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2021 DIGILAW 323 (GAU)

Isihangbe v. State of Nagaland

2021-03-26

SOUMITRA SAIKIA

body2021
JUDGMENT : 1. The essential facts necessary for deciding this matter are that the petitioner who is an employee in the Police Department was given out- of-turn promotion to the rank of Unarmed Branch Inspector (‘UBI’). The petitioner was a part of a four-member Anti-Vehicle Theft Squad (‘AVTS’) and during the relevant point in time the AVTS has been successfully recovering a total of 57 vehicles worth around 2.5 crores leading to the arrest of 3 habitual offenders that culminated in their detention under NSA. 2. In terms of the Office Memorandum dated 16.9.2005, it provides for out-of-tum promotion in cases where the conditions therein Office Memorandum are satisfied. As the petitioner fulfilled the criteria provided in the said Office Memorandum, the petitioner's name was recommended for out-of-tum promotion from the rank of Unarmed Branch Sub-Inspector to Unarmed Branch Inspection (Class-II Gazetted) and he was promoted to the said post vide Notification dated 23.1.2018. Subsequently, by another Notification dated 5.6.2018, the petitioners out- of-tum promotion was revoked with immediate effect allegedly owing to non-fulfillment of the criteria. By the said Notification, it was provided that his promotion will be taken up only as and when all essential conditions are fulfilled under normal circumstances. 3. Being aggrieved, the petitioner assailed the said Notification dated 5.6.2018 revoking his out-of-tum promotion by filing WP(C) No. 225(K)/2018 before this court. This court vide judgment and order dated 1. 8.2019, set aside the impugned Notification dated 5.6.2018 and directed that the petitioner be allowed to join as Unarmed Branch Inspector (UBI) with all consequential benefits with effect from the date of his out-of-tum promotion. 4. It is not in dispute that the respondents did not prefer any appeal against the judgment and order dated 1.8.2019 passed in WP(C) No. 225(K)/2018. As the direction of the Single Judge was not carried out, a contempt petition being COP(C) No. 42/2019 was filed by the petitioner. This court by order dated 2.12.2019 passed in the contempt petition gave liberty to the respondents to give an opportunity of hearing in case a decision is taken that the petitioner cannot be permitted to continue on the promoted post. 5. Thereafter, the respondents by order dated 20.1.2020 although reinstated the petitioner to the post of UBI, however, made it subject to proceeding against the out-of-tum promotion of the petitioner afresh. 5. Thereafter, the respondents by order dated 20.1.2020 although reinstated the petitioner to the post of UBI, however, made it subject to proceeding against the out-of-tum promotion of the petitioner afresh. In terms of the said order dated 20.1.2020, a show cause notice dated 22.1.2020 was again issued to the petitioner directing him to show cause as to why his out-of-tum promotion should not be revoked. 6. The matter being situated, thus, the earlier order in the contempt petition dated 2.12.2019 came to be modified by order dated 3.2.2020 and it was held that “the order passed by this court on 1.8.2019 is a final order of a writ court and it would be against the established law to open up the matter again by way of this contempt”. 7. The contempt petition, subsequently, came to be closed by order dated 27.2.2020 upon satisfaction that the order dated 1.8.2019 passed in WP(C) No. 225(K)/2018 by this court has been complied with. The petitioner has been serving in the rank of UBI with effect from 23.1.2018. 8. That, pursuant to the closure of the proceedings before this court, the petitioner was again served with the impugned show cause notice dated 19.3.2020, directing the petitioner to show cause notice as to why the Notification dated 23.1.2018 granting out-of-tum promotion to the petitioner should not be revoked. Being aggrieved, the present writ petitioner has been filed, challenging the said impugned show cause notice issued by the respondents/Department. 