Madras High Court
T.Ravikumar vs S.Nirmala on 13 December, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 02.01.2019
PRONOUNCED ON: 11.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Cont.P(MD)No.2194 of 2017
in
W.P.(MD)No.5475 of 2010
T.Ravikumar : Petitioner / Petitioner
Vs.
1.S.Nirmala,
District Adi Dravidar Welfare Officer,
Tirunelveli District,
Tirunelveli.
2.B.Geetha,
District Adi Dravidar and Tribal Welfare Officer,
Tirunelveli District,
Tirunelveli. : Contemnors/Respondents
(Respondent No.2 is impleaded as per order dated 13.12.2018 made in
Sub.A.(MD)No.201 of 2018)
PRAYER: Contempt Petition is filed under Section 11 of the Contempt of
Courts Act, 1971, praying to punish the contemnor for wanton and willful
disobedience of the order passed by this Court in W.P.(MD)No.5475 of
2010, dated 04.01.2013.
For Petitioner : Mr.K.Gurunathan
for M/s.G.Thalaimutharasu
For Respondent 1 : Mr.S.Louis
For Respondent 2 : Mr.R.Sethuraman
Special Government Pleader
***
http://www.judis.nic.in
2
ORDER
The petitioner has acquired M.A. and later B.Ed., and joined as Secondary Grade Teacher on 24.01.1997 and was posted as Warden on 03.08.2009 at Government Boys Hostel (Adi Dravidar Welfare), Kadayanallur. The petitioner completed B.Ed., only in the year 2008 from Indira Gandhi National Open University (IGNOU). It is stated that to hold the post of Graduate Warden, the necessary qualification as per the Rule 6, Annexure, Clause II of the Tamil Nadu Adi Dravidar Welfare Subordinate Service Rules, for the post of Tutor-cum-Warden as well as Tutor-cum-Matron, is a degree of L.T., or B.T., of Madras University or B.Ed., degree of Annamalai University. It is stated that the petitioner had possessed the necessary qualification as he has completed B.Ed., degree and the he is entitled to be promoted as Graduate Warden. However, it is stated that the District Adi Dravidar Welfare Officer promoted five other persons as Graduate Warden by order dated 27.02.2009. Since the order of promotion issued by him was against the election code, the District Adi Dravidar Welfare Officer by a subsequent order, dated 05.03.2009, cancelled the earlier order of promotion issued by him. Challenging the cancellation of promotion, the private individuals who were promoted by the earlier order, filed a Writ Petition.
2.In the meanwhile, the petitioner made a representation to the District Adi Dravidar Welfare Officer, to promote him as Graduate Warden http://www.judis.nic.in 3 based on his qualification. In the writ petition filed by other individuals, whose promotion was cancelled by order dated 05.03.2009, in W.P.No. 2339 of 2009, it was reported that the petitioners therein were permitted to join duty on 16.03.2009 by the Special Tahsildar, Adi Dravidar Welfare Department. The petitioner was denied promotion because of the illegal promotion of the petitioners in W.P.No.2339 of 2009. Hence, the petitioner filed a Writ Petition in W.P.(MD)No.5475 of 2010 for issuing a Writ of Certiorarified Mandamus to call for the records on the file of the second respondent in connection with the impugned order of promotion passed by him in his Proceedings in Na.Ka.No.A3/14671/2008, dated 27.02.2009 in favour of the respondents 3 to 7 as Graduate Warden and quash the same as illegal and arbitrary and consequently, direct the first and second respondents to appoint the petitioner as Graduate Warden based on his eligibility and qualification by following Rule 6, Clause II, Annexure II of Tamil Nadu Adi Dravidar Welfare Subordinate Service Rules and based on the seniority with effect from 2009. Even during the pendency of the Writ Petition in W.P.(MD)No.5475 of 2010, in M.P.(MD)No. 4 of 2010, this Court, has passed an interim direction to the District Adi Dravidar Welfare Officer, Tirunelveli District, second respondent in the writ petition to consider the petitioner for promotion if he is otherwise eligible to the post of Graduate Warden. Subsequently, the Writ Petition No.5475 of 2010 was allowed by this Court by order dated 04.01.2013. The final order passed in the Writ Petition are in the following lines:
http://www.judis.nic.in 4 “8.Now, turning to the Statutory Rule, admittedly, essential qualification for promotion to the post of Tutor-cum- Wardens is a degree of L.T. or B.T. of the Madras University or the B.Ed., degree of the Annamalai University. Admittedly, the respondents 3 to 7 do not have any one of these qualifications. The respondents 3, 4, 6 and 7 are graduates having B.Lit degree. The fifth respondent has got a degree in Tamil. Thus, it is obvious, they do not have any degree like L.T. or B.T. or B.Ed. Therefore, there can be no difficulty in holding that they are not qualified for promotion to the post of Tutor-cum-Wardens. But, the learned counsel for the respondents 3 to 7 would submit that B.Lit., degree is equivalent to L.T. degree as prescribed in the service Rules and thus, the respondents 3 to 7, except 5th respondent, are eligible for promotion.
