Bombay High Court
All India Customs Officers (Direct ... vs Union Of India (Uoi) And Ors. on 19 December, 2002
Equivalent citations: 2003(4)BOMCR328
Bench: V.G. Palshikar, V.G. Munshi
JUDGMENT V.G. Alshikar, J.
1. By this petition the petitioners have challenged the order dated 13-2-2002 passed by the Central Administrative Tribunal in exercise of its power under section 17 of the Administrative Tribunals Act (hereinafter referred to as the Act) initiating proceedings of the contempt of the Tribunal and directing framing of charges against the contemners mentioned in the order who are high placed officials of the Government of India.
2. The entire dispute which originally started in the year 1977 is between the three cadres which form the eligibility cadres for promotion to a higher cadre. To put it in oft used language the fixation of quota for promotion in the promotional cadres from the three feeder cadres is the subject matter of the dispute. It would be necessary therefore to note in detail the facts giving rise to the controversy which has now given rise to contempt of Court proceedings.
3. The petitioner No. 1 All India Customs Officers (Direct Recruit Appraisers) Association is the association of the direct recruit appraisers who are Customs Officers. The petitioner No. 2 is an individual customs appraiser. The respondent No. 1 is Union of India, the basic employer of all the three cadres. The respondent No. 2 is the Commissioner of Customs. Respondent No. 3 is Joint Secretary Administration, Ministry of Finance, Department of Revenue, Government of India, who is responsible of administration of the revenue department in the Ministry of Finance. Respondent No. 4 is Bombay Custom Preventive Service Association which is an association of Superintendents of Customs which are one of cadres for promotion to the higher cadre along with direct recruited customs appraisers. Respondent Nos. 5, 6, 7 and 8 are working as Superintendents of Customs (Preventive) respondent No. 9 is Bombay Customs Appraising Officers Association (promotee appraisers) representing custom apprarisers who have become as such by promotion to that post.
4. Recruitment to Group A post in the Indian Customs and Central Excise Service are filled in by two methods. (1) Direct recruitment through Union Public Service Commission and (2) by promotion. The post to be filled in by promotion are to be filled in from three feeder Group B cadres namely (1) Superintendent of Central Excise, (2) Superintendent of Customs (Preventive) and (3) Customs Appraisers (either promoted or directly recruited).
5. The disputes started in 1978 by filing of a writ petition in the Supreme Court of India under Article 32 of the Constitution challenging the method of filling up Group A posts by promotion and a prayer was also made to evolve the proper method for promotion if necessary by making rules. These Writ Petitions bearing Nos. 4532 and 4533 of 1978 were disposed of by Supreme Court on 23-9-1987 directing that the promotions in dispute should be reviewed in accordance with the statutory Recruitment Rules framed in 1987 called Indian Customs and Central Excise Service Group A Rules of 1987. According to the direction of the Supreme Court of India the promotions in dispute were to be reviewed in accordance with those statutory Rules.
6. The Superintendent of Central Excise being one feeder cadre, filed two writ petitions in the Supreme Court of India, being W.P. No. 306/88 and 1200 of 1988 as they were aggrieved by filling up Group A posts by promotion in accordance with Rule 18 of the Indian Customs Central Excise Service Group A Rules 1987 (hereinafter referred to as the Recruitment Rules of 1987).
7. On 22-11-1996 the Supreme Court disposed of W.P. No. 306 and 1200 of 1988 along with W.P. No. 1093 of 1990 and contempt petition filed by the petitioner in W.P. Nos. 4532 and 4533 of 1978. By this judgment the Honourable Supreme Court took a note of the proposal put forth by the Government of India dated 8-6-1989 by which Government of India suggested that the quota for promotion among the three feeder cadres i.e. Central Excise Superintendent, Customs Superintendent (Preventive) and Custom Appraisers will be fixed in the ratio of 6:1:2 and directed Government of India to amend 1987 Rules and accordingly thereafter review all promotions made after 1979 to Group A in the light of the duly modified Recruitment Rules.
8. W.P. 651/97 was thereafter filed in the Supreme Court by Superintendent of Central Excise, one of the feeding cadres finding incorrect implementation of the judgment dated 22-11-1996 by which writ petitions filed by the Superintendent of Central Excise were disposed of. According to them inspite of the decision in their earlier writ petitions, the respondent Union of India and its officers are not properly implemented the judgment of the Supreme Court dated 22-11-1996 by which the above petitions were dismissed.
9. During the pendency of the writ petition since 1988 certain interim applications were filed in W.P. No. 306/88 which stood decided or disposed of by the order of the Supreme Court dated 22-11-1996.
10. By the order of 22-2-1999 the Honourable Supreme Court disposed of W.P. No. 651/97 along with all other interim Applications in W.P. 306/86. W.P. 651/87 was rejected. Interim Applications No. 6 filed by the custom superintendents for change in the ration between them and the custom appraisers on the basis of comparative cadre strength was rejected as not maintainable with liberty to them to make out a fresh case before competent authority, the Government of India.
11. It will therefore be seen that the entire dispute regarding fixation of the ratio for promotion to Group A cadre from the feeder cadres finally adjudicated upon by the Supreme Court by its order dated 22-2-1999.
12. Then O.A. No. 485/99 was filed before the Central Administrative Tribunal, by respondents 4 to 8 of the petition i.e. Superintendents of Customs (Preventive). Yet another O.A. No. 556/99 was filed by one Shri Atanu Chaudhary, Superintendent of Customs (Preventive) claiming identical reliefs and therefore both the Original Applications being 485 and 556 of 1999 were decided by the Central Administrative Tribunal, Bombay Bench, Bombay its judgment dated 10th July, 2001. Those original applications were disposed of by the Tribunal with the following observations:
"Keeping in view the limited scope of the Tribunal in such matters where promotional avenues are to be considered, as there is a substantial increase of the cadre strength of Superintendent of Customs (P) by more than 127% after the determination of their quota by the Apex Court judgment, while there has been a small increase i.e. 34" in quota of appraisers we fell it just and fair to direct the respondents to consider the grievances of Superintendent of Customs (P) and appraisers within a period of three months providing them just and fair opportunity of their representation to the post of Assistant Commissioner of Central Excise and thereafter to fill the existing vacancies. With these observations, the OAs stand disposed of. No order as to costs."
