Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India & Others on 19 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH.
.
(i) MA No. 696/12 in OA no. 1089/CH/2010.
(ii) MA no. 697/12 in OA No. 870/CH/2011.
(Reserved on 3.10.2012)
Chandigarh: this the 19th day of October, 2012.
..
CORAM:HONBLE MR. JUSTICE S.D. ANAND,
MEMBER (J).
HONBLE MR. RANBIR SINGH, MEMBER (A).
......
(i) MA no. 696/12 in OA No. 1089/CH/2010.
Prem Singh & others.
.APPLICANTS.
BY ADVOCATE: SHRI ROHIT SETH.
VERSUS
Union of India & Others.
...RESPONDENT (HOME SECRETARY, U.T. CHANDIGARH).
BY ADVOCATE: SHRI ASEEM RAI, STANDING COUNSEL.
(ii) MA no. 697/12 in OA no. 870/CH/2011.
Jaswinder Singh & others.
APPLICANTS.
BY ADVOCATE: SHRI ROHIT SETH.
VERSUS
Union of India & other.
.RESPONDENTS.
BY ADVOCATE: SHRI ASEEM RAI, STANDING COUNSEL.
ORDER
..
HONBLE MR. JUSTICE S.D. ANAND, MEMBER (J)
1. The narration of relevant facts, at the very outset, would enable easy appreciation of the controversy.
2. OA Nos. 308/CH/2010, 870/CH/2011 and 1089/CH/2011, filed by the General Category candidates, came to be allowed, vide order dated March 13, 2012.
3. It was, by means of MA Nos. 696/12 and 697/12, that the applicants applied for the implementation of the orders aforementioned. An averment, made in the context, was that the respondent (Home Secretary, U.T. Chandigarh), have not complied with the order of this Honble Tribunal. The further plea raised in the context was that, unless the needful is done the respondent (Home Secretary, U.T. Chandigarh) are liable to appear and explain before this Honble Tribunal the cause for not complying with the directions given by this Honble Tribunal moreover in the light of fact that no judicial review challenge has been made by them.
4. In order to be able to explain the delay in the implementation of the order aforementioned, Shri Anil Kumar, Home Secretary, U.T., Chandigarh Administration filed an affidavit and detailed the circumstances under which the delay in the context had occurred. The various items of clarification, averred in the context, are extracted hereunder:-
Implementation of the same entails widespread socio-legal ramifications which involve the withdrawing of service benefits granted to the persons belonging to the reserved category since the past many years. It will affect the rights of not only the private respondent (Home Secretary, U.T. Chandigarh) arrayed as party in the instant case but eventually all similarly situated persons working under the respondent Administration. It is in such unprecedented circumstances that it has taken longer than usual to decide the next course of action.
That after detailed discussions and deliberations, it has been found that due to the deficiency of pleadings on record, this Honble Tribunal has perhaps been prevented from returning an in-depth adjudication qua the specific question whether the denial of promotion and consequential benefit of seniority to the Scheduled Caste employees is to be given prospective or retrospective effect. Unfortunately the importance of this vital aspect could not be anticipated, as a result of which it could not be projected or highlighted properly during the course of making written and oral submissions before the Honble Bench. Accordingly necessary steps are now being taken to seek judicial review, as permissible under law, on this limited aspect alone.
5. Thereafter, the learned Standing Counsel for the respondent (Home Secretary, U.T. Chandigarh) placed three letters (dated 9.4.2012, 2.7.2012 and 31.7.2012) on record. On analysis of the respective stances, adopted by the parties to that correspondence, the Tribunal granted an order dated 9.8.12 which is extracted hereunder:-
1. The learned Standing Counsel for the respondent (Home Secretary, U.T. Chandigarh) has placed on record three letters (dated 9.4.2012, 2.7.2012 & 31.7.2012), the contents whereof are extracted hereunder:-
9.4.2012 (Communication addressed by the IGP, UT Chandigarh to the Home Secretary, Chandigarh Administration) In this regard, it is intimated that OAs No. 308,CH/2010, No. 1089/CH/2011 & No. 870/CH/2011 have been allowed by the CAT, whereas, OA. No. 921/CH/2011 has been dismissed on 13.3.2012. Copy of order of the CAT in all these OAs is enclosed. Sh. Aseem Rai, Adovcate, vide his letter dated 21.3.2012 (copy enclosed), has opined for filing a review application and seek rectification of the said error/discrepancy.
Since the matter pertains to policy having wider ramifications and applicability in all the offices/departments of Chandigarh Administration, it is requested to get the same examined both by Personnel Department as well as Law Department for further directions, as considered appropriate. 2.7.2012 (Communication addressed by the Home Secretary, Chandigarh Administration to the IGP, UT, Chandigarh.
Before taking above cases of promotion of employees in different cadre in Police Department, it has been found necessary to assess the inadequacy of representation of SC candidates. It has, therefore, been decided that Director, Social Welfare to carry out a detailed survey of the SC candidates actually available in various posts in Police Department. For this name of SC category employees, who have been posted against SC category point on the roster is to be supplied to Director Social Welfare. Any SC employee who has joined the service on merit without availing SC roster point will not be part of this data. Information regarding total number of employees in each post also need to be supplied. This information is required in connection with the directions in a court case, therefore, it is requested that highest priority should be accorded to. 31.7.2012 (Communication addressed by the IGP, UT Chandigarh to the Home Secretary, Chandigarh Administration) From your letter under reference, it is understood that Chandigarh Administration has taken a conscious decision neither to file review application in the CAT (as advised by government counsel) nor Civil Writ Petition in the Honble High Court to challenge the order dated 13.3.2012 of Honble Tribunal, and has instead decided to implement CAT orders. It is, however, not conveyed in the letter under reference as to how the previous promotions/seniority matters are to be reviewed and current/future promotional matters of the Chandigarh administration employees, including that of this Department, are to be dealt with till the required study is conducted by the UT Administration and fresh guidelines are issued.
