1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Contempt Petition No.195 of 2010 In Writ Petition No.1971 of 2010 (D) (Shri Prashant s/o Prabhakarrao Bhusari v. Mr. Deepak Kapoor, Vice Chairman & Managing Director, MSRTC, Mumbai, and others)Appeal against Order No.103 of 2010 Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A.M. Ghare, Advocate for Petitioner. Shri S.V. Manohar with Shri V.G. Wankhede, Advocates for Respondents. Coram : R.K. Deshpande, J. Dated : 24 th January, 2011 1. The Division Bench of this Court had disposed of Writ Petition No.1971 of 2010 by an order dated 14-7-2010. The said order is reproduced below : “The petitioner has challenged the order of promotion of the respondent nos.4 & 5 on temporary basis. Shri Ghare points 2 out that the principle of seniority has not been adhered to as required by Clause 63 of GSO-503. However, we find from the reply that the respondents have justified the promotion of the respondent nos.4 & 5 apparently on the basis that the petitioner got only 10 marks in the annual confidential report. The reply, to say the least, shows non-application of mind to the grievance raised by the petitioner. We accordingly direct the respondents to hear the petitioner and the respondent nos.4 & 5 and pass a reasoned order regarding the petitioner's grievance. The petitioner shall appear before the respondent MSRTC on 2.8.2010. The respondent shall pass a reasoned order within four weeks thereafter. With this direction, the Writ Petition stands disposed of.” 2. It is not the grievance in this contempt petition that the petitioner was not heard before passing of the order dated 30-8-2010 in terms of the order passed by the Division Bench of this Court. This Court had held that the rejection of the claim of the petitioner for promotion to the post of Divisional Controller on the ground that he has got only 10 marks in the annual confidential report, was suffering from total non- 3 application of mind. The grievance is that in spite of this, in the fresh consideration reflected in the order dated 30-8-2010, the reason is recorded by the respondents that the candidates, who have secured 15 marks and above, are only treated as eligible and the petitioner, who has secured less than 15 marks, is found to be ineligible for promotion. It is urged that once this Court found that the reason given earlier, suffers from non-application of mind, the same reason could not have been recorded for rejection of the claim and, therefore, this amounts to contempt of Court. 3. Notice before admission was issued on 12-10-2010. In response thereto, Shri Manohar, the learned counsel appears for the respondents, and has filed the reply opposing the claim made in this contempt petition. 4. Perusal of the order dated 30-8-2010 passed by the respondent-Corporation, in respect of which the complaint is made about the contempt of Court, shows that the reasons are recorded, viz. (i) that as per the resolution of the Corporation dated 11-7-2007, for the post of Divisional Controller, the officers scoring 15 or more marks in the annual confidential report are 4 held to be eligible for consideration for promotion; (ii) that the provision of Clause 60 of GSO 503 is also required to be considered for effecting promotion on temporary basis; and (iii) the petitioner has been held to be ineligible on the basis of annual confidential reports, by the Department Promotion Committee in its meeting held on 28-4-2010. On these grounds, the claim of the petitioner has been rejected. 5. Shri Manohar, the learned counsel appearing for the respondents, has pointed out that the main grievance in Writ Petition No.1971 of 2010 was that no reason was recorded by the Corporation while effecting the promotions of the persons junior to the petitioner and since this factual position not being disputed, the Division Bench of this Court found that there was total non-application of mind to the grievance raised by the petitioner. Though, a reference has been made to the reason of petitioner getting only 10 marks, stated in the affidavit filed in response to the writ petition justifying the action of promotion of the respondent Nos.4 and 5 therein, that was not the reason recorded by the respondents, while rejecting the claim of the petitioner. He further submits that the provision of Clause 63 of GSO 503, has 5 not at all been construed by this Court to mean that it is only on the basis of the seniority that the promotion on temporary basis to the post of Divisional Controller has to be made. If this had been the interpretation made by this Court, then, according to the learned counsel for the respondents, on the basis of the undisputed factual position that the petitioner was senior to the respondent Nos.4 and 5, this Court would have allowed the writ petition itself directing promotion of the petitioner to the post of Divisional Controller instead of remitting the matter back to the Corporation for considering the grievance of the petitioner. 6. The question whether the promotion on temporary basis in terms of Clause 63 of GSO 503 is required to be made by applying the criteria specified in Clause 60 of the said GSO, has not at all been considered by this Court, which is apparent from the order reproduced above. The proviso to Clause 63 of GSO 503 itself confers a discretion upon the Corporation in the matter of granting temporary promotion and the principle of seniority can be deviated for the reason to be recorded in writing. From the order passed by the Division Bench, it is clear that the direction to hear the petitioner was given for two reasons - 6 (i) that there was non-application of mind to the grievance of the petitioner; and (ii) that no reasons were recorded to supersede the claim of the petitioner, who was senior. The order passed by the Division Bench of this Court cannot be construed to lay down a proposition that rejection on the basis of the marks obtained in the annual confidential report, is totally irrelevant for the purposes of grant of promotion on temporary basis in terms of Clause 63 of the said GSO. The reasons recorded in the order dated 30-8-2010 passed by the Corporation – whether are correct or incorrect – cannot be gone into in this contempt petition. Similarly, in this contempt petition, this Court cannot for the first time interpret the provision of Clause 63 of GSO 503. The authority has recorded the reasons and the legality and justifiability of the same cannot be gone into in this contempt petition. 7. In view of above, there is no question of disobedience, muchless of a willful nature, of the order passed by the Division Bench of this Court. 7 8. The contempt petition is, therefore, dismissed. Judge pdl