of this order." 4. It is the case of the petitioner that by order dated 18/01/2016, the claim of the petitioner was rejected, which was challenged by the petitioner by filing W.P.No.1062/2016. An undertaking was given by the counsel for the respondents that since the judgment passed by the Supreme Court in the case of Rajeev Kumar Gupta and others Vs. Union of India, (2016) 13 SCC 153 is under reference to a Larger Bench, therefore, they shall abide by the judgment of the Supreme Court and shall extend all benefits as may accord to the petitioner in the light of order of such Bench. It is submitted that the reference was decided by the Supreme Court in the case of Siddaraju Vs. State of Karnataka & others passed in Civil Appeal No.1567/2017 by Judgment dated 14-15/01/2020 (Annexure P/6). 5. It is submitted that the reference was decided by the Supreme Court in the case of Siddaraju Vs. State of Karnataka & others passed in Civil Appeal No.1567/2017 by Judgment dated 14-15/01/2020 (Annexure P/6). 5. It is further submitted that the petitioner had filed a Contempt Petition before the Supreme Court which was registered as Contempt Petition (C) No.856/2017, and the Supreme Court by its order dated 28-11-2017 had also observed that Contempt is made out. 6. It is further submitted that the Supreme Court in the case of Siddaraju (Supra) has affirmed the judgment passed in the case of Rajeev Kumar Gupta (Supra), therefore, the respondents cannot deny promotion to the applicant from the date when the Act, 1995 came into force. It is further submitted that similarly, the petitioner is entitled for further promotion to the higher posts as claimed by him in his representation. It is submitted that since, the respondents have denied the promotion to the applicant to the post of Asstt. Engineer from the date of enforcement of the Act, 1995, therefore, they have violated their own undertaking and thus have committed grave contempt of Court. 7. Per contra, it is submitted by the Counsel for the respondents, that since, the respondent no.1 was not a party to W.P. No. 1062 of 2016, therefore, he is not a necessary party in the present proceedings, therefore, I.A. No. 1613/2020 has been filed for deleting the names of respondents no. 1 and 2. However, during the course of arguments, the Counsel for the respondents, confined this application to the respondent no.1 only. Admittedly, the Chief Secretary, State of Madhya Pradesh, was not a party to W.P. No. 1062/2020, therefore, it can be inferred that no undertaking was given on his behalf, and further there was no direction to the respondent no.1, therefore, I.A. No. 1613/2020 is partially allowed and it is directed that the respondent no.1 cannot be tried for Contempt of Court. Accordingly, the name of respondent no.1 is directed to be deleted from the array of respondents. 8. Shri Kapil Duggal, Counsel for the respondents no. Accordingly, the name of respondent no.1 is directed to be deleted from the array of respondents. 8. Shri Kapil Duggal, Counsel for the respondents no. 2 to 4 submitted that the direction was to decide the representation and the same has been rejected by order dated 16-3-2020 and if the applicant is aggrieved by the said decision, then he has to challenge the same and the correctness of the order dated 16-3-2020 (Annexure R/1) cannot be decided in contempt proceedings. It is further submitted that in fact the respondents had never given an undertaking that they would grant promotion to the petitioner with effect from the date of enforcement of Act, 1995. It is further submitted that the petitioner in his representation which was made in the light of the liberty granted by this Court in W.P. No. 1062/2016, had prayed for grant of further promotion to the post of Executive Engineer, Deputy Housing Commissioner and Additional Housing Commissioner. It is submitted that so far as the claim of the petitioner for his promotion to the higher posts upto Additional Housing Commissioner is concerned, there was no such direction and even there was no prayer in W.P. No. 1062 of 2016. To substantiate his submissions, the Counsel of the respondents no. 2 to 4 has read out the prayer clause of W.P. No. 1062 of 2016 and submitted that no case of contempt of Court is made out for not granting promotion to the applicant on the post of Executive Engineer, Deputy Housing Commissioner and Additional Housing Commissioner. So far as the claim of the applicant, for his promotion to the post of Asstt. Engineer from the date of coming into force of Act, 1995 is concerned, it is submitted that in W.P. No. 1062 of 2016, the applicant had not impleaded any person as respondent, who would have suffered adversely. It is submitted that although the petitioner was claiming himself to be the only person falling