It is, therefore, requested that necessary policy directions in the matter may be conveyed so that previous promotion/seniority matters could be reviewed and further promotion/seniority matters are dealt with as per the law decided by CAT on the basis of Apex Court judgement, to avoid any legal complication. (Underlining for purposes of emphasizing)
2. Sh. Aseem Rai, learned Standing Counsel, is under instructions to challenge the factual accuracy of the underlined attribution. He asserts to the contrary by averring that no conscious decision to the indicated effect has been taken by the Chandigarh Administration.
3. The present is, thus, a case where the head of the UT Police (IGP, UT Chandigarh) has made a precise averment which is denied by the learned counsel for the Chandigarh Administration.
4. For ensuring factual clarity, in the context of apparent contradiction, the respondent (Home Secretary, U.T. Chandigarh) may place on record an affidavit of the Home Secretary, Chandigarh in the context of the underlined attribution to the Home Department. That only will enable this Tribunal to adjudicate upon the controversy in the context.
6. In that very context, the Tribunal granted an order dated 16.8.12 which, too, is extracted hereunder:-
1. Sh. Aseem Rai, learned Standing Counsel, requests a week-long adjournment to comply with the order dated 9.8.2012 in so far as it relates to the filing of an affidavit of the Home Secretary qua the attribution in the course of the Communication dated 9.4.2012 addressed to him by the IGP, UT Chandigarh.
2. The learned Standing Counsel is also under instructions to state that the matter has been referred to LR, UT Chandigarh for his opinion.
3. Sh. Rohit Seth, the learned counsel appearing on behalf of the applicant, states that though he has no objection to the grant of a week-long adjournment for purposes of filing of an affidavit by the Home Secretary, Chandigarh, he requests for the grant of a direction to the respondent (Home Secretary, U.T. Chandigarh) to file their counter to the MA as well. He has a feeling that the respondent (Home Secretary, U.T. Chandigarh) are trying to gain time for some purpose.
4. Be that as it may, the matter shall stand adjourned to 24.8.2012 for purposes of filing of affidavit aforementioned and also the counter to the MA.
5. We may notice here that the learned counsel for the applicant had made an averment on 31.7.2012 that no judicial review challenge had come to be filed till that date.
6. It is to state the obvious that the filing or otherwise of a judicial review challenge is the discretion of the affected party. This Tribunal would grant indulgence to enable the affected party to have recourse to the remedy available to it on the judicial side. In this case too, the respondent (Home Secretary, U.T. Chandigarh) have been shown indulgence till date.
7. At the same time, the grant of an indulgence beyond a reasonable duration, may not be feasible. Though the nature of the poser, which has been referred to the LR for opinion, has not been indicated, it will be for the respondent (Home Secretary, U.T. Chandigarh) to obtain appropriate orders in judicial review challenge. In the alternative, the announced conditional implementation of the relevant order may be considered.
8. We would like to make it clear that the relevant orders by the Tribunal, having come about as early as in March, 2012 (13.3.2012), it may not be feasible to grant any further adjournment to the respondent (Home Secretary, U.T. Chandigarh) herein for filing of the counter.
7. It was ultimately on 31.8.12, that an order noticing and dealing with the respective stances offered by the parties in the context of implementation, came to be granted. We would extract that order too hereunder:-
1. This O.A., filed in the year 2010, came to be allowed vide order dated 13.03.2012.
2. The foundational premise of the view obtained by the Tribunal was the judgment rendered by the Honble Apex Judicial Dispensation in M.Nagrajs case (2007(4) SCT 664) which was reiterated by that Honble Court in Suraj Bhan Meena and another Vs. State of Rajasthan and Others (SLP) No. 6385/2010 decided on 07.12.2010 and followed by the Punjab and Haryana High Court in Laxmi Narayan Gupta Vs. Jas Singh and Others (CWP No. 13218 of 2009 decided on 15.07.2011) which (judgments) were, in respectful accord, followed by a learned Co-ordinate Bench of this Tribunal in O.A. No. 566 of 2008.
3. This MA for implementation came to be filed on 27.07.2012. Notice in the MA was accepted by the learned Standing counsel on 31.07.2012.
4. It was vide letter dated 09.04.2012 that the IGP, UT, Chandigarh requested the Home Department (Home Secretary, UT Administration Chandigarh) to get the same examined both by the Personnel Department as well as Law Department for further directions, as considered appropriate in view of the fact that the matter pertains to policy having wider ramifications. The letter also quoted the learned counsel (for Chandigarh Administration) having opined for filing review application and seek rectification of the said error and discrepancy, vide his letter dated 21.03.2012.
