Central Administrative Tribunal - Delhi
Avnish Bansal vs Sh. D. P. Aggarwal on 18 May, 2012
Central Administrative Tribunal Principal Bench CP No.197/2012 OA No.1538/2009 New Delhi, this the 18th day of May, 2012 Honble Mr. Justice S. C. Sharma, Acting Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Avnish Bansal Aged 29 years, S/o Shri R. C. Bansal, R/o SessionsHOuse, Kurushetra R/o 917/9, Panchkula 134109 Haryana. . Applicant. (By Advocate : Sh. Jainendra Jain) Versus 1. Sh. D. P. Aggarwal The Chairman Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi 110 003. 2. Sh. P. K. Mishra The Secretary Department of Personnel & Training North Block, New Delhi. . Respondents. (By Advocate : Sh. Naresh Kaushik with Ms. Joymoti Mize counsel for Respondent No.1 and Sh. R. N. Singh counsel for Respondent No.2) : O R D E R (ORAL) : Justice S. C. Sharma, Acting Chairman :
The instant Contempt Petition has been moved for willful disobedience of the order passed by this Tribunal in OA o.1538/2009 dated 8.10.2010. Along with this OA a bunch of cases were decided by a common order. It is the main thrust of the applicants advocate that the respondents have not care to comply the order as per direction.
2. We have heard Shri Jainendra Jain, Advocate for the Petitioner and Shri R. N. Singh, Advocate for the Respondents and perused the entire facts of the case. The Tribunal has ordered in Para No.10 and the relevant is Clause (a), wherein it has been provided that the Disabilities Act Provides for reservation of physically handicapped to the extent of three per cent, one per cent each for visually handicapped, hearing impaired and persons with loco motor disability and cerebral palsy. Certain other directions were given, but we are concerned only with Direction No.(h) wherein, it has been provided that advantage of reservation has to be given to the physically handicapped candidates after working out the number of vacancies available on the basis of total number of posts recommended and the backlog vacancies.
3. Shri R. N. Singh, Advocate for the respondents stated that the respondents have complied with the directions of the Tribunal and a reply was filed on 1.05.2012. Learned Advocate diverted out attention towards Para No.9 of the compliance affidavit, wherein, it has been provided that It is respectfully submitted that keeping in view of the above parameters, this department carried out an exercise to allocate service to the recommended candidates against backlog & original vacancies along with the candidates of main list from CSE-2006 to 2009. The name of the applicant appeared at Sl. No.234 of the CSE-2008 and also in the CSE-2009 at Sl. No.33 and according to this chart, the allocation has been made and it has been stated in Para 10 that It may be seen that out of all the claimants, the petitioner herein is at 24th place in the above order where there were only 11 vacancies available in IAS, (8 backlog+3 originally available vacancies) which was his 1st preference. The second preference of the petitioner was IPS in which there was no vacancy for PH candidates. The petitioner has been allocated to IRS (C&CE) which was his 3rd preference. Thus, there is no mala fide in the above exercise, as contended by him. He cannot be allocated to IAS, ignoring those candidates who are senior to him rank wise and had appeared in CSE belonging to previous years. This has to be particularly appreciated in the context that Shri Ravi Prakash Gupta and others have been allocated IAS from CSE-2006 on the basis of the Orders of Honble High Court of Delhi and Honble Supreme Court. It has further been stated in Para 11 that It is submitted that the service allocation to the applicant viz. Shri Avnish Bansal is according to the Rules governing the Civil Service Examination and the principles approved by the competent authority. In this manner, it has been stated on behalf of the respondents that proper compliance has been made of the order passed by this Tribunal. Moreover, one compliance report has already been filed on 9.04.2012 and the perusal of this compliance report shows that while considering the reallocation of service the judgment on the ratio as laid down by the Honble High Court of Delhi in case of Shri Ravi Prakash Gupta and upheld by Honble Supreme Court has already been considered.
4. It has also been stated in this compliance report that on the basis of the above parameters, the applicant has been allocated to the Indian Revenue Service (Customs & Central Excise) Group-A from CSE-2008. From all these facts, it has been stated on behalf of the respondents that proper compliance of the order passed by this Tribunal has been made by the respondents and by no stretch of reasoning it can be stated that respondents have committed willful disobedience of the order passed by this Tribunal.
5. We have heard at length learned Advocate for the Petitioner who tried and persuaded us to enter into the merits of the case and to consider the merits while considering the compliance report and compliance affidavit. It has been argued that proper allocation has not been made by the respondents. The applicant ought to have been allocated the IAS cadre and they have not allotted the IAS cadre. As we have stated above that the Tribunal has not passed any order to allocate IAS to the applicant, rather an order was passed to consider the case of the applicant for allocation/reallocation of the vacancies to the physically handicapped and the applicant belong to the hearing impaired quota. As we have stated above, there is no clear cut direction of the Tribunal that the IAS cadre be allocated to the Tribunal, therefore, the respondents have considered the case of the applicant and IRS, Customs and Central Excise to the applicant and it cannot be said that there is willful disobedience of the order passed by this Tribunal. Learned Advocate for the respondents, Shri R. N. Singh, placed reliance on a judgment of the Honble Supreme Court reported in (1996) 6 SCC 291 J. S. Parihar versus Ganpat Duggar & Ors. The Honble Supreme Court has laid down as under :-
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 opportunity 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 willful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the ld. Single Judge cannot be given to redraw the seniority list. In other words, the ld. 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.
6. Hence, in view of the judgment of the Honble Supreme Court if a direction has been given by the Tribunal or the Court to consider the case of the applicant and the respondents have come with a case that they have considered the case of the applicant and they may be wrong or may be right or may not be in conformity with the direction but that will be a fresh cause of action but it cannot be considered a willful disobedience of the order passed by this Tribunal. We are of the opinion that as the respondents as per directions of the Tribunal allocated IRS (Customs & Central Excise) to the applicant. Hence, it cannot be said that the respondents have committed willful disobedience by not allocating IAS to the applicant. If the applicant is aggrieved from the order passed by the respondents or the stand taken by them, then the applicant has got a fresh cause of action to challenge the order in a fresh OA but we cannot consider the merits of the case, in order to direct the respondents to allocate IAS to the applicant. The respondents have come specifically that the applicant was placed at Sl. No.24 and there was only 11 vacancies available in IAS (8 backlog + 3 original available vacancies) which was the applicants first preference and there was second preference of the applicant in IPS and there was no vacancies for PH candidates. The 3rd preference of the applicant was IRS (C&CE) and the applicant has been allocated the 3rd preference. We are satisfied that there is a proper compliance of the order passed by this Tribunal and it cannot be said that the respondents have committed willful disobedience of the order passed by this Tribunal. It may be that the applicant is aggrieved from the order passed by the respondents or compliance made by the respondents then he has got a fresh cause of action to challenge that order but we cannot consider this fact in this CP. Moreover, the Contempt Petition is between the Court and the Contemner and the applicant has nothing to say that the respondents have not complied with the order in an appropriate manner suggested by the petitioner. We cannot say that the respondents have committed willful disobedience.
7. For the reasons mentioned above, we are of the opinion that proper compliance of the order has been made by the respondents and this contempt petition does not survive and is liable to be dismissed.
8. The CP is dismissed as proper compliance of the order has been made.
(Dr. Ramesh Chandra Panda) (S. C. Sharma) Member (A) Acting Chairman /pj/