THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.28536 OF 2008 % 09-02-2009 # 1. Mr. A.P. Verma, and others … Petitioners Vs. 1. K. Dasaradhi Gupta and others …. Respondents ! COUNSEL FOR THE PETITITIONERS: Sri A. Rajasekhar Reddy ^ COUNSEL FOR RESPONDENT No.1 : Dr. K. Lakshmi Narasimha < Gist: > Head Note: ? CITATIONS: ( 1) 2004 (13) SCC 610 ), ( (2) 1996(6) SCC 291 ), ( ( 3) 1997 (3) SCC 261 ), ( 4) 2006(2) ALD 30 ). (( 5) 2008(5) SCC 339 ), ( ( 6) 2002(3) SCC 554), ( 7) 1988(3) SCC 26 ), ( ( 8) 2006 (5) SCC 399), ( (9) 2001 (1) Supreme Court Cases 516), ( ( 10) 2002 (1) Supreme Court Cases 766). IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY THE NINTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT PETITION NO : 28536 of 2008 Between: 1 Mr.A.P.Verma Hyderabad-I Commissionerate, L.B. Stadium Road, Basheerbagh, Hyderabad. 2 Dr.S.L. Meena Hyderabad-II Commissionerate, L.B. Stadium Road, Basheerbagh, Hyderabad. 3 Mrs.Jasdeep V Singh Hyderabad Zone, L.B. Stadium Road, Basheerbagh, Hyderabad. 4 Mr.P.C. Jha Central Board of Excise and Customs, North Block, New Delhi. ..... PETITIONER(S) AND 1 K.Dasaradhi Gupta S/o.Ramachandra Murthy Tribunal Section, Hqrs Office, Hyd-III Commissionerate, Basheerbagh, Hyderabad. 2 Manikumari Hyderabad. 3 Syed Imtiaz Ahmed O/o. Commissioner of Central Excise, Commissionerate-II Hyderabad. 4 Sri.P.Dwarakanath O/o. Dy. Commissioner of Central Excise, Division III, IV Floor, CLS Building, Nampally Railway Road, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ of Certiorari, or any other appropriate writ, order or direction calling for the records pertaining to the order dated 17.11.2008 in C.P.No.75 of 2008 in O.A.No.1274 of 2002 on the file of the Hon'ble Central Administrative Tribunal, Hyderabad Bench, Hyderabad, and to quash the same as illegal, arbitrary, contrary to law and un- constitutional and declare the same as void abinitio, null and void and nonset in the eye of law and pass such other and further order or orders. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondent No.: DR.K.LAKSHMI NARASIMHA The Court made the following : THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR. WP No.28536 of 2008 Order: ( Per Sri GM, J) This Writ Petition has been filed by the Central Excise Department challenging the order dated 17-11-2008 passed in CP No.75 of 2008 in O.A.No.1274 of 2002 on the file of the Court of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad. The applicant in O.A.No.1274 of 2002, first respondent herein, was appointed as an Upper Division Clerk in the in the petitioners-Department under direct recruitment quota in the year 1978 and was promoted to the cadre of Tax Assistant in the year 1988. As per the recruitment Rules in vogue he was called for Physical and Endurance Tests and interview for consideration for promotion to the next higher grade on Executive side viz., Inspector of Central Excise for the first time in the year 1986. The respondent no.1 appeared for the physical test on 25-2-1986 and qualified himself in the Physical and Endurance tests. However, the DPC found him not fit for promotion to the post of Inspector. In the year 1987 again the respondent no.1 was called for Physical and Endurance tests on 3-6-1987. He qualified himself in the Physical and Endurance Tests except in cycling test. Hence, he was not called for interview before the DPC. In the year 1988, again the respondent no.1 was called for Physical and Endurance tests held on 16-3-1988 at Hyderabad. This time his height was recorded as 156.5 Cms in height measurement as against the required qualifying height of 157.5 cms. Further the respondent no.1 was disqualified in chest measurement and in cycling also. Hence, he was not called for interview by the DPC. In the year 1990 he was not called for the physical test/endurance test based on Board’s letter No.A- 32011/28/86-Ad.III-A dated 5-11-1986 according to which if a candidate was not found fit for promotion to the grade of Inspector on the ground that he does not possess the minimum prescribed height, it is not necessary to include him in the consideration list again next time and in case, a person gains height, he can bring it to the notice of the concerned authority. Aggrieved by this, the respondent no.1 made a representation dated 26-7-1990 in response to which the respondent no.1 by letter dated 9-10-1990 was informed that he was not called for interview as he do not possess the minimum height, and also disqualified in chest measurement and in cycling. Subsequently, the respondent no.1 was promoted as Deputy Office Superintendent in the year 1991 and joined as DOS LS-II on 4-4-991. According to the petitioners it is not a feeder cadre for promotion to the cadre of Inspector, and as he was not qualified in height in the previous physical test held in the year 1988, he was not called for the Physical and Endurance Test in the year 1991. In his representation dated 24-5-1991 he submitted an attested copy of a certificate issued by the Civil Assistant Surgeon, Government General Hospital, Vijayawada certifying his height as 157.5 cms. In the meanwhile, the respondent no.1 approached the Tribunal vide O.A.No.773 of 1991. The Tribunal vide its interim order dated 9-8-1991 directed the Department to permit the respondent no.1 for the physical