9.It is pointed out by the learned counsel for the petitioner that L.T. degree was in vogue prior to 1965.
Thereafter, in its place B.T. degree was introduced in the year 1980 and thereafter, B.Ed., degree was introduced.
10.A cursory perusal of the above Rule would go to show that these three degrees namely L.T., B.T. and B.Ed., are not the basic degrees and instead they are only second degrees, which a candidate will have to secure after securing a basic degree. The basic degrees are degrees like B.A., B.Sc., and B.Com. The degrees such as B.T., L.T., and B.Ed., are only second degrees which can be obtained only after securing a basic degree. Therefore, the contention of the learned counsel for the respondents 3 to 7, that B.Lit., degree should be equated to a degree of L.T., B.T., and B.Ed., cannot be accepted. B.Lit., in Tamil is a basic degree which cannot be equated to second degree namely L.T. or B.T., or B.Ed. Therefore, this argument is rejected.
11.From the foregoing discussion, I have no difficulty to come to the conclusion that the respondents 3 to 7 are not at all eligible to the post of Tutor-cum-Wardens and therefore, the impugned order promoting them as Tutor-cum-Wardens is liable to be set aside.
12.In the result, the Writ Petition is allowed and the impugned order is set aside. No costs.”
3.Since the order of this Court has not been complied with, the http://www.judis.nic.in 5 petitioner filed Contempt Petition (MD) No.747 of 2013 and the same was closed by order dated 10.07.2014 recording the statement of the learned Government Advocate appearing for the respondent that the individuals whose promotion was found to be illegal by the learned Single Judge filed a Writ Appeal in W.A.No.71 of 2014. However, the said Writ Appeal was dismissed by a Division Bench by order dated 07.07.2017. The operative portion of the order of the Division Bench are extracted below:
“3.The learned Judge allowed the writ petition on the simple ground that admittedly the appellants herein do not have any one of the qualifications mentioned in the statutory rules. The appellants herein were graduates having B.Lit. degree at that time when the promotion order was issued.
4.The learned counsel appearing for the appellants contended that subsequently, they have acquired the requisite qualification. We do not want to consider or take note of this submission. The fact remains that on the date, when the appellants were promoted i.e. on 27 February 2009, the writ petitioner was having requisite qualification, whereas, the appellants herein did not have the said eligibility requirement. Therefore, the learned Judge rightly allowed the writ petition and set aside the promotion order dated 27 February 2009 impugned in the writ petition.
5.We do not find any ground to interfere with the well considered order passed by the learned single Judge.”
4.It was, thereafter, the petitioner has sent several representations and the respondents have not passed any order reverting the respondents 3 to 7 in the writ petition nor gave promotion to the petitioner as directed by this Court in the Writ Petition (MD)No.5475 of 2010. However, the second respondent in the said Writ Petition passed an http://www.judis.nic.in 6 order dated 24.12.2017 reverting the respondents 3 to 7 in the Writ Petition to the post of Graduate Teacher. The said order was challenged by the individuals in W.P.(MD)No.19900 to 19903 of 2017. This Court disposed of all the Writ Petitions in the following lines with certain directions:
“4.In response thereto, the learned counsel for the petitioners submits that though the impugned order has been passed, in pursuance of the aforesaid order of this Court, it was at the instance of one T.Ravikumar, who had challenged the promotion of the petitioners in these writ petitions on the ground that they were not qualified at the time of that promotion. It is now sought to be contended that the petitioners have subsequently acquired the qualification and as such the question of reverting them to the lower post may not now arise and that the concerned authority ought to have considered this aspect and re-fixed the seniority of the petitioners in the higher post by reckoning the date of their acquiring the qualification as the date of promotion, instead of reverting them to the lower post. In that backdrop, the learned counsel for the petitioners states that the petitioners would immediately make representations on or before 03.11.2017 to the second respondent and for that purpose, they have sought to withdraw these writ petitions and an endorsement has been made to that effect.