13. It will thus be seen that the Central Administrative Tribunal directed the respondent i.e. Union of India and its officers to consider the grievance of Superintendents of Customs (preventive) and appraisers within a period of three months providing them just and fair opportunity of their representation to the post of Assistant, Commissioner of Central Excise and thereafter to fill the existing vacancies. It is very important to note that this order was passed on 10th July, 2001 after the judgment of the Supreme Court of India dated 22-2-1999 holding that Union of India is the authority to decide the quota or variance therein. We will consider in detail the order of the Supreme Court at a latter stage. Here only thing to be noted is the directions issued by the Tribunal on 10th July, 2001 inspite of the directions of the Supreme Court in 1999.
14. Thereafter representations were made by the original applicants in O.A. Nos. 485 and 556 of 1999 for implementation of the directions contained in the order dated 10th July 2001. Since no action as desired by those applicants was taken by the Union of India, within the time as claimed by the applicants, the Contempt Petition No. 107/2001 in O.A. No. 485/99 was filed claiming that the action on the part of the Government of India to act according to the directions issued on 10-7-2001 was voluntary and wilful disobedience of the order of the Tribunal and therefore the officers concerned, who are named in the petition were liable to be punished for Contempt of Courts Act for willful violation of the order passed by the Tribunal. Notices were issued and by the order dated 13-2-2001 Tribunal decided to take cognizance of the contempt holding that prima facie case has made out and directed framing of charges against Dr. S. Narayan, Secretary, Government of India, Ministry of Finance, Department of Revenue and Mrs. Charusheela Sohoni, Joint Secretary (Administration), Ministry of Finance, Department of Revenue, New Delhi being the officers responsible in implementing the order dated 10-7-2001. It must be noted here that in the contempt petition, the Union of India, Commissioner of Customs, Joint Secretary Finance, All India Customs Officers, direct recruited appraiser's association. All India customs appraising officers associations were also made parties.
15. Feeling aggrieved by the unwarranted action under the Contempt of Courts Act against them the Union of India, the Secretary to the Government of India Dr. S. Narayan, and Joint Secretary Mrs. Charusheela Sohoni challenged the order before the Honourable Supreme Court by filing S.L.P. being S.L.P. (C) bearing No. 6173/02. This S.L.P. was decided by Supreme Court on 13-3-2002 by the following order :
"Taken on Board. It is not necessary to interfere at this stage. The S.L.P. is dismissed."
16. While directing framing of charge against the contemners by its order dated 13-2-2002 the Tribunal exercising its jurisdiction under section 17 of the Act to punish for its own contempt. This action on the part of the Tribunal was considered to be beyond jurisdiction by the association and therefore the petitioners association challenges that order in this Court by this writ petition contending that : (1) The Tribunal had no jurisdiction to issue the direction and grant relief of change of ratio, violation of which was complained in the contempt proceeding; (2) The order dated 13-3-2002 taking cognizance of contempt and issuing directions which were beyond jurisdiction, the Tribunal itself acted without jurisdiction and no contempt at all was committed. Its entertaining the contempt proceeding and making the order dated 13-2-2002 was totally without jurisdiction and therefore liable to be quashed.
17. In view of the fact that while giving a prima facie finding of contempt being committed, the Tribunal issued certain directions, not related at all to any possible contempt of its own order and therefore the above writ petition was filed. Stay of the order for directing presence and framing of charges etc. was prayed for along with other reliefs as will be seen from the prayer clauses. It will be worthwhile to note all the prayer clauses at this juncture.
a) That this Hon'ble Court be pleased to hold and declare that the Tribunal did not grant any relief to respondent Nos. 4 to 8 herein to change of the existing ratio of 6:1:2 for promotion to Group A Posts of Indian Customs and Central Excise Service, by the judgment dated 10-7-2001 in O.A. No. 485/99.
b) That this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction and call for the record and proceedings leading to the passing of the judgment and order dated 10-7-2001 in O.A. No. 485/99 and after examining the legality and/or propriety of the said judgment and order, quash and set aside the same.
c) That this Hon'ble Court be pleased to direct the respondents 1 to 3 to consider the grievances of the petitioners as set out in their representations dated 25-7-2001 and 14-9-2001 and communicate their decision thereon.
d) That this Hon'ble Court be pleased to issue a writ of certiorari or any other appropriate writ, order or direction and call for the record and proceedings leading to the passing of the order dated 13-2-2002 in Contempt Petition No. 107/2001 in O.A. No. 485/99 and after examining the legality and/or the propriety of the same, quash and set aside the same.
e) That this Hon'ble Court be pleased to hold and declare that the C.A.T., Mumbai Bench, has exceeded its jurisdiction in passing the order dated 13-2-2002 which goes beyond the directions given in judgment dated 10-7-2001 in O.A. No. 480/99.
f) That pending the hearing and final disposal of this writ petition, this Hon'ble Court be pleased to stay the operation of the judgment and order dated 10-7-2001 passed in O.A. No. 485/99 by the C.A.T., Mumbai Bench.
g) That pending the hearing and final disposal of this petition this Hon'ble Court be pleased to stay the order dated 13-2-2002 passed in Contempt Petition No. 107/2001 in O.A. No. 485/99.
h) That pending the hearing and final disposal of this writ petition, the respondents 1 to 3 be directed to grant promotions to Group A on the basis of the ratio of 6:1:2.
i) That ad interim relief in terms of prayers (f), (g) and (h) above be granted.
j) That such other and further writ, order or direction be passed as the facts and circumstances of the case may require.
k) That costs of this petition be provided of."
18. This Court after hearing the arguments of the petitioner and the respondent who appeared through caveat filed earlier issued rule and it was restricted to prayer (d) only. Stay ordering presence of Government officials was also granted. The order made by this Court while giving Rule reads thus:
"Rule only in terms of prayer Clause (d)".-Additional affidavit if any may be filed within four weeks from today, as the interim relief which is restricted to Clause (g). Put up this matter for orders regarding final hearing in the first week after reopening of the Court of summer vacation of 2002. High on Board."
