Calcutta High Court (Appellete Side)
(Union Of India & Ors vs Lakshman Chandra on 8 February, 2019
1
06 08.02.2019 W.P.C.T. 74 of 2016
Pg
With
C.A.N. 3935 of 2017
(Union of India & Ors. vs. Lakshman Chandra
Bhandary & Ors.)
Mr. Malay Kr. Das
Mr. Anirban Dutta.............for the writ petitioners
Mr. Rabilal Maitra
Md. Alauddin Mondal
Mr. R.L. Maitra.............for all the respondents
except respondents 8, 10 to 15, 17, 19 to 22, 24 to 29, 26, 38 and 42 Mr. Alok Kr. Pal ............for the respondents 10 to 15, 17, 19 to 22, 24 to 29, 26, 38 and 42
1. The Railway Board issued a circular dated July 16, 2010 on the following subject :
"Appointment of land losers affected by land acquisition for railway projects".
Such circular contained provisions for screening as well as other conditions, which a land loser was expected to fulfill before being offered a job in the railway.
2. The respondent no.1 before us was the owner of an immovable property, which was acquired for railway project. Undisputedly, he could be regarded as a land loser. An application was accordingly made by him seeking a job in the railway. There was no proper consideration of the application filed by the respondent no.1, which prompted him to move the Central Administrative Tribunal, Calcutta Bench (hereafter the 'tribunal') with an original application under section 19 of the Administrative Tribunals Act, 1985 (hereafter the 'Act') being O.A. 1058 of 2013.
3. The said original application was disposed of 2 by an order dated August 29, 2013 of the tribunal, which reads as follows:
"Considering the request of the Ld. Counsel for the applicant and keeping the interest of justice in mind we think it appropriate to issue a direction upon the respondents to consider and decide the applicants representation/legal notice dated 8.6.2013, which is contained in Annexure A-7 to the O.A. in accordance with law as well as considering the Railway Board's circular dated 16.7.2010 within a period of three months from the date the certified copy of the order is produced and the decision so taken be communicated to the applicant. Ld. Counsel for the applicant is also directed to serve copy of the legal notice along with copy of this order to the respondents."
(underlining for emphasis by us)
4. Acting in compliance with the aforesaid order, the claim of the respondent no. 1 was considered. An order was passed on July 15, 2014 by the Chief Personnel Officer, Eastern Railway, inter alia, recording as follows:
"Moreover, on scrutiny of your Land Loser Certificate-cum-Application Form along with all the documents/papers supplied by you as per Railway Board's letter No. E (NG)II/2010/RC-5/1 dated 16.07.2010, it is found that you have not submitted some relevant documents/papers so that the same can be put up to Screening Committee for screening.
Under the circumstances discussed above and taking into consideration all the factors, General Manager/ E. Railway has declined to offer appointment to Lakshman Chandra Bhandari, S/o Bishnupada Bhandari against your representation. This is continuation to this office earlier Memorandum of even No. dated 22.01.2014."
(underlining for emphasis by us)
5. Aggrieved thereby, the respondent no.1 initiated an action for contempt before the tribunal. The contempt application filed by him was registered as CPC 350/00096/2014. Such application together with the applications filed by other parties, came up for consideration on August 29, 2014. By an order passed on that date, the tribunal held to the following effect:
"5. Considering all the aspects of the matter, accordingly, we are of the view that the order of the 3 Tribunal has not been complied with in true letters and spirit and we may hold the alleged contemnors as guilty of the Contempt under the Contempt of Courts Act to impose necessary punishment.
6. At this juncture, Ld. Advocate for the alleged contemnors submits that the alleged contemnors will decide the issue afresh to implement the order of the Tribunal in its letter and spirit.
7. Having regard to such submission, we are not asking the alleged contemnors to appear in person asking to show cause why punishment should not be imposed, but granting leave to the alleged contemnors to file a further compliance report on the basis of the submission made by the Ld. Advocate for the alleged contemnors today and in terms of the order of the Tribunal by three months on the date fixed.
8. List this matter on 2.1.2015."
(underlining for emphasis by us)
6. The claim of the respondent no. 1 was considered afresh and the Chief Personnel Officer by his letter dated December 12, 2014 informed him as follows:
"In compliance of Para-6 of the order of Hon'ble CAT/Calcutta dated 29.08.2014, in CP (C) No. 350/00108 of 2014 arising out of OA No. 1058 of 2013, in the case of Lakshman Chandra Bhandary Vs. GM/E. Rly. & Others, you representation along with the report of the 3-Member Screening Committee was placed before the General Manager for consideration of their claim for appointment in the Railways on land acquisition ground.
