Hari Ram Ahirwar v. R.K.Verma

Judgment dated 06.02.2013 HAI^ RAM AHIRWAR Petitioner Through: Mr.Rajesh Srivastava, Advocate versus R.K.VERMA Respondent Through; Mi-.Rajeeve Mehra, ASG with MrJ.N. Agarwal, and Mr.Sumeet Pushkarna, Advocates along with Mi'.Rajiv Verma, CMD, Dl'C and Ml-Jagdish, Manager (PLD), DTC CORAM: HON'BLE MR. JUSTICE G.S.SISTANl : " G.S.SISTANl J. (ORAL)

¶1in this case petitioner alleges willful disobedience of the order passed by a Single Judge of this court in Writ Petition No. 1523/1997 on 19.12.2001.

¶2Counsel for the petitioner submits that at the time of final hearing of the Writ Petition No. 1523/1997 in which the order of 19.12.2001 was passed, a staternent was made by counsel appearing for the respondent that the petitioner would be given benefit of his past service rendered, however, Ihe respondents have failed to regularize the services of the petitioner from 04.03.1992 when he was appointed on ad-hoc basis. It is submitted that the respondents have regularized bis services irom 22.01.2009 when a , vacancy arose for the post of Manager.

¶3Counsel for the petitioner further submits that even after a vacancy had ! arisen the respondents did not offer the same to the petitioner, which I i forced the petitioner to file another writ petition being Writ I^etition No.4966/2004, which was however,' dismissed on the ground that increJy because there was a vacant post it was not necessary for the employer to | Cont.Cas(C)No.711/2069 fill up the saidpost, as it would lie withinthe discretionofthe employei. The statementof counsel for the petitionerwas again noted that before anyone else is regularizedas aManager(Electrical),petitionerwould be first regularizedin the post of Manager (Electrical). Aggrievedby the aforesaid order, the petitioner filed an LPA No.688/2004,which was allowed.

¶4The present contempt petition was filed in the year 2009. It may, however,be noticedthat the petitionerhas since been promotedto senior managerduringthe pendencyofthe contemptpetition.

¶5Learned Additional Solicitor General, appearing for respondents, however,submitsthat the respondentshave compliedwith the directions contained in the order dated 19.12.2001. It is submitted that the petitionerwas to be given benefitof the past serviceslendeiedby him only for the puiposesof consideringhis case of seniorityand promotion which has been carried out.

¶6LearnedAdditionalSolicitorGeneral also submitsthat the vacancyarose in the year 2009, the petitionerwas given benefitand was regularizedin tlie post of Manager (Electrical),subsequently,a vacancy arose for the post of SeniorManager(Electrical)in the year 2012; givingbenefitto thei petitionerin terms ofthe orderpassedby the SingleJudge, the petitionei| was promotedout ofturn aheadofsimilarlysituatedpersonsand priorto | i his having completed five years on the last post, which is the post of Manager (Electrical). It is submittedthat the petitionerwas promoted! ahead of time in 2012 instead of the year 2014, thus the order of the I Single Judge has been complied with in letter and spirit.

¶71have heard counsel for the parties and carefully perused the judgment of ; i the learned Single Judge.

¶8Ehe necessary fects which arc required to be noticed for disposal of this Cont.Cas(C)No. 711/2009 contempt petition and as observed by the learned Single Judge in the order dated 19.12.2001, are that the petitioner had made an application to the respondent, corporation in the absence of any formal advertisement released by them; and the case of the petitioner was considered and recommended for consideration. The DTC acceptcd the recommendation, and the petitioner was appointed for the post, although he did not meet the eligibility criteria. The Single Judge also noticed that even the rules were relaxed for a single individual, although there was no available post and strength in the said cadre. The learned Single Judge has observed as under: "Before parting with the records, however, I am inclined to make certain observations with regard to the state of facts, which are apparent on the face of the records. The petitioner herein is a person, who submits an application on a plain paper for his appointment in any post of the Coiporation, without there being any advertisement, which is considered and recommended for favourable consideration. The Corporation also accepts the aforesaid recommendation, issues an order of appointment although the petitioner, at that stage, did not possess the eligibility criteria, by relaxing the rules for one single individual and even though there was rio ©- available post and strength in the said cadre. This is shocking to the conscience of this court. It would be .appropriatefor the competentauthorityto see that nothingof this kind happens in future and that there should be no back door entry to any post in the Corporation, under any circumstanccs. With the aforesaid observations and directions,the writpetitionstandsdisposedof" I

¶9In this backdrop, the petitioner filed the Writ Petition No.1523/1997, seeking rcgularization, as he continued to work on ad hoc basis for a period of nine years. Petitioner also sought consequentialbenefits of I Cont.Cas{C}!^'o.711/2009 • seniority and promotion.