19. The matter was accordingly placed before the Court and was adjourned from time to time. Ultimately arguments were heard and matter was closed for judgment.
20. It is in the light of these facts and contentions raised by the contesting parties that we have to decide the controversy. It would therefore be necessary to note briefly the contentions raised by the contesting parties.
21. The learned Counsel appearing for the petitioner questioned the correctness of the order passed by the Central Administrative Tribunal on 13-2-2002 in Contempt Petition No. 107/2001 in O.A. No. 485/99 submitted that the order was wholly without jurisdiction as no contempt whatsoever was committed by any of the officials and therefore the order was without jurisdiction and is liable to be quashed. The second contention raised on behalf of the petitioner was that the Contempt Petition No. 107/2001 complained of some willful disobedience or violation of an order made on 10-7-2001 by the Tribunal. It was therefore called upon to exercise its power under section 17 of the Act to punish the contemners for such willful violation. The Tribunal was thus exercising its powers only under section 17. It could not exercise its other powers as those were exercised in deciding O.A. No. 485/99. The jurisdiction of the Tribunal was extremely limited to consider the question of commission of contempt by contemners. Yet the Tribunal preceded to issue directions regarding change in the ratio and those directions obviously could not issue in contempt jurisdiction and therefore the order dated 13-2-2002 was liable to be quashed. It was the contention of the learned Counsel for the petitioner that the Tribunal has obviously travelled beyond its jurisdiction under section 17 of the Act and therefore the issuance of certain directions by the order holding prima facie that contempt appears to have been committed was wholly without jurisdiction.
22. The submissions as also the prayers made in the petitioner though restricted to prayer (d) were stoutly and vehemently opposed by the learned Counsel representing the various respondents and association. The arguments on behalf of the opposing respondents were led by Mr. Cama. The learned Counsel Mr. Cama opposed the basic maintainability of the petition and the consequent entertainment thereof by this Court.
23. According to him, the petition itself was not maintainable. He also made his submissions on merit and pointed out that even if it is assumed that the petition is maintainable, what has been done by the impugned order is to call upon the contemners to show cause why they should not be penalized for committing willful breach of the order made. The submissions of Mr. Cama noted briefly are as under :
1) This Court should not exercise its jurisdiction under Article 226 of the Constitution to quash the contempt proceeding when all that has been done in those proceedings is to issue notice of contempt and direct framing of charges. According to him in the event of conviction also an appeal is maintainable under section 19 of the Contempts of Court Act and therefore there is no need for interference at this juncture.
2) The order impugned dated 13-2-2002 was challenged in the Supreme Court in S.L.P. (Civil) No. 6173/2002 and the Hon'ble Supreme Court by its order dated 13-3-2002 declined to interfere. The order reads thus :
"Taken on Board. It is not necessary to interfere at this stage. The S.L.P. is dismissed."
24. According to the learned Counsel the order dated 13-2-2002 has thus merged in the order of the Supreme Court declining to interfere and therefore this Court being subordinate to the Supreme Court of India cannot undertake exercising of its jurisdiction under Article 226 of the Constitution in relation to this order.
3) Assuming that there is no merger of order dated 13-2-2002 with the order of Supreme Court of India and further assuming that interference at the interlocutory stage is also permissible. There is no reason to interfere on the facts of this case because there has been willful disobedience of the order of Tribunal and the Tribunal therefore does have jurisdiction to punish for the disobedience.
25. It was also the submission of Mr. Cama that in view of the provisions of section 17 of the Administrative Tribunals Act, 1985 the Tribunal has given the jurisdiction and power to punish his own contempt. The section provides that the Tribunal shall have the same power as this Court has under the provisions of Contempt of Courts Act, 1971. In so far as the contempt proceedings are concerned Central Administrative Tribunal established under the Administrative Tribunal Act, 1985 and this Court is having co-ordinate jurisdiction and therefore this Court cannot take up consideration of legality, validity or impropriety of the order passed by the Central Administrative Tribunal. He also contended relying on several judgments of the Supreme Court that the Tribunal was within its power to come to a prima facie conclusion of initiation of Contempt Proceedings. Under section 17 of the Administrative Tribunals Act, 1985 it does have the jurisdiction to punish for its own contempt within that jurisdiction and has issued the notice. The act of issuing notice and framing of charge is the act within the jurisdiction of the Tribunal and therefore there is no error of law committed by the Tribunal requiring interference by this Court under Article 226.
26. He also contended that there is no jurisdictional error committed by the Tribunal as it does have the jurisdiction as mentioned above and therefore for lack of jurisdiction also there cannot be an interference by this Court.
27. These preliminary objections raised by Mr. Cama were strongly opposed by Mr. S. Ramamurthy for the petitioner and Mr. Sethna for the Union of India. It was contended by them that the jurisdiction of this Court under Article 226 is wider than that of the Supreme Court under Article 32. By series of judgments it has been laid down by the Supreme Court of India that the Administrative Tribunals established only in 1885 and are subordinate to the High Court and therefore amenable to its jurisdiction under Article 227. He also submitted on the theory of merger of judgment that no such things had happened because what has been done by the Supreme Court is to reject the S.L.P. in limine as in the opinion of the Supreme Court interference at that stage was not necessary. Their contention was that the order passed by the Tribunal in exercise of its jurisdiction under the Act was palpably without jurisdiction and therefore the petition even at the stage of interlocutory order was liable to be entertained relying on several judgments of the Supreme Court where such exception was considered. According to the learned Counsel when the Tribunal was bent upon exercising jurisdiction which did not vest in it, that exercising is liable to be prevented at the earlier stage and therefore this case is exception to the general rule that no interference should normally be done a the interlocutory stage.
