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PETITIONER: T. R. DHANANJAYA

       Vs.

RESPONDENT: J. VASUDEVAN

DATE OF JUDGMENT25/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  302            1995 SCC  (5) 619  JT 1995 (6)   234        1995 SCALE  (5)34

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      One D.  Dasegowda, the  then Superintending Engineer, a government employee  on deputation  to  Bangalore  Municipal Corporation  [for   short,  ’the   Corporation’]  as   Chief Engineer, was appellant in Civil Appeal No.797 of 1993. As a last resort  to salvage  him, the Government had revalidated the Rules but was unsalvaged. He had challenged the judgment of the  Division Bench of the High Court of Karnataka but by that time  he had  retired from  service as  Chief Engineer. Though he  was unsuccessful,  while declining  to  interfere with the order of the Division Bench of the High Court, this Court directed  that he  would be treated as employee of the Corporation   for   purpose   of   all   retrial   benefits. Subsequently,  the   petitioner  who   was  competing   with Dasegowda and  became successful,  filed I.A.  No. 3 in this Court, apprehending  that the benefits given to Dasegowda by virtue of  this Court’s  order dated  February 19,  1993  in Civil Appeal  No.797 of  1993  might  be  construed  by  the Government to mean denial of the rights flowing to him under the order passed by the Division Bench of the High Court and by this  Court, and  sought protection  of his  rights,  and prayed for  clarification of  the order as he was not made a party to  the appeal. The order dated March 19, 1984 made in his favour  by the  Division Bench of the High Court in W.P. Nos.20147-48/79 was  upheld by this Court in S.L.P. [c] Nos. 7317-19/84. Pursuant  thereto, by  order dated July 26,1993, passed in the aforesaid I.A., this Court clarified thus:      " The  applicant, Dhananjaya, apprehends      that by  virtue of  the orders passed by      this Court  in the  above appeal, it may      be entitled  to the benefits arising out      of the  orders passed  by  the  Division      Bench of  the Karnataka  High  Court  as      confirmed  by  this  Court  referred  to      above. It  is clarified  that this Court

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    did not intend to upset the rights given      to the applicant-Dhananjaya by virtue of      the order   passed  by this Court in the      above appeal. He will be entitled to all      the benefits  flowing from those orders.      Under  these   circumstances,   whatever      rights that  have been  accrued  to  the      applicant-Dhananjaya, he  is entitled to      all the  benefits, and to effectuate the      said rights,  if it is necessary, it may      be open  to the  Corporation  to  create      supernumerary post  for  the  period  in      question and  give the  benefits to  the      applicant for  which he  is entitled  as      per the  judgment of the Division Bench.      The  State  Government  is  directed  to      issue necessary orders in this behalf.      It  is   further  clarified   that  this      clarification does  not have  the effect      of  construing   that   the   appellant-      Dasegowda will  not be  entiled  to  the      status  and   pensionary   benefits   as      flowing from  the order  passed by  this      Court in the appeals."                           [Emphasis supplied]      Pursuant to the said order, the Government directed the Corporation to  implement the  order of  this Court,  by its order No. HUD 168 MNU 93, Bangalore dated the 2nd September, 1993, reading as below:      " In  the circumstances  explained above      the  Bangalore   City   Corporation   is      directed that Sri T.R.Dhanajaya be given      all the  benefits  flowing  out  of  the      order of  the High Court dated 19.3.1984      in writ  petition  Nos.  20147/1979  and      20148/1979 as  affirmed by  the  Supreme      Court  of  India  in  SLP  (C)  No.7317-      19/1984.      This Order is passed in obedience of the      direction of  the Supreme Court of India      contained in  the Order  dated 26.7.1993      passed in I.A. No.3 of CA 797/1993.      It  is   further   directed   that   the      Bangalore City  Corporation  shall  give      effect to  the said Order of the Supreme      Court of India."      On its  receipt, the  Corporation convened a meeting of the Taxation and Standing Committee for Finance and the said Committee in  its Subject  No.136/93 dated September 21,1993 noticing all  the disputes  and directions  issued  by  this Court resolved  to  create  one  post  of  Additional  Chief Engineer w.e.f.  1st August,  1990 in  the scale of Rs.4550- 5600/-  and   to  grant   consequential  benefits  emanating therefrom in  accordance with Section 88 [2] (3) of the Act. The Corporation in its general meeting held on April 4, 1994 resolved thus:      " Therefore,  be it resolved that a post      of Engineer-in-Chief  be created  in the      pay of  Rs.5000-6300  and  the  same  be      filled   by    deputation    from    the      Government. It  be further resolved that      the  post   of  Chief  Engineer  now  in      existence be  filled by  promotion of an      official  of  the  Corporation  than  by      deputation. It  be further resolved that