5. No review has come to be filed till date.
6. While accepting notice on 31.07.2012, learned counsel for the UT Administration had sought time to have instructions. The matter thereafter came to be adjourned to various dates. The apparent variance in the stances adopted by the IGP UT Chandigarh came to be noticed in the course of order dated 09.08.2012 which, for facility of reference, is extracted hereunder:-
1. The learned Standing Counsel for the respondent (Home Secretary, U.T. Chandigarh) has placed on record three letters (dated 9.4.2012, 2.7.2012 & 31.7.2012), the contents whereof are extracted hereunder:-
9.4.2012 (Communication addressed by the IGP, UT Chandigarh to the Home Secretary, Chandigarh Administration) In this regard, it is intimated that OAs No. 308,CH/2010, No. 1089/CH/2011 & No. 870/CH/2011 have been allowed by the CAT, whereas, OA. No. 921/CH/2011 has been dismissed on 13.3.2012. Copy of order of the CAT in all these OAs is enclosed. Sh. Aseem Rai, Adovcate, vide his letter dated 21.3.2012 (copy enclosed), has opined for filing a review application and seek rectification of the said error/discrepancy.
Since the matter pertains to policy having wider ramifications and applicability in all the offices/departments of Chandigarh Administration, it is requested to get the same examined both by Personnel Department as well as Law Department for further directions, as considered appropriate. 2.7.2012 (Communication addressed by the Home Secretary, Chandigarh Administration to the IGP, UT, Chandigarh.
Before taking above cases of promotion of employees in different cadre in Police Department, it has been found necessary to assess the inadequacy of representation of SC candidates. It has, therefore, been decided that Director, Social Welfare to carry out a detailed survey of the SC candidates actually available in various posts in Police Department. For this name of SC category employees, who have been posted against SC category point on the roster is to be supplied to Director Social Welfare. Any SC employee who has joined the service on merit without availing SC roster point will not be part of this data. Information regarding total number of employees in each post also need to be supplied. This information is required in connection with the directions in a court case, therefore, it is requested that highest priority should be accorded to. 31.7.2012 (Communication addressed by the IGP, UT Chandigarh to the Home Secretary, Chandigarh Administration) From your letter under reference, it is understood that Chandigarh Administration has taken a conscious decision neither to file review application in the CAT (as advised by government counsel) nor Civil Writ Petition in the Honble High Court to challenge the order dated 13.3.2012 of Honble Tribunal, and has instead decided to implement CAT orders. It is, however, not conveyed in the letter under reference as to how the previous promotions/seniority matters are to be reviewed and current/future promotional matters of the Chandigarh administration employees, including that of this Department, are to be dealt with till the required study is conducted by the UT Administration and fresh guidelines are issued.
It is, therefore, requested that necessary policy directions in the matter may be conveyed so that previous promotion/seniority matters could be reviewed and further promotion/seniority matters are dealt with as per the law decided by CAT on the basis of Apex Court judgment, to avoid any legal complication. (Underlining for purposes of emphasizing)
2. Sh. Aseem Rai, learned Standing Counsel, is under instructions to challenge the factual accuracy of the underlined attribution. He asserts to the contrary by averring that no conscious decision to the indicated effect has been taken by the Chandigarh Administration.
3. The present is, thus, a case where the head of the UT Police (IGP, UT Chandigarh) has made a precise averment which is denied by the learned counsel for the Chandigarh Administration.
4. For ensuring factual clarity, in the context of apparent contradiction, the respondent (Home Secretary, U.T. Chandigarh) may place on record an affidavit of the Home Secretary, Chandigarh in the context of the underlined attribution to the Home Department. That only will enable this Tribunal to adjudicate upon the controversy in the context.
5. List on 16.8.2012.
6. Dasti.
7. On the adjourned date 16.08.2012, we granted an order which, too, is extracted hereunder:-
1. Sh. Aseem Rai, learned Standing Counsel, requests a week-long adjournment to comply with the order dated 9.8.2012 in so far as it relates to the filing of an affidavit of the Home Secretary qua the attribution in the course of the Communication dated 9.4.2012 addressed to him by the IGP, UT Chandigarh.
2. The learned Standing Counsel is also under instructions to state that the matter has been referred to LR, UT Chandigarh for his opinion.
3. Sh. Rohit Seth, the learned counsel appearing on behalf of the applicant, states that though he has no objection to the grant of a week-long adjournment for purposes of filing of an affidavit by the Home Secretary, Chandigarh, he requests for the grant of a direction to the respondent (Home Secretary, U.T. Chandigarh) to file their counter to the MA as well. He has a feeling that the respondent (Home Secretary, U.T. Chandigarh) are trying to gain time for some purpose.
4. Be that as it may, the matter shall stand adjourned to 24.8.2012 for purposes of filing of affidavit aforementioned and also the counter to the MA.
5. We may notice here that the learned counsel for the applicant had made an averment on 31.7.2012 that no judicial review challenge had come to be filed till that date.
6. It is to state the obvious that the filing or otherwise of a judicial review challenge is the discretion of the affected party. This Tribunal would grant indulgence to enable the affected party to have recourse to the remedy available to it on the judicial side. In this case too, the respondent (Home Secretary, U.T. Chandigarh) have been shown indulgence till date.
7. At the same time, the grant of an indulgence beyond a reasonable duration, may not be feasible. Though the nature of the poser, which has been referred to the LR for opinion, has not been indicated, it will be for the respondent (Home Secretary, U.T. Chandigarh) to obtain appropriate orders in judicial review challenge. In the alternative the announced conditional implementation of the relevant order may be considered.
