1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.624/1996. : : Richpal Singh Vs. Registrar, Cooperative Societies & Ors. : : Date of Order 23.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. P. K. Sharma with Mr. M. S. Raghav for the petitioner. Mr. Achintya Kaushik for the respondent No.3. Mr. S. D. Khaspuria, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. 2. This writ petition was filed by the petitioner in fact to seek a direction to the respondents for implementing the earlier Division Bench judgment of this Court in which his writ petition was allowed and direction was issued to the respondents to consider his case for promotion to the post of Assistant Secretary/Supervisor/Section Secretary with effect from the date his juniors were promoted and if found fit grant him such promotion with consequential benefits. Compliance of that judgment was ordered to be made within a period of two months. 2 3. Shri P. K. Sharma, learned counsel for the petitioner has argued that when compliance was not made , petitioner approached this Court in a contempt petition and when contempt petition was listed before this Court on 12.11.1990, the respondents made an incorrect statement before the Court that petitioner has been paid all the arrears and that so far as the case of his promotion is concerned, it was considered in DPC. On that note, the contempt petition was dismissed taking that compliance has been made. On verification, it was found that no compliance was ever made and no DPC was ever convened after the judgment passed by Division Bench on 16.9.1987. In those facts, petitioner was constrained to again approach this Court by filing the present writ petition. Learned counsel submitted that respondents on complaint of petitioner got an enquiry conducted by Secretary, Sikar Sahkari Bhoomi Vikas Bank, who in his report dated 4.4.1991 submitted to Project Director (Yojana), Cooperative Department, Rajasthan found that in fact after the aforesaid Division Bench judgment of this Court no DPC whatsoever was convened and that in the register in which the proceedings of DPC are maintained, interpolations were made by the then Secretary Shri Ramavatar Jain. Learned counsel invited attention of the Court towards enquiry report dated 26.8.1998 issued to Ramavatar Jain on 3 this charge that he made interpolations and incorrect entries in such records of the proceedings of DPC showing as if case of petitioner was considered and he was adjudged not suitable. 4. Shri Achintya Kaushik, learned counsel for the respondent No.3 opposed the writ petition and submitted that case of petitioner was considered for promotion not once but twice firstly in the DPC that was convened on 21.1.1988 and thereafter on 27.2.1989. On both occasions, he was not adjudged suitable and, therefore, was not recommended due to adverse remarks in his various APRs pertaining to years 1984-1985, 1985-1986 and 1986-1987. Learned counsel submitted that compliance of Division Bench judgment passed by this Court on 16.9.1987 (supra) was sufficiently made. Contempt petition filed by petitioner was initially dismissed on 12.11.1990 and thereafter again dismissed on 18.7.2000. Learned counsel submitted that present writ petition, therefore, cannot be entertained. Learned counsel also produced copy of order dated 22.6.2004 by which petitioner has been promoted on the post of Supervisor on ad hoc basis and it has been stated that his case for regular promotion shall be considered as and when meeting of DPC takes place. Learned counsel, therefore, submitted that writ petition be dismissed. 4 5. Shri S. D. Khaspuria, learned Additional Government Counsel who appears for respondents No.1 & 2 is not in a position to dispute the correctness of contentions made by learned counsel for the petitioner and also the fact that in house enquiry was held by Bank and on that basis charge- sheet was issued to Ram Avatar Jain the then Secretary. 6. Learned counsel for the petitioner has rejoined and submitted that in fact no DPC at all took place and the reports were fabricated to show that as if DPC was convened and false entries in the APRs of petitioner pertaining to years 1984-1985, 1985-1986 and 1986-1987 were made by the then Sectary Shri Ram Avatar Jain. The charge no.4 in the enquiry report (Anenx.4) dated 26.8.1998 also was relating to elaborately making adverse entries in the APRs of petitioner. It is contended that such entries never existed in the APRs and they were entered subsequently only with a view to frustrating the judgment of this Court dated 16.9.1987 and depriving the petitioner of benefits thereof. Adverse entries in relation to these three years were conveyed to petitioner belatedly on 27.6.1989 by three separate letters, which are on record as Annexures-R/3/1 to R/3/3, which have been placed by respondent No.3 in their reply. Alleged meeting of DPC, 5 according to respondent No.3, took place on 21.1.1988 and 22.2.1989 whereas the adverse remarks were conveyed to petitioner on 27.6.1989. It is settled law that uncommunicated adverse remarks cannot be relied on to deprive the employee of his right to consideration of promotion. Learned counsel referred to circular issued by Registrar Cooperative Societies dated 30.4.1983 (Annex.6) filed with rejoinder to the reply submitted by respondent No.3 and argued that in that circular the Registrar has prescribed the composition of DPC in the case of employees of District Level Cooperative Bank. Such DPC has to be headed by Chairman of the concerned bank with District Collector, the nominee of Rajasthan State Cooperative Bank Zila Pramukh and Managing Director of bank concerned as its members. The so-called DPC, which the respondents claimed to have convened was attended by the Chairman and Secretary of the Bank, which in the eye of law, cannot be said to be the DPC particularly when, the very same person namely; Shri Ram Avatar Jain participated therein as one of the members. 