Madhya Pradesh High Court
Priyanka Chouhan vs Smt. Manjula Chaudhary on 24 June, 2015
1 Contempt Petition No.505/2013
[Priyanka Chouhan vs. Smt. Manjula Choudhary]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
CONTEMPT PETITION NO.505/2013
.........Applicant : Priyanka Chouhan
Versus
.......Respondent : Smt. Manjula Choudhary
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Shri Rajmani Bansal, Advocate for applicant.
Shri Prashant Sharma, Advocate for respondent.
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Date of hearing : 13/05/2015
Date of order : 24/06/2015
Whether approved for reporting :
ORDER
(24/06/2015) Per Justice Rohit Arya, By this petition under Article 215 of the Constitution of India read with Sections 10 and 12 of the Contempt of Courts Act the applicant has made complaint of willful disobedience and deliberate non-compliance of the order passed by coordinate Bench on 26/4/2013 in Writ Petition No.6939/2011.
It is not out of place to mention that Writ Appeal No.194/2013 arising out of the aforesaid order passed in the writ petition, at the instance of non-applicant, has suffered dismissal vide order dated 16/5/2013.
The aforesaid two orders in writ petition as well as in writ appeal (supra) have withstood judicial scrutiny of Hon'ble Supreme Court, as SLP (civil) No.20265/2013 arising therefrom has been dismissed on 15/7/2013.
2 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary]
2. Facts shorn of necessary details, relevant for disposal of this Contempt Petition are to the following effect:-
Applicant-Priyanka Chouhan is the proud daughter of Late Shri P.S. Chouhan, who sacrificed his life in a militant attack in Kashmir. The applicant fulfilling educational qualification, as prescribed in the recruitment rules; Post Graduate in any discipline from recognized University with 50% marks (preferably in Public Administration/Business Administration) applied for the post of Administrative Officer in the respondent institute in response to the advertisement (Annexure P/6 with the writ petition) in the pay scale of Rs.6,500-200-10,500. Many other aspiring candidates had also applied. The Selection Committee was constituted for the purpose of selection. The composition of Selection Committee and its recommendations are quoted in para 8 of the order of Writ Court. The Committee found that out of 15 candidates shortlisted by the Committee, only 7 had appeared.
Though Committee unanimously found that none of the candidates was suitable, but made following recommendations:-
"............However, the committee recommended that Mrs. Priyanka Chauhan may be offered appointment as Administrative Officer on purely temporary basis on contract for two years in the pay scale of Rs.6500-200-10500. Subsequently, on the basis of satisfactory performance her case may be considered
3 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] for regularization."
The respondent-institute accepted the recommendations and accordingly offered appointment to the applicant vide order dated 1/9/2008 (Annexure R/4 to the counter affidavit filed by respondents in the writ petition). The applicant successfully completed her tenure of two years. Thereafter, the Nodal Officer on 16/9/2010 made recommendations in respect of applicant/petitioner for her further extension for one year or until further orders w.e.f.27/9/2010 on same terms and conditions as mentioned in her appointment letter dated 1/9/2008 to the effect that selection of Mrs. Priyanka Chauhan was made after following the due procedure and the appointment was made on contract basis against SIU sanctioned post at IITTM, Bhubaneswar. During her stay, she was discharging her official duties and responsibilities effectively. Her overall performance as Administrative Officer at IITTM Bhubaneswar to handle the administrative and accounts related work in the institute was satisfactory. Accordingly, the competent authority, i.e. the Chairman (A & F) and Director on acceptance of recommendations ordered for further extension for a period of one year or until further orders. Thereafter, petitioner continued. Three consecutive Annual Confidential Reports for the period 27/9/2008 to 31/3/2009, 1/4/2009 to 31/3/2010 and 14/2010 to 31/12/2010 were recorded in the prescribed form inclusive of self appraisal and applicant was awarded satisfactory remarks by the superior 4 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] authorities, approved by the Director.
3. In the background of aforesaid facts applicant applied for regularization of her services. However, her appointment as Administrative Officer was not further extended and thereby in fact her services were terminated. The post of Administrative Officer was sought to be re-advertised.