in the special category, but the posts of Asstt. Engineer were limited and if the applicant was to be granted promotion, then atleast one person was required to be reverted in order to create vacancy. It is submitted that although the petitioner was claiming himself to be the only person falling in the special category, but the posts of Asstt. Engineer were limited and if the applicant was to be granted promotion, then atleast one person was required to be reverted in order to create vacancy. It is further submitted that further the Act, 1995 came into force w.e.f. 7-6-1996 whereas the petitioner had approached the Court for the first time in the year 2010 by filing W.P. No. 1174/2010 i.e., after 14 long years. It was also a matter of debate as to whether the applicant by approaching the Court belatedly could have unsettled the things which had already stood settled. Further, it is submitted that by order dated 2-1-2018, the petitioner was granted promotion to the post of Asstt. Engineer as per the provisions of Act, 1995, therefore, the real intention behind the undertaking was that the respondents would abide by the outcome of the reference in the case of Siddaraju (Supra). It is further submitted that the answering respondents have great respect for the Court and they cannot think of flouting any order and an unconditional apology is also tendered. 9. Heard the learned Counsel for the parties. 10. Before considering the facts of the case, it is not out of place to mention here that in the Contempt Proceedings, this Court cannot travel beyond the direction given in the Writ Petition. 11. The Supreme Court in the case of Er. K. Arumugam Vs. V. Balakrishnan and others by order dated 6-2-2019 passed in C.A. NO. 1510 of 2019 has held as under : 17. In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed. Observing that in the contempt jurisdiction, the court cannot travel beyond the four corners of the order which is alleged to have been floated, in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others, (2014) 3 SCC 373 , speaking for the Bench, Justice Ranjan Gogoi held as under:- "19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly, (2002) 5 SCC 352 , V.M. Manohar Prasad v. N. Ratnam Raju, (2004) 13 SCC 610 , Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami, (2008) 5 SCC 339 and Union of India v. Subedar Devassy PV, (2006) 1 SCC 613 ." 12. Society Ltd. v. Gautam Goswami, (2008) 5 SCC 339 and Union of India v. Subedar Devassy PV, (2006) 1 SCC 613 ." 12. The relevant portion of the order dated 20-3-2018 passed in W.P. No. 1062/2016 reads as under : "Shri Jain appearing for respondents undertakes that they shall abide by Hon'ble Supreme Court and shall extend all benefits as may accord to the petitioner as in the light of order of such Bench. In view of such undertaking, this petition can be disposed of, though the petitioner will be at liberty to make a representation to the Authorities duly supported with undertaking given by Shri Jain today on behalf of Commissioner, Housing Board as and when this issue is decided by larger Bench of the Supreme Court." 13. If the undertaking given by the respondents before the Writ Court is seen, then it is clear that no undertaking was given to the effect that the applicant shall be given promotion w.e.f. 7-6-1996 [the date when the Act, 1995 had come into force]. Further, the Counsel for the applicant also could not point out any observation of the Supreme Court in the case of Siddaraju (Supra) that promotion to all the persons falling under the special category has to be given from 7-6-1996. Further, there was no undertaking that the applicant would also be granted promotion to the further higher posts. Therefore, this Court was of the view, that since, the only direction was to consider the representation in the light of the undertaking given by the Commissioner Housing Board, and since, the representation has been rejected therefore, the applicant is left with no other option but to challenge the order dated 16-3-2020 passed by respondents. However, the Counsel for the applicant insisted that this Court must appreciate the correctness of the order dated 16-3-2020 passed by the respondents. 14. Accordingly, this Court is considering the submissions of the parties. 15. It is the case of the respondents that during the pendency of W.P. No. 1062/2016, the petitioner was promoted to the post of Asstt. Engineer vide order dated 2-1-2018. It is not out of place to mention here that the promotion of the applicant, to the post of Asstt. Engineer was in the light of the judgment passed by the Supreme Court in the case of Rajiv Kumar Gupta (Supra). Engineer vide order dated 2-1-2018. It is not out of place to mention here that the promotion of the applicant, to the post of Asstt. Engineer was in the light of the judgment passed by the Supreme Court in the case of Rajiv Kumar Gupta (Supra). Since, the correctness of law declared in the case of Rajiv Kumar Gupta (Supra) was already under reference, therefore, the stand of the respondents that in fact they had given an undertaking that benefits would be extended to the petitioner in the light of the judgment of Supreme Court in reference case i.e., Siddaraju (Supra) appears to be more plausible. 