CIVIL WRIT JURISDICTION CASE No.924 OF 2010 ------ In the matter of an application under Article 226 of the Constitution of India. ------- Union of India Represented by Ministry of Home Affairs North Block, New Delhi 110 001 …… PETITIONER VERSUS 1. The Central Administrative Tribunal Patna Bench, Patna Through its Registrar, Srikrishna Nagar, Patna 2. Union Public Service Commission, Through its Secretary, Dholpur House, Shahjahan Road, New Delhi 3. The State of Bihar Through Chief Secretary to Government Home Department, Patna 4. The Secretary, Department of Home (Police) Main Secretariat, Patna 5. The Director General of Police Bihar, Main Secretariat, Patna 6. The Joint Secretary, Home (Police) Government of Bihar, Patna ….. RESPONDENTS FIRST SET 7. Sri Shatrughan Prasad Singh, IPS Son of Sri Rameshwar Prasad Singh Village Nasratpur, PO. Laxmanpur P.S. Jandaha, Distt.- Vaishali (Bihar ….. RESPONDENT SECOND SET ------- For the Petitioner : Mr Sarva Deo Singh, Advocate For the Respondent No.7 : Mr Vivekanand Pd. Singh, Advocate ------- P R E S E N T THE HON’BLE MR JUSTICE SHIVA KIRTI SINGH THE HON’BLE DR JUSTICE RAVI RANJAN Shiva Kirti Singh, J. The Union of India through the Ministry of Home Affairs, New Delhi has preferred this writ petition with twin prayers. - 2 - The first prayer is to quash judgment and order of the Central Administrative Tribunal, Patna Bench (hereinafter referred to as „the Tribunal‟) dated 25.2.2008 contained in Annexure-4 whereby O.A. No.279 of 2001 preferred by the respondent second set – applicant was allowed, a communication dated 3.3.2001 rejecting the representation of the applicant for being given 1986 as the year of allotment in Indian Police Service (IPS) was set aside and the Secretary to the Government of India, Ministry of Home Affairs, New Delhi was directed to consider afresh the case of the applicant for being allotted the year 1986 in the IPS. The second prayer is for quashing of order dated 25.8.2009 passed by the Tribunal in exercise of contempt jurisdiction in CCPA No.02 of 2009, contained in Annexure- 7. By this order, the Tribunal has held that there has been a willful disobedience of the orders of the Tribunal and the Secretary of the Ministry of Home Affairs is guilty of contempt. However, the Tribunal gave another opportunity to purge the contempt by implementing decision of the Tribunal within eight weeks on receipt of the order failing which he is required to appear in person for further proceeding in the contempt matter. It goes without saying that if the first prayer succeeds, the very basis for the contempt proceeding and impugned order contained in Annexure- 7 will disappear but if the order contained in Annexure- 4 is found to be proper, in that event legality of order passed in contempt jurisdiction, contained in Annexure- 7 will require further consideration. - 3 - 2. To appreciate the case of the parties it is necessary to notice the relevant facts in brief. The applicant was appointed as a Probationary Deputy Superintendent of Police (for short „DSP‟) by order dated 24.4.1974 and was directed to report to the Police Training College on 3.6.1974. He made a representation on 29.5.1974 for extension of joining time by one month on the ground that his wife had undergone a major surgery. He received no reply and, therefore, presumed that the prayer has been rejected. He received a letter dated 18.6.1974 for another service from the office of the Collector of Customs Board that he should report at Bombay on 10.7.1974. On enquiry, he learnt that no orders had been passed on his representation and, therefore, to avoid losing the other job he joined the other service at Bombay on 9.7.1974. By a letter dated 9.7.1974, the applicant‟s representation was forwarded by Additional Inspector General of Police (Administration) to Additional Secretary, Home, Bihar and the copy of the same was forwarded to the applicant. On receipt of the same, he submitted another representation dated 13.7.1974 requesting for a date by which he may join Police Training College, Hazaribagh. This second representation was forwarded by Deputy Inspector General of Police (Administration) to Additional Secretary, Home, Bihar by letter dated 21.8.1974. He received another letter dated 20.9.1974 from the Department asking him to furnish information as to whether he wanted to join the training and if yes, he must join on 2.1.1975 failing which the authorities would appoint another person in his place. The applicant gave a reply that he would join training from - 4 - 2.1.1975. He was directed to do so. Accordingly, he got himself relieved from Bombay Customs House and joined the Police Training College on 2.1.1975. 3. After serving at various places the applicant was appointed by promotion to Indian Police Service by notification dated 16.12.1992. Through subsequent notification, the Government of India fixed applicant‟s year of allotment to IPS as 1987. The applicant preferred representation that his date of appointment as DSP should be treated to be 24.7.1974 and not 2.1.1975. If such a claim is accepted then admittedly as per Rule 3 (3) (ii) of the Seniority Rules which is quoted in paragraph 4 of the judgment of the Tribunal contained in Annexure-4, the applicant‟s year of allotment to IPS would be 1986 and not 1987. However, applicant was informed by letter dated 3.3.2001 (impugned before the Tribunal) that the Government of India had not accepted his prayer for changing the year of allotment. 