WP(C) No.8341/2009 Page 1 of 30 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.8341/2009 % Date of Decision: 12.09.2011 UOI & Ors. …. Petitioners Through Mr. R.V. Sinha, Advocate along with Sh.Anil Bhandula, Under Secretary for the Petitioners Versus Sh. Chattarsal Sehrawat & Ors. …. Respondents Through Rajiv Bajaj, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE SUDERSHAN KUMAR MISRA 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ANIL KUMAR, J. * 1. The petitioners have challenged the order dated 27th January, 2009 passed in CP No. 456/2008 in OA No. 73/2004 discharging the contempt notice and affording another opportunity to the petitioners to implement the order dated 29th November, 2004 passed in OA No.73/2004, wherein the petitioners were directed to reckon the WP(C) No.8341/2009 Page 2 of 30 training period as eligible period for the benefits under ACP Scheme and to pass a speaking and reasoned order within a period of three months. The order of the Tribunal has primarily been challenged on behalf of the petitioners on the grounds, which were enumerated by the learned counsel for the petitioners, Mr. Sinha, during the arguments on 5th September, 2011. The pleas raised on behalf of the petitioners are as under:- (i) The Tribunal erred in taking cognizance and initiating the contempt for non-compliance of the order dated 24th November, 2004, which was four years old in view of Section 20 of the Contempt of Courts Act. (ii) Correctness of implementation of the said order or otherwise cannot be considered and re-agitated in contempt proceedings, if at all, as this amounts to fresh cause of action and the person aggrieved has other cause of action. (iii) The Department has implemented the aforesaid order in terms of policy vide letter dated 11th December, 2007, (page 89), and if at all, the respondents were aggrieved, the cause of action for them was to file a fresh petition not the contempt petition. 2. Brief facts to comprehend the disputes are that the respondents had filed an original application seeking the quashing of the order dated 25th August, 2003 as well as a declaration that the action of the petitioners in denying the arrears of pay to the respondents is illegal and arbitrary and to further direct the petitioners to treat the revised dates of holding the each grade as the WP(C) No.8341/2009 Page 3 of 30 actual date of holding the each grade for all purposes and consequently to grant the benefits under the Assured Career Progression Scheme (ACP Scheme) along with the actual arrears which had been denied in pursuance of the order dated 25th August, 2003. 3. The respondents had earlier approached the Central Administrative Tribunal in OA No. 528/1993, seeking quashing of the seniority list and had claimed reckoning of period of training as Trainees (Type-B) for purpose of seniority and other consequential benefits, which was disposed of by the Tribunal by an order dated 15th February, 1999. The Tribunal, in its order dated 15th February, 1999, had held as under:- “ We, therefore, hold that the respondents shall consider the period of training also in reckoning seniority. We further direct the respondents to apply such of the principles as would be suitable to the respondents-department from the orders of the Ministry of Personnel & Training in OM No. 22011/7/86-Estt. (D) dated 3.7.1986, to be found in Swamy’s Complete Manual on “Establishment and Administration” for Central Government Offices. Fifth Edition-1996 at page 494 onwards. The Ministry of Personnel had spelt out with illustrations as to how to work out the seniority of direct recruits and promotees. The respondents shall carefully consider and redefine the principle on which seniority be based between the applicants and the promotees. After laying down the principle, a draft seniority list be circulated giving three weeks time to the contending groups to state their objections and thereafter finalise the seniority list. The whole exercise WP(C) No.8341/2009 Page 4 of 30 should be completed within a period of six months from the date of receipt of a copy of this order. The O.A. is disposed of with the above directions. No costs.” 4. Since the seniority had been granted to the respondents, they further sought arrears as a consequence of the seniority and ante- dating of their promotion and also sought that the ante-dated promotion be treated as deemed date for qualifying the trade test. For the Assured Career Progression, it was contended that since, the seniority was accorded after taking into consideration the period of training, the said period should also be reckoned as eligibility period for grant of upgradation under the ACP Scheme. 