16. Further, it appears that the applicant had filed a Contempt Petition before the Supreme Court which was registered as Contempt Petition (C) No.856/2017. During the pendency of the said Contempt Petition, the applicant was granted promotion to the post of Asstt. Engineer by order dated 2-1-2018. Thereafter, a statement in that respect was made before the Supreme Court and accordingly, the Supreme Court passed the following order on 31- 1-2018 : 1. We have perused the affidavits filed on behalf of Respondent No.s 2 and 3 in Contempt Petition No. 856 of 2017. 2. Pursuant to the order passed by this Court on 6- 12-2017 both the petitioners have been promoted by order dated 2nd and 6th January, 2018 respectively. The said promotions naturaally would be subject to the outcome of the decision to be rendered in Special Leave Petition No. 24994 of 2016, 'Siddaraju Vs State of Karnataka & Ors.'which is presently pending before a larger Bench. 3. As promotions have been effected in the meantime subject to the decision of this Court, as mentioned above, we are of the view that this Contempt petition ought not to be entertained any further. It is accordingly closed subject to the aforesaid observations. 17. It is not out of place to mention here that before the Supreme Court, the petitioner did not raise any objection with regard to the date of promotion. It is accordingly closed subject to the aforesaid observations. 17. It is not out of place to mention here that before the Supreme Court, the petitioner did not raise any objection with regard to the date of promotion. Thus, it is clear that in the light of observation made by the Supreme Court in order dated 31-1-2018 passed in Contempt Petition (c ) No. 856 of 2017, an undertaking was given by the respondents that the benefit of the outcome of the case of Siddaraju (Supra), would be extended meaning thereby, that the promotion of the petitioner by order dated 2-1-2018 to the post of Asstt. Engineer would be subject to the outcome of S.L.P. (C ) in the case of Siddaraju (Supra). 18. Further, whether the applicant was entitled for further promotion to higher posts or not was also not the subject matter of W.P. No. 1062/2016. Although the prayer of the applicant in W.P. No. 1062/2016 was for grant of promotion to the post of Asstt. Engineer w.e.f, 7-6-1996, but it is well established principle of law that promotion is not a right, but it is right of an employee for his consideration for promotion. Further delayed approach of the petitioner seeking promotion under the provisions of Act, 1995 is also a matter to be adjudicated, as he approached the High Court for the first time by filing W.P. No. 1174/2010 i.e., after 14 long years, and the effect of such delay on the part of the petitioner in approaching the Court is one of the important question. Further, no other person(s) who was/were promoted to the post of Asstt. Engineer were made party in W.P. No. 1062/2016. Whether the applicant was the only candidate in a special category or not cannot be a solitary criteria, because the number of posts of Asstt. Engineers were limited which were already filled, and if the respondents were to give promotion under the special category, then they were required to create a vacancy by reverting the junior most Asstt. Engineer to his original post. Therefore, it is clear that atleast one Asstt. Engineer would have suffered adversely and as none of the private party was impleaded in W.P. No. 1062/2017, therefore also, no effective order could have been passed. Engineer to his original post. Therefore, it is clear that atleast one Asstt. Engineer would have suffered adversely and as none of the private party was impleaded in W.P. No. 1062/2017, therefore also, no effective order could have been passed. Thus, this Court is of the considered opinion that the undertaking given by the respondents in W.P. No. 1062/2016 cannot be treated as an undertaking to give promotion to the applicant to the post of Asstt. Engineer w.e.f. 7-6-1996. 19. Accordingly, this Court is of the considered opinion, that the respondents no. 2 to 4 have not committed any Contempt of this Court by passing the order dated 16-3-2020, thereby rejecting the claim/representation of the petitioner. Ex consequenti, the Contempt Petition is dismissed. Rule nisi is discharged.