tests due to be held on 26-8-1991 or any other subsequent date, but to withhold the results pending the final outcome of that O.A. Accordingly, he was called for the physical and endurance tests on 17-9-1991 and interview on 18-9-1991. The respondent no.1 appeared and qualified in the same, but the results were withheld as per the directions of the Tribunal vide interim orders dated 9-8-1991. Subsequently, the Tribunal vide order dated 11-3-1992 in the above O.A. directed the Department as follows: “ In view of this position, we direct the respondents to announce the results of the test, the applicant had appeared for the post of Inspector, Central Excise within a month from the date of receipt of this order. In case the applicant had qualified the said test, we further direct the respondents to consider the applicant for the selection of said post of Central Excise Inspector and also for appointment for the same in accordance with law. If the applicant is aggrieved on account of the action of the respondents, the applicant is at liberty to approach the Tribunal afresh in accordance with law. The O.A. is disposed of accordingly with the above said directions. We make no order as to costs.” Be it noted here itself that vide MA NO.656 of 1992, the petitioners-Department sought for extension of time upto 7- 7-1992 to implement the order in the above O.A. and the time was accordingly granted. Subsequently, the Department filed a Review Petition No.63 of 1992 in O.A.No.773 of 1991 before the Tribunal stating that the respondent no.1 was disqualified for shortage of height on the previous occasion i.e in the year 1988 and also that the respondent no.1 having accepted promotion of DOS L-II on 4-4-1991, which is not a feeder cadre for the post of Inspector, he is no longer eligible for taking test for promotion to the post of Inspector and prayed the Tribunal to review the order dated 11-3-1992. The Tribunal, on consideration of the entire material on record, by its order dated 25-6-1992 rejected the review petition. Subsequently, the Department filed one more M.A.No.792/1992 in OA NO.773 of 1991 seeking further extension of six weeks time i.e. up to 18.9.1992 for implementation of the Tribunal order dated 11.3.1992. The Tribunal vide order dated 13-7-1992 disposed of the M.A. extending time for one week only and directed the Department to announce the results of Physical test by 5.8.1992 or else the respondents would be liable for action under the provisions of Contempt of Courts Act. The Department once again called the respondent no.1 in the year 1992 to attend for the Physical Tests to be held at Hyderabad for which the respondent no.1 declined to attend the same stating that he was already qualified in the physical test held in the year 1991 and in view of the order of the Tribunal dated 11-3-1992 requested to announce the test results and appoint him as Inspector. Thereafter, the respondent no.1 filed a Contempt Petition bearing CP No.27 of 1992 in OA.No.773 of 1992 before the Tribunal. Subsequently vide proceedings dated 23-9-1992 the respondent no1. was promoted as Inspector, on the basis of which the Tribunal vide order dated 24-9- 1992 dismissed the CP. The main plea of the respondent no.1 is that he had been considered by the DPC held in the year 1990, he would have got promotion as Inspector of Central Excise in the year 1990 itself and therefore he filed O.A.No.1274 of 200 before the Tribunal. The Tribunal vide its order dated 19-3-2008 issued the following direction to the Department. “In view of the above, we are of the view that justice would be met if the respondents are directed to examine as to why the applicant was not considered in the year 1990 when admittedly his juniors were considered and if no plausible reason is found for the same, they shall consider the case of the applicant for promotion w.e.f. the date of his juniors in 1990 by conducting review DPC. The respondents shall pass appropriate order and communicate the decision to the applicant. The respondents shall complete the entire exercise within a period of two months from the date of receipt of a copy of this order. ” The Department, however, found that there was no merit in the request of the respondent no.1 to consider his case for promotion from the year 1990 onwards, however no speaking orders were issued as different views were taken by the officers for conducting review DPC. On 18-9-2008 orders were passed justifying the action of the Department for not considering him for DPC in the year 1990 and stated that he was correctly considered for the year 1991. Aggrieved by the said order dated 18.9.2008 respondent no.1 filed Contempt Petition No.75 of 2008 before the Tribunal and the Tribunal passed order dated 17-11-2008, which reads as under: “ That being the position, we find that no plausible ground was found by the respondents other than the height factor which was considered and discussed by this Tribunal in the judgment. We, therefore, find that the respondents have passed the order without application of mind and not in terms of the order of the Tribunal. The decision taken by the respondents for not conducting review DPC for the year 1990 when no plausible ground was found, is not correct one. We therefore, grant three months to comply with the order in view of