5.Recording the above said submissions and endorsement so made, these writ petitions are dismissed as withdrawn with liberty to the petitioners to make representations to the third respondent for considering the continuation of the petitioners in the promotional post by fixing their seniority with effect from the date on which they had actually acquired the qualification.
6.This Court without expressing any view on the correctness or entitlement of such claim now made by the petitioners, hereby directs the third Respondent to consider such representation of the petitioners and pass reasoned orders thereon, on merits and in accordance with law and communicate such decision to the petitioners. If the aforesaid representations are made by the petitioners on or before 03.11.2017, the Respondents shall not give effect to the impugned order of reversion dated 24.10.2017 till those representations are disposed and depending upon the http://www.judis.nic.in 7 outcome of such decision, the Respondents are at liberty to pass appropriate further orders in the matter. No costs. Consequently, connected Miscellaneous Petitions are closed.”
5.It was, thereafter, the present contempt petition has been filed by the petitioner in Cont. P.(MD)No.2194 of 2017 alleging willful disobedience of the order passed by this Court by the first respondent. Since the first respondent was transferred from the station and the second respondent assumed charges, the second respondent was impleaded as per the order of this Court dated 16.07.2018. As stated above, the Writ Petition filed by the petitioner was allowed. The prayer in the Writ Petition (MD) No.5475 of 2010 reads as follows:
“Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records on the file of the second respondent in connection with the impugned order of promotion passed by him in his proceedings in Na.Ka.No.A3/14671/2008, dated 27.2.2009 in favour of the respondents 3 to 7 as Graduate Warden and quash the same as illegal and arbitrary and consequently direct the 1st and 2nd respondent to appoint the petitioner as Graduate Warden based on his eligiblity and qualification by following Rule 6 Clause II Annexure II of Tamil Nadu Adi Dravidar Welfare Subordinate service rules and based on the seniority with effect from 2009.”
6.This Court allowed the Writ Petition after accepting the case of the petitioner that he was entitled to promotion from 2009. It is to be seen that when the writ petition was filed in 2013 the petitioner was promoted as Tutor-cum-Warden in the year 2011 itself. This Court after recording the fact that the petitioner is still had grievance as he was entitled to get promotion from the year 2009, allowed the Writ Petition. http://www.judis.nic.in 8 The order in the Writ Petition also was confirmed by the Division Bench after specific observation that the petitioner was having requisite qualification to get promotion. In such circumstances, from the facts narrated above and admitted by the respondents, in the counter affidavit, the petitioner is entitled to promotion with effect from 2009. As a matter of fact, pursuant to the interim order in the Writ Petition in M.P.(MD)No.4 of 2010 in W.P.(MD)No.5475 of 2010, to consider the promotion of the petitioner, the petitioner was promoted.
7.The first respondent filed a counter affidavit wherein the first respondent has narrated the facts and about the order of reversion dated 24.10.2017 reverting the four private individuals from the post of Graduate Warden to the Graduate Teacher as per the direction of this Court. It is further stated about the order passed by this Court in the Writ Petition filed by the individuals who were respondents 3 to 7 in the Writ Petition. With regard to the entitlement of petitioner to get promotion with effect from 2009, it is stated by the first respondent that the order was passed on 24.11.2017 posting the individuals who are respondents 3 to 7 in the Writ Petition filed by the petitioner as Graduate Warden with effect from the date on which they got qualified with B.Ed., degrees. It is further stated that the petitioner cannot have any grievance as he was holding the post of Graduate Warden with effect from 10.05.2012. The first respondent also tendered apology in the event of this Court comes to http://www.judis.nic.in 9 the conclusion that the first respondent has done anything contrary to the directions of this Court.
8.It was the grievance of the petitioner that the order of this Court in W.P.(MD)No.5475 of 2010 allowing the Writ Petition has to be read wholly in the context and having regard to the nature of prayer sought in the Writ Petition and the final order passed in the Writ Petition. The learned Counsel appearing for the petitioner submitted that this is a clear case of contempt where the respondents deliberately and intentionally disobeyed the direction of this Court.