9. The learned senior counsel appearing for the petitioner submits that after the judgment dated 1.8.2019 was passed in WP(C) No. 225(K)/2018 as well as order dated 27.2.2020 by which the contempt petition No. 42/2019 was closed, the matter with regard to the out-of-tum promotion upheld by this court has attained finality, as no appeal was filed against this order by the Department. The respondents are debarred from reopening the issue by issuance of a fresh show cause notice. The respondents are debarred from reopening the issue by issuance of a fresh show cause notice. The learned senior counsel disputes the claim of the respondents that this court by the initial order dated 2.12.2019 passed in COP(C) No. 42/2019 gave liberty to the respondents to take a decision in the matter after giving opportunity of hearing is taken that the petitioner cannot be permitted to continue on the promoted post inasmuch as the said order dated 2.12.2019 in the contempt petition subsequently came to be merged with the final order closing the contempt petition. In any event of the matter by a subsequent order dated 3.2.2020 passed in COP(C) No. 42/2019, the earlier order dated 2.12.2019 was modified and subsequently by order dated 27.2.2020 the contempt petition was closed. Therefore, it cannot be said that there was any liberty granted by the court in a contempt proceeding to go beyond the orders passed in a writ proceedings by which the revocation of the out-of-tum promotion given to the petitioner was interfered with set aside and quashed. Consequently, the impugned proceeding initiated by the respondents is wholly unauthorised and contrary to law and should, therefore, be set aside and quashed. The learned senior counsel refers to the judgments of the Apex Court in Sudhir Vasudeva, Chairman and Managing director, Oil and Natural Gas Corporation v. M. George Ravishekaran, (2014) 3 SCC 373 and Director of Education, Uttaranchal v. Ved Prakash Joshi, (2005) 6 SCC 98 . 10. The respondents filed their affidavit disputing the contentions raised by the petitioner. The respondents contend that the petitioner being a Team member, therefore, all achievements of AVTS will have to be construed as the team efforts and not individual effort. The respondents contended that the total value of recovery made by the AVTS comes to Rs. 2.5 crores and when the total value is split into 4, then it does not come within the purview of the criteria laid down for out-of-tum promotion. Therefore, the recommendation made by the senior Superintendent of Police, Kohima for out-of-tum promotion of the petitioner including 3 others was not taken up by the Screening Board due to non-fulfillment of the criteria. As the case of the petitioner is not taken up by the Screening Board, the further dedsion in respect of out-of-tum promotion was not taken. Therefore, the recommendation made by the senior Superintendent of Police, Kohima for out-of-tum promotion of the petitioner including 3 others was not taken up by the Screening Board due to non-fulfillment of the criteria. As the case of the petitioner is not taken up by the Screening Board, the further dedsion in respect of out-of-tum promotion was not taken. Therefore, the Notification dated 23.1.2018 granting out-of-tum promotion to the petitioner was erroneously issued. Accordingly, the same is now been sought to the revoked by issuance of the Notification impugned in the present proceedings. The further contentions of the respondents is that this court by judgment dated 1.8.2019, while disposing of the writ petition, did not impose any bar or restriction on the State respondents to issue show cause notice to the petitioner. The further contentions of the respondents are that as the judgment and Order dated 1.8.2019 passed in WP(C) No. 225(K)/2018 did not impose any bar, this court by order dated 2.12.2019 passed in COP(C) No. 42/2019 permitted the Department to proceed with the due opportunity to the petitioner and accordingly, the said Notification being a consequence of the order passed by this court in order dated 2.12.2019 passed in COP(C) No. 42/2019. Consequently, the same is with sanction of law and, therefore, there is no infirmity in the Notification issued and as such the writ petition being devoid of any merits, the same should be dismissed. 11. Upon hearing the learned counsel for the parties, in order to decide the questions which have been urged before this court, it is necessary to first refer to the Office Memorandum dated 16.9.2005, laying down the criteria for ‘out-of-tum’ promotion, which is extracted as under: “GOVERNMENT OF NAGALAND OFFICE OF THE DIRECTOR GENERAL OF POLICE NAGALAND : KOHIMA No. PHQ(B-II)/2/6/2003 Dated Kohima The the September 2005 OFFICE MEMORANDUM In a meeting held on 14.9.2005 with the Director General of Police and all Senior Officers of Police Headquarters, the issue of Out of Turn Promotion and recommendation on the criteria for Out of Turn Promotion submitted by the inspector General of Police (Hqrs.) as directed vide No. PHQ(CON-I)3/2004/482 dated 17.11.2004 was discussed. The Inspector General of Police (Hqrs.) briefed the House that while preparing this criterion for Out of Turn Promotion suggestions were invited from several Senior Officers and Unit Commanders and after which the following criteria are suggested for consideration for Out of Turn Promotion. Henceforth, while