Madhya Pradesh High Court
Havaldar Tejbali Singh vs Major Nachhattar Singh And Anr. on 26 February, 1997
Equivalent citations: (1998)ILLJ82MP
JUDGMENT S.K. Dubey, J.
1. In this petition under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution the petitioner makes a prayer to punish the non-petitioners for not complying the order of this Court dated July 23, 1996 passed in Misc. Petition No. 1101/90 and to direct the non-petitioners to promote the petitioner to the cadre of Subedar and to pay interest at the rate of 12 percent per annum on the amount due on account of pay and allowances and also Rs. 1 lac as compensation for not reinstating the petitioner in service.
2. The facts giving rise to this petition are thus: Petitioner was a Havaldar No. 776624 in 8th Infantry Brigade, who was served with a charge sheet on March 9, 1989. In Summary Court Martial held under Section 116 of the Army Act, 1950 the petitioner was found guilty and was dismissed from service. However, the Brigade Commander of the Unit under Section 162 of the Army Act converted the sentence of dismissal into one of discharge. The petitioner challenged the order by a petition- M.P.No. 1109/90. The order of discharge and also the order passed by Summary Court Martial was set aside and the petitioner was ordered to be entitled to reinstatement and all consequential benefits. However, the petitioner was not reinstated as having completed 24 years of service on July 7, 1994. His case for payment of pay and allowances from March 10, 1989 to July 24, 1994 and revised pensionary benefit was sent to Record Office for payment treating the petitioner in service till the date of his retirement.
3. Learned counsel for the petitioner submitted that his case was bound to be considered for promotion and if promoted he would have served till 1998. He would have cleared the promotion Cadre Criteria if he would have been in service. Therefore, the petitioner cannot be denied his right for consideration of his case for promotion to the higher rank. Therefore, the non-petitioners are guilty of contempt. Counsel relied on Lt. Colonel K.D. Gupta v. Union of India and Ors. (1989-II-LLJ-143) (SC) Raghunandan Prasad Sharma v. State of Madhya Pradesh and Anr. 1984 MPU 422 and an unreported decision of this Court in M.C.C.No. 452/1993 decided on February 3, 1994 arising out of M.P. No. 3384/92 decided on April 29, 1993 (Shivanand Prasad v. Chief of Army Staff and Ors.),
4. In reply to the contempt petition, it is stated that no time limit was fixed for compliance of the order. However as the petitioner completed 24 years of service the petitioner's case for payment of back pay and the consequential benefits upto the date of retirement, that is with effect from March 10, 1989 till July 31, 1994 and the pensionary benefits for completing 24 years of service as per para. 164 of the Regulations for the Army, 1987 (Revised Edition) was considered treating the petitioner as reinstated for grant of arrears of allowances amounting to Rs. 1,50,000/- less the amount of A.G. recovery from July 18, 1994 and was forwarded vide CMP Records Part-II order No. 1/227/000796 to CDA (UR) Bangalore vide CMP Records Letter No. 7766267/74/ NE(S.Pan)dated December 21, 1996 for audit and onward submission to the Govt of India which is pending and will be cleared very soon. As to the grievance of the petitioner for promotion from Havaldar to Naib Subedar it was stated that the petitioner for the criteria of promotion i.e. A. ACR Criteria B. Medical Criteria C. Discipline Criteria D. Promotion Criteria did not fulfill the criteria 'D' that is Promotion Carde Criteria, hence, his case for promotion could not be considered.
5. Smt. Indira Nair learned counsel for the non-petitioners submitted that writ Court directed reinstatement and for consequential benefits and not for promotion. Consideration of the case of the petitioner for promotion does not come within the term consequential benefits. Petitioner cannot claim promotion as of right but can claim his right to be considered but as he did not fulfill the criteria for consideration, therefore, his case was not considered. However, if the petitioner is aggrieved of the decision, the remedy is not by way of contempt petition but either to seek modification of the order passed in writ petition or to challenge his non-promotion by fresh petition.
6. From reading the operative part of the order dated July 23, 1996 passed in writ petition it is evident that no direction was issued to consider the case of the petitioner and to grant promotion from the Cadre of Havaldar to the Cadre of Naib Subedar. The Writ Court directed that the petitioner would be entitled to reinstatement and all the consequential benefits. Reinstatement results in replacing the person in a position from which he was dismissed, retired or resigned. It means the maintenance of status quo ante. Ordinary dictionary meaning of the word 'reinstatement' is to restore to the previous position. Consequential benefits means benefits which necessarily flow from the principle relief ie., reinstatement and the benefit which flows from reinstatement. Therefore, on reinstatement on the post of Havaldar the petitioner was entitled to all benefits of the post from the date of termination till reinstatement, that is the petitioner was entitled to all the pay, allowances and increments payable to the post of Havaldar as the petitioner was deemed to continue in service.
7. True, if the petitioner would have been in service and if he would have fulfilled all the criteria for promotion to the rank of Naib Subedar his case would have been considered for promotion to higher Cadre. However, the promotion is not as a matter of course or as of right, in the circumstances as there was no clear order of direction to promote the petitioner the non-petitioners in their bona fide interpretation of the order did not grant him promotion because of non fulfillment of criteria of promotion. Therefore, the decisions relied by the petitioner are of no help to the petitioner.
8. In case of Lt. Colonel K.D. Gupta (supra), the Supreme Court in Civil Appeal directed the authorities of Indian Army to reconsider case of the employee for promotion on the basis of his medical categorisation continuing as S.I. The authorities denied promotion as lower medical catergorisation was not connected with promotional entitlement, Supreme Court did not accept the stand as the plea was taken for the first time.
9. Unreported decision of Division Bench of this Court in M. C. No. 452/93 arising out of the order passed in M.P. No. 3384/1992 dated April 29, 1993 (Shivanand Prasad v. Chief of Army Staff and 2 others) is also of no help to the petitioner and the same is distinguishable on facts. In that case there was a clear direction to consider the case of the petitioner for the post of Subedar or Subedar Major and to pay all monetary benefits consequent upon his promotion as Naib Subedar.
10. The decision in the case of Raghunandan Prasad Verma v. State of M.P. 1984 MPLJ 422 (supra) is of no help to the petitioner as that was a case where a Deputy Jailor was removed from service on certain charges, in appeal he was exonerated of the charges levelled against him and was reinstated and continued in service and thereafter retired on attaining the age of superannuation. In that case the petitioner sought the relief of promotion and consequential benefits. This Court after considering the provisions of Fundamental Rules 54-55 directed that he was entitled to full salary upto the date of reinstatement and also entitled to be considered for promotion and if found by the Competent : Authority to be fit for promotion he would be entitled to the benefits and he shall be deemed to have been promoted and for that monetary benefit was ordered to be counted onwards up to the date of retirement. 11. In the circumstances of the case, this Court is of the opinion that the non petitioners cannot be held liable for contempt for wilful disobedience of the order passed by this Court in M.P. No. 1101/90. The appropriate remedy for the petitioner if the petitioner is aggrieved of his non-promotion, is to challenge the same in appropriate proceedings, if so advised. Any observation made here wilt not come in the way of the petitioner as this Court has not dealt with the case of the petitioner for promotion.
12. In the result, the proceedings are dropped, notice is discharged.