8.We would like to make it clear that the relevant orders by the Tribunal, having come about as early as in March, 2012 (13.3.2012), it may not be feasible to grant any further adjournment to the respondent (Home Secretary, U.T. Chandigarh) herein for filing of the counter.
8. Even at the cost of repetition, it may be noticed that the relevant directions came to be granted, vide order dated 13.03.2012. No plea for review of the order aforementioned came to be filed till date. It was on 31.07.2012 that the learned counsel made an averment that he was under instructions to state at the Bar that no judicial review challenge had come to be filed till that date.
9. In the context of the facts noticed in the preceding paras, the learned Standing counsel for the respondent (Home Secretary, U.T. Chandigarh) has placed on record a SHORT REPLY BY WAY OF AFFIDAVIT of the Home Secretary, UT Administration, Chandigarh.
10. By relying upon the averment made in the course of the counter, learned counsel wants this Bench to grant a further period of four weeks to enable the Chandigarh Administration to seek an appropriate judicial review of the said order dated 13.03.2012. The further averment, made in the course of the affidavit, is that it has been found that due to the deficiency of pleadings on record, this Honble Tribunal has perhaps been prevented from returning an in-depth adjudication qua the specific questions whether the denial of promotion and consequential benefit of seniority to the Scheduled caste employees is to be given prospective or retrospective effect. Unfortunately, the importance of this vital aspect could not be anticipated, as a result of which it could not be projected or highlighted properly during the course of making written and oral submissions before the Honble Bench. Accordingly, necessary steps are now being taken to seek judicial review, as permissible under law, on this limited aspect alone. An averment has also been made in the course of the affidavit to the wide-spread socio-legal ramifications involved in the implementation of the orders of the Tribunal.
11. It would be apparent, from a perusal of the extraction in preceding para, that we had noticed that the respondent (Home Secretary, U.T. Chandigarh) have been granted indulgence till date. In para 7 of the extraction, it is also noticed that it will be for the respondent (Home Secretary, U.T. Chandigarh) to obtain appropriate orders in judicial review challenge and that in the alternative, the announced conditional implementation of the relevant order may be considered. In the course of para 8 of the order dated 16.08.2012, we made it clear that the relevant orders by the Tribunal, having come about as early as in March, 2012 (13.3.2012), it may not be feasible to grant any further adjournment to the respondent (Home Secretary, U.T. Chandigarh) herein for filing of the counter.
12. Even at the cost of repetition, we would like to reiterate that the grant of indulgence for a reasonable duration would be feasible to afford an opportunity to the effected party to have recourse to the remedy available to them in the form of judicial review challenge. That reasonable indulgence cannot, however, be expected to extend upto an unlimited period. In the circumstances of the case, we are of the considered opinion that the respondent (Home Secretary, U.T. Chandigarh) are not justified in indicating four weeks time-frame within which they would like to have recourse to the judicial review challenge.
13. While negativing the plea for the grant of four week-long adjournment in the indicated circumstances, we would adjourn the matter to 05.09.2012. This will afford an opportunity to the respondent (Home Secretary, U.T. Chandigarh) to consider implementation of the relevant order.
14. At this stage, learned counsel for the respondent (Home Secretary, U.T. Chandigarh) states that a longer adjournment may be granted in view of the fact that the private respondent (Home Secretary, U.T. Chandigarh) have filed a plea for the review of the judgment.
15. The mere filing of averred review plea by the private respondent (Home Secretary, U.T. Chandigarh) would not justify variance in our view, particularly when the respondent (Home Secretary, U.T. Chandigarh) herein have not opted to file a review plea in spite of the facts noticed in the course of the paras No. 4 and 10 of this order.
8. It was in the context of the facts in the course of the order dated 31.8.12 that the learned Standing Counsel indicated on 26.9.12 that the respondent (Home Secretary, U.T. Chandigarh) has presently deferred the idea of obtaining a clarification, either from this Tribunal or the High Court. The exact plea made by the learned counsel for the respondent (Home Secretary, U.T. Chandigarh) would be evident from the order dated 26.9.12 which is extracted hereunder:-
1.In the context of the facts noticed in the course of order dated 31.8.2012, the learned Standing Counsel appearing on behalf of the respondent (Home Secretary, U.T. Chandigarh) states that the respondent (Home Secretary, U.T. Chandigarh) have presently deferred the idea of obtaining a clarification either from this Tribunal or from the High Court, in view of the observations which have come to be granted, in the meantime, by the Honble Apex Court in Civil Appeal Nos. 2504-2505 of 2012 Salauddin Ahmed & Anr. Vs. Samta Andolan on 29th August, 2012. A copy of the judgment has been placed on record.
9. It was, thus, the uncontroverted position during the course of hearing on 29.9.12, that the respondent (Home Secretary, U.T. Chandigarh) had not either filed a plea (before the Tribunal) for review or a judicial review challenge before the High Court.
10. Shri Rohit Seth, learned counsel appearing on behalf of the applicants, argued with a certain measure of vehemence that the respondent (Home Secretary, U.T. Chandigarh) has acted in flagrant violation of the order granted by the Tribunal by having refrained from ensuring implementation thereof. The plea was elaborated by arguing that the respondent (Home Secretary, U.T. Chandigarh) had not even initiated the required steps in the direction of compliance and is presently raising a false plea to gain time.
11. The learned Standing Counsel, appearing on behalf of the respondent (Home Secretary, U.T. Chandigarh), argued that the respondent (Home Secretary, U.T. Chandigarh) having already initiated the process for obtaining quantifiable data, cannot be validly accused of having refrained from taking steps for the implementation of the orders granted by the Tribunal. In that context, our attention was invited towards communication dated 2.7.2012 which had been addressed by the Home Department (U.T. Chandigarh Administration) to the I.G. Police, U.T., Chandigarh, to forward information with regard to the number of scheduled caste category employees to the Director, Social Welfare. In order to buttress the averred plea that no delay on the part of the respondent (Home Secretary, U.T. Chandigarh) had occurred in the matter of implementation of the orders granted by the Tribunal, and that he cannot be validly charged with flagrant violation, the learned Standing Counsel placed implicit reliance upon the view obtained by the Honble Apex Judicial Dispensation in Civil Appeal Nos. 2504-2505 of 2012 titled Salauddin Ahmed & Anr. Vs. Samta Andolan, and proceeded further to argue, on the basis thereof, that the applicants are not on a firmer footing in reiterating that there has been any unjustified delay on the part of the respondent (Home Secretary, U.T. Chandigarh) in taking steps to implement the direction granted by the Tribunal.
12. In the context of the resistance offered on behalf of the respondent (Home Secretary, U.T. Chandigarh), the learned counsel for the applicants argued that the reliance placed upon Salauddin Ahmeds case (supra), is thoroughly misconceived in view of the stance adopted by the respondent in the counter itself wherein he had averred that there was no need to obtain any quantifiable data in the context in view of the fact that there are instructions issued by the Govt. of India fixing the percentage of reservation in Govt. posts. In support of the averment, the learned counsel for the applicants relied upon the pleadings in this behalf. The relevant para of the order dated 13.3.2012 containing these pleadings is extracted hereunder:-
16.In resistance, the learned counsel representing the respondent (Home Secretary, U.T. Chandigarh) asserted that the Union Territory Administration is bound by the instructions issued by the Government of India which (Govt. of India) has already affixed the percentage of reservation in government posts for the SC/ST category based on available facts and circumstances. The plea raised thereby is that the amendment by the Union Territory Administration being based upon the Government of India instructions, cannot be invalidated. (Therefore, the competent authority/rule making authority for the Respondent Administration in this regard is the Govt. of India which has already, based on available data and circumstances, fixed the extent of reservation to be provided to the Scheduled Castes in U.T. Chandigarh. The 85th Constitution Amendment would thus automatically apply as it is a conscious decision of the Parliament of India to amend the Constitution of India and provide consequential benefits of promotion (including seniority to the SCs/STs candidates). As such, the claim of the applicant that there has to be separate or a reassessment of the condition of persons belonging to these reserved categories by the State (in the case respondent-Administration) would not be applicable in the instant case.)extraction from the pleadings in OA No. 308/CH/10 (Rajesh Shukla & Anr. Vs. UOI & Ors.) which, along with the OAs. 870/CH/2011 (Jaswinder Singh & ors. Vs. UOI & Ors.) and OA 921/CH/2010 (Sudarshan Kumar & Ors. Vs. UOI & Ors.) which came to be simultaneously disposed of vide orders dated 13.3.2012 of this Tribunal.
13. We have heard the learned counsel for the parties and perused the pleadings at the trial of the OA and the MAs under consideration as also the documentation adduced in connection therewith. We have not been able to persuade ourselves to find force in the plea raised on behalf of the respondent (Home Secretary, U.T. Chandigarh). The reasons therefor are as under
14. In view of the fact that the official respondents have, for purposes of cementing their resistance to the allegation of violation of orders of the Tribunal by delay, upon Salauddin Ahmeds case (supra), we would first deal with that contention. In Salauddin Ahmeds case (supra), an identical situation had surfaced. The general category candidates therein had raised a plea that the respondent had committed Contempt of Court by not implementing the relevant orders granted by the Rajasthan High Court. The official respondent had, while conceding non-implementation, averred that the delay/non-implementation was not contumacious inasmuch as a Committee for purposes of obtaining quantifiable data had been appointed and the report given by it was under consideration. The Honble Apex Court, on the basis of that factual averment, upheld the plea of the averred contemnors therein and set aside the judgment recorded by the Rajasthan High Court, on the Contempt Charge. On point of fact, it may be noticed that the appointment of a Committee in Salauddin Ahmeds case (supra), had not been opposed by the learned counsel appearing on behalf of the party opposite.
15. It would be apparent, from a perusal of the quoted pleadings raised by the respondent (Home Secretary, U.T. Chandigarh) at the trial of the OA (and quoted in para 16 of order dated 13.3.2012), that he had even denied an inclination to undertake any exercise for the purposes of obtaining the quantifiable data. In fact, the respondent had raised a precise plea therein that Therefore, the competent authority/rule making authority for the Respondent-Administration in this regard is the Govt. of India which has already, based on available data and circumstances, fixed the extent of reservation to be provided to the Scheduled Castes in U.T. Chandigarh. The 85th Constitution Amendment would thus automatically apply as it is a conscious decision of the Parliament of India to amend the Constitution of India and provide consequential benefits of promotion (including seniority to the SCs/STs candidates). As such, the claim of the applicant that there has to be separate or a re-assessment of the condition of persons belonging to these reserved categories by the State (in the case respondent-Administration) would not be applicable in the instant case.