As per provisions in Para-5 of Railway Board's letter No. E(NG)II/2010/RC-5/1 dated 16.07.2010, General Manager has not considered to offer appointment in Railways since the applicant has crossed the prescribed upper age limit for the post against Direct Recruitment Quota from open market in terms of Railway Board's letter No. E(NG)-II/94/RR- 1/29 dated 25.04.2012."
7. Such order was made part of a compliance report and placed before the tribunal in course of hearing of the application for contempt when the same came up for consideration before the tribunal on September 10, 2015. The order passed on that date reads as follows:
"5. As such, as of now, it is clear that the respondents cannot simply avoid the present prayers of the applicants for giving appointment to them relaxing the age standard on par with the standard applied for persons figuring in the said list submitted by Ld. Counsel for the applicant.
6. Hence it is just and proper to order 4 Assistant Personnel Officer to appear in person for clarifying the position on the next date of hearing of this CPC.
5. List on 16.11.2015."
8. The application for contempt was next considered on November 16, 2015, when the tribunal passed the following order:
"4. On the earlier occasion this Bench passed the order dated 10.09.2015 and it might be read as part and parcel of this order also. Today when the matter is taken up for hearing, the Ld. Counsel for the respondents would reiterate the earlier stand of the Railways by pointing out that the age relaxation cannot be given indiscriminately as that would be against the interest of the new eligible aspirants and also the Railways. Whereas the Ld. Counsel for the applicant would vehemently argue that land-losers and their representatives form a separate category of their own and for some of them earlier age relaxation was given upto 47 years and now they cannot change their policy and reject the candidature of the present applicants.
5. We could see considerable force in the submissions made by Ld. Counsel for the applicants as there cannot be any double standard while processing the applications of the land-losers and their representatives for appointment. It is inferable and understandable from the non-denial on the part of the respondent authorities that at one point of time, the age relaxation upto 47 years was given, and that the candidature of the applicant was denied on the ground that they crossed 32 years of age, that double standard was adopted, which we cannot countenance and uphold, and hence in the interest of achieving parity so far as this group of people is concerned the same yard-stick has to be applied.
6. Accordingly, we issue the direction and within a period of four months the applicants' grievance shall be redressed without any default.
7. The CPCs are thus disposed of. No costs."
9. The effect of the order dated November 16, 2015 is that the respondent no.1 has to be given appointment as a land loser notwithstanding the fact that he may have crossed 32 years of age. Such direction was issued by the tribunal on the ground that previously the railway had granted age relaxation upto 47 years. 5
10. The order dated November 16, 2015 is now the subject-matter of challenge in this writ petition under Article 226 of the Constitution.
11. Mr. Das, learned advocate appearing for the petitioners has contended that the tribunal committed gross error in making an order which, in effect, amounts to alteration of the parent order dated August 29, 2013, whereby it merely directed consideration of the claim of the respondent no. 1. It is his submission that while hearing an action for contempt of an order for consideration of the claim for appointment, the tribunal could not have directed appointment being offered to the respondent no.1. In support of his contention, Mr. Das has relied on the decision of the Supreme Court reported in A.I.R. 2014 SC 950 : Sudhir Vasudeva, Chairman and MD, ONGC & Ors. vs. M. George Ravishekaran & Ors..
12. Mr. Das has also cited the decision of the Supreme Court reported in 1996 (6) Supreme 133 : J.S. Parihar vs. Ganpat Duggar & Ors. to contend that the legality and/or propriety of the order dated July 15, 2014 as well as the order dated December 12, 2014 could not have been examined by the tribunal, as if it were exercising the powers of judicial review. Remedy of the respondent no.1, if at all, was to present a fresh application under section 19 of the Act.
13. Mr. Das, accordingly, prayed that the impugned order be set aside.
14. Mr. Maitra, learned senior advocate appearing for the respondent no.1 has drawn our attention to the circular dated July 16, 2010 to contend that the factum 6 of acquisition of the property of the respondent no. 1 not having been disputed, he deserved consideration of his claim for appointment in accordance with the conditions prescribed for appointment against direct recruitment quota from the open market and also having regard to the power of relaxation that is conferred on the authority. According to him, the orders passed by the Chief Personnel Officer would clearly reveal absence of consideration of the circular dated July 16, 2010 in its true letter and spirit and the same having been noticed by the tribunal, it observed that the officers of the railway were in contempt. He has, accordingly, supported the order of the tribunal and has contended that if upon relaxation of age criterion, other land losers could be appointed even upon attainment of 47 years of age, the respondent no.1 should not be excluded only on the ground of age bar.
