Central Administrative Tribunal - Delhi
Employed As Junior Engineer (Civil) vs Sh. P.K.Gupta on 2 December, 2014
Central Administrative Tribunal Principal Bench New Delhi M.A.No.3295/2014 in C.P.No.125/2014 in T.A.No.701/2009 Order Reserved on: 27.11.2014 Order pronounced on 02.12.2014 Honble Shri V. Ajay Kumar, Member (J) Honble Shri P. K. Basu, Member (A) Manoj Gupta (Aged 40 years) S/o Sh. R.L.Gupta R/o E-2/114, Shastri Nagar Delhi 110 052. Employed as Junior Engineer (Civil) PR-III, Rohini Zone North Delhi Municipal Corporation. . Petitioner/Applicant (By Advocate: Shri D.R.Gupta) Versus Sh. P.K.Gupta Commissioner North Delhi Municipal Corporation SPM Civic Centre JNU Marg New Delhi 110 002. Respondent (By Advocate: Shri K.M.Singh with Shri R.N.Singh) O R D E R By V. Ajay Kumar, Member (J):
The Miscellaneous Applicant, a Physically Handicapped, filed TA No.701/2009 seeking promotion in Group `B as Assistant Engineer, which has been denied by the respondents on the basis of OM issued by DoPT dated 29.12.2005 stating that reservation from Group `C to `B is not available to the person with disabilities.
2. After hearing both sides, this Tribunal by its order dated 09.07.2009 disposed of the said TA as under:
5. Accordingly, we hold that when the promotion is available from Groups `C to `B, the respondents are mandated to year-wise calculate the quota, as prescribed under the Disability Act for physically handicapped and then consider the claim of the applicant for promotion as Assistant Engineer by holding a review DPC within a period of three months from the date of receipt of a copy of this order. It goes without saying that consequences, as admissible in law, shall be bestowed upon the applicant.
3. The Writ Petition (C) 2821/2010 and the SLP (C) No. 9473/2011 filed by the respondents before the Honble High Court of Delhi and the Honble Supreme Court respectively, have been dismissed.
4. The applicant filed Contempt Petition No.125/2014 complaining violation of the orders of this Tribunal dated 09.07.2009 in TA No.701/2009. This Tribunal, after hearing both sides, and after taking note of the orders dated 07.08.2014 passed by the respondents in compliance of the orders of this Tribunal, by recording its satisfaction that the orders of this Tribunal have been complied with by the respondents, closed the CP, by its order dated 02.09.2014, the relevant portion of which reads as under:
6. After exhausting the remedies available under law, the respondents have complied with the orders of this Tribunal and passed final orders on 07.08.2014, and explained the way in which the orders have been complied as under:
3. That in compliance of the orders dated 19.05.2014 passed by the Honble CAT in Contempt Petition No.125/2014 in T.A.No.701/2009 & M.A.No.1298/2014, a meeting of Review DPC was held on 03.07.2014 to review the DPCs of 26.11.2010, 13.12.2010, 16.12.2010 & 07.01.2011 to consider regular promotion to the post of Assistant Engineer (Civil) under 3% Physically Handicapped quota for the panel year 1997 of DPC dated 09.12.1997, 14.05.1998, 25.01.2002 & DPC dated 23.03.2006.
4. The Departmental Promotion Committee has considered the DOP&T O.M.No.36035/7/95-Estt.(SCT) dated 18.02.1997 which specifies that while filing posts by promotion, by selection, against vacancies reserved for the physically handicapped, the physically handicapped candidates who are within the normal zone of consideration will be considered. Where adequate number of physically handicapped candidates of the appropriate category of handicap are not available within the normal zone, the zone of consideration may be extended to five times the normal size and the physically handicapped persons falling within the extended zone may be considered. In the event of non availability of an officer even in the extended zone, the post could be exchanged with other categories of handicap, identified for the relevant post and the reservation carried forward for the next three recruitment years, whereafter it will lapse.
5. In the light of the facts and circumstances narrated above the Review Departmental Promotion Committee held on 03.07.2014 after examining the DOP&T O.M dated 18.12.1997 calculated the year wise quota and prepared the zone of consideration as well as extended Zone of consideration. The highest seniority number of Junior Engineer (Civil) which falls under the extended zone of consideration is 575A in the panel year 2004 whereas your seniority number is 974(UR) as Junior Engineer (Civil). Since your seniority number as Junior Engineer (Civil) does not come under the extended zone of consideration as such your name has not been recommended for promotion to the post of Assistant Engineer (Civil) under 3% physically handicapped quota. The Commissioner, North DMC has accorded its administrative approval of the minutes of the DPC held on 03.07.2014. (Emphasis added) and accordingly prayed for closure of the CP as the orders have been complied with.
7. However, Shri D.R.Gupta, the learned counsel for the petitioner would submit that this Tribunal directed the respondents to calculate the quota meant for the disabled persons year-wise, but the respondents have not done so, and hence, they are liable to be punished for contempt.
8. We cannot accept the contention of the applicant since the Order dated 07.08.2014 of the respondents indicated that they have calculated the year-wise quota and then only considered the case of the petitioner.
9. In the circumstances and for the aforesaid reasons, we are of the view that the respondents have complied with the orders of this Tribunal and accordingly, the CP is closed. Notice issued to the respondent is discharged. No costs.
