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CASE NO.: Appeal (crl.)  693 of 2006

PETITIONER: Union of India & Anr

RESPONDENT: P.M. Rangasami

DATE OF JUDGMENT: 15/05/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

        Challenge in this appeal is to the judgment rendered by  the Madras Bench of the Central Administrative Tribunal (in  short the ’Tribunal’).  The Tribunal was of the view that the  appellant no.1 and its named functionary were guilty of  contempt. However, another officer was exonerated. It was  held that the order dated 30.4.2004 passed by the Tribunal in  OA No.1002/2003 had not been complied with deliberately  and, therefore, the said act amounted to contempt. It was  observed that the functionaries and various officers acted in a  canalized manner in flouting the directions of the Tribunal.   

Background facts as projected by the appellants need to  be noted in some detail as there is great deal of factual  controversies and much would depend upon the effects of  various acts on different dates.

On 20.6.1968 Mr. M.M. Nampoothiry and Mr. D.K.  Trehan joined the Indian Economic Services in Grade IV. The  respondent Mr. P.M. Rangaswami also joined the Indian  Economic Services in Grade IV on 8.7.1970

On 11.6.86, in view of the judgment of this Court in  Narender Chadha and Ors. v. Union of India and Ors. (1986  (2) SCC 157) the reservation in promotion was applied by  which the seniority position in Grade III (Deputy Director) was  fixed as follows: Respondent              Serial no 65 (7.3.1997)    Shri Trehan             Serial No. 137 (2.4.1980) Shri Nampoothiry        Serial No. 138 (2.4.1980)    

On 26.2.1987 based on the said seniority position of  Grade III, promotions to Grade II Junior Administrative Grade  (in short ’JAG’) (subsequently denoted as Grade I) was effected.   The promotion was by selection. The position as fixed as  follows:     Respondent      Serial no 41 (26.2.1987 being DPC date)    Shri Trehan     Serial No. 16 (26.2.1987 being DPC date) Shri Nampoothiry        Serial No. 17 (26.2.1987 being DPC date)

       The notification issued on 9.3.1987 in respect of  promotion to grade II shows the respondent at serial number

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41 and Shri Trehan and Shri Nampoothiri at serial numbers  16 and 17 respectively.  The same order was fixed by DPC.   

The respondent who was on deputation wrote to the  cadre authority on 17.6.1987 to let him know the date of his  promotion with reference to his immediate junior that is one   Balraman as per notification dated 9.3.1987 referred above.

Respondent who was on deputation was informed on  28.7.1987 that his proforma promotion is with effect from  9.3.1987 i.e. the date on which his immediate junior i.e. Mr.  Balraman assumed charge in the Labour Bureau, Shimla.   This position becomes important as according to appellant,  respondent in the present case was aware of his seniority  position on deputation to grade II at serial number 41, where  he had slipped in position vis-a-vis Shri Trehan and Shri  Nampoothiri at serial numbers 16 and 17 respectively. The  position remained despite the reservation in promotion which  gave him an edge in promotion from grade IV to grade III.  He  suffered slippage in position during promotion from Grade III  to Grade II.  The Officer had never represented on this matter  to the authorities.

       The Union of India had submitted about his slippage to  the Tribunal, which unfortunately was not taken note of.  

As reservation in promotion was not provided in the  statutory Indian Economic Services Rules, 1961 (in short ’IES  Rules’) the Government issued notification on 22.9.1989  amending the rule providing for introducing reservation in  promotion and making the same retrospectively applicable.

While taking decision on the question of promotions to  next grade (Non functional Selection Grade in short ’NFGS’)

Government operated on the seniority list based on  position in Grade I, arising from reservation in promotions in  Grade III which according to the respondents is the original  seniority. This led to the promotions to NFSG Grade in the  following manner:  

                                       Effective Date Respondent                      19.2.1991        Shri Trehan                     1.6.1990 Shri Nampoothiry                1.7.1990

In the promotions to next grade i.e. Senior Administrative  Grade (in short ’SAG’), following was the position:                                                   Effective Date Respondent                      7.3.1997        Shri Trehan                     1994-95 Shri Nampoothiry                1994-95

CAT Principal Bench in OA No. 1206 and 1288/93 by order  dated 7.1.1999 struck down the notification of the  Government providing for reservation in promotion to the  extent the same made it retrospective.  

