Petitioner Counsel :- Vivek Mishra,V.C. Mishra Respondent Counsel :- Yaswant Verma Hon'ble Sanjay Misra, J Contempt is alleged of the judgment and order dated 09.07.2010 passed in Civil Misc. Writ Petition No.16638 of 2009 (Rajendra Prasad Pandey vs. State of U.P. & another).
The facts are that the applicant Rajendra Prasad Pandey claims to have been working since 1993 as Assistant Review Officer and was confirmed w.e.f. 30.10.2003 by an order dated 23.09.2010 issued by the Joint Registrar (Establishment) of this court. He avers that on 17.02.1997 a First Information Report was lodged against him under sections 498-A, 204-B, 318 Indian Penal Code read with section 201 Indian Penal Code wherein he was convicted in Sessions Trial No. 354 of 1998 under sections 302 and 318 Indian Penal Code by the judgment and order dated 20.07.2005 of the Additional District Judge, Allahabad. He alleges to have filed a Criminal Appeal No.3063 of 2005 before the High Court at Allahabad which was disposed of on 08.09.2005 by setting aside his conviction under section 302 and 318 Indian Penal Code and remanding the matter to the trial court for the offences under sections 498-A, 304-B, 318 and 201 Indian Penal Code. The applicant alleges to have filed a Special Leave to Appeal (Criminal) No. (S) 6359 of 2005 wherein the Apex Court issued notice on 03.01.2006 and stayed the operation of that part of the judgment directing re-trial of the case and such order was confirmed on 03.01.2007 and leave to appeal was granted on 02.11.2007.
The applicant alleges to be the senior most Assistant Review Officer and became eligible for promotion to the post of Review Officer in the year 2003-04 but due to pendency of the criminal case his promotion was deferred whereupon he moved a representation on 27.07.2007 before the competent authority after his conviction in the Sessions Trial was stayed. A charge sheet had been issued and he had been suspended, but the order of suspension was subsequently withdrawn .
According to the applicant he filed Civil Misc. Writ Petition No.16638 of 2009 against the charge sheet which petition was allowed on 09.07.2010 and the departmental enquiry no.14 of 2007 was quashed including the orders dated 10.2.2009, 17.2.2009 and 18.3.2009. The writ court made the applicant entitled to 'consequential benefits' whereupon he was confirmed w.e.f. 03.10.2003 by the order dated 23.09.2010 (already referred to above). The applicant states that the order dated 09.07.2010 passed by the writ court was served on the opposite party on 06.11.2010 and although the applicant was entitled to consequential benefits like promotion, he was not promoted on the post of Review Officer but was discriminated when on 27.11.2010 as many as 76 Assistant Review Officers, all juniors to the applicant, were granted promotion as Review Officer.
Contempt is alleged of that part of the order of the writ court whereby he was made entitled to all 'consequential benefits'.
In the counter affidavit filed by the opposite party confirmation of the applicant on the post of Assistant Review Officer is admitted but it is stated that such confirmation was subject to the decision in the criminal case pending against him. Insofar as his claim for promotion as Review Officer is concerned, it has been averred by the opposite party that it was considered by the promotion committee which gave a report dated 22.11.2010 wherein it was of the opinion that the promotion of the applicant should be deferred for the reason that an enquiry is pending and that the applicant is facing a criminal trial. The opposite party states that a Special Appeal has been filed against the judgment of the writ court and further that the report of the promotion committee was considered and approved by Hon'ble the Chief Justice's order dated 26.11.2010. The opposite party further states that the delay in filing the Special Appeal has since been condoned on 13.05.2011 and the Special Appeal is now posted for admission. It has further been stated in paragraph 11 of the counter affidavit that non promotion of the applicant to the post of Review Officer is the outcome of a decision taken by the promotion committee duly approved by Hon'ble the Chief Justice and such report or order has not been challenged by the applicant and hence it holds the field and the claim of the applicant for promotion to the post of Review Officer is untenable and cannot be considered, the opposite party states that the opposite party has not disobeyed the directions issued by the writ court and this contempt petition being misconceived requires to be dismissed forthwith.
Having considered the submissions of learned counsel for both the parties and upon going through the judgment dated 09.07.2010 passed in Civil Misc. Writ Petition No.16638 of 2009 (Rajendra Prasad Pandey vs. State of U.P. & another) the fact that emerges is that the writ petition was allowed, the departmental enquiry no.14 of 2007 and the orders dated 10.02.200, 17.02.2009 and 18.03.2009 were quashed. The further direction was that the applicant shall be entitled for all 'consequential benefits'.
The submission advanced is that when the applicant was made entitled for all 'consequential benefits' it would include his promotion since there was nothing adverse against him since the impugned orders had already been quashed.
It is not denied that the criminal case is pending against the applicant. The re-trial ordered by the High Court has been stayed. It has not been quashed. Admittedly the departmental enquiry no.14 of 2007 has been quashed.
The 'consequential benefits' to which the applicant claims entitlement is that of promotion. The allegation is that 76 Assistant Review Officers were promoted as Review Officers and they being junior to the applicant, the applicant was also entitled to promotion as Review Officer with effect from such date which is the consequential benefit. Admittedly the applicant has been confirmed as Assistant Review Officer and is working as such. The stand of the opposite party is that the claim of promotion of the applicant to the post of Review Officer has been deferred on the basis of a report of the promotion committee by an order of Hon'ble the Chief Justice. Therefore, it is not a case where promotion to the post of Review Officer has been finally turned down. The record indicates that the deferment is on the basis of Sessions Trial which is pending (although stayed) against the applicant.