making any consultation for Out of Turn promotion and individual must qualify for any of the following conditions. (1) “Heroic action and exemplary bravery”. (a) Providing of specific and actionable Intelligence report which are likely to have major disaster leading to mass destruction of lives and properties. (b) Providing accurate criminal Intelligence leading to timely action and arrest which may otherwise have a large scale adverse affect on the tranquility and maintenance of peace in the society. (3) Successfully Investigating an S.R. Case, the value of which should not be less than Rupees Ten lakhs, arresting and Charge Sheeting of accused-persons and culminating in sentencing the accused-persons by the court. (4) Being Graded “Best All Round Candidate” in a Training outside the State. (5) A sportsman who is awarded a Medal at the International or All India level in any discipline recognized by the India Olympic Association. All Unit Commandants are directed not to forward cases which are not covered by the above provision as such case will not be accepted. Sd/- (J. CHANGKIJA) IPS Director General of Police, Nagaland, Kohima.” 12. It is also necessary to refer to the operative portions of the judgment dated 1.8.2019 passed in WP(C) No. 225(K)/2018, the relevant paragraphs of the said Judgment are extracted below: “13. A perusal of the O.M. dated 16.9.2005 and the Addendum dated 22.7.2007 does not give any indication that an out-of-tum promotion can be given only for an individual effort/achievement. It only states that while making any consideration for out-of-tum promotion, an individual must qualify any one of the conditions stipulated therein. The qualification required of an individual does not mean that it has to be an individual achievement or an individual effort. As long as the conditions are fulfilled by an individual or by way of a team effort, the concerned candidates/police personnel can be given out-of-tum promotion as per the above O.M. and Addendum. 14. Condition No. 3 of the Addendum dated 22.7.2007 provides for out- of-tum promotion, if while investigating a Special Report Case, the value of which is not less than Rs. 14. Condition No. 3 of the Addendum dated 22.7.2007 provides for out- of-tum promotion, if while investigating a Special Report Case, the value of which is not less than Rs. 1 crore, there is arrest and charge-sheet of the accused-persons, which culminates in the sentencing of the accused- persons by the court. The stand of the State respondents that the value of the recovered vehicles should be divided between the 4 members of the AVTS is not supported by the above Condition No. 3 of the Addendum dated 22.7.2007. Condition No. 3 only states that the total value of the case should not be less than Rs. 1 crore. It does not speak of any division of the total value, to be made by the number of persons in the investigating team. As the value of the vehicles covered by the AVTS is Rs. 2.5 crores, this court finds that the petitioner and all other team members of AVTS have fulfilled the Condition No. 3 of the Addendum dated 22.7.2007 15. The other ground for revocation of the petitioner's promotion by the State respondents is that the arrest had been made by the AVTS, as a team and not by the petitioner individually. Accordingly, the arrest could not be said to be an individual achievement. The above ground taken by the State respondents is not supported by the O.M. dated 16.9.2005 or the Addendum dated 22.7.2007. This court finds it ludicrous and perverse that the State respondents could read into the O.M. dated 16.9.2005 and the Addendum dated 22.7.2007, words to the effect that the value of the recovered vehicles in a particular case should be divided by the number of persons in the investigating team, to know the value of the case attributable to each individual member and that arrest should only be made by an individual member, which should thereafter be considered to be an individual achievement. No such phrase or words are reflected in the O.M. dated 16.9.2005 and the Addendum dated 22.7.2007. 16. A perusal of the impugned Notification dated 5.6.2018, by which the petitioners promotion has been revoked, clearly shows that the specific eligible criteria, which the petitioner allegedly does not possess, has not been reflected in the said impugned notification. No such phrase or words are reflected in the O.M. dated 16.9.2005 and the Addendum dated 22.7.2007. 16. A perusal of the impugned Notification dated 5.6.2018, by which the petitioners promotion has been revoked, clearly shows that the specific eligible criteria, which the petitioner allegedly does not possess, has not been reflected in the said impugned notification. The State respondents have tried to support the revocation of the out-of-tum promotion given to the petitioner by way of the reasons stated in the affidavit-in-opposition, which has been discussed above and held to be inconsistent with the contents of the O.M. and the Addendum. 