In the aforesaid backdrop of facts applicant/petitioner approached this Court by filing writ petition No.6939/2011. The Writ Court after addressing upon the contentions advanced by the applicant/petitioner as well as respondents in the matter of regularization of services of applicant/petitioner by a detailed order (supra) has concluded that petitioner's service record during her term as Administrative Officer has been found satisfactory. Because of her satisfactory performance the Nodal Officer had recommended her further continuance and the recommendation was accepted by the Director / Competent Authority and accordingly she continued as Administrative Officer. The contention of respondents that petitioner was considered, but not found fit for regularization was found to be incorrect and belied in the context of Annexure R/4, which was claimed to be the order passed denying regularization. The Writ Court has found that by the aforesaid communication instead of considering the claim of petitioner for regularization, it was ordered that the post be filled up by re-advertisement and the case of petitioner was not at all considered for regularization: para 13 of the order of Writ Court, 5 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] which is quoted hereinbelow:-
"(13) On the contrary, the columns which were required to be filled up by reviewing and accepting officer, are also lying vacant and, therefore, in my opinion, this cannot be a reason to deprive the petitioner from consideration for regularization, if she is otherwise eligible. It is also noteworthy that Nodal Officer after grading the petitioner's services as "satisfactory", recommended for extension of her services on contract basis vide Annexure R-27. In turn, the competent authority i. e. Chairman ( A & F)/ Director opined that on report and recommendation of Nodal Officer, Bhubaneswar contract of petitioner may be extended for a period of one year or until further order, whichever is earlier, w.e.f. 27-09-2010 on existing terms and conditions. Thus, report and grading with regard to the petitioner as "satisfactory" is accepted and acted upon by the respondents. After this, by no stretch of imagination it can be said that the petitioner's services were not satisfactory during her first term of contractual appointment. Thus, in my opinion, the petitioner's services were found to be satisfactory and, therefore, only she was given another chance of one year on contract basis to serve the Department. Annexure R-14 dated 30th September, 2011 does not support the averments made in this regard. In para 9 of the return of respondents no.1 to 3, it is stated that the case of regularization of the petitioner was rejected. When this pleading is examined in juxtaposition to contents of Annexure R-14, it became clear like noon day that there was no consideration of her for regularization. In other words, the said order does not indicate that the petitioner's case was considered and she was not found
6 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] fit. No other material is placed on record to show that the petitioner was actually considered for regularization. In that event, the respondents should have filed the Minutes of Screening Committee to show that petitioner was actually considered and was not found fit for regularization. Thus, in my opinion, the respondents have not considered the case of the petitioner for regularization at all."
Thereafter, the Writ Court addressed upon the issue as regards entitlement of the petitioner for regularization and ordered that the petitioner had sufficient experience for being considered for regular appointment and the contention of the respondent justifying non-consideration of petitioner's claim on the premise that she did not have required experience was rejected. The Writ Court further held that the petitioner cannot be treated to be having unsatisfactory record, therefore, there was no reason or justification to deprive the petitioner from right of consideration, moreover when SIU had already decided to regularize employees on certain posts including the post of Administrative Officer (para 20 of the Writ Court order referred to). Besides, it was found that respondent had adopted pick and choose policy in the matter of regularization and certain employees, whose names were mentioned in detail in the rejoinder, were taken note of and petitioner was found to have been subjected to typical hostility and depravity violating her fundamental rights enshrined under Article 14 and 16 of the Constitution of India: para 21 of the Writ Court 7 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] order referred to.
With the aforesaid reasonings and justifications since petitioner was held entitled for regularization and, therefore, in para 23 of the order the Writ Court passed the following order:-
"(23) Accordingly, this petition deserves to be allowed. The respondents are directed to consider the case of the petitioner for regularization from the due date.
The respondents shall complete the exercise of consideration of the petitioner within a period of two months and pass order thereupon. For the reasons stated above, impugned advertisement is quashed."
4. Respondent having failed to succeed challenging the order passed by the Writ Court, in fact and in effect, were required to give effect to the order of the Writ Court in the matter of regularization of the petitioner in letters and spirit. That was not done, which led to filing of contempt petition.