4. The case of Union of India, the petitioner herein, is that the applicant was appointed to IPS with effect from 16.12.1992 and since he joined the Police Training College after 31.12.1974, i.e. on 2.1.1975, he could be given a weightage of only five years as per the rules and not six years as claimed by the applicant because he did not render service as DSP from 24.4.1974, the date of selection and appointment. The emphasis, as per learned counsel for the Union of India is on the actual service rendered in the State Police Service and not any deemed service since appointment. - 5 - 5. A preliminary objection has been taken by the learned counsel for the applicant that the impugned order contained in Annexure-4 cannot be permitted to be challenged by the Union of India when it acted on the basis of that order and reconsidered the matter resulting into an order dated 16.6.2008 contained in Annexure- 5 which is the basis for contempt proceeding. On the other hand, learned counsel for the Union of India has submitted that the Union had taken Annexure- 4 in different light and understood that the remand was a free remand for taking any possible view but now in view of Annexure- 7 it is compelled to challenge Annexure- 4. In the facts of the case, we find some substance in the submission advanced on behalf of the applicant but in order to ensure justice under wide powers available under Articles 226 and 227 of the Constitution, it is deemed proper to consider the challenge to Annexure- 4 on merits. 6. The learned Tribunal has considered the facts and pleadings of the parties in proper perspective and has discussed various decisions of the Apex Court such as in the case of Dalilah Sojah Vs. the State of Kerala & Ors., AIR 1999 SC 1529; Chairman, Puri Gramim Bank & Anr. Vs. Anand Chandra Das & Ors., (1994) 6 SCC 301, Suresh Chandra Jha Vs. State of Bihar & Ors., (2007) 1 SCC 405 and Dr Amarjit Singh Ahluwalia Vs. the State of Punjab & Ors., (1975) 3 SCC 503. It has come to a correct view that when selection and appointment is made after preparing a merit list, the seniority given by the Selection Board is to prevail and not on the mere fortuitous chance of reporting to duty earlier. In the case of - 6 - Dr Amarjit Singh Ahluwalia (supra), the Apex Court considered the meaning of words – “date of appointment” and held that an order of appointment may be of three kinds, in one appointment is to take effect from the date of assuming charge, in the other appointment may be with immediate effect and in the third variety, appointment may be without specifying as to when it shall take effect. In the context of a class I service which was under consideration in that case it was held that although some of the respondents did not assume charge of their respective posts of promotion till a particular date, “ but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post.” The Tribunal finally came to a well considered view that had it been a question of seniority amongst recruits to the post of DSP who were appointed on the basis of Public Service Commission by the order dated 24.4.1974, the applicant would have retained his seniority vis-a- vis others in the merit list and could not be penalized for no fault of his in joining Police Training College on a date fixed by the Government on his representation which was kept pending for a long time. Hence, the Tribunal found it necessary to read down the relevant provision in the rules in order to ensure fair treatment and justice to the applicant. For this purpose, reliance was - 7 - placed upon a Full Bench decision of this Court in the case of Braj Kishore Singh v. State of Bihar, 1997 (1) PLJR 509. 7. On considering the facts and circumstances of the case and the relevant case laws, it is evident that for the purpose of provisions under rule 3 (3) (ii) of the Seniority Rules, the service rendered in the State Police Service cannot be confined to the period spent in service from the date of joining the post of DSP when the date of first joining was extended by the State Government. It must be counted from the date of appointment i.e. 24.4.1974. Taking a contrary view would amount to unfair treatment to the applicant which would run counter to the requirement of acting fairly emanating from Article 14 of the Constitution of India. Hence, the impugned judgment and order of the Tribunal dated 25.2.2008 contained in Annexure -4 needs no interference. 8. So far as challenge to Annexure-7 is concerned, another preliminary objection raised by learned counsel for the applicant needs to be noticed only for being rejected. It was contended that this Court has no jurisdiction to interfere with an order passed by the learned Tribunal in exercise of contempt jurisdiction because under Section 19 of the Contempt of Courts Act, 1971, appeal from any order or decision of a Bench of High Court lies to the Supreme Court. As per judgment of the Supreme Court in the case of T. Sudhakar Prasad v. Govt. of A.P. and others, (2001) 1 SCC 516, Administrative Tribunal in contempt matters exercises some power as the High Court and hence, appeal against Annexure- 7 would lie only - 8 - before the Supreme Court. The objection, as indicated above, has no merit because in the case of T. Sudhakar Prasad (supra) it has been held that while holding proceedings under Section 17, the Administrative Tribunal is amenable to Articles 226/ 227 of the Constitution of India but order of punishment passed in such a proceeding is not subject to such jurisdiction of the High Court because an appeal would lie against an order of punishment only before the Supreme Court under Section 19 of the Contempt of Courts Act. In the aforesaid case, the Apex Court has explained the law relating to jurisdiction of the High Court under Articles 226/227 of the Constitution laid down in the case of L. Chandra Kumar V. Union of India & others, (1997) 3 SCC 261. 9. Yet another objection raised on behalf of the applicant against challenge to order contained in Annexure- 7 is based upon self constrained exercise by the High Courts in not interfering with matters at interlocutory stage. In the present case, it is evident that the impugned order contained in Annexure- 7 is an interlocutory order which has given time to the Secretary to purge himself of the contempt within a fixed time. A right to appeal is available to the concerned officer or the Union of India in case the Tribunal decides the matter finally by awarding a punishment for contempt. In that view of the matter, it would not be proper to go into the merits of the order contained in Annexure- 7 at an interlocutory stage when ultimately an appeal would lie to the Supreme Court in the event of imposition of any punishment for contempt. - 9 - 10. For the reasons indicated above, we find no merit in this writ petition. It is accordingly dismissed. (Shiva Kirti Singh, J.) Dr Ravi Ranjan, J. I agree. (Dr Ravi Ranjan, J.) Patna High Court The 22nd December, 2010 S.Kumar AFR