5. The Tribunal disposed of the subsequent Original Application No. 73/2004, which had been filed by the respondents for arrears as well as reckoning the period of training as eligible period for the purpose of ACP by the order dated 29th November, 2004. Since, in the earlier OA No. 528/1993, wherein seniority was directed to be ante-dated taking into consideration the period of training, however, the relief regarding arrears on account of this was not specifically directed, therefore, the Tribunal construed this to be a refusal to grant the same and, therefore, declined to grant the arrears of pay WP(C) No.8341/2009 Page 5 of 30 and also declined to set aside the order dated 25th August, 2003, by applying the doctrine of constructive res judicata. 6. However, in respect of the prayer of the respondents that the period of training be also reckoned for the purpose of computing the period for grant of benefit under the ACP Scheme, the Tribunal categorically held in OA No. 73/2004 by the order dated 29th November, 2004 that the period of training has to be reckoned as the eligibility period for purpose for grant of benefits of ACP and, therefore, directed the petitioners to consider the claim of the respondents in accordance with the rules and instructions and reckon the training period as the eligibility period for grant of benefits under the ACP scheme. The relevant paragraphs 11 & 12 of the said order dated 29th November, 2004, are as under:- “11. If one has regard to the above, in so far as relief of consequential benefits of reckoning training period towards seniority, there is no specific direction issued by the Tribunal. It is an admitted fact that the applicants had sought the said relief in the earlier OA 528/1993. Having not granted the said relief, the same is deemed to be refused to the applicants and on the same cause of action, the present proceedings are barred by the principle of res judicata. However, in so far as grant of benefit under ACP Scheme is concerned, reckoning the aforesaid period towards eligibility as claimed in para 8 (iii) of the OA, as the ACP Scheme had come into being on 9.8.1999 whereas the order passed by the Tribunal in OA 528/1993 was on 15.2.1999, Tribunal could not have foreseen the promulgation of ACP, which is a subsequent event. Accordingly, this part of the relief WP(C) No.8341/2009 Page 6 of 30 would not be constituted as a consequential relief. Accordingly, once the respondents have treated the training period towards the eligibility and for the purposes of seniority as well in the light of the stand taken in the counter reply, the aforesaid period has to be reckoned as an eligibility period for grant of benefits of ACP. 12. In this view of the matter, though relief claimed in para 8(i) and (ii) are barred by res judicata, we partly allow this OA by directing the respondents to consider the claim of the applicants for grant of the benefits under the ACP Scheme as per the their eligibility in accordance with rules and instructions by reckoning the training period towards eligibility. If the applicants are entitled and due for the benefit under the ACP Scheme, the same would be accorded to them with all arrears etc. within a period of three months from the date of receipt of a copy of this order. No costs.” 7. Pursuant to the order dated 29th November, 2004, the petitioners passed the order No. 06/37-G-9 dated 11th December, 2007 granting the first financial upgradation under the ACP Scheme w.e.f. the dates as shown in the said order. However, in the said order, while granting the benefits under the ACP Scheme, the period of training was not reckoned for the purpose of granting the benefits under the ACP Scheme as directed by the Tribunal in its order dated 29th November, 2004. 8. The order dated 29th November, 2004, directing the petitioners to reckon the training period as an eligibility period for grant of WP(C) No.8341/2009 Page 7 of 30 benefits under the ACP Scheme had not been challenged by the petitioners. Consequently, when the order dated 11th December, 2007 was issued, granting the benefits under the ACP Scheme w.e.f. the date stipulated therein, without reckoning the training period, and since the order dated 29th November, 2004 passed in OA No. 73/2004 had attained finality, the respondents had submitted a representation dated 12th February, 2008 to the petitioners seeking the implementation of the Tribunal’s order dated 29th November, 2004. It was also contended that while granting ACP scheme by OM dated 11.12.2007, the order of the Tribunal dated 29th November, 2004 has not been implemented as the period of training as eligibility period had not been reckoned while awarding the benefits under the ACP scheme. Reminders were also sent to the petitioners to implement the order dated 29th November, 2004, while granting the benefits under