IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA COPC No. 360 of 2011 Reserved on: 19.4.2011 Decided on: 2.5.2011 Prem Lal …Petitioner. Versus Shri Kant Baldi & another …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S. Rana, Asstt. A.G. Kuldip Singh, Judge The petitioner has filed the present petition for initiation of proceedings as per law against the respondents for wilfully disobeying the judgment dated 9.12.2009 in CWP(T) No. 3082 of 2009. It has also been prayed that the respondents may be punished to upkeep the majesty of law in highest esteem and to secure ends of justice. 2. It has been stated that CWP(T) No. 3082 of 2009 was decided on 9.12.2009 by this Court with directions to the respondents to consider the case of the petitioner for promotion to the post of Principal within a period of eight weeks from the date of judgment dated 9.12.2009. The petitioner represented his case to the respondents vide application dated 24.12.2009. The petitioner 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 even visited the office of the respondents many times but without any result. The petitioner filed an application under the Right to Information Act. The information was given to the petitioner in March, 2010 in response to his application that the case of the petitioner was under the active consideration of the respondents. 3. The respondents knowingly and wilfully disobeyed the judgment dated 9.12.2009 of this Court and, therefore, they are liable to be proceeded against and punished suitably in accordance with law. It has been stated that at least now directions may be given to the respondents to promote the petitioner as Principal and comply the judgment dated 9.12.2009 in its letter and spirit. It has been alleged that the petitioner has acquired knowledge that about 91 persons have been promoted by the respondents as Principals recently within one week and the name of the petitioner does not find figure in the same, which clearly depicts false assurances were given to the petitioner by the respondents that his case was under active consideration. The respondents have wilfully disobeyed the judgment dated 9.12.2009. 4. The notice was issued to the respondents on 22.12.2010. The respondent No.1 has filed the reply, in which without justifying any act on his part he has tendered unconditional and unqualified apology. He has, however, stated that in compliance to judgment dated 9.12.2009 and after receiving the representation from the petitioner, DPC was convened on 3.6.2010 and the petitioner was considered for promotion but not found fit. The DPC could not be held immediately as Vigilance Clearance Certificate (VCC) and integrity certificate etc. were required to be collected from different quarters of postings through 3 Vigilance Department, hence delay in convening the DPC was neither deliberate nor intentional. 5. It has been stated that the DPC perused the entire record and found that the petitioner was charge-sheeted by the Director of Education vide memorandum dated 15.3.2003 and he was under the currency of operation of minor penalty ‘withholding next one increment with cumulative effect under Rule 11(iv) of CCS(CCA) Rules, 1965’, which was imposed on him vide order dated 6.1.2010. It has also been stated that the Director(Higher Education) had not certified the integrity of the petitioner, hence VCC was also not issued in favour of the petitioner. It has been stated that in these circumstances, respondent No.1 has not committed contempt. 6. The respondent No.2 has filed separate reply and has also tendered unconditional and unqualified apology for any act which may be construed as disobedience. It has been stated that the panel for promotion to the post of Principal (School Cadre) was sent on 29.3.2010 to respondent No.1 with the remarks that the petitioner has been put under minor penalty withholding of his next increment with cumulative effect under rule 11(iv) of CCS(CCA) Rules, 1965 vide Directorate letter dated 6.1.2010. The petitioner was undergoing the punishment period. The case of the petitioner was to be considered by respondent No.1., hence respondent No.2 has not disobeyed the judgment dated 9.12.2009. 7. The petitioner has filed rejoinder and has stated that this Court had directed the respondents to consider the case of the petitioner for promotion to the post of Principal from the date his immediate junior was promoted with all consequential benefits. 4 The petitioner was due for promotion in the year, 2001. The case of the petitioner was required to be considered as such. The punishment order dated 6.1.2010 is after the passing of judgment dated 9.12.2009 of this Court, which the petitioner has challenged in the writ petition. There was nothing in the year 2001 against the petitioner. The punishment imposed on the petitioner is unsustainable being contrary to Rule 16 of CCS(CCA) Rules, 1965. The respondents have wilfully violated the judgment dated 9.12.2009 and, therefore, they are liable to be dealt with in accordance with law. 8. In the judgment dated 9.12.2009, it has been held as follows:- “5. The fact remains that only the petition and Annexures filed with the petition are on record. The case put forward by the petitioner has not been controverted by the respondents. It is the case of the petitioner that he is at Serial No. 293-A in the seniority list, Annexure- A/1 and several persons below Serial No. 293-A have been promoted as Principals but petitioner has not bee promoted as Principal nor any reason has been assigned by the respondents why petitioner has not been promoted as per his seniority though he is fully eligible for promotion to the post of Principal. At the time of hearing also nothing has been stated on behalf of respondents why the case of the petitioner has not been considered for promotion to the post of Principal. In these circumstances the petition is allowed. The respondents 1 and 2 are directed to consider the case of the petitioner for promotion to the post of Principal within a period of eight weeks from today and in case he is found suitable for promotion to the post of Principal then he should be promoted as Principal from the date his immediate junior was promoted with all consequential benefits. Petition stands disposed of with above directions.” 5 9. The respondents have placed on record Annexure R-1 proceedings of the review meeting of the Departmental Promotion Committee held on 3.6.2010 to consider the case of Shri Prem Lal, Lecturer (STY. No. 293-A) for promotion to the post of Principal(Schools). In Annexure R-1, it has been stated that consequent upon the directions of the High Court, the review meeting of the Departmental Promotion Committee was held on 3.6.2010. The DPC noticed that the previous meeting of the DPC was held on 30.2.2002 in which Prem Lal, Lecturer (STY. No. 293- A) at Serial No. 145 was due to be considered along with others for promotion to the post of Principal. He was not considered for the post of Principal as he was not eligible at that time. The DPC noticed the order dated 9.12.2009. 10. The DPC has recorded that the entire record was perused and found that Shri Prem Lal, Lecturer (STY. No. 293-A) was charge-sheeted by the Director of Education vide Memo dated 15.3.2003 and he was under the currency of operation of minor penalty withholding next one increment with cumulative effect under rule 11(iv) of CCS(CCA) Rules, 1965 vide order dated 6.1.2010. The Director(Higher Education) has not certified his integrity vide letter dated 29.3.2010. Hence, Vigilance Clearance Certificate was also not issued in his favour. The DPC found that Shri Prem Lal, lecturer (STY. No. 293-A) was neither eligible at the time of previous DPC held on 28.9.2002 nor he was eligible on 3.6.2010 as he was under the currency of penalty. It was ultimately observed that he could not be considered for promotion to the post of Principal. 6 11. The Principal Secretary(Education) to the Government of Himachal Pradesh vide order dated 17.6.2010 has observed that in view of DPC held on 3.6.2010, Shri Prem Lal, lecturer, Seniority No. 293-A was neither found fit to be considered for promotion to the post of Principal in the DPC held on 30.2.2002 nor he is eligible as on date. 12. The learned counsel for the petitioner has submitted that in the judgment dated 9.12.2009, the respondents were directed to consider the case of the petitioner for promotion to the post of Principal but the respondents have wrongly and illegally rejected the case of the petitioner for promotion in violation of judgment dated 9.12.2009. Learned counsel for the petitioner has relied Kulwant Kaur and others v. Gurdial Singh Mann & others, (2001) 4 SCC 262 and has submitted that the technicality alone by itself ought not to permit the High Court to decide the issue since justice-oriented approach is the call of the day presently. He has submitted that the petitioner was placed at Serial No. 293-A in the seniority list and several persons below him were promoted as Principal but the petitioner has not been promoted as Principal. The punishment order, which the respondents are relying for denying promotion to the petitioner as Principal is subsequent in time whereas the petitioner is required to be considered for promotion as Principal in the year 2001. 13. The operative part of the directions given in the judgment dated 9.12.2009 are to the effect that respondents No. 1 and 2 were directed to consider the case of the petitioner for promotion to the post of Principal within a period of eight weeks from 9.12.2009 and in case he is found suitable for promotion to 7 the post of Principal then he should be promoted as Principal from the date his immediate junior was promoted with all consequential benefits. 14. The suitability of the petitioner for promotion as per the judgment dated 9.12.2009 was to be considered by the respondents. The DPC considered the case of the petitioner. The respondent No.2 also processed the case of the petitioner. The respondent No.1 ultimately passed the order dated 17.6.2006 Annexure R-2 rejecting the case of the petitioner for promotion. In the order dated 17.6.2010 reasons have been given. It has not been submitted that the case of the petitioner was not at all considered, what has been argued is that the respondents have wrongly erred in rejecting the case of the petitioner for promotion. According to the petitioner his case was required to be considered on the basis of facts and record up to the year 2001 and not when the DPC met on 3.6.2010 and office order dated 17.6.2010 was passed. 15. In Dilip Mitra & Anr. V. Swadesh Chandra Bhandra & Ors., JT 2002(Suppl.1) SC 56, it has been held as follows:- “3. On the ground that the order made by the High Court on the writ side is not complied with, a complaint was filed in contempt jurisdiction. Unless there is wilful disobedience to the order made by the court, it is very difficult to conceive of the situation where the High Court could hold a party to be guilty of contempt. In the present case, the order made by the learned single judge in respect of which the complaint was made is that the authorities will have to act in terms of the statue and rules in regard to employment on rotational basis and their continuance and absorption. That is the substance of the order dated 20.7.1988. Whether the statue 8 and rules have been complied with or not, whether the concerned complainants fulfilled the necessary qualifications as prescribed in the statue or rules or not are all matters in respect of which there could be a serious dispute. In such matters, it could not be clearly stated that the concerned parties had acted wilfully in contempt of the court. In that view of the matter, we think the High Court is not justified in holding that the appellants were guilty of contempt. Further, the High Court could have given certain clarifications in regard to the implementation of the order made by the High Court on writ side after giving due opportunity to all concerned, if the high Court felt that the order in the writ application was not properly interpreted or understood by the concerned authorities. But, it could not have said, without reference to the relevant rules and factual details that the appellants should purge the contempt by absorbing the petitioners in regular establishment without insisting on any test in view of their long and satisfactory service.” 16. In Dinesh Kumar Gupta v United India Insurance Company Ltd & Ors., (2010) 12 SCC 770, it has been held as follows:- “17. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this Court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious 9 consequence including imposition of punishment. However, when the courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act, 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature. 17. The respondent No.2 sent the panel for promotion to the post of Principal(School Cadre) to respondent No.1 vide letter dated 29.3.2010 with the remarks that the petitioner has been put under minor penalty withholding of his next increment under Rule 11(iv) of CCS(CCA) Rules, 1965 and the petitioner was under the currency of penalty. The DPC on 3.6.2010 considered the case of the petitioner for promotion after noticing the judgment dated 9.12.2009. The respondent No.1 in view of the DPC dated 3.6.2010 vide order dated 17.6.2010 rejected the case of the petitioner for promotion to the post of Principal. The petitioner was under the currency of operation of minor penalty imposed on 6.1.2010. The petitioner was not found fit to be considered for promotion to the post of Principal in the DPC held on 30.2.2002 nor he is eligible as on date. 18. In the judgment dated 9.12.2009, respondents No.1 and 2 were directed to consider the case of the petitioner for promotion to the post of Principal within a period of eight weeks and in case he is found suitable for promotion to the post of Principal then he should be promoted as Principal from the date 10 his immediate junior was promoted with all consequential benefits. The suitability for promotion of the petitioner was to be considered by the respondents. Even if it is assumed that the respondents have erred in not promoting the petitioner still it cannot be said to be a case of conscious, deliberate, wilful disobedience of the judgment dated 9.12.2009. The respondents have considered the case of the petitioner and thereafter rejected the case of the petitioner. No malafides have been imputed to the respondents nor otherwise established. In these circumstances, it cannot be said that the respondents have committed the contempt of the Court by violating the judgment dated 9.12.2009. 19. In view of above, the petition is dismissed. Notice issued to the respondents is discharged and the proceedings dropped. ( Kuldip Singh ), May 2, 2011. Judge. (vt)