17. In the case of Mohinder Singh Gill (supra), the Apex Court has held that when a statutory functionary makes an order based on a certain ground, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought up. In the present case, the impugned notification does not specify the ground for revocation of the petitioner's promotion, but only makes a generalised statement that he does not fulfil the eligibility criteria. 18. The State respondents have not given specific reasons for revoking the petitioner's promotion beyond what is mentioned in the impugned Notification dated 5.6.2018, though they have tried to explain the reason for the revocation order in the affidavit-in-opposition. The same cannot be allowed. In any event, the reasons given by the State respondents in their affidavit-in-opposition for revoking the petitioner's promotion, is found to be arbitrary and not accepted by this court. Also, the Government affidavit at para 11 shows that the review of the petitioner's out-of-tum promotion had been initiated on the basis of representations sent by other UBSI's for review of the promotion order, thereby giving rise to an inference that the impugned notification was issued only to please certain UBSI's, who were superseded due to the out-of-turn promotion given to the petitioner. 19. The above being said, this court finds that no notice was issued by the State respondents to the petitioner before issuing the impugned Notification dated 5.6.2018. 19. The above being said, this court finds that no notice was issued by the State respondents to the petitioner before issuing the impugned Notification dated 5.6.2018. In the case of Shridhar v. Nagar Palika, Jaunpur, 1990 Supp SCC 157, the Apex Court has held that it is an elementary principle of natural justice that no person should be condemned without being heard. It further held that the order of appointment of the appointee therein, having conferred a vested right in the appointee's right to hold the post, the said right could not be taken away without affording an opportunity of hearing to him. It, thus concluded by holding that the order passed in violation of the principles of natural justice would be rendered void. In the present case, the petitioner has been promoted to the post of UBI vide order dated 23.1.2018 and he not only joined his post, but had also started enjoying the salary of UBI. Keeping in view the judgment of the Apex Court, quoted above, the taking away of his vested right to hold the post of UBI, by revocation of his promotion order, sans any notice, renders the impugned Notification dated 5.6.2008 illegal and void. 20. In view of the reasons stated above, this court finds that the impugned Notification dated 5.6.2018 cannot withstand the scrutiny of law. Accordingly, the same is set aside. The petitioner shall be allowed to join in the service as an Unarmed Branch Inspector and be given all consequential benefits, with effect from the date of his out-of-turn promotion.” (emphasis supplied) 13. A perusal of the judgment above does not indicate that any liberty was granted by the learned Single Judge to proceed in respect of the same issue arising between the parties. It is not in dispute that State did not prefer any appeal and/or review against the said judgment. Therefore, the same has attained finality in so far as the issue of the fulfillment of the criteria by the petitioner for being eligible for out-of-turn promotion. Any contra-submissions now made can only be agitated by process of review or an appeal against the judgment dated 1.8.2019 which has not been done by the respondents. Therefore, the same has attained finality in so far as the issue of the fulfillment of the criteria by the petitioner for being eligible for out-of-turn promotion. Any contra-submissions now made can only be agitated by process of review or an appeal against the judgment dated 1.8.2019 which has not been done by the respondents. The order dated 2.12.2019 passed in contempt proceedings has been altered by subsequent orders and the contempt petition came to be disposed of by order dated 27.2.2020 by recording a finding that the judgment dated 1.8.2019 passed in WP(C) No. 225(K)/2018 has been complied with. Consequently, the contentions of the respondents that the impugned Notification seeking to proceed against the petitioner by trying to interpret that liberty was granted to the respondent by order dated 2.12.2019 cannot be accepted. The law on this aspect is very