¶10Sinccthe bone ofcontentionbetweenthe partiesare two paragraphsofthe orderdated 19.12.2001,1deem it appropriateto reproducethe same. "The statementof the counsel appearingfor the respondent that the respondentshall also give fall benefit of the past service renderedby the petitionerin the Coi-poration,while| consideringhis case ofseniorityand promotion,is also takenj on record. I Sincean orderis alreadypassedthatthe caseofthe petitioner' ; shall be consideredfor regularisationagainstthe sanctionedi ^ ' post of Manager (Electrical) as and when the same isj available,in his own turn, in accordancewith law, a further; directionis also issued to the respondentto give benefit of| entirepastserviceofthe petitionerwhileconsideringhis case; for further promotion to the post of Senior Manager; (Riectrical), as and when the same is available to the petitioner."

¶11Acareliilreadingofthe orderdated 19.12.2001and more particularlythe extractedportion would show that a statementwas made by the counsel appearingfor the DTC that DTC would give full benefitofpast sei-vices • renderedby the petitionerin the Coi-poration,while consideringhis case; for seniority and promotion. The statementwas made by the learned counsel in all fairness. " i i

¶12Keeping this statement in mind, the learned Single Judge thereafter directed that the case of the petitioner would be considered foi | regularizationagainst the sanctioned post, as and when the same is| available.Admittedly,the post becameavailableinthe year.2009and the petitionerwas offeredthe said post. Afurtherdirectionwas issuedto give| benefit ofthe entire past servicesofthe petitionerwhile consideringhis| i Cont.Cas(C)Mo.711/2009 case for further promotion to the post of Senior Manager (Electrical), as and when the same is available.

¶13In my view this benefit.has also been given to the petitioner, as the post of Senior Manager (Electrical) was available in the year 2012 and taking into consideration his past services he has been promoted out of turn, so as to' avail the benefitofpromotionfrom Managerto SeniorManager,or else| the petitionerwouldhave had to workfor aperiodoffive years in the post' of Manager before he could be promoted. I am informed that persons similarly situated as that of the petitioner continue to work as Manager and they have not been given any benefit and this benefit' has only bcj ! given to the petitioner alone on account of the orders passed in the writj I petition filed by him. ;

¶14Another aspect, which has been brought to the notice of the court is that' the petitioner cannot be given benefit of the Assured Career Promotion' Scheme.(ACP Scheme), as in the year 2001 such a schcmc was not in, force and the scheme was only formulated in the year 2002 and that such an aspect could not be anticipated in the year 2001. l-urther the ACP Scheme cannot be made applicable to the case of the petitioner is for the reasons that the scheme provides that the same would not be applicable to ^ ad-hoc persons-.

¶15It has been repeatedly held that the power to punish for contempt is a specialpower, which is to be exercisedwith care and cautionand should be used sparinglyby the courts on being fully satisfiedwith regardto the contemptuousconduct of a party. It would be useful to reprodiicethe observations of the Supreme Court in the case of Jhareswar Pmsad Paul and Another Versus Tarak Nath Ganguly and Others 2002 Cri.L.J. 2935: Cant.CasCONo. 711/2009 Page 5 af 7 |8 'The. pmpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. Since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the puipose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contcmpt of courts is a special power vested under the Constitution in the courts of rccord and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfiedregardingthe true effect of contemptuousconduct. It is to be kept in mind that the Court exercising the jurisdiction to punish for contempt does not function as an original or appellate Court for determination of the disputes between the parties. The contemptjurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition, be it stated here that the court exercising contcmpt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specilic directionregarding a matter or if there is any ambiguity in the directions issued therein Cont.Cas(C)S\!o.711/2003 then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes leveled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgm.entor order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.'

¶16I'or the reasons aforesaid, it cannot be said that the respondents have wilfully disobeyedthe directionscontainedin the order dated 19.12.2001, I oj-the conduct of the respondents was contemptuous. No grounds are made out to initiate contempt proceedings against the respondents! Accordingly, the petition stands dismissed. Notice of contempt is discharged.

¶17At this stage, counsel for the petitioner submits that for the past sei-vices rendered by him, petitioner will take recourse to such remedies, which may be availableto him, petitionermay do so, in accordancewith law. r^-C. G.S.SISTANI, J ; FEBRUARY 06, 2013 Cont.Cas(C)No.711/2009 Psge 7 of 7

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