JUDGMENT S.K. Phaujdar, J.
1. The present proceeding was initiated for action against the opposite party for having committed contempt of court by allegedly flouting the High Court's order dated 18.5.1998 passed in C.M.W.P. No. 17750 of 1997 and, in the alternative, a prayer was made for such directions as may be proper in the circumstances of the case.
2. The present applicant had been working as an assistant engineer in the Minor Irrigation Department of the Government of U.P. The writ petition was filed by him for a direction upon the respondent to promote him as an executive engineer. Several opportunities were given to the learned standing counsel to file counter-affidavits but no counter-affidavit was brought on record and the order dated 18.5.1998 was passed on the basis of the averments made in the writ petition. It was submitted before the writ court that the petitioner had Joined the services on 21.9.1984 and persons junior to him had already been promoted and there were still several posts of executive engineers lying vacant against which the petitioner could be promoted. The division bench while disposing of the writ petition finally directed the respondents to consider and decide the case of the petitioner in the light of the orders passed by the Court on 4.7.1995 in C.M.W.P. No. 18285 of 1987 and the order dated 7.2.1996 passed in C.M.W.P. No. 1767 of 1996, as also the order dated 19.4.1996 passed in C.M.W.P. No. 13986 of 1983.
3. In the instant application for contempt, it was stated that the authorities acted arbitrarily in the matter of promotion to the rank of executive engineers and several assistant engineers including the applicant approached the Hon'ble High Court by filing writ petitions and in all these writ petitions, directions were issued to promote the respective petitioners to the rank of executive engineers and the orders were honoured. Copies were attached to the instant petition to indicate the promotion letters in respect of M/s. D. N. Shukla and Rajendra. For another colleague. Arun Kumar Srivastava, the applicant submitted that W.P. No. 18285 of 1987 was disposed of with a direction upon the respondents to promote him to the rank of executive engineer and to place him at the appropriate position according to seniority. The order in respect of Arun Kumar Srivastava was also annexed to the instant petition.
4. The applicant insisted that he also stood on similar footings and upon his writ petition, the order mentioned above was recorded. The applicant had also made a representation before the opposite party requesting therein that he be promoted to the post of executive engineer as several persons junior to him had already been promoted. This representation was rejected on 11.2.1996. The petitioner referred to the case of other colleagues in which the department had taken actions favourable to them. He sought parity with the case of Arun Kumar Srivastava. Referring to the impugned order, the applicant submitted that a certified copy of the said order along with his application for promotion was submitted to the present opposite party on 28.5.1998. The Superintending Engineer had forwarded the application to the present opposite party along with his covering letter dated 30.5.1998 with a request to comply with the orders of the Hon'ble Court. Till the date of filing of the contempt application, no action was allegedly taken by the opposite party in utter disregard to the orders of the Hon'ble Court. This inaction, according to the applicant, was highly contumacious and the opposite party deserved punishment under the Contempt of Courts Act.
5. On presentation of petition, the opposite party was directed to come up with a counter-affidavit and an appearance was caused by him and a prayer for exemption from personal appearance was made. A short counter-affidavit was sworn by the opposite party on 5.2.1999. It was stated that the opposite party was the Secretary. Minor Irrigation Department and Rural Engineering Services. Government of U. P. and it was asserted that in compliance of the order dated 18.5.1998 passed by this Court in W.P. No. 17750 of 1997 the case of the petitioner had been considered and decided in the light of the orders passed by the High Court on 4.7.1995 in C.M.W.P. No. 18285 of 1987, as also the orders dated 7.2.1996 and 19.4.1996 in W.P. Nos. 1767 of 1996 and 13986 of 1993, respectively. The opposite party submits that this order was recorded on 2.2.1999 giving reasons in detail for the same. A photocopy of the order recorded by the answering opposite party was annexed as CA-1. It was submitted further that such orders have been fully complied with, there was no commission of any contempt of court and the deponent had never disobeyed or flouted any order of the High Court. It was also stated that if at all the Court came to the conclusion that the deponent was guilty of committing contempt of the court, he tendered unconditional apology and prayed for discharge of the notice.