the above observations and pass order accordingly. Respondents shall produce compliance report on next date. Matter posted on 17-2-2009. Challenging the said order, the present writ petition is filed by the Department. Sri A. Rajasekhar Reddy, learned Additional Solicitor General contended that by issuing a suitable speaking order after examining the mater, the Department has complied with the directions of the Tribunal in its order dated 19-3-2008 in O.A.No.1274 of 2002 and even if the respondent no.1 was aggrieved by the speaking order issued by the Department, the Tribunal ought to have permitted the respondent no.1 to file fresh O.A. challenging the said order, instead the Tribunal issued contempt proceedings, and the same is liable to be set aside. Learned counsel for the petitioners relied on the decisions reported in V. M. MANOHAR PRASAD v. N. RATNAM RAJU ( ( 1) 2004 (13) SCC 610 ), J.S. PARIHAR V. GANPAT DUGGAR ( (2) 1996(6) SCC 291 ), L. CHANDRA KUMAR v. UNION OF INDIA ( ( 3) 1997 (3) SCC 261 ), and UNION OF INDIA AND OTHERS v. SUBEDAR DEVASSY PV ( ( 4) 2006(2) ALD 30 ). There is no dispute with regard to the propositions laid down in these judgments. On the other hand, learned counsel for the respondent No.1 Sri Dr. K. Laxmi Narasimha contends that pursuant to the orders passed by the Tribunal O.A.No.1274 of 2002 dated 19-3-2008, the Tribunal only directed the respondents to implement its order in strict sense, when once the order has attained finality. Learned counsel further contends that the applicant was very much eligible in the year 1986, 1987 and 1988, therefore, he cannot be denied consideration for the said post in the year 1990, and that no fresh cause of action arises for consideration and that the writ petition is not maintainable, when the matter is pending before the Tribunal. Learned counsel in support of his contentions, has relied on the decisions reported in BIHAR FINANCE SERVICE HOUSE CONSTRUCTION COOPERATIVE SOCIETY LTD v. GAUTAM GOSWAMI AND OTHERS (( 5) 2008(5) SCC 339 ), ALL INDIA REGIONAL RURAL BANK OFFICERS FEDERATION AND OTHERS v. GOVERNMETN OF INDIA AND OTHERS ( ( 6) 2002(3) SCC 554), D. N. TANEJA v. BHAJAN LAL ( 7) 1988(3) SCC 26 ), MIDNAPORE PEOPLES COOP. BANK LTD v. CHUNILAL NANDA ( ( 8) 2006 (5) SCC 399), T. SUDHAKAR PRASAD v. GOVT. OF A.P. AND OTHERS ( (9) 2001 (1) Supreme Court Cases 516), SURESH CHANDRA PODDAR v. DHANI RAM AND OTHERS ( ( 10) 2002 (1) Supreme Court Cases 766). In N. RATNAM RAJU’s case ( 1 supra ), some of the employees of the Andhra Pradesh Scheduled Castes Finance Corporation had moved the High Court of Andhra Pradesh for their regularization in service. A learned single Judge of this Court passed an order directing that the employees completing five years continuous service to be considered for regularization against clear vacancies of posts. The request of the appellants therein for regularization was turned down as the posts against which regularization was being sought for were not sanctioned by competent authority. The appellants therein moved the contempt petition and the contempt Judge directed the authorities particularly the Government to sanction the posts so that the employees could be absorbed on permanent posts. Considering those situations, it was held by the Apex Court that the Contempt Court cannot pass any supplemental order to the main order. In J. S. PARIHAR’s case ( 2 supra ) the controversy relates to the preparation of the seniority list of the Engineers in Rajasthan Civil Engineering Services. In WP No.560 of 1970, by its order dated 6-10-1988, the Division Bench of the Rajasthan High Court declared the seniority list prepared with retrospective effect in terms of the amended rules as unconstitutional; it accordingly quashed the list and directed preparation of the seniority list afresh to determine the inter se seniority on that basis and to grant promotions to the appellant therein within the specified time. When the seniority list came to be prepared, the contempt proceedings were initiated and learned single Judge on consideration of the merits of the case held that the respondents therein had not willfully disobeyed the ordered of the court, however gave certain directions to the respondent-State. The State had preferred appeal before the Division Bench of Rajastan High Court and the Division Bench while holding the appeal as not maintainable under section 19 of the Contempt of Courts Act 1971, held that the appeal would be maintainable as letters patent appeal as the directions issued by the learned single Judge would be a judgment within the meaning of section 18 of the Rajasthan High Court Ordinance and accordingly set aside the directions issued by the learned single Judge. Considering those situations, the Supreme Court while dismissing the appeal, held as follows : “ …..once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may he right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench.” In SUBEDAR DEVASSY PV’s case ( 4 supra), a learned single Judge of the Madhya Pradesh High Court issued certain directions while disposing of Writ Petition No.4511 of 1996, and alleging that the directions were not complied with, a petition was filed for initiation of contempt proceedings. The appellants therein stated that the directions have been complied with and