In a writ petition filed in the Delhi High Court challenging  the order of the Tribunal, the High Court virtually granted a  status quo order restraining the Government from reverting  any person already promoted by its order dated 29.1.1999. The CAT judgment striking down retrospective  reservation in promotion was implemented by the appellant

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no.1 on 17.12.1999.  Fresh seniority list was issued in respect  of every grade starting from Grade III (at which stage the  reservation in promotion was attempted earlier).  As per this  revised seniority of these persons became as under:

               Shri D.K. Trehan         Shri Nampoothiri               Shri P.M.                                                                         Rangaswamy (Responde nt)

Original Revised Original Revised Original Revised Year of joining 1968

1968

1970

Promotion to  Grade III 2.4.1980 30.11.1978 2.4.1980 30.11.1978 7.3.1977 18.3.1983 Promotion to  Grade II 26.2.1987 * 26.2.1987 26.2.1987** 26.2.1987 26.2.1987  *** 12.5.1988 Promotion to  NFSG 1.6.1990 1.2.1990 1.7.1990 1.3.1990 19.2.1991 1.7.1992 Promotion to  SAG 1994-95 4.8.1995 1994-95 4.8.1995 7.3.1997 21.6.2001 Promotion to  HAG

7.5.2002

7.5.2002

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(In the above chart, "Original" refers to the situation with  reservation in promotion to Grade III which was used for  promotion to higher grade subsequently. "Revised" refers to  the situation after implementing the judgment of CAT dated  7.1.1999 which struck down retrospective amendment of Rule  13 of IES Rules for reservation in promotion.)

As per above details,   

* Seniority position of Trehan at serial number 16 ** Seniority position of Nampoothiry at serial number 17    *** Seniority position of Respondent at serial number 41

In OA No.1124/2000 filed by respondent, the Tribunal by  order dated 23.10.2001 directed that pending issuance of final  seniority list the applicant shall be considered for promotion  from SAG in accordance with his original seniority.  The  benefit to be granted to the respondent was stated to be  interim in nature as the department was permitted to issue  the final seniority list.  

The DPC for Higher Administrative Grade (in short ’HAG’)  held on 19.12.2001 and 27.12.2001 took into account the  order of Tribunal in OA 1124/2000 dated 23.10.2001. As per  the directions of the Tribunal that until final seniority lists are  issued, the applicant’s case for further promotion from SAG of  IES was to be considered in accordance with his original  seniority which led to his promotion to SAG w.e.f. 7.3.1997,  the DPC included him in the eligibility list as per his original  seniority in SAG.    

       As against 6 number of vacancies, his position, despite  the above dispensation was at serial number 11 and hence his  name did not figure in the final recommended list.     A review DPC was held on 15.2.2000 owing to emergence  of the fact that there were only five vacancies instead of six  considered earlier because of abolition of one post on the  recommendations of the Expenditure Reforms Commission.   Respondent was still considered as per the directions of the  Tribunal dated 23.10.2001 in OA 1124/2000.  Here also being  at serial number 11, he could not be recommended for  promotion.  In a subsequent DPC for the vacancy year 2002- 03, for one vacancy the senior to the respondent who fulfilled  the benchmark was recommended.       The Delhi High Court by order dated 14.8.2002 in Civil  Writ Petition no.888/89 set aside the order of the Tribunal  dated 7.1.1999 which struck down retrospective amendment  of Rule 13 of IES Rules and remanded the matter to the  Tribunal.           The CWP 1375/2002 filed earlier by appellant no.1  against Tribunal’s Order dated 23.10.2001 was dismissed by  the High Court by order dated 30.9.2002. All the DPCs to  consider promotions to HAG held prior to this order had  considered respondent’s case in accordance with the orders of

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Tribunal dated 23.10.2001. The DPC proceedings were,  therefore, consistent with the Tribunal and High Court’s  orders.  

       Review Petition (CP No. 217/02) filed by the respondent  was dismissed by the Principal Bench of the Tribunal by order  dated 23.10.2002 holding that the respondent has been  considered by the department and not found fit for promotion  and that no junior to the respondent had been promoted.  The  Tribunal noted that since the case of respondent was  considered by the Government for promotion in HAG, there  was no wilful disobedience on their part.

Review petition was filed by the respondent in OA  No.1124 of 2000 before the Principal Bench of Tribunal on  15.11.2002.

On 15.1.2003, respondent resigned from service. Review  petition filed by the respondent was dismissed by the Tribunal  by order dated 12.5.2003 holding that review was not  maintainable.

On 2.9.2003, the respondent filed OA No.1002/03 before  the Tribunal, Chennai Bench.  By this Court’s order dated  26.9.2003, order of the High Court dated 14.8.2002 was  stayed thus resorting the judgment of the Tribunal dated  7.1.99 striking down the retrospective reservation in  promotion. On 30.4.2004, Tribunal Chennai Bench directed  the appellant to consider respondent for HAG with reference to  his original seniority in Grade-III i.e. w.e.f. 7.5.2002, the date  on which his alleged juniors in Grade-III of the service were  promoted to HAG. On 7.8.2004 Government filed review  application RA 30/2004 in OA 1002/2003 before the Tribunal,  Chennai Bench.  

On 30.9.2004, draft seniority list was issued in  implementation of decision of Tribunal, Chennai Bench.  Review petition filed by the appellant is disposed of on  21.12.2004.  However, the Tribunal recorded the fact that the  order of the Tribunal in OA No. 1124/00 and 1002/03 had  been implemented by issuance of a seniority list.   

On 26.4.2005,   CP 21/05 was filed by the respondent. By  order dated 21.9.2005, Tribunal directed that review DPC is to  be held and its decision is to be implemented.

Final seniority list was issued by the Department on  25.10.2005 purportedly on the basis of this Court’s order in  case relating to the validity or otherwise of retrospective  application of Rule 13 of IES Rules.  

On 14.12.2005, Review DPC through special request to  UPSC was held as per the directions of Tribunal, Chennai  Bench’s order dated 21.9.2005. The Government issued a  detailed speaking order on 30.12.2005 dealing with the  representation of the respondent and informing him that his  case has been considered in terms of the order of the Tribunal  and that upon such consideration he has not been  recommended for promotion to HAG.  On 3.5.2006, the  impugned order was passed by Tribunal holding the petitioner  in contempt.   There is no dispute that there was no challenge to the  seniority list prior to 1997.  Challenge to the change of date  was not vis-‘-vis Trehan and Nampoorthiry.  So far as the

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entry to Grade IV is concerned, the applicant was junior to  Trehan and Nampoorthiry.  The challenge in the OA was not in  respect of Trehan and Nampoorthiry.  As noted, there was no  grievance prior to 7.3.1997.  It is to be noted that there was no  direction for promotion and only for consideration. Therefore,  the question of any automatic promotion does not arise.  The  Tribunal never held that the respondent was entitled to  promotion notwithstanding losing seniority. It appears from  the record that despite losing seniority respondent was  considered for promotion to HAG on the basis of Tribunal’s  order.   The parameters to be considered while deciding as to  whether contempt has been committed has been considered  by this Court in several cases.  For example Prithawi Nath  Ram v. State of Jharkhand and Ors. (JT 2004 (8) SC 165),   Director of Education, Uttaranchal and Ors. v. Ved Prakash  Joshi and Ors. (JT 2005 (6) SC 276), Dilip Mitra v. Swadesh  Chandra Bhadga (2002 (6) Supreme 249), Chhoty Ram v.  Urvashi Gulati and Anr. (2001 (7) SCC 530) and Suresh  Chandra Poddar v. Dhani Ram and Ors. (2002 (1) SCC 766). Above being the position, the Tribunal was not justified  in holding that contempt had been committed. If the  respondent has any grievance, it is open to him to assail the  same in an appropriate proceeding.   The order passed by the Tribunal is clearly unsustainable  and is set aside.  Appeal is allowed.