the ACP Scheme, i.e., to reckon the training period which was also considered for the purposes of according seniority to the respondents. The petitioners, rather, declined to take into consideration the deemed date, i.e., the date after taking into consideration the training period, for the purpose of the benefits under the ACP Scheme and sent a communication stipulating the same by the letter dated 2nd September, 2008. It was stipulated in the communication dated 2nd September, 2008 that the 12 years’ WP(C) No.8341/2009 Page 8 of 30 period of the respondents had to be calculated as per the date on which Grade-II was granted, as recorded in their service books, and also from the date the salary of Grade-II, (4500-7000) was being drawn, from the same recorded date of Grade II as per the Service Books. It was contended that it is not to be from the deemed date for the respondents but the actual date of promotion for them. That aggrieved by the actions of the petitioners, not to take into consideration the deemed date of promotion, as per the order dated 29th November, 2004 passed in OA 73/2004, a legal notice dated 1st November, 2008 was given on behalf of the respondents to the petitioners. Despite the reminders and legal notice, the order passed by the petitioners were not complied with. 9. The respondents, thereafter, filed the contempt petition being CP No. 456/2008 in OA No. 73/2004 contending that since the compliance of the order dated 29th November, 2004 was categorically declined in the letter dated 2nd September, 2008, therefore, the contempt petition is filed within the period of limitation on 24th November, 2008 for willfully disobeying the direction of the Tribunal and thereby committing the contempt of Court. The respondents sought initiation of contempt proceedings and a direction to grant the benefits of ACP Scheme to the respondents after taking into WP(C) No.8341/2009 Page 9 of 30 account the training period as an eligibility period for ACP scheme in terms of the directions given by the Tribunal in its order dated 29th November, 2004, which had not been challenged and which therefore, had become final. 10. In the contempt petition, the respondents urged that in view of the findings of the Tribunal in OA No. 73/2004 decided by the order dated 29th November, 2004, holding that the training period has to be reckoned as an eligibility period for the grant of benefit under the ACP Scheme and, therefore, the petitioners could not deny the same on any ground. The respondents further contended that rather, the office of the petitioners at Dehradun, by the letter dated 4th March, 2005, had sent the case of the respondents in the office of petitioner No. 1 for the approval of the recommendation in consonance with the order of the Tribunal that the two years training period be counted towards eligibility period for grant of benefits under the ACP Scheme. In the letter dated 4th March, 2005 on behalf of the Surveyor General of India, it was categorically stated that the Tribunal had asked to reckon the two years training period towards eligibility. 11. The relevant paragraph of the communication dated 4th March, 2005 is as under:-- WP(C) No.8341/2009 Page 10 of 30 “ As Hon’ble Tribunal has asked to count the 2 years training period towards eligibility and this office is also of this opinion that Direct Recruit Division II Gde.II should be given ACP scheme benefits should be given after 12/24 years of service from the deemed date of appointment as Grade II but actual benefits can only be given w.e.f. 9.8.1999 the date from which the ACP scheme is implemented where as till now the ACP benefits are being allowed from the actual date of appointment as Grade II.” 12. In the reply to the letter dated 4th March, 2005, on behalf of the Surveyor General, it was stated that the appointment of the respondents as Gr.-II is pre-poned after taking into account the training period as eligibility period in terms of ACP Scheme. However, despite the order of the Tribunal dated 29th November, 2004 to grant of ACP Scheme by reckoning the training periods towards eligibility within a period of three months, it was not done, rather, the respondents were conveyed by the letter dated 4th July, 2005 that the matter of granting ACP to Division II staff is being taken up with the Committee of Secretaries and the order dated 29th November, 2004 would be implemented as soon as the matter of giving benefits of ACPs to the Division II employees is resolved by the Committee of Secretaries. Ultimately the Committee of Secretaries approved the grant of the benefits of the ACP Scheme to Division-II (Gr.II) and Division-I (Promotee from Division-II) employees of Survey WP(C) No.8341/2009 Page 11 of 30 of India from the date of introduction of the ACP Scheme, i.e., from 9th August, 1999, which was communicated on behalf of the Govt. of India to the Surveyor General of India by the letter dated 16th November, 2007. The respondent further disclosed in the contempt petition that the order dated 27th November, 2007, was passed for grant of ACP Scheme to Division II, Grade II, w.e.f. 9th August, 1999, however, it was not clarified whether the ACP Scheme would be implemented in compliance with the order dated 29th November, 2004 directing the petitioners to reckon the training periods as an eligibility period for grant of benefit under the ACP scheme. 