16. It may also be noticed that this Tribunal had (in the course of the impugned order), taken cognizance of the finding recorded by the Punjab and Haryana High Court in LAXMI NARAYAN GUPTA Vs. JAS SINGH & OTHERS: CWP No. 13218 of 2009, decided on 15th July, 2011, to the effect that no exercise for the purposes of assessing the inadequacy of the representation of SCs/STs in the services under the Govt. of India had been undertaken. That fact was noticed by the High Court to have been conceded by none-else or other than the Union of India itself in the course of communication dated 15.9.2010. For facility of reference, we would extract hereunder the relevant observations made by the High Court therein:-
38.When the principles laid down in the case of M. Nagaraj (supra) and Suraj Bhan Meena (supra) are applied to the notifications impugned in the present proceedings, namely, 11.7.2002, 31.1.2005 (R-1 and R-2) and further notification dated 21.1.2009 and 10.8.2010, it becomes clear that no survey has been undertaken to find out inadequacy of representation in respect of members of the SC/ST in the services. The aforesaid fact has been candidly admitted in the written statement filed by respondent Nos. 5 and 6. The aforesaid fact has also been conceded by the respondent-Union of India in the communication dated 15.9.2010. In para (iv) of the aforesaid communication it has been stated that no exercise was carried out to assess the inadequacy of representation of SC/STs in the services under the Government of India before issue of instructions dated 31.2.2005. The aforementioned communication has been placed on record along with CM No. 14865 of 2010. In the absence of any survey with regard to inadequacy as also concerning the overall requirement of efficiency of the administration where reservation is to be made along with backwardness of the class for whom the reservation is required, it is not possible to sustain these notifications. Accordingly, it has to be held that these notifications suffer from violation of the provisions of Articles 16 (4A), 16(4B) read with Article 335 of the Constitution as interpreted by the Constitution Bench in M. Nagarajs case (supra) as well as in Suraj Bhan Meenas case (supra).
17. In the course of our order dated 13.3.2012, we had also noticed a finding recorded by a Learned Coordinate Bench of this Tribunal in OA No. 566-CH of 2008 titled Uttam Chand and another Vs. the Administrator, Union Territory, Chandigarh and others (decided on 11.8.2010) to the effect that no exercise in the context had been undertaken either by the State of Punjab or the Chandigarh Administration. In that case, the learned Coordinate Bench had recorded the following observations:-
Admittedly, no such exercise has been carried out by the Competent Authority or grant of seniority has been made by either State of Punjab or Chandigarh Administration.
18. The present is, thus, a case wherein the respondent had categorically averred disinclination (in the course of the counter) to undertake any exercise to obtain any quantifiable data. The obsessed insistence on his part to aver that the instructions regarding the fixture of extent of reservation are (already) in place does not gel well with the presently indicated baby-steps to require the I.G. Police, U.T. Chandigarh to forward the relevant information to the Director, Social Welfare, U.T. Chandigarh. The stance presently adopted does not satiate the gravity of the averment that there has been indefensible delay on his part in implementing the orders of the Tribunal.
19 The following factual scenario can, thus, safely be culled out from the above discussion, in its relatability/bearing upon the validity of the plea presently raised by the respondent that he is in the process of taking steps to implement the orders of the Tribunal and that there is no delay on his part in the relevant behalf:-
(a)In the course of the OA, the applicants had made a precise averment that reservation in promotion in this case is not permissible in view of the law laid down by the Honble Apex Judicial Dispensation in M. Nagrajs case (supra). The claim raised therein was based upon reiteration of the prevalence of catch-up principle in terms of and under the circumstances held in M. Nagrajs case (supra).
The resistance to the plea noticed in the preceding para was solely based upon the premise extracted in para 12 of this order.
(b)It would be further apparent from the counter filed in OA No. 308/CH/2010 that the respondent (Home Secretary, U.T. Chandigarh) was in the know of the implications of the view obtained by the Supreme Court in M. Nagrajs case (supra). (These judgments provide that the seniority amongst a cadre of employees is to be determined on the basis of the 85th Constitution Amendment in the light of the observations made by the Honble Courts therein. In M. Nagrajs case (supra) while concluding, the Honble Supreme Court had held that the insertion of Articles 16 (4A) and 16 (4B) does not alter the structure of Article 16 (4). These enable the State to provide for reservation keeping in mind the overall efficiency of the State Administration under Article 335. These amendments (impugned therein) confined only to SCs and STsOf Course, the validity of the Constitution Amendment had already been upheld in the M. Nagraj case as referred above. Accordingly, it was held that the said provision is the only enabling to clause 16(4) and it is open to every State to make provisions for consequential seniority in promotion, subject to certain conditions. Thus the consequential seniority on promotion against roster point was not to be automatic. Such consequential seniority was to be granted only if the State makes a provision for such consequential seniority on the basis of material and data collected by it : that any particular class is not adequately represented in the State services.
(c) It had been categorically held by the High Court of Punjab and Haryana in Laxmi Narayan Guptas case (supra) that no exercise for the purposes of assessing the inadequacy of the representation of SCs/STs in the services under the Govt. of India had been undertaken. That fact was noticed by the High Court to have been conceded by none-else or other than the Union of India itself in the course of communication dated 15.9.2010.