9.This Court want the learned Government Advocate, who represented the respondents, to get instructions regarding compliance from November, 2017. Thereafter, the matter was posted from December, 2018 for filing counter. This Court, when the matter appeared in the list on 07.06.2018, has recorded the fact that prima facie the respondents have committed contempt by not giving effect to the order in full. Therefore, statutory notice was issued after recording a finding that the respondents have failed to promote the petitioner with effect from 2009. It was thereafter the matter was adjourned on several occasions for reporting compliance. The learned Counsel appearing for the contemnor sought time on several occasions to report full compliance. On 16.07.2018, the matter was adjourned to 30.07.2018 and again on http://www.judis.nic.in 10 30.07.2018, the matter was postponed by a month. When the matter appeared in the list on 10.12.2018, this Court directed the matter to be posted on 11.12.2018. Again this Court directed to list the sub application and the petitioner to implead the second respondent which was also allowed. Despite the matter is posted only for reporting compliance, and the position was also accepted by the learned counsel appearing for the respondents before this Court, there is no scope for any elaborate arguments on merits. Despite this Court pointing out the nature of order passed by this Court in the Writ Petition, Mr.R.Sethuraman, learned Special Government Pleader, referring to the counter affidavit submitted that the petitioner has been promoted with effect from 2012 and that he cannot have any further grievance. Today when the matter was argued at length, the learned Counsel appearing for the first respondent justified the stand taken by the first respondent by referring to the fact that the contempt petition was earlier closed by recording the fact that the promotion given to the individual respondents 3 to 7 in the Writ Petition was cancelled and that therefore, the contention of the petitioner that the petitioner is entitled to promotion with effect form 2009, cannot be accepted. The learned Counsel further submitted that the petitioner never made a request or demand to promote him with effect from 2009 and that therefore, there is no merit in the contempt petition. It is surprising to note that both the respondents who were in the office, who are bound by the order in the writ petition, filed by the http://www.judis.nic.in 11 petitioner has not admitted the position that the petitioner is entitled to get promotion with effect from 2009 as per the direction of this Court by order dated 04.01.2013. The learned counsel appearing for the first respondent did not seek further time to report compliance by accepting at least the mistake in construing the order in the Writ Petition. But, seriously contended that the petitioner is not entitled to promotion from 2009. This Court is of the view that the conduct is contumacious. It is deliberate with a specific object to defeat the rights of the petitioner as per the order passed by this Court. The first respondent has filed a counter affidavit by taking a stand that the petitioner has already been promoted with effect from 2012 and that he cannot have any further grievance. The second respondent who has now been impleaded is also represented by a counsel who has also submitted that the petitioner is not entitled to any further relief. This attitude of the respondents is surprising and unacceptable to the judicial conscience of this Court. The boldness in which the learned Counsel appearing for the first respondent reiterated his stand to defend the first respondent in this contempt proceedings was amazing but cannot be tolerated and this Court find both respondents guilty of contempt as the respondents had denied any relief willfully and deliberately to the petitioner despite a positive direction has been issued by this Court. During the course of proceedings, this Court has granted ample time to comply with the direction of this Court clarifying the position that the petitioner in the Writ Petition is entitled to get promotion http://www.judis.nic.in 12 with effect from 27.02.2009. A deliberate and willful disobedience is established by the conduct of respondents. The respondents by their conduct have offended and lowered the dignity of this Court. Since both the respondents are guilty of having committed civil contempt both are sentenced to pay a fine of Rs.2,000/- (Rupees Two Thousand only) and to undergo detention of one day in civil prison by being in the custody of police from 10.00 a.m. to 6.00 p.m. in any one of the All Women Police Station in Tirunelveli District. The Registrar (Judicial) is directed to issue warrant against the respondents to secure the presence of respondents in the named police station in Tirunelveli from 10.00 a.m to 6.00 p.m. on any day. The compliance shall be reported on or before 24.01.2019.
11.01.2019
Index : Yes / No
Internet : Yes / No
srm
http://www.judis.nic.in
13
To
1.The District Adi Dravidar Welfare Officer,
Tirunelveli District,
Tirunelveli.
2.The District Adi Dravidar and Tribal Welfare Officer, Tirunelveli District, Tirunelveli.
http://www.judis.nic.in 14 S.S.SUNDAR, J.
srm ORDER MADE IN Cont.P(MD)No.2194 of 2017 in W.P.(MD)No.5475 of 2010 11.01.2019 http://www.judis.nic.in