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    a supernumerary  post of  an  Additional      Chief Engineer  be created  and the said      post  be  filled  by  promotion  of  Sri      T.R.Dhananjaya in  accordance  with  the      Government order  with effect  from  the      supernumerary date."                           [Emphasis supplied]      When the  matter went to the Government, the Government in its impugned proceedings dated July 10, 1995 stated thus:      " 18.  Whereas  the  resolution  of  the      Bangalore City  Corporation as  referred      to the above at SI. No. (ix) falls short      of due  compliance to  the orders passed      by the Hon’ble Supreme Court of India on      26.7.1993 in  IA No.3  of CA  No. 797/93      separate action  as  contemplated  under      law is being taken to deal with the said      resolution.      19. And  now, therefore,  on account  of      the   failure    of    Bangalore    City      Corporation to  accord  the  appropriate      benefits as  mentioned above to Sri T.R.      Dhananjaya, the  Government of Karnataka      deems it necessary to pass the following      order:      The Bangalore City Corporation is hereby      directed to accord such benefits to Sri      T.R. Dhananjaya as are indicated in para      16 of the preamble. The Bangalore City      Corporation is further permitted to      create supernumerary posts as detailed      below for the purpose of granting such      benefits. _____________________________________________      Sl. No.                            Cadre      Period _____________________________________________      1.Superintending                    From      Engineer                      17.11.1990                                            to                                    11.12.1990 _____________________________________________      This Order  is issued in compliance with      the orders  of Hon’ble  Supreme Court of      India in  IA. No.3  of CA  No.797/93 and      the undertaking  given by the Government      of Karnataka in various cases before the      Hon’ble High  Court of Karnataka and the      Hon’ble   Supreme    Court   of   India,      including the  undertaking given  to the      Hon’ble  Supreme   Court  of   India  on      10.5.1995 in Contempt petition No.234 of      1994."      The  present   contempt  petition   is  considered  and disposed of in the aforesaid background facts.      It is  submitted by  Shri Rama  Jois,  learned  counsel appearing  for  the  petitioner,  that  the  Government  has grossly violated  the order passed by  this Court by denying to the  petitioner the  benefits arising  out of  the  order passed by  the Division  Bench of  the High Court, which was affirmed by  this Court  in the S.L.P. Nos. 7317-19/1984. It is further  submitted that  the directions  issued  by  this Court on July 26, 1993 clearly indicate that whatever rights the petitioner  was  entitled  to,  i.e.,  promotion  as  an Engineer-in-Chief,  were  to  be  given  with  consequential

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benefits  and  that  the  denial  thereof  is  a  deliberate disobedience of the orders of this Court.      Shri Santosh  Hegde, the learned Senior Counsel for the respondent contended that the order of the Division Bench of the High  Court and the order passed by this Court cannot be construed  to   mean  that   any  other   persons  who   are legitimately entitled  to the  post of Chief Engineer are to be denied the right as that would amount to contravention of the rules.  He argued  that the  Government  has  considered claims of  all the  persons in accordance with the rules and found that the petitioner was not eligible even for the post of  Chief   Engineer,  that   he  was   eligible   for   the consequential benefits  only for  24 days  as Superintending Engineer and  that one Venkatesh was eligible to be promoted as Chief  Engineer. Accordingly,  he was given the promotion as Chief Engineer. The petitioner challenged it and the High Court in  the writ  petition upheld  the right  of Venkatesh which has  become final.  It was further urged, on behalf of the respondent,  that since  the petitioner was not eligible to be  considered for  promotion to  the post  of Additional Chief  Engineer,   he  was   not  given  the  benefits  and, therefore, the  action of  the  Government  in  passing  the impugned order does not amount to contempt of the Court.      The  question,   therefore,  is   whether   the   State Government has  implemented the  direction of this Court and the earlier  order in  its letter and spirit and whether the impugned order of the Government is contumacious.      It would  be clear  from the record that the Government intended to  salvage the post of Dasegowda as he was deputed to the  Corporation by the Government as its nominee. In all the proceedings,  the Government  failed and ultimately even its attempt  to salvage Dasegowda by making amendment to the rules and  revalidation did  not yield  the desired  result, since the High Court declared those revalidation rules to be ineffective as  far as  Dasegowda was  concerned. It  is  an admitted fact  that the  dispute between  the petitioner and Dasegowda was  considered by  the Division Bench of the High Court and the right of the petitioner was upheld and that of Dasegowda was  denied. Others  who joined  in the litigation dropped out in midstream. The petitioner alone persisted and became successful.  When the  petitioner apprehended that by virtue  of  this  Court’s  order  giving  the  consequential benefits due to retirement of Dasegowda from Corporation and directing the  Corporation to  release the retrial benefits, it might  be construed  that he  was  not  entitled  to  the benefits arising  out of the orders passed by the High Court as confirmed  by this Court in special leave petitions, this Court clarified that the rights given to the petitioner were not in  any way  jeopardised and that he was entitled to all the consequential  benefits that  would flow  from the order passed by  the Division  Bench of  the High  Court.  It  was further clarified  that if  need be,  an additional  post of Chief Engineer  may be  created  to  give  benefits  to  the petitioner. The  Government was  directed to issue necessary orders in this behalf.      The Corporation created an additional post of Engineer- in-Chief  and   directed  that  in  the  post  thus  created Dhananjaya be accommodated with consequential benefits. When the matter  had remained  unattended by  the Government  and this contempt  petition was filed, Sri Hegde, learned Senior Counsel appearing  for the  Government, had  requested  this Court on  May 10,  1995 for  time for  implementation of the direction, when the following order was passed:      "Mr. Hegde,  the learned  Senior counsel      appearing for  the State  seeks for  the