(d)In the course of disposal of OA No. 566-CH of 2008 titled Uttam Chand and another Vs. the Administrator, Union Territory, Chandigarh and others, this Tribunal had also taken notice of the observations made by the High Court in Laxmi Narayan Guptas case (supra), and reiterated a finding that no exercise in the context had been undertaken either by the State of Punjab or the Chandigarh Administration.
(e)In the course of the counter, relevant portion whereof has been extracted in the course of para 12, the respondent did not at all indicate any inclination to undertake an exercise to obtain the quantifiable data in accord with the view obtained by the Honble Apex Court in M. Nagrajs case (supra). On the other hand, the respondent (Home Secretary, U.T. Chandigarh) had announced a disinclination in the relevant behalf by averring that the U.T. Administration is bound by the instructions issued by the Govt. of India which (Govt. of India) has already affixed the percentage of reservation in government posts for the SC/ST category based on available facts and circumstances. The stance adopted by the respondent (Home Secretary, U.T. Chandigarh), indicating a refrain from undertaking relevant exercise, was further made clear by them by making an averment which is, even at the cost of repetition, extracted hereunder:-
Therefore, the competent authority/rule making authority for the Respondent Administration in this regard is the Govt. of India which has already, based on available date and circumstances, fixed the extent of reservation to be provided to the Scheduled Castes in U.T. Chandigarh. The 85th Constitution Amendment would thus automatically apply as it is a conscious decision of the Parliament of India to amend the Constitution of India and provide consequential benefits of promotion (including seniority to the SCs/STs candidates). As such, the claim of the applicant that there has to be separate or a reassessment of the condition of persons belonging to these reserved categories by the State (in the case respondent-Administration) would not be applicable in the instant case. The categorical stance, thus, adopted by the respondent (Home Secretary, U.T. Chandigarh) was that the requirement for obtaining quantifiable data was not applicable to the instant case.
(f)In an effort to prove bonafides of the Administration in the matter of taking of steps for implementation of the order, deponent of affidavit dated 31.8.12 (Secretary, Home Department, U.T. Chandigarh) averred that the implementation of the same entails widespread socio-legal ramifications which involve the withdrawing of service benefits granted to the persons belonging to the reserved category since the past many years.
(g)The orders which come to be granted on judicial side are relatable to the pleadings raised by the parties and in accord with the law of the land. Though the practical implication of a particular order affecting one or the other segment of the society may be undeniable, the merits of the case do not obviously get swayed thereby and the same applies to the aspect of implementation of such orders.
(h)In the course of the affidavit, the deponent officer, further concedes that it has been found that due to the deficiency of pleadings on record, this Honble Tribunal has perhaps been prevented from returning an in-depth adjudication qua the specific question whether the denial of promotion and consequential benefit of seniority to the Scheduled Caste employees is to be given prospective or retrospective effect. The plea aforementioned is further reiterated by averring that unfortunately the importance of this vital aspect could not be anticipated, as a result of which it could not be projected or highlighted properly during the course of making written and oral submissions before the Honble Bench. The deponent proceeded to further aver that, necessary steps are now being taken to seek judicial review, as permissible under law, on this limited aspect alone.
(i)An adjudication by means of a judicial order is relatable to the pleadings raised by the parties thereto. The exercise compulsorily notices and deals with the various points of law raised during the course of hearing. It is neither here nor there for a party to aver, during the post-decisional period, that there has been deficiency of pleadings on its part or that the importance of a particular vital aspect could not be anticipated or that it could not be projected or highlighted properly. On the own showing of the respondent (to the OA and also the MA), the subject of adjudication entailed widespread socio-legal ramifications. If the case was handled in a casual or lackadaisical manner either at the stage of drafting of pleadings or in the matter of instructing the learned counsel for the purpose of hearing, the affected party cannot make a grievance thereof after the adjudication has come about.
In such an eventuality, the only option available to the averring official party is to have recourse to the remedy available to it on the judicial side. The official respondent (Home Secretary, U.T., Chandigarh) has neither filed a judicial review challenge nor a plea for review.
Even otherwise, the drawal of sustenance from the view of the Honble Apex Court in Salauddin Ahmeds case (supra) is thoroughly misconceived for want of any commonality of attendant circumstances. As already noticed, the respondent herein had indicated a sure refrain from the requirement of obtaining the quantifiable data. No such averment is quoted in the relied upon case. In that case, the learned counsel for the party opposite had not objected to the appointment of Bhatnagar Committee. That is not so in the present case.
(j) It was only in the course of the affidavit dated 31.8.2012 filed by the Home Secretary that an averment was made for the grant of 4 weeks time to enable the Chandigarh Administration to seek an appropriate judicial review of the order dated 13.3.2012. It was in appreciation thereof that we granted indulgence to the respondent to obtain appropriate orders in Judicial Review Challenge. It was ultimately on 26.9.2012 that the learned Standing Counsel indicated that, the respondent (Home Secretary, U.T. Chandigarh) have presently deferred the idea of obtaining a clarification either from this Tribunal or from the High Court, in view of the observations which have come to be granted, in the meantime, by the Honble Apex Court in Civil Appeal Nos. 2504-2505 of 2012 Salauddin Ahmed & Anr. Vs. Santa Andolan on 29.8.2012.