28. We are unable to accept the preliminary objection as raised by Shri Cama regarding tenability of the petition under Articles 226 and 227 of the Constitution. True it is that the jurisdiction exercised by the Tribunal under section 17 of the Act is co-ordinate with the jurisdiction of this Court under Article 215 as also under the provisions of the Contempt of Courts Act. But it is obvious as has been held by the Supreme Court that the Tribunal is subordinate to the High Court in all respect and therefore its orders made under the Contempt of Courts Act, interlocutory or otherwise, are open for judicial review under Articles 226 and 227 of the Constitution. The judgment of the Supreme Court reported in (2001(2) Administrative Tribunal Judgments page 378), the Supreme Court of India has laid down that the Tribunal even while exercising its jurisdiction under sections 6 and 17 of the Act, remains a Tribunal and is therefore amenable to the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. The observations of the Supreme Court in this regard are under :
"The jurisdiction is the same as vesting in the High Courts under Article 215 of the Constitution read with the provisions of the Contempt of Courts Act, 1971. The need for enacting section 17 arose, firstly, to avoid doubts, secondly, because the Tribunals are not "Courts of record". While holding the proceedings under section 17 of the Act the Tribunal remains a Tribunal and so would be amenable to jurisdiction of High Court under Article 226/227 of the Constitution subject to the well-established rules of self-restrain governing the discretion of the High Court to interfere with the pending proceedings and upset the interim or interlocutory orders of the Tribunals."
29. The Supreme Court has thus conclusively held that the orders of the Tribunal under section 17 are amenable to the jurisdiction of this Court. The Supreme Court has also observed that it should be exercised subject to the well known rules of self restraint governing the discretion of this Court to interfere with such pending proceedings and upset the interim and interlocutory orders of the Tribunal. It is obvious therefore that this Court should apply the rules of self restraint and normally avoid upsetting interim and interlocutory orders of the Tribunal. This rule has its well known exceptions such as the total lack of jurisdiction in the Tribunal. The main contention raised by the petitioner in this petition is lack of jurisdiction and therefore we can, in the circumstances, entertain this matter.
30. There are several judgments of the Supreme Court in laying down that the orders rejecting S.L.P. in limine cannot conclude the proceeding and cannot act as res judicata. Therefore that objection of Mr. Cama is also liable to be rejected.
31. We would like to note here on this point the latest judgment of the Supreme Court in Saurashtra Oil Mills Assn., Gujarat v. State of Gujarat and another, the Supreme Court observes thus :
"Repeatedly, it has been held that dismissal or special leave petition without a speaking order would only mean that the Court was not inclined to exercise its discretion in granting leave to file the appeal. It does not attract the doctrine of merger and the view expressed in the impugned order does not become the view of this Court. The dismissal of the special leave petition by a non-seeking order would remain a dismissal simpliciter."
So it has been repeatedly held by the Supreme Court that in such situation doctrine merger does not apply.
32. That takes us to the next contention of Mr. Cama that the order dated 13-2-2002 passed by the Tribunal merged into the order passed by the Supreme Court dismissing the S.L.P. in limine and therefore this Court cannot even in exercise of powers under Article 226 of the Constitution question that order, because that order has merged into the order of the Supreme Court dated 13-3-2002. Reliance was placed by Mr. Cama for this purpose on a judgment of the Supreme Court in State of Maharashtra and another v. Prabhakar Bhikaji Ingle, . In that very judgment in para 3 the Supreme Court has observed as under :
"It is true that this Court has held that the dismissal of S.L.P. without speaking order does not constitute res judicata."
So this judgment on which heavy reliance was placed by Mr. Cama itself conclusively rejects the submission that after dismissal of the S.L.P., this Court could not entertain the petition challenging that very order on 13-2-2002, on the principles of res judicata.
33. It is the contention of Mr. Cama that taking up of entertaining this petition challenging the order dated 13-2-2002 passed by the Tribunal is amounting to review of the order of Tribunal as the jurisdiction of the Tribunal under the provisions of the Administrative Tribunals Act and the Contempt of Courts Act being co-ordinate with that of the High Court. Something which could not have been done by the Tribunal could not be done by this Court because of the fact that the jurisdiction under the Contempt of Courts Act are co-ordinate. Reliance was also placed on the above judgments, which held that the powers of review which the Tribunal has rather analogous to the power of review as contemplated by C.P.C. in Order 47 of that Code. The facts giving rise to the said appeal in the Supreme Court are liable to be noted. The Original Application No. 1169/93 was filed in the Maharashtra Administrative Tribunal, Bombay against the order passed by the Commissioner of Police, Bombay, removing the applicant in the original application from service. The (Original Application No. 1169/93), was dismissed by Maharashtra Administrative Tribunal on 6-3-1995. An S.L.P. carried to the Supreme Court of India against this order also came to be dismissed on 25th August, 1995. During the pendency of that S.L.P., the respondent employee filed an application for review in the Maharashtra Administrative Tribunal and the Tribunal after receipt of the order passed by the Supreme Court on 25-8-1995 dismissing the S.L.P. reviewed its own order by order dated 2-11-1995 and set aside the order of dismissal. It was in these circumstances that the matter was taken to the Supreme Court of India by the State of Maharashtra. It was in the circumstances that the above order was passed by the Supreme Court holding that the Tribunal did not have the power of review whether independently under the Act or under Order 47 of the C.P.C. Because that order was not available for review and in view of the fact that the S.L.P. against that order was dismissed on merit by the Supreme Court. The order passed by the Tribunal on 6-3-1995 thus merged in the order of the Supreme Court rejecting S.L.P. on 25-8-1995 and therefore there is no order which could be reviewed under Order 47 of C.P.C. or any other empowering provision in the Tribunals Act and therefore the Supreme Court found as under.
"We find that the exercise of the review power is deleterious to the judicial discipline. Once this Court has confirmed the order passed by the Tribunal, that becomes final. Therefore, the Tribunal cannot have any power to review the previous order which stands merged with the order passed by this Court."
34. It will therefore be seen that the order which according to the Supreme Court of India merged in its own order was passed by the Tribunal in exercising its original jurisdiction. In the present case the order is passed by the Tribunal in exercising its jurisdiction to punish its own contempt. The order dated 13-2-2002 is an interlocutory order. The contempt proceedings are still pending. The matter would be entirely different if the Tribunal decides the contempt petition and the matter is taken to the Supreme Court and the order of the Tribunal is affirmed, and in such situation it may not be possible to take up review of that order either by Tribunal or by this Court. But the facts in this case are different. This Court is approached for exercising its jurisdiction under Articles 226 and 227 of the Constitution with complaint that the Tribunal is exercising jurisdiction unnecessarily, there is no cause to complain of contempt and therefore to stop unwarranted exercise of jurisdiction or to prevent exercise of jurisdiction which never existed in the Tribunal.