13. The respondents categorically stated that pre-ponement of training period of two years had already been accepted and recorded in the service books of all the respondents with the fixation of the corresponding pay scale of Rs.4500-7000 in Gr. II, however, in the Office Order dated 11th December, 2007 granting the benefits under ACP Scheme, the order of the Tribunal dated 29th November, 2004 was not given effect to. 14. The respondents, therefore, had submitted a representation dated 12th February, 2008 and also sent the reminders. The petitioners, however, by communication dated 2nd September, 2008, WP(C) No.8341/2009 Page 12 of 30 refused to take into consideration the training period in reckoning the eligibility period for grant of benefits of ACP Scheme. In the order dated 2nd September, 2008, it was held that the first financial upgradation should be as per the actual date of placing the respondents in Gr.II and not as per the deemed date of Gr.II after reckoning the two year training period as an eligibility period. The respondents, thereafter, issued a legal notice on 1st November, 2008 and sought implementation of judgment dated 29th November, 2004. The respondents categorically contended that the contempt had been committed when the letter dated 2nd September, 2008 had been issued, declining the deemed date reckoning the period of training and instead allowing only from the actual date of placing the respondents in the Gr.II for the grant of benefits under the ACP Scheme. The respondents, therefore, filed the contempt petition on 24th November, 2008. In the contempt petition, the respondents impleaded Dr. T. Ramaswami, Secretary, Ministry of Science and Technology as he was looking after the charge of Surveyor General of India. The respondents also impleaded Sh. R.K. Nim, Director, of Western Printing Group. 15. In the reply to the contempt petition, the petitioners contended that they could neither challenge the order of the Tribunal on the WP(C) No.8341/2009 Page 13 of 30 ground of ineligibility of Division II employees nor implement the order because the matter of giving the benefits of further two additional financial upgradations in the scale of Rs.5000-8000 and Rs.6500-10500 respectively, over and above three distinct time bound lateral advancement in the scales of Rs.3200-4900, Rs.4000- 6000 & Rs.4500-7000 after specified intervals of time to Division II employees was under consideration of Committee of Secretaries. The petitioners, however, did not contend that the petitioners had not been directed to reckon the period of training also as an eligibility period for grant of benefit of ACP Scheme. Rather, it was asserted that an OM dated 26th November, 2008 has been issued by the Director, Govt. of India, Ministry of Science and Technology in compliance with the order of the Tribunal dated 29th November, 2000. 16 Though the order of the Central Administrative Tribunal was specific that period of training be reckoned as an eligibility period for grant of benefit of ACP Scheme, however, in para 9 of OM dated 26th November, 2008, it was held that if induction training does not count towards eligibility service for regular promotion, the same cannot be counted for financial up-gradations under the ACP Scheme. Para-9 of OM dated 26th November, 2008 is as under:- WP(C) No.8341/2009 Page 14 of 30 “9. The Department of Personal and Training (DOP &T) has vide clarification No. 45 of OM No. 35034/1/97- Estt (D) (Vol.IV) dated 18.07.2001 read with their OM dated 10.02.2000, clarified that if under the relevant Recruitment/Service Rules, the induction training counts towards eligibility service for regular promotion; the same will also be counted towards the 12 years/24 years residency period/regular service required for financial upgradations under ACP Scheme. In other words, if induction training does not count towards eligibility service for regular promotion, the same cannot be counted for financial upgradations under the ACP Scheme.” 