therefore the contempt proceedings were dropped by accepting the explanation, as reasonable. It was specifically noted that from the steps taken by the alleged contemnors, it cannot be said that the action of the respondents in the contempt proceedings was in any manner contemptuous or disrespectful. Having said, certain further directions were given by the learned single Judge and the same were challenged before the Apex Court. Considering those circumstances, the Apex Court held as follows : “ If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong, the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance with which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In GAUTAM GOSWAMI’s case (5 supra ), proceedings were initiated in 1973 under the provisions of the Land Acquisition Act, 1894 to make available land to the petitioner society therein. Total land measuring 59.4 acres was acquired but when the writ petitions were filed in the High Court and subsequently when appeal was filed in the Supreme Court, both the courts released part of the land, and finally the petitioner-Society became entitled to 31.7725 acres of land. However, the petitioner-society therein was not provided total area of land to which it was entitled under the judgments of the High Court and the Supreme Court, for which the petitioner Society moved contempt petition. Some of the parties intervened on the ground that further land should not be provided to the petitioner Society, raising arguments that (i) those parties had purchased lands and also constructed houses thereon, and (ii) some of the members of the petitioner Society had moved to Jharkhand when it came into existence during the pendency of the litigation. Besides, the petitioner Society also pointed out an error in the High Court judgment due to which another society had been given more land than what it was actually entitled. The question that fell for consideration before the Supreme Court was whether it was permissible to reopen all these issues when the matter relating to area of land to be made available to the petitioner-Society stood finally settled by the judgments of the High Court and Supreme Court. Considering those situations, the Apex Court held that if the applicants are the purchasers of lands pendente lite which was subject matter of different proceedings before the High Court as also the Supreme Court, they are also bound thereby. It was also held by the Apex Court that while exercising contempt jurisdiction the Supreme Court does not intend to reopen the issues which could have been raised in original proceedings nor shall it embark upon other questions including the plea of equities which could fall for consideration only in original proceedings. The court is not concerned as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the same. It cannot ordinarily give an additional direction or delete a direction issued. It will not do anything which would amount to exercise of its review jurisdiction. In All India Regional Rural Bank Officers’ case ( 6 supra ), notification issued purportedly in compliance with Supreme Court’s direction, found in fact to be not in compliance therewith but not involving deliberate violation thereof either. Considering those circumstances, it was held that the authorities concerned need not be punished. In D. N. TANEJA’s case ( 7 supra ), the Apex Court considering various case laws in this aspect held as follows : “ Mr. Sibal, learned counsel appearing on behalf of the respondent, has taken a preliminary objection to the maintainability of the appeal under Section 19(1) of the Act. It is contended by him that as no punishment was imposed on the respondent by the High Court in exercise of its jurisdiction to punish for contempt, Section 19(1) is inapplicable and the appeal is incompetent. Section 19(1) provides as follows : 19(1) An appeal shall lie as of right from any order or decision of a High Court in the exercise of its jurisdiction to punish for contempt – (a) where the order or decision is that of a Single Judge, to a Bench of not less than two Judges of the court, (b) where the order or decision is that of the Court of the Judicial Commissioner in any Union territory, such appeal shall lie to the Supreme Court.” In MIDNAPORE COOP. BANK LTD’s case ( 8 supra), the following questions fell for consideration before the Apex Court. “ ( 9 ) ON the aforesaid facts and the contentions urged, the following questions arise for consideration : (i) Where the High Court, in a contempt proceedings, renders a decision on the merits of a dispute between the parties, either by an interlocutory order or final judgment, whether it is appealable under Section 19 of the contempt of Courts Act, 1971. If not, what is the remedy of the person aggrieved. (ii) Where such a decision on merits, is rendered by an interlocutory order of a learned single Judge, whether an intra-court appeal is available under Clause 15 of the Letters patent. (iii) In a contempt proceeding initiated by a delinquent employee (against the Enquiry officer as also the Chairman and Secretary in-charge of the employer-bank), complaining of disobedience of an order directing completion of the enquiry in a time bound schedule, whether the court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary; (d) that