35. Affirmation of interlocutory order by a higher Court or by the Supreme Court of India does not convert that interlocutory order into something else. In the present case the Supreme Court found it not fit to interfere at the interlocutory stage and therefore declined to interfere at that stage. The very declining of the S.L.P. at that stage by the Supreme Court denote that the power can be continued to be exercised by the Tribunal and the Supreme Court was not inclined to interfere in the interlocutory stage. This judgment is therefore of no use to the respondent.
36. Reliance was then placed by yet another judgment of the Supreme Court in Gopabhandhu Biswal v. Krishna Chandra Mohanty and others, . Here also the Supreme Court has held that where S.L.P. filed against the judgment of the Tribunal is dismissed, the judgment of the Tribunal becomes final and binding between the parties and review is not permissible. In that case also Supreme Court of India held that after the order of the Tribunal is affirmed by the Supreme Court, power of review cannot be exercised by the Tribunal as the order stands merged into the order of Supreme Court for the reasons mentioned above. This judgment also is therefore not applicable to the facts of this case.
37. Heavy reliance was placed on the following observations of the Supreme Court:
"8. The power of review which is granted to an Administrative Tribunal is similar to power given to a Civil Court under Order 47, Rule 1 of the Code of Civil Procedure. Therefore, any person (inter alia) who considers himself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred can apply for review under Order 47, Rule 1(1)(a). An appeal lies to this Court from a decision of the Administrative Tribunal. If an appeal is preferred, the power to review cannot be exercised. In the present case, a special leave petition to file an appeal was preferred from the judgment of the Tribunal in T.A. No. 1 of 1989 in this Court, and the special leave petition was rejected. As a result the order of the Tribunal in T.A. No. 1 of 1989 became final and binding. The rejection of a petition for leave to appeal under Article 136 of Constitution, in effect, amounts to declining to entertain an appeal, thus making the judgment and order appealed against final and binding. Once a special leave petition is filed and rejected, the party cannot go back to the Tribunal to apply for review."
38. As will be seen that the Supreme Court has considered the earlier judgment and after citing more decisions, the Supreme Court observed that after the merger of the order of the Tribunal with that of the Supreme Court order, nothing remains which could be reviewed under Order 47. Therefore, the contention that after rejection of the S.L.P., this Court should not exercise our jurisdiction to review the order dated 13-2-2002 before us under Articles 226 and 227, for the simple reason that we are not reviewing order dated 13-2-2002. Its validity is questioned.
39. In our opinion, our considering the correctness of the order dated 13-2-2002 and the correct exercise of jurisdiction for making that order in our power of superintendence under Article 227 of the Constitution, there is therefore no question of our reviewing the order. We are unable to accept the theory of merger also as observed above. Therefore, we reject the contention of the learned Counsel for not entertaining the petition.
40. In fact in our opinion the order dated 10-7-2001 passed by the Tribunal, disobedience of which is complained of as contempt itself was without jurisdiction. According to the contentions as raised by respondent themselves, it will be seen that the order passed by the Tribunal on 10-7-2001 on O.A Nos. 485 and 556 of 1999 was itself without jurisdiction. It will be seen that O.A. Nos. 485 and 556 of 1999 were filed claiming the following prayers.
"(a) That it be pleased to quash the impugned rules, i.e. Rule 18(2) of the Indian Customs and Central Excise Group A Service Rules (Amended), 1998 as being ultra vires of Articles 14 and 16 of the Constitution of India.
(b) And issue an appropriate order or direction declaring that the above said impugned rules should be read down/construed and/or modified in a manner such that it provides proportionate and proportional opportunities in the Grade VI Group A posts to the cadres of the Superintendents of Customs (Preventive) and the Appraisers of Customs vis a vis their respective numerical cadre strengths in the Group B cadre as changed over the period of time by redetermining the quota of the two feeder cadres of customs.
(c) That the respondents file an affidavit, indicating the cadre strengths of the Superintendents of Customs (Preventive) and the Appraisers of Customs from 1979 onwards till date, and that they appropriation the customs share of Group A posts accordingly by a fresh determination as directed by the Hon'ble Supreme Court in their order in the interim Application No. 6 of 1998 in Writ Petition No. 306 of 1988.
(d) And issue appropriate order and/or direction, such that, when the backlog of the 125 pending vacancies of the Superintendents of Customs (Preventive) are filled up and/or any other vacancies which may arise as a result of this Hon'ble Tribunal's order and/or direction, the respondents may be asked to redetermine the date of promotion/seniority in the seniority list of Superintendents of Customs (Preventive) as the case may be.
(e) And issue any other appropriate order and/or directions, considering the facts and circumstances of the case, in the interests of justice and fairness.
(f) The costs of this application be provided for.
41. By prayer (a) it was prayed that Rule 18(2) of the Rules be quashed as unconstitutional. They prayed by prayer (b) to direct change the ratio and redetermine the quota of two feeder cadres of customs. By pryer (c) it was prayer that fresh determination as directed by the Supreme Court in their order in the interim Application No. 6/98 in W.P. No. 306/88 be directed.
42. The question as to whether the quota needs to be reconsidered or freshly determined was before the Supreme Court in a list carried by these very parties. By its first order dated 22-11-1996 deciding W.P. No. 306/88 and several other petitions and Misc. petitions. Earlier bunch of petitions filed in 1978 was disposed of by the Supreme Court when it was informed about the framing of Rules during the pendency of W.P. No. 306/88. The Court then observed as under :
"This Court gave directions in those writ petitions fixing a time for framing the statutory rules. When this Court was informed about the framing of the Rules, those writ petitions were disposed of on 23-9-1987 observing "the promotions now in dispute, will also be looked into with reference to the Rules and redisposed of in accordance with law."
43. In W.P. No. 306/88, Rule 18 itself was challenged. This will be clear from para 7 of the judgment. The Supreme Court categorically observed as under :
"The petitioner in W.P. No. 306/88 were aggrieved by Rule 18 and hence they have challenged that rule."