6. The order dated 2.2.1999, as per Annexure-CA 1, refers to the order of the High Court dated 18.5.1998 and further indicates that the State had moved for review of the order through Application No. 5296 of 1998 but the review application was rejected on 16.10.1998. Reference was made to the directions of the High Court in the other writ petitions referred in the order. Thereafter it was observed in this order of the Spl. Secretary that W.P. No. 18285 of 1987 and 1767 of 1996 were both filed by Arun Kumar Srivastava and the two orders recorded therein were interconnected, and in the latter mentioned petition, an order was passed only to ensure compliance of the directions given in the former writ petition. Accordingly, Sri Arun Kumar Srivastava, then an assistant engineer, was promoted as an executive engineer by office memo dated 4.4.1996. This promotion was effected on the basis of the seniority list dated 19.3.1996 then in effect. Sri Srivastava now came in Sl. No. 57 of the list and the name of Sri K. N. Singh was in SI. No. 58. Sri K. N. Singh had already been promoted and, as such, Sri Srivastava was also promoted in terms of the directions of the High Court. It was indicated that subsequently the seniority list was proposed to be revised for certain inconsistencies therein and a committee was formed by the administration and on the basis of the recommendations made by the committee, the seniority list dated 19.3.1996 was amended and the final seniority list was published on 22.8.1998 through office memo No. 200/62-2-99-2/4 (62)/94 TC. In this amended list, Sri Arun Kumar Srivastava slided down to SI. No. 79 and no person shown as Junior to him was promoted as executive engineer either on ad hoc or permanent basis. Persons in SI. Nos. 80 and 81, namely. M/s. D. N. Shukla and Rajendra. were, however, posted as executive engineer under interim directions from the Allahabad High Court on a provisional basis. It was further indicated that 21 officers senior to Sri Arun Srivastava were still holding posts of assistant engineers. Accordingly, a notice was issued on Sri Arun Kumar Srivastava to show cause why he would not be reverted to the post of assistant engineer. This notice was given on the principle of natural justice and he was given 14 days' time to make out his defence. Appropriate orders were to be passed after the expiry of the said period. For Sri D. N. Shukla, there had been an order of the High Court in W.P. No. 12670 of 1992 on 19.9.1992 to the effect that. "Until further order, respondents are directed to promote the petitioner as executive engineer within a month of show cause." So far, Sri Rajendra was concerned, this High Court directed on 23.4.1993 on his W.P. No. 6936 of 1993, as an interim measure, that the interim mandamus dated 26.2.1993 was confirmed with a modification that the respondents would provisionally promote him as executive engineer and this order would be subject to the final decision of the writ petition. These two writ petitions were pending and the State had prayed for early hearing of the same.
7. So far W.P. No. 13986 of 1993, Mohd. Umar v. State of U. P. and another, was concerned, it was indicated that this Mohd. Umar was a member of the Hill sub-category of the Minor Irrigation Department for which a separate seniority list has been issued. As in that sub-category, a post of executive engineer lay vacant and as Mohd. Umar came under the eligibility criterion, he was given a promotion through the selection committee. It was contended that Sri Mehtani could not equate himself with Mohd. Umar as they belonged to different sub-
categories although under the same department. It was also indicated in this order dated 2.2.1999 that barring Sri A. K. Srivastava, Sri D. N. Shukla and Sri Rajendra, no other person junior to Sri Mehtani, according to the seniority list dated 22.8.1998, had been promoted or had been working as executive engineer in the concerned department. Sri Mehtani stood at Sl. No. 62 in the seniority list and at least these persons standing at SI. Nos. 29, 30, 40, 41, 56 and 61 in the list were still employed as assistant engineers. It was also indicated that a few other persons senior to Sri Mehtani in SI. Nos. 48, 55. 57, 58, 59 and 60 were reverted back to the posts of assistant engineers by order dated 19.12.1994 but they had moved different Courts and got stay orders whereupon they are continuing in their posts. Persons in SI. Nos. 49. 50 and 52 had also got stay orders against orders of reversion. The order dated 2.2.1999 went on to indicate that there were total 37 approved posts of executive engineer against which 54 persons had been working at that level, posing a financial difficulty to the department. In respect of one Javed Fasi, the Lucknow Bench of this High Court directed on 12.12.1996 in W.P. No. 240 (SB) of 1996 that the opposite parties were to act in accordance with law, that is to say, in case they chose to continue the officers on 46 posts of executive engineer, it must be done in order of seniority of assistant engineers except for those officers who had an order from any Court in their favour. The Secretary, therefore, concluded that in view of this background, the petitioner was not entitled to be promoted as executive engineer at the present.
8. A rejoinder-affidavit was filed by Sri Mehtani stating that the order dated 2.2.1999 simply circumvented the order of the High Court. The grounds of rejection of the prayer of the petitioner were taken by the opposite party in the review petition which was dismissed by the High Court. As such, the opposite party was guilty of committing contempt of court. It was asserted that Arun Kumar Srivastava was still continuing in the post of executive engineer and no action against him was taken by the opposite party. It was indicated that the show cause notice issued on Sri Arun Kumar Srivastava was sub-Judice before the High Court. A separate application was also filed on 8.2.1999 for proceeding against the opposite party for repeated defiance of the order dated 18.5.1998. In view of the stand taken by the opposite party. It is felt that the desired promotion is to be given on the basis of seniority and the petitioner does not come for consideration for promotion in view of his position in the seniority list. The counter-affidavit indicates that no Junior to the petitioner, except the persons specifically indicated, had been promoted as executive engineer. For those nominated Juniors, specific grounds have been indicated to show under what circumstances the promotions have been effected. It appears that those promotions had to be given in terms of specific directions of the Court and for Arun Kumar Srivastava steps for reversion had already been taken but that order has again been stayed.
9. From the conduct of the opposite party, it may not. therefore, be inferred that there had been any wilful disobedience of the order of the Court. The petitioner further sought for a direction that the respondent be asked to comply with the order at least now, and in that respect the decision in (1997) 2 UPLBEC 1223, was relied on. I feel there is no necessity of such a direction as reasons have been stated in the order dated 2.2.1999 as to why promotion could not be given to the petitioner at the present. It is true that there had been some delay in disposing of the representation, but it is an accepted norm in contempt matters that a civil contempt is purged by compliance. There was a direction for consideration only and a consideration, although late, has been made. I find no reason to proceed against the opposite party for contempt of court. The contempt notice is discharged and the present application stands dismissed.