clear. A court in a contempt proceeding cannot go beyond the order against which contempt has been alleged. It will fiot be permissible for the court in a contempt proceeding to examine the correctness of the earlier decision and to arrive at a different conclusion other than that which was arrived at in the earlier decision. The Apex Court in Director of Education, Uttaranchal v. Ved Prakash Joshi, (2005) 6 SCC 98 has held as under: “7. While dealing with an application for contempt, the court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a court to examine the correctness of the earlier decision which had not been assailed and to take a view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari v. Union of India, (2001) 10 SCC 496 : 2002 SCC (L&S) 756. The court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who is alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. If there was no ambiguity or indefiniteness in the order, it is for the party concerned to approach the higher court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher court. The court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt, the court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional directions or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.” Again in the case of Sudhir Vasudeva, Chairman and Managing director, Oil and Natural Gas Corporation v. M. George Ravishekaran, (2014) 3 SCC 373 . The Apex Court while examining the issue very succinctly culled out the principles in cases relating to civil content. The relevant paragraph of the judgment is extracted below: “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. 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 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 comers 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 : 2002 SCC (L&S) 703, V.M. Manohar Prasad v. N. Ratnam Raju, (2004) 13 SCC 610 : 2006 SCC (L&S) 907, 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 .” 14. That apart, this court while deciding WP(C) No. 225(K)/2018 vide the judgment and order dated 1.8.2019 had clearly interfered and set aside the show cause notice issued by the respondents. The respondents in their wisdom did not choose to carry the matter in appeal and, therefore, they have accepted the findings of the learned Single Judge. In such an event, the operative part of the judgment dated 1.8.2019 passed by the learned Single Judge in WP(C) No. 225(K)/2018 is binding between the parties before the court, namely, the petitioner and the respondents herein. In such an event, the operative part of the judgment dated 1.8.2019 passed by the learned Single Judge in WP(C) No. 225(K)/2018 is binding between the parties before the court, namely, the petitioner and the respondents herein. Unless the respondents choose to approach appropriate legal forums seeking to revisit the judgment dated 1.8.2019 passed in WP(C) No. 225(K)/2018, the respondents are not at liberty to unilaterally continue to proceed against the petitioner by the impugned show cause notice. 15. In this context the law laid down by the Apex Court in the case of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 is very relevant. The relevant paragraph of the judgment is extracted below: “183. But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A co-ordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen - nor has the overruling Bench any jurisdiction so to do - that the finality of the operative order, inter partes, in the previous decision is overturned. In this context the word ‘decision’ means only the reason for the previous order and not the operative order in the previous decision, binding inter partes. Even if a previous decision is overruled by a larger Bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed inter partes. Even if the earlier decision of the Five-Judge Bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done. That apart the Five-Judge Bench gave its reason. The reason, in our opinion, may or may not be sufficient. There is advertence to section 7(1) of the 1952 Act and to the exclusive jurisdiction created thereunder. There is also reference to section 407 of the Criminal Procedure Code. Can such a decision be characterised as one reached per incuriam? Indeed, Ranganath Misra, J, says this on the point : (para 105) “Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Indeed, Ranganath Misra, J, says this on the point : (para 105) “Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench.” 16. In view of the above discussions, the impugned show cause notice dated 19.3.2020 is, therefore, not sustainable in law and the same is, therefore, set aside and quashed. 17. This writ petition is accordingly allowed. No order as to costs.