Therefore the challenge to the Rule 18 was subject matter of W.P. No. 306/88. It may be noted here that identical challenge is made in O.A. No. 556/99, the prayers from which are quoted above.
44. The Supreme Court then proceeded to consider various contentions and observed in para 13 as under :
"When we heard the matter on the last occasion the learned Counsel appearing for the Union of India placed before us a communication from the Government of India, Ministry of Finance, Department of Revenue dated 8-6-1989 addressed to the first petitioner in W.P. (C) No. 306 of 1988 in his capacity as Secretary to the Federation and copies were marked to other similar Federations/Associations of officers concerned."
The Supreme Court also said that :
"The proposal, according to them, is suitable and fair and it takes care of legitimate interest of officers of all the three feeder categories."
Then in para 14 the Supreme Court observed that :
"We have gone through the above mentioned proposal carefully and applied our mind and we find that the said proposal is fair just and equitable in the facts and circumstances of the case. We also find that fair reasons are given and reasonable solutions are also given in the proposal and we therefore accept the said proposal."
45. Thereafter the Supreme Court noted that inspite of lapse of several years, parties could not arrive at a consensus and therefore observed as under :
"It is seen from the communication dated 8-6-1989 that the proposal was forwarded to Federations/Associations concerned in order to enable them to arrive at a consensus and on arriving at such a consensus to report to this Court for disposal of these matters on that basis. Unfortunately, even after lapse of several years, the parties could not arrive at a consensus and consequently, we have to step into settle the issue. We may also point out that when the learned Counsel for the Union of India handed over the proposal, none of the Counsel appearing for the parties seriously objected to the terms of the proposal."
Then in para 8 the Supreme Court accepted the proposal as just and equitable. The observations of the Supreme Court reads as under :
"We find that the above modified proposal is just, fair and equitable and accordingly, we direct the Union of India to amend the impugned rules so far as Group A service is concerned. Review all post 1979 ad hoc promotions to the post of Senior Superintendent/Assistant Collector in the promotee quota in the light of the present proposal, redetermine the respective placement of the promotee officers in the combined Group A seniority list and regularize accordingly the posts of ad hoc promotions."
46. It will thus be seen that the legality, validity and propriety of Rule 18 was squarely considered by the Supreme Court in the aforesaid judgment and the petition was disposed of by a reasoned order. During the course of those proceeding, the proposal of the Government dated 8-6-1989 was also considered and accepted as just and equitable and the petition was disposed of. It will be seen that the prayers made in O.A. Nos. 468 and 556 of 1999 were as quoted above, for quashing Rule 18. After this judgment of the Supreme Court in 1996 such a prayer could not have been made to the Tribunal nor could the Tribunal have considered it as it amounts to reviewing its own earlier order which had merged with the order of Supreme Court of India and the constitutional validity of Rule 18 was challenged before the Supreme Court in Petition Nos. 306 and 1200 of 1988 and the judgment was delivered by the Supreme Court on 22-11-1996. After that the Tribunal did not have any jurisdiction to consider the constitutional validity of those Rules. Apart from that the matter did not stop with the order of the Supreme Court dated 22-11-1996. Certain interim applications made in W.P. No. 306/86 which stood decided in 1996 were filed in Supreme Court in 1997 or 1998 and a W.P. No. 651/97 was also filed before the Supreme Court in relation to fixation of quota. By that writ petition filed by the Superintendents of Central Excise, it was contended that the ratio 6.1.2 must be maintained at all times in Group A ensuring that out of the 9 promotees, 6 must be from Central Excise and this contention was rejected by the Supreme Court by observing that there is no merit in the contention of the writ petitioners that all times Group A post must contain the ratio of 6.
47. In para 3 of the judgment in 1999, the Supreme Court took stock of the situation and controversy and observed thus :
"This Court heard all the parties and their respective views on these proposals and accepted them.......It was agreed that the proposals of the Government of India dated 8-6-1989 would govern.......This Court observed that the proposals were just, fair and equitable."
48. The Supreme Court then observed that the writ petition then stood disposed of in terms of the prayers by the judgment dated 22-11-1996. Even according to the Supreme Court the question of ratio of 6.1.2. stood decided by the order of the Supreme Court dated 22-11-1996 and the Supreme Court has also observed that the quota has determined by the proposal of 1986/89 and cannot be maintained for all the times to come the entire controversy which was examined by the Supreme Court in the judgment of February 1999 and then proceeded to decide the matters in paras 19, 20 and 21. It will be worthwhile however to note again carefully the contents of all these paragraphs, as under :
19. For the aforesaid reasons, this W.P. No. 651 of 1997 is liable to be dismissed. The same points are raised in IA No. 8 and for the same reasons, the said IA is also liable to be dismissed.
20. In IA No. 4, the applicants are the Customs Appraisers (direct recruits) and their learned Senior Counsel, Shri Rajeev Dhavan contends that it will be sufficient that this Court fixes some time limit for implementation of the judgment of this Court dated 22-11-1996 and directs preparation of an inter se seniority list of direct recruit Assistant Collectors and promotees Assistant Collectors within their quota and also for review of all promotions. There can be no objection for fixing some reasonable time limit.
21. IA No. 6 and IA No. 7 are connected. IA No. 7 is filed for permission to file IA No. 6. IA No. 6 is filed by the Customs Superintendents (P) and their learned Senior Counsel, Shri P.P. Rao contended that the ratio of 6:1:2 was based upon the cadre strength of 1989 and that the said ratio was liable to be altered going by the cadre strength or posts now available. The learned Counsel contended that such a principle was already embedded in the proposals dated 8-6-1989 of the Government of India as extracted in the earlier judgment. According to him, the department could not be permitted to proceed on the assumption that the ratio of 6:1:2 was to be followed for all time.
22. It may be noted that as long as a particular quota is fixed by a rule, it will have to be followed till the quota fixed therein is altered by appropriate amendment of the relevant rules. As held in V.B. Badami v. State of Mysore (S.C.C. at p. 910) quotas which are fixed can only be altered by a fresh determination of the quota. It will be for the applicants to take such steps as they deem fit, if they feel aggrieved about the existing quota but the filing of this IA is not the proper remedy. We are also not prepared to accept that the proposals of the Government of India dated 8-6-1989 themselves visualised a constant change in the quota from time to time. Such a change, in our view, has to be done by a fresh determination and it is for the applicants to make out a case therefore and take the necessary steps for such modification.