5. As evident from para 6 of the written submissions submitted by the respondent/contemnor, no criteria is prescribed for consideration for regularization of appointment as Administrative Officer. For ready reference para 6 of the written submissions is quoted hereinbelow:-
"6. It is further required to be seen here that under the recruitment rules no criterion prescribed for consideration and 4 years' ACR has been taken into consideration." Respondent, in purported compliance of the Writ Court order, it appears, constituted a committee of five persons and the 8 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] committee treated the service record/performance reports of the petitioner of the period 27/9/2008 to 31/3/2009, 1/4/2009 to 31/3/2010 and 1/4/2010 to 31/12/2010 as 'average', whereas for these three spells petitioner's performance was found to be satisfactory and by virtue of recommendations for further extension, she continued to work. There is no material on record as to on what basis or criteria the petitioner's aforesaid three reports bearing appraisals as satisfactory performance by superior authorities were treated average for all the three spells.
That apart, for the fourth spell from 1/1/2011 to 31/12/2011 no ACR folder is produced before this Court and petitioner was graded as 'poor'. Aforesaid so called performance report is in the form of a note-sheet initiated by one K.P. Gautam, Consultant, on 20/1/2012 requesting the Nodal Officer, IITTM, Gwalior to give report on the performance of the petitioner for the period 1/1/2011 to 31/12/2011 for consideration of her case for regularization by the competent authority. It is brought on record by the petitioner/applicant that the then Nodal Officer is now the Director. The Nodal Officer's performance report is not supported by any assessment sheet. The said report though is allegedly of 20/1/2012, but was neither placed before the Hon'ble Single Judge nor before the Hon'ble Division Bench in Writ Appeal No.194/2013 and only during the course of contempt proceedings is prepared to deny the claim of the petitioner for regularization on 9 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] the post of Administrative Officer and the same was produced before this Court on 21/4/2015. The remark that her performance was highly unsatisfactory and allegation that considering her activity her further continuance was not recommended are though derogatory and adverse in nature, but not supported by any material on record. Such comments without any basis cannot be accepted as a justification to deny petitioner her claim for regularization as ordered by the Writ Court. That apart, it appears that the aforesaid note-sheet was prepared antedated, as there is no explanation as to why the independent note-sheet is prepared without ACR assessment sheets/folder prescribed for writing of the ACR containing self assessment of the employee. The note sheet also does not bear any file number, dispatch number etc. and review by the reviewing authority. That apart, there is also no explanation as to why the alleged note-sheet was not produced before the Writ Court or before the Writ Appellate Court in the form of counter affidavit or additional documents. The submission of learned counsel for the applicant has substantial force that the contents of the documents were fabricated only to deny the legitimate claim of the applicant for regularization.
Under such facts and circumstances of the case, in the opinion of this Court, respondent has acted in utter disregard to the mandate issued by the Writ Court and confirmed by the Writ Appellate Court, as this Court finds no justification in treating the performance of the petitioner for three spells, namely, 27/9/2008 10 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] to 31/3/2009, 1/4/2009 to 31/3/2010 and 1/4/2010 to 31/12/2010 as 'average' by the Screening Committee and taking into consideration the alleged fourth spell remark, namely, 1/1/2011 to 31/12/2011 as 'poor' for denying the claim of regularization as Administrative Officer. That apart, similarly situated employees have been regularized, as well discussed by the Writ Court in para 20 of the order, thereby petitioner has been subjected to typical hostility and depravity. Respondent in fact and in effect has attempted to scuttle the mandate contained in the order of the Writ Court and defied the directions issued thereunder. As such, respondent is found to have committed contempt of Court.
However, before proceeding against the respondent for contempt of Court and to impose suitable punishment, it is considered apposite to allow an opportunity to respondent/contemnor-Smt. Manjula Choudhary to purge the contempt or to show cause as to why she should not be punished for contempt of Court. Accordingly, office is directed to issue notice to respondent on the aforesaid count returnable withing two weeks for appearance on 14th July, 2015. State of Bihar and others vs. Rajendra Singh and another, (2007) 15 SCC 688 referred to.
Put up the case on 14th July, 2015.
(Rohit Arya) Judge Arun* 11 Contempt Petition No.505/2013 [Priyanka Chouhan vs. Smt. Manjula Choudhary] HIGH COURT OF MADHYA PRADESH, JABALPUR, BENCH AT GWALIOR CONTEMPT PETITION NO.505/2013 .........Applicant : Priyanka Chouhan Versus .......Respondent : Smt. Manjula Choudhary ORDER post for 24/06/2015 (Rohit Arya) Judge 23/06/2015