17. Apparently the said OM was not in compliance with the order of the Tribunal dated 29th November, 2004. The Tribunal considered the pleas and contentions of the parties and held that bar of limitation is not attracted since a definite decision not to implement the order reckoning the training period as an eligibility period for grant of benefit of ACP Scheme was taken in the year 2008 and the contempt petition was filed on 24th November, 2008. Thus, the contempt petition is not barred by limitation as had been contended by the petitioners. The Tribunal further held that a contrary and inconsistent stand taken by the petitioners in reply to the contempt petition challenging the order dated 29th November, 2004 should have been taken while challenging the said order and since the order dated 29th November, 2004 had not been challenged it had attained WP(C) No.8341/2009 Page 15 of 30 finality and in the circumstances, it cannot be held that the order of the Tribunal has been complied with. Though, the Tribunal had held that the order of the Tribunal had not been complied with and thus the petitioners had violated the said order, however, instead of taking action for committing contempt of the Court, the Tribunal showed indulgence and instead of punishing the petitioners and to primarily prevent miscarriage of justice by getting the order implemented, granted another opportunity to the petitioners to implement the order dated 29th November, 2004 and to grant the benefits under the ACP Scheme by reckoning the training period as the eligibility period. 18. Para 12 & 13 of the Tribunal’s order dated 27th January, 2009 disposing of the contempt petition and discharging the contempt notice are as under:- “12. While taking cognizance of this issue, a specific finding of the Tribunal and on the basis of averments in the counter reply in the OA that the period of training has to be treated as eligibility period for grant of benefit of ACP and a direction consequent upon it to consider this eligibility to be reckoned towards the grant of ACP as per rules and instructions is a referral to the rules and instructions on ACP, i.e., scheme of ACP and conditions laid down therein, which stipulate that regular service has to be reckoned for the purpose of grant of financial upgradation under ACP. 13. Now a stand taken by the respondents is that this training period can be treated as training but the regular WP(C) No.8341/2009 Page 16 of 30 service has to be treated from the date the applicants have moved to Grade II is clearly a contradictory stand and inconsistent plea taken by them over and above the plea taken by the Tribunal in OA. If this is the stand of the respondents, it would have been propagated before the Tribunal and if a contrary view has been recorded by the Tribunal, certainly non-approach to the High Court in appeal and attainment of finality of the directions would not leave any scope to the respondents to act otherwise by treating this service as training and not regular service. However, as earlier said, our prime concern is that the directions are implemented in true letter and spirit but this is a case where over and above the directions of the Tribunal, the respondents have passed an order without preferring an appeal, which cannot be countenanced in law. By way of sheer indulgence, as we are not insisting in punishing the respondents but primarily to prevent miscarriage of justice to get our directions implemented, we accord another opportunity to the respondents to count the period of training period towards regular service under ACP scheme and further to accord benefits to the applicants by passing a speaking and reasoned order within a period of two months from the date of receipt of a copy of this order.” 19. That aggrieved by the order dated 27th January, 2009 discharging the contempt notice against the petitioners, and giving them another opportunity to implement the order dated 29th November, 2004, the petitioners have filed the above noted petition. The order dated 27th January, 2009, discharging the contempt notice and giving another opportunity to the petitioners to comply with the WP(C) No.8341/2009 Page 17 of 30 order dated 29th November, 2004 was stayed by this Court by the order dated 28th April, 2009. 20. During the pendency of the present petition, the respondents also filed a CM No. 9143/2011 seeking stay of recovery proceedings initiated by the petitioners against them. By order dated 16th August, 2011, the application of the respondents was disposed of and the order of recovery dated 3rd February, 2011 issued by the department vide letter No. C-733/1902-MACP (WPG) was stayed during the pendency of the present petition. 21. During the pendency of the present petition, on 5th September, 2011, the learned counsel for the petitioners had crystallized his pleas and contentions, which are also reproduced hereinabove contending, inter alia, that