23. For the aforesaid reasons, Writ Petition No. 651 of 1997 and IA No. 8 are dismissed. IA No. 7 is allowed granting permission to file IA No. 6. But IA No. 6 is dismissed leaving it to the applicants to make out a case for change of the quota and take appropriate steps as the applicants may deem fit. We express no opinion as to the merit of such claim. The above matters are all disposed of as stated above.
24. In IA No. 4 in Writ Petition No. 306 of 1988 there will be a direction to the Union of India to take steps for implementation of the judgment of this Court dated 22-11-1996 in Writ Petition No. 306 of 1988 as expeditiously as possible and at any rate within a period of six months from the date of receipt of this judgment."
49. The above order conclusively decides all the disputes which according to the Supreme Court were pending before it and is acquired finally. If there is any change required in the order of the Supreme Court it can be sought only by approaching the Supreme Court of India. Seeking for fresh decision before the Central Administrative Tribunal by way of fresh application in 1998 would be seeking review of the judgment of the Supreme Court which cannot be done as will be seen from the cases of the Supreme Court itself quoted above.
50. It is worthwhile to note that in para 24 quoted above the Supreme Court issued a direction to the Union of India to take steps for implementation of that judgment dated 22-11-1996 in W.P. No. 306/88 as expeditiously as possible at any rate within a period of six months from the date of receipt of this judgment. It was not possible for the Tribunal therefore to even issue such direction of reconsideration of the quota. Yet the Tribunal chose to do so by its order dated 10-7-2001. In fact the Tribunal found in para 30 that it cannot be said that the rule is in violation of Articles 14 and 16 of the Constitution and it was already affirmed by the Supreme Court of India. The Tribunal has extensively referred to the judgment of the Supreme Court dated 22-11-1999 and yet had chosen to issue certain directions as already seen in para 53 of the order.
"Keeping in view the limited scope of the Tribunal in such matters where promotional avenues are to be considered, as there is a substantial increase of the cadre strength of Superintendent of Customs (P) by more than 127% after the determination of their quota by the Apex Court judgment, while there has been a small increase, i.e. 34" in quota of appraisers we feel it just and fair to direct the respondents to consider the grievances of Superintendent of Customs (P) an appraisers within a period of three months providing them just and fair opportunity of their representation to the post of Assistant Commissioner of Central Excise and thereafter to fill the existing vacancies. With these observations, the OAs stand disposed of. No order as to costs."
51. The Tribunal therefore observed as quoted above the after determining their quota by the Apex Court judgment there has been increase of more 127% in the cadre strength of Superintendent of Customs and therefore it felt just and fair to direct the respondent to consider the grievances of the Customs Superintendents (P) and appraisers within a period of three months providing them just and proper opportunity of their representation to the post. In our opinion these directions could not issue after the Supreme Court judgment dated 22-2-1999 and, to use the language of the Supreme Court with deepest respect, such exercise of jurisdiction by the Tribunal is deleterious to judicial discipline. The order dated 10-7-1991 in the circumstances could not have been passed, as they had no jurisdiction to pass it and therefore it is an order without jurisdiction to exercise power of contempt in a case of willful disobedience of the order which itself was without jurisdiction, which is not vested in it by law. In these circumstances therefore the Tribunal has no jurisdiction to issue contempt notices and direct framing of charges when the order of which disobedience was claimed itself was without jurisdiction.
52. It will be seen that what is complained of is willful disobedience of the order dated 10-7-2001 which according to us itself was without jurisdiction. Assuming that the Tribunal did have that jurisdiction inspite of the judgment of the Supreme Court in , and , and had made the order dated 10-7-2001. We will assume that it could be so done as was directed by the Tribunal that :
"As there is substantial increase of the cadre strength of Superintendent of Customs (P) by more than 127% after the determination of their quota by the Apex Court judgment, while there has been a small increase i.e. 34" in quota of appraisers we fell it just and fair to direct the respondents to consider the grievances of Superintendent of Customs (P) and appraisers within a period of three months providing them just and fair opportunity of their representation to the post of Assistant Commissioner of Central Excise and thereafter to fill the existing vacancies.
53. It will be seen therefore that what was directed by the Tribunal was consideration of the grievance of the Superintendents and appraisers within a period of three months and therefore had directed the respondent to consider the grievance. The moment it was brought to the notice of the Tribunal that the grievances were considered by the respondent, there was full compliance of the order's of the Tribunal and there was therefore no question of initiating any proceeding for contempt. Doing so, the impugned order dated 13-2-2002 is obviously excessive exercise of jurisdiction which can be controlled by this Court in exercise of powers under Article 226 of the Constitution and to issue such writs to prevent excessive exercise of jurisdiction. On the facts of this case therefore the directions issued on 10-2-2001 by the Tribunal were willful. The letter dated 17-10-2001 was filed before the Tribunal in Contempt Petition No. 107/2001 to point out that there is compliance of the order of Tribunal and therefore there is no question of contempt as there is no willful disobedience of the order dated 10-2-2001. The letters needs careful scrutiny which is dated 17-10-2001. The subject quoted is "judgment in the Original Application No. 485/99 of the Hon'ble Central Administrative Tribunal, Bombay Bench, for determination of the promotional quota of Superintendents of Customs (P)". This communication proceeds to say that :
"As per the judgment dated 10-7-2001 of the Hon'ble Tribunal, the respondents have been directed to consider the grievances of Superintendents of Customs (P) and Appraisers providing them just and fair opportunity of their representation to the post of Assistant Commissioner of Central Excise and thereafter to fill the existing vacancies."
Then in para 2 it says that :
The whole matter has been considered in the light of the judgment of the Hon'ble Tribunal. It is found that officials who would have been appointed in the grade of Supdts. of Customs (P) against the additional posts and a result of restructing in 1996 and 1997 are not yet ripe for promotion to Group A. Need not justification for change in Recruitment Rules and ratio of 6:1:2 can be examined when these officers appointed against unguarded post in 1996-97 become due for promotion. It is also noted that Hon'ble Supreme Court while deciding the ratio 6:1:2 had also taken note of the reasonable prospects of promotion of officers of different cadres, besides the cadre strength of various cadres."
54. Then it was also observed that as and when persons come within the zone of consideration the question of change in the existing quota of 6:1:2 could be considered. It was observed that no change in the rules i.e. the existing ratio of 6:1:2 is called for at this stage. Then it was observed that as and when it was considered necessary to effect any change in the existing rules providing for promotion to Group A among the three feeder, cadre, suitable amendment, if warranted to provide for just and fair representation to the post of Assistant Commissioner, to the Superintendents of Customs (P) and appraisers will be considered.
55. What was directed by the Tribunal was to consider the question of change in the ratio. The Government considered it, found it unnecessary for the present, decided to do so as and when necessary in future and thus has executed the directions issued by the Tribunal by the order dated 10-7-2001.
56. Even if we assume that the order dated 10-7-2001 could be passed in face of the judgment of the Supreme Court reported in A.I.R. 1996 and A.I.R. 1998. The order as made by the Tribunal on 10-7-2001 has been fully implemented by the State and there is therefore no question of any contempt. The Tribunal therefore erred in seeking to exercise jurisdiction for punishment for contempt when none existed.
57. To sum up therefore we hold that after the judgment of the Supreme Court of India dated 22-11-1999 the Tribunal had no jurisdiction to review its earlier orders. It could not direct reconsideration of the quota when Supreme Court itself has observed that it can be undertaken if and when Government of India so feels. (See para 22 of the Supreme Court judgment). The Supreme Court having held that fresh determination of quota can be undertaken by the Government only and the persons aggrieved thereby to approach the Government for variance of the quota. Therefore it was not possible for the Tribunal to make the order dated 10-7-2001. It is palpably without jurisdiction and consequential disobedience if any, will not amount to contempt of Court when such is the position in law. We find that the exercise of penal jurisdiction of contempt of Court is excessive exercise of jurisdiction and is therefore liable to be curbed even at intervening or interlocutory stage. In our opinion it is a fit case for such intervening at interlocutory stage.
58. Again assuming that such interference by the Tribunal inspite of the judgment referred to above is possible and the direction dated 10-7-2001 could issue, all that has been done by the Tribunal is to direct consideration of the grievance. Such considerations were obviously taken up by the Union of India as disclosed by the order dated 17-10-2001 and there is therefore full implementation of the order of Tribunal. By issuing notice of cognizance of contempt and directing framing of charges, it has been presumed that the consideration directed by order dated 10-7-2001 was consideration only in one way namely reconsideration of the quota. It was factually not and cannot be the direction issued on 10-7-2001. That being the position in our opinion there was total compliance of the order and the direction issued by the Tribunal and there was therefore no occasion to initiate contempt proceeding. This is another reason for our interference. It will be seen that proceedings for contempt are very serious in nature. They cannot be and should not be undertaken on each and every infraction of orders. Interpretation of which may vary, the consequence of action under Contempt of Courts Act are very serious. Careers of officials are at stake. Even initiation of contempt proceeding against high officials of Government of India has considered to be a stigma on that officer. Authorities having power to punish for their own contempt is therefore expected to be very circumspect in exercising that power. It need not be exercised for the asking. In our considered opinion issue of the order dated 13-2-2001 directing framing of charges is exercising the jurisdiction of contempt of the asking. The Tribunal did not rest at issuing the notices to show cause on the contempt again should not be taken to be proceed to direct presence of the Secretary and Joint Secretary before the Tribunal, and ultimately it can be found necessary to punish the erring official for contempt and that it does not require the presence of the erring officers in the Tribunal. The summon of those officers to remain present during the contempt proceeding is yet another reason why we deem exercise of our jurisdiction under Article 227. Power of Superintendence of this Court to maintain judicial discipline over the Tribunal subordinate to it, cannot in our opinion be fettered by reason that the unwarranted exercise of jurisdiction is merely interlocutory and therefore need not be interfered with. Unwarranted exercise of jurisdiction has to be curbed and it does not a matter whether for doing so, interference is made at the interlocutory stage.
59. There is yet another reason why the order dated 13-2-2002 cannot be sustained. A scrutiny of the impugned order would show that the Tribunal has scrutinised the action taken by the Government as disclosed by letter dated 17-10-1999. It has observed in para 8 as under :
"We however are not satisfied with the position explained by the contemners as reflected in their replies. It would appear that come what may, the contemners are bent on filling up the vacant posts on the basis of the old ratio of 6:1:2 in view of the urgency to fill up the posts short of filling up the vacancies the contemners have completed all the procedural formalities such as holding of D.P.C., etc."
The Tribunal also noted in para 7 the contentions of the contemners that they have actually complied with the directions of the Tribunal. Merely because the Tribunal does not agree with the consideration as done by the Government, it cannot say that the officers have committed contempt of the Tribunal. It obviously gives that the Tribunal regarded its direction by the order dated 10-7-2001 as of mandate to consider positive change in the ratio irrespective of the judgment of the Supreme Court that in law could not be done and therefore the finding of the Tribunal that prima facie case exists is unsustainable in law and is liable to be set aside.
60. For all these reasons the objections of the maintainability of the petition as also for affirmation of the order dated 13-2-2002 are rejected. In the result the petition succeeds and is allowed. Rule is made absolute in terms of the following :
a) The order dated 13-2-2002 is quashed as without jurisdiction as also for the reason that no contempt even prima facie is confirmed.
b) The entire proceedings for contempt in Contempt Petition No. 107/01 pending before the Tribunal are quashed.
c) All directions issued by the impugned order are quashed and set aside.
d) Rest of the prayers in the petition on which Rule was never issued also stands disposed of.
e) Civil Application No. 2169 of 2002 is disposed of in view of the observations made hereinbefore.
There will be no orders as to costs.
Certified copy expedited.
After the judgment was pronounced, a request was made for staying the effect and operation of the judgment for a period of four weeks. We see no reason to do so, because we have quashed the entire proceeding for contempt initiated without jurisdiction by the Tribunal. There is therefore no question of permitting any party to the proceeding to make any application. Hence request is rejected.