15. We have presently before us the writ petition as well as C.A.N. 3935 of 2017, which is an application for vacating of the interim order dated April 01, 2016 filed by the added respondents (respondents 2 to 43). They claim to be standing on similar footing as the respondent no.1.
16. It appears that while admitting the writ petition on April 01, 2016, a coordinate Bench had stayed the order passed by the tribunal on November 16, 2015 during its pendency. Upon hearing the parties, we have no hesitation in our mind that the order impugned dated November 16, 2015 has been passed by the tribunal in excess of its jurisdiction to punish for 7 contempt and, therefore, cannot be sustained in law.
17. Law is well-settled that while hearing an action for contempt, the tribunal's scrutiny ought to be confined to ascertain whether its order has been wilfully disobeyed; if yes, it ought to ensure proper compliance of the order alleged to have been disobeyed. If an order has been passed by the tribunal for consideration of the claim of an applicant before it and an order has been passed thereafter rejecting the claim, the element of wilful disobedience may not exist and it is normally not open to the tribunal, in exercise of its contempt jurisdiction, to examine its validity as if it were a court of judicial review.
18. As has been held in J.S. Parihar (supra), the order may be right, the order may be wrong; the order may not have been passed in strict conformity with the directions. However, a pronouncement as to whether the order is sustainable in law cannot be made except in exercise of the power of judicial review. In that view of the matter, we are inclined to hold that the tribunal upon receiving the action for contempt ought to have disposed of the same on August 29, 2014 itself with liberty to the respondent no. 1 to pursue his remedy in accordance with law. Unfortunately, the tribunal examined the merits of the order and recorded a conclusion that its previous order had not been complied with in true letter and spirit and also that the railway officers were guilty of contempt. After the composition of the tribunal changed, the impugned order dated November 16, 2015 was passed and the members comprising the tribunal went a step further and made an order for appointment of the 8 respondent no.1, which was not even contemplated by the tribunal when it first disposed of the original application of the respondent no.1 by the order dated August 29, 2013.
19. Sudhir Vasudeva (supra) has reiterated the settled principle of law that while disposing of a contempt application, no order can be passed by the court or the tribunal, which in effect adds to, subtracts or alters the order of which contempt is alleged. In that view of the matter, we have no hesitation to hold that the order impugned dated November 16, 2015 is in the teeth of the decision in Sudhir Vasudeva (supra) and being one passed in excess of jurisdiction, the same cannot be sustained in law. It is set aside.
20. We, however, do not propose to conclude our judgment here.
21. It is evident from the materials-on-record that even land losers, who were 47 years old, have been offered appointment. The respondent no. 1 was 46 years old on the date he approached the tribunal for the first time. When his claim was rejected by the first order dated July 15, 2014, age-bar was not cited as a ground therefor. What we find is that there were absence of certain documents/papers for which the claim of the respondent no.1 could not be put up before the screening committee for screening. If indeed that was the reason for regretting his prayer, the petitioners ought to have asked the respondent no. 1 to supply the documents, which were not there in the file, instead of closing his right to claim appointment. We, therefore, propose to pass the 9 following further directions to close the breach:
(i) within a period of seven days from date of receipt of a copy of this judgment and order, the Chief Personnel Officer shall intimate the respondent no.1, which of the documents are required from his end for ensuring placement of his claim before the screening committee;
(ii) within a month of receipt of such intimation, the respondent no.1 shall produce the necessary documents/papers before the Chief Personnel Officer and upon receipt of such documents/papers, the claim of the respondent no.1 shall be placed before the screening committee for an appropriate decision;
(iii) bearing in mind the fact that other land losers have been offered appointment even upon attaining 47 years of age, we hope and trust that the screening committee shall not cite age-bar as a ground for not considering the claim of the respondent no.1 and if a power of relaxation is indeed available to consider invocation of such power if the merits of the case so warrants; and
(iv) the entire exercise shall be completed as early as possible but not beyond June 30, 2019.
22. In view of the aforesaid order, the writ petition stands disposed of together with the vacating application (C.A.N. 3935 of 2017). There shall be no order as to costs.
23. Since the respondents 2 to 43 have been added in this writ petition as respondents, their claims may also be considered in the light of the above 10 directions if they stand on the same footing as the respondent no. 1.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously. (BIBEK CHAUDHURI, J.) (DIPANKAR DATTA, J.)