7. The Division Bench of this Court while allowing the writ petition being DBCWP No.638/1987 vide judgment dated 16.9.1987 issued the following writ of mandamus :- 6 “In the result the writ petition is allowed and the respondents are directed to consider the case of the petitioner for promotion to the post of Assistant Secretary/Supervisor/Section Secretary with effect from the date his juniors were promoted by order dated 18th January, 1986 and if the petitioner is found fit for the said promotion, he should be granted the said promotion with consequential benefits. The petitioner is also entitled to the payment of arrears of pay and allowances for the period of suspension with effect from 24th December, 1980 to 10th April, 1984. The respondent is directed to pay arrears towards the pay and allowance to the petitioner within a period of two months. The respondents should also consider the case of the petitioner for the purpose of promotion to the post of Assistant Secretary/Supervisor/Section Secretary within a period of two months and in case he is considered fit for promotion, he may be given the said promotion and the consequential benefits within a period of one month thereafter. No order as to costs.” When the contempt petition being DB Civil Contempt Petition No.642/1988 was filed alleging non- compliance of that judgment, it was dismissed by the following order dated 12.11.1990 :- 7 “In this contempt petition, learned counsel for the non-petitioner state that the payment has been made to the petitioner on 14.3.1988. He also states that the case of petitioner was considered by the DPC, but the petitioner was not found suitable. The order dated 16.9.1987 had been complied with. No contempt is made out. The contempt petition is dismissed and notice of contempt petition is discharged.” Obviously, the compliance of aforesaid judgment passed by Division Bench has yet not been made by the respondents and surprisingly, despite pendency of this writ petition for last more than almost 14 years and almost 22 years have gone by when earlier judgment passed by this Court, the respondents have not come forward to show due diligence towards judgment of this Court. Contention of learned counsel for the respondent No.3 that case of petitioner was considered in DPC held on 21.1.1988 and on 27.2.1989 cannot be accepted because what has been produced by respondent at Annex.R/3/7 cannot be described as members of DPC. These are merely handwritten proceedings, which have been prepared by Chairman and Secretary of the Bank respectively on dates i.e. on 21.1.1988 8 and on 27.2.1989. Purposely it has been shown to be a proceeding of DPC denying promotion to petitioner on the ground of written adverse remarks. In fact entire efforts were aimed at frustrating the judgment dated 16.9.1987 of this Court passed in writ petition filed by petitioner. The enquiry report dated 25.4.1988, to which reference has been made earlier, in charge no.4 also refers to adverse remark deliberately made by Shri Ramavatar Jain, the then Secretary of the Bank and also regarding false proceedings in the relevant register and passing illegal promotion order by President and the Secretary themselves. The adverse remarks, as per own showing the respondents, were not conveyed to the petitioner till 27.6.1989. Even if it is assumed that DPC was conveyed earlier than this date, petitioner could not be denied promotion on the basis of uncommunicated adverse remarks. Although, it may be true that contempt petition filed by petitioner was dismissed on statement made by respondent that compliance has been made, but firstly contempt petition was so dismissed on 12.11.1990 in the absence of counsel for the petitioner and secondly on scrutiny of the entire record, now I am satisfied that actually no such compliance was made. Despite dismissal of contempt petition, the jurisdiction of this Court to entertain the fresh petition under Article 226 of the 9 Constitution of India in a matter where rights of party have been crystallized by way of a judgment in his earlier writ petition and which it is shown was not complied with, a fresh petition under Article 226 of the Constitution of India would not be barred. The writ petition, therefore, deserves to be allowed with a heavy amount of cost to be awarded for all the sufferings of the petitioner. In the result, this writ petition is allowed. The respondents are directed to comply with the judgment passed by this Court on 16.9.1987 now within a period of three months. The petitioner is held entitled to all the consequential benefits and he shall also be entitled to interest @ 9% per annum on the arrears. The respondent-bank shall also be paid to petitioner a sum of Rs.10,000/- as costs, which amount shall also be paid to him within the above stipulated period of three months. (MOHAMMAD RAFIQ)J. A.Arora/-