5. The present MA is filed under Section 27 of the Administrative Tribunals Act, 1985 read with Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987, seeking the following Prayer:
In the light of the above observations, it is humbly prayed that appropriate directions may be issued to the Respondents (MCD) in terms of Rule 24 of the CAT (Procedural) Rules 1987:
i) To prepare a Roster as directed vide OM dated 2/7/1997 (A model roster is placed at pages 31-33 of the submissions made by the Petitioner on dated 29/9/2014).
ii) To earmark (Reservation) points 1, 34, 67 & so on, in the said Roaster (The Roster is to be as a running register)
iii) To carry out the aforesaid exercise (Review DPC) & to work out the Quota reserved for PH Reserved category upto the date of implementation of the CAT order in 2014.
iv) To see that all Reserved categories are to be treated alike. PH reserved category too deserves to get the same treatment as other Reserved Categories viz. SC/ST are treated. i.e. to have a separate zone of consideration. And as such to direct the Respondents to observe equality for all the reserved categories in the matter of reservation in promotion.
v) To direct the Respondents to reconcile the discrepancies which this Petitioner had pointed out in the calculation of vacancies & posts as given by the Respondent in Review DPC & as provided to the Petitioner through RTI Information; as pointed out in the submissions made on 28/8/2014; The factual data/information provided by the MCD is at variance at many points. (See copy of data attached).
vi) To consider the claim of the Petitioner/Applicant for promotion in the light of the above stated facts; and if found eligible, he be considered for promotion.
vii) Any other direction this Honble Tribunal may deem fit & proper in the interest of justice.
6. Section 27 of the Administrative Tribunals Act, 1985 provides as under:
27. Execution of orders of a Tribunal -
Subject to the other provisions of this Act and the rules, [the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order] shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-section (2) or section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.
7. Rule 24 of the Central Administrative Tribunal (Procedure) Rules, 1987 provides as under:
24. Order and directions in certain cases -
The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure the ends of justice.
8. In J.S.Parihar v. Ganapati Duggar & Others, (1996) 6 SCC 291, the Honble Supreme Court held that once the competent authority takes a decision in compliance of the order passed by the Court, however, such decision may be it wrong, would not be construed as commission of contempt. The relevant paras of the said Judgement are extracted below:
6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.
7. The appeals are accordingly dismissed. It may be open to the aggrieved party to assail the correctness of the seniority list prepared by the State Government, if it is not in conformity with the directions issued by the High Court, if they so advised, in an appropriate forum. No costs.
9. In Union of India & Others v. Subedar Devassy PV, (2006) 1 SCC 613, the Honble Apex Court held as under:
Court could not test correctness or otherwise of the order or give additional direction or delete any direction and could not traverse beyond the order, non-compliance with which alleged.
10. In Anil Kumar Sahi (2) v. Prof. Ram Sewak Yadav, (2008) 14 SCC 115, the Honble Apex Court observed as under:
It is by now well-settled under the Act and under Article 129 of the Constitution of India that if it is alleged before this Court that a person has willfully violated its order it can invoke its jurisdiction under the Act to enquire whether the allegation is true or not and if found to be true it can punish the offenders for having committed `civil contempt' and if need be, can pass consequential orders for enforcement of execution of the order, as the case may be, for violation of which, the proceeding for contempt was initiated. In other words, while exercising its power under the Act, it is not open to the court to pass an order, which will materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. When 41 the Court directs the authority to consider a matter in accordance with law, it means that the matter should be considered to the best of understanding by the authority and, therefore, a mere error of judgment with regard to the legal position cannot constitute contempt of court. There is no willful disobedience if best efforts are made to comply with the order.
11. The Full Bench Judgement of the Allahabad Bench of this Tribunal in Satyapal Singh & Others v. I.M.G.Khan, Director General & Others, 2013 (3) S.L.J. (CAT) 1, after discussing various cases of the Honble Apex Court and also of Honble High Courts at paras 11 to 17, including J. S. Parihar (supra) and Anil Kumar Sahi (2) (supra), observed as under:
10. It is needless to say that recalling of final order passed on merits in contempt matters would amount to reviewing the earlier decision/order which had been rightly or wrongly passed on merits. The law is settled on the point that the recall/ review or appeal are the statutory remedies and unless those are specifically provided/conferred under any Act/ Rules, no such recall application is maintainable in contempt matters, particularly when the order has been passed on merits finally deciding the contempt petition. In this regard, certain propositions of law laid down by Honble Apex Court as also by Honble High Courts have also come to our notice which are being discussed herein below:-
12. In Bihar Finance Service H.C. Coop. Soc. Ltd. Vs. Gautam Goswami & Ors., (2008) 5 SCC 339, the Honble Apex Court observed that while exercising contempt jurisdiction, the Court cannot give an additional direction or delete a direction issued, which would amount to exercise of its review jurisdiction.
13. In a recent Judgment of the Honble Apex Court in Sudhir Vasudeva, Chairman & MD, ONGC & Others v. M. George Ravishekaran & Ors., (2014) 3 SCC 373, it was held 15. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[(2002) 5 SCC 352], V.M.Manohar Prasad vs. N. Ratnam Raju and Another[(2004) 13 SCC 610], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[(2008) 5 SCC 339] and Union of India and Others vs. Subedar Devassy PV[(2006) 1 SCC 613].
14. In view of the aforesaid legal position on the subject, as it is not the case of the miscellaneous applicant that the Contempt Petition has been dismissed in default, rather it was decided on merits, therefore, we are of the considered view that once this Tribunal finally disposes the Contempt Petition, after recording its satisfaction about the compliance of the orders of this Tribunal, it has become functus officio and it cannot entertain any MA in the said Contempt Petition for issuing any further or additional directions or orders. Either Section 27 or Rule 24 ibid, has no application to the facts of the present case.
15. In view of the above referred dicta of the Honble Apex Court and of this Tribunal, and for the aforesaid reasons, the MA is not maintainable and accordingly, the same is dismissed. There shall be no order as to costs.
(P. K. Basu) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/