The Home Department had, thus, taken about more than five months (13.3.2012 to 30.8.2012) to seek an appropriate judicial review of the relevant order. That inclination was also indicated to have been deferred in view of the observations made by the Honble Apex Court in Salauddin Ahmeds case (supra). That premise too has been held to be inapplicable.
20. For the reasons noticed in the course of para 19, we have noticed the inapplicability of the order in Salauddin Ahmeds case (supra) because the appointment of Bhatnagar Committee therein had not been objected by the learned counsel for the party opposite. Even, otherwise the respondent (Home Secretary, U.T. Chandigarh) cannot be heard to plead for the grant of a favourable consideration to his plea in view of the obsessed stance adopted by him in the counter in OA No. 1089/CH/2010 to the effect there is no need to undertake any exercise for obtaining quantifiable data. In their own discretion, the respondents had indicated a premise that the fixture of the relevant quota by the Govt. of India (based upon available data and circumstances) and the effect of 85th Constitutional amendment outweighed the need for the obtaining of any further quantifiable data. The plea raised wished away the law announced by the Honble Apex judicial dispensation in M. Nagrajs case (supra). The acceptance of the stance adopted by the official respondents would be a violation of the law of the land, which is entitled to constitutionally - sourced compulsive acceptance/reverence.
21. The relevant order came to be granted on 13.3.2012. No Judicial Review Challenge at the hands of the Administration has been filed till date.
22. In the light of the facts noticed in the course of the preceding paragraphs of this order, we are of the considered view that the respondent (Home Secretary, U.T. Chandigarh) is not inclined to implement the orders granted by the Tribunal and that he is trying to gain time, on one pretext or the other. In our system of dispensation of justice, it is incumbent upon the Courts/Tribunals to ensure implementation of the decreed orders in order to uphold the majesty of law and to announce the efficacy of the system to get its orders implemented. The respondent, by having blown hot and cold in the matter as also filing contradictory pleadings at different points of time, is not entitled to any large measure of indulgence. The conscious refrain on part of the respondent in undertaking an exercise to obtain the quantifiable data assumes pertinent importance in view of the fact that the want of exercise in the relevant behalf had been announced by the High Court of Punjab and Haryana on 15.8.2011 (in the course of disposal of CWP No. 13218 of 2009) and that finding was based upon the own documentation dated 15.9.2010 of none else or other than the Government of India. Even prior thereto, a learned Coordinate Bench of this Tribunal had held in Uttam Chand and anothers case (supra) decided on 11.8.2010 that the Chandigarh Administration had not undertaken any exercise in the context. Thus, the want of exercise in that behalf was to the notice of Chandigarh Administration w.e.f. at least the year 2010. The Administration ought to have been in the know of the want of exercise much before that. The official respondents herein could not have slumbered for so long by refraining to notice the fact and effect of the view obtained by Honble Apex judicial dispensation in M. Nagrajs case (supra) in interpreting the effect of the 85th constitutional amendment as also the want of exercise ordained thereby for purposes of obtaining the quantifiable data. They also could not wish away the observations made by the Punjab And Haryana High Court in Laxmi Narain Guptas case and the Tribunal in Uttam Chand and anothers case (supra). The official respondents having opted to stay obsessed with the no-need-to-obtain-any-quantifiable data attitude inspite of the facts noticed in the preceding part of this para, had displayed a cognizable disdain for the law of the land. It is to state the obvious that all authorities, of whatever hue and at whatever hierarchical level, have to obey the law of the land. The official respondents appear to have missed that dictum in this case while noticing on point of fact that the official respondents had not filed a plea for review (the advice by their learned counsel vide his letter dated 21.3.2012 not withstanding), we may indicate the two review plea filed by two affected parties were negatived by the Tribunal. Even the Communication dated 9.4.2012 did not stir the concerned quarters into immediate action.
23. We would quite agree that there is an announced distinction between a mere non-implementation and a contumacious violation. Each instanced non-implementation would not validate an accusation of contempt facet. At the same time, a party accountable for long and obstructive delay may not be able to ward off consideration on point of contempt. In this case, we have noticed resistance on an unsustainable premise from the trial itself. The learned counsel for the Administration advised the filing of a review plea as early as on 21.3.2012. That too was not accepted.
24. In respectful accord with the view (dated 5.10.2012 obtained by this Tribunal in Suresh Kumar Vs. UOI & Ors. (OA no. 1052/HP/2011, MA No. 820, 821 of 2012), we proceed to take suo motu cognizance of the matter and deem it just and appropriate to issue a notice to the Home Secretary, U.T. Chandigarh Administration, to show cause why the proceedings for contumacious non-implementation of the orders dated 13.3.2012 be not initiated. For offering a clarificatory response, it shall be incumbent upon the respondent (Home Secretary, U.T. Chandigarh) to enter appearance in person. We are not inclined to issue notice to the I.G. Police, U.T. Chandigarh because he did act at the expected pace in the matter of implementation by addressing letter no. 14815/UT/E-1, dated 9.4.2012 to the Home Department.
25. List, accordingly, on 15.11.2012.
26. There shall be no order as to costs of the cause in the facts and circumstances of the case.
(RANBIR SINGH) (JUSTICE S.D. ANAND)
MEMBER (A) MEMBER (J)
Dated: October 19, 2012.
ms
1
(i) MA no. 696/12 in OA no. 1089/CH/2010.
(ii) MA No. 697/12 in OA no. 870/CH/2011.