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    and is  granted time  till after vaction      for implementation  of the  order.  List      the matter after vacation."      When this  order was  passed,  what  remained  for  the respondent was  only implementation  of the  order passed by this Court  in furtherance of the action taken thereunder by the  Corporation.   It  is   now  clear   that  instead   of implementing  the   order,  an  attempt  has  been  made  to circumvent the same and deny the benefits to the petitioner. As stated  earlier, the petitioner is a Corporation employee and the  stand of  the Government  appears  to  be  to  give benefit to their employees. So, an attempt has now been made to get  into the  rule position  and  to  find  whether  the petitioner is eligible to be considered for promotion to the post of  Executive  Engineer,  Superintending  Engineer  and Chief Engineer. It is now stated that according to the rules the petitioner  would be  eligible  only  as  Superintending Engineer and not as Chief Engineer. When direction was given in I.A. 3 of 1993, Government was a party to the proceedings and it  was never  brought to our notice that the petitioner was not  eligible. On  the other hand, the Division Bench of Karnataka High  Court upheld  the right  of  the  petitioner which became final.      Question is  whether it  is open  to the  respondent to take at  this stage this volte-face step.It is seen that all through the  Government was  a party. When the direction was given in  I.A. No.3 filed by the petitioner was not eligible for promotion,  in contra-distinction with Dasegowda, or any other. When  the claim inter se had been adjudicated and the claim of  the  petitioner  had  become  final  and  that  of Dasegowda was  negatived,  it  is  no  longer  open  to  the Government to  go behind  the orders and truncate the effect of the  orders passed  by this  Court by  hovering over  the rules to  get round the result, to legitimize legal alibi to circumvent the orders passed by this Court. Thus it is clear that the concerned officers have deliberately made concerted effort to  disobey the  orders passed  by this Court to deny the benefits  to the  petitioner. So,  we are  left with  no option but  to hold that the respondent has deliberately and willfully, with  an intention  to defeat  the orders of this Court, passed the impugned order.      Sri Hegde  submits that  the  respondent-contemner  was bona fide  under the  impression that he had to consider the inter se  seniority of  all the persons; he had no intention to deliberately  disobey the  orders of this Court and that, therefore, sentence  of imprisonment  may not  be awarded as punishment. He  also argued that the contemner is at the fag end of  his career, and so, sentence of imprisonment may not be imposed.      Having considered  these contentions  and given our due consideration, we  think that  there is  no justification to accede to  the contentions  raised by the learned counsel to take a  lenient view.  The reasons  are obvious.  As  stated earlier, pursuant  to the  orders passed  by this  Court the Government had  passed an order directing the Corporation to implement the  order. When  the  Corporation  had  passed  a resolution creating  a supernumerary  post and  to fill that post  by   accommodating   Dhananjaya   with   consequential benefits, the  Government was  only to  give effect  to  the order as  passed by this Court on July 26, 1993. But instead of giving  effect to  the resolution,  the Government volte- face exercised  the power to see that the order is not given effect to.  If the respondent had really harboured under any doubt, would  have asked  for  clarification.  Instead,  the Court was  prayed for  extension of time on May 10, 1995 for

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compliance which accordingly was given.      Question  is   whether   there   is   any   extenuating circumstance to  show leniency  in  imposing  the  sentence. Considering the  question in  this backdrop,  we are  of the opinion that there is no extenuating circumstance at all, as after  promoting   Venkatesh,  nothing  at  all  could  have reasonably stood  in  the  way  of  the  petitioner  to  get appointed to  the supernumerary  post  of  Additional  Chief Engineer created  by the Corporation. It is only the defiant attitude of the Government which derived him that post.      Accordingly, while  finding the  respondent  guilty  of committing contempt,  we  sentence  him  to  undergo  simple imprisonment for  one month.  In addition, the Government is directed to  give effect  to the  resolution passed  by  the Corporation with  all the  consequential benefits as ordered earlier. The contempt petition is ordered accordingly.      The registry  of this  Court is directed to communicate this order  to the Director General of Police, Government of Karnataka, on  receipt whereof  he would implement the order and submit  its compliance  to the  Registry within one week from the  date of its receipt and also within one week after sentence was served by the respondent.