The service conditions of the applicant are governed by the provisions of Allahabad High Court Officers And Staff (Conditions of Service and Conduct) Rules, 1976 wherein promotion to the post of Review Officer is not automatic nor it is based on seniority alone. Rule 14 provides the criteria for promotion which is 'seniority subject to rejection of the unfit'. Insofar as the aforesaid rules are concerned admittedly the promotion claimed by the applicant has not been rejected and, therefore, it cannot be claimed that the applicant has been denied promotion by rejection under Rule 14 of the 1976 Rules. What has been done is that his claim for promotion to the post of Review Officer has been deferred. It clearly indicates that the claim for promotion of the applicant to the post of Review Officer is still open for consideration under the Rule.
The reason for deferring consideration has been detailed in the counter affidavit and that is pendency of the Sessions Trial (although stayed) against the applicant.
When the criteria under Rule 14 is 'seniority subject to rejection of the unfit', this would be the relevant consideration for promotion under the 1976 Rules. Although the applicant may be senior most but as on the date of consideration he was deemed to be unfit due to pendency of a Sessions Trial against him. His claim for promotion could have been rejected he being unfit at that point of time. However, such rejection was not done and his claim for promotion has been deferred since upon conclusion of the Criminal Case proceedings he may become entitled to be considered.
Promotion is not automatic and seniority alone is not the sole criteria. There has to be a satisfaction of the Authority that the incumbent is not unfit. Pendency of a Sessions Trial against an incumbent would be a valid and proper circumstance to be taken into account while considering promotion under Rule 14 of the 1976 Rules. An incumbent who has been found deemed unfit cannot be promoted only for the reason of being the senior most. He has to be first found fit and only then his seniority comes into play for being considered for promotion.
Therefore, when 'consequential benefits' to which the applicant was made entitled would definitely entitle him for being considered for promotion but such consideration has to be in accordance with law and the statutory rules governing the service conditions of the applicant. The submission that by being made entitled to 'consequential benefits' the applicant has to be promoted as Review Officer would be akin to ignoring the statutory rules, assessment of suitability and the provision of rejection of the unfit.
Hence, when the service of the applicant is governed by statutory provisions the 'consequential benefits' are to accrue in accordance with the rules applicable to the service of the applicant and that cannot be ignored.
In fact the 'consequential benefits' to which the applicant was made entitled are always to be read as the benefits he is entitled under law. If under the service rules the Competent Authority has the power to adjudge the suitability of the incumbent for the purpose of promotion then that decision of the Authority is empowered under the statutory rules and that decision would necessarily bring into its ambit any 'consequential benefits' or even the consequences of suitability as adjudged by the Competent Authority. Therefore, to argue that 'consequential benefits' means consequential promotion with his similarly situated colleagues when they were promoted does not inspire confidence since the rule of discrimination would require similarity with the colleagues. It would also mean the consequences of suitability adjudged by the Competent Authority wherein the benefit was given to his batch mates but can be denied to the applicant for valid and cogent reasons. Hence even if juniors to the applicant were granted promotion it was because their suitability for promotion was adjudged and they successfully crossed the hurdle of the principle contained in Rule 14 of the 1976 Rules. The applicant has not yet been successful to be declared fit due to the pendency of the Sessions Trial against him. That is a decision of the Competent Authority and it has not been assailed by the applicant before any forum.
The word consequential would mean following as a consequence or a corollary. The dictionary describes 'Corollary' as a proposition which can be inferred from one already proved as self evidently true i.e. a natural consequence or result. In the present case the consideration for promotion is subject to a rider. Hence no inference can be drawn that there was any right to promotion which under Rule 14 of the 1976 Rules was 'subject to rejection of the unfit'.
A benefit is an advantage or an entitlement under an arrangement. In the present case the benefit is under the statutory rules governing the service conditions. The benefit of being considered for promotion is under the Rules of 1976 hence the direction of the writ court cannot be interpreted to mean that the applicant is entitled to a benefit even when his suitability has been considered and promotion has been deferred due to his present unsuitability or that he is entitled to a benefit by ignoring the statutory service Rules by promoting him as a Review Officer without applying the principle of 'subject to rejection of the unfit' while making the consideration.
The word 'consideration' clearly means that the authority should deliberate with care on the matter and as a result of such careful deliberation pass an order. When promotion of the applicant was considered in view of the order of the writ court it was deferred due to the reason assigned by the Competent Authority. Whether such reason is valid or invalid is not subject matter of this contempt petition. Therefore the 'consequential benefits' to which the applicant was made entitled are to be only those as are legally permissible under the statutory provisions and strictly in accordance there under.
Admittedly the order whereby promotion of the applicant has been deferred cannot be adjudicated in these contempt proceedings nor learned counsel has been able to point out that such order which has visited adverse civil consequences to the applicant is under challenge at any forum whatsoever. When the order of deferment of promotion holds good this court in its contempt jurisdiction cannot even observe upon it and, therefore, when there is an order in existence deferring the promotion it cannot be held that only for the reason that the applicant was made entitled to 'consequential benefits' by the writ court, he has to be granted promotion to the post of Review Officer by ignoring the statutory provisions governing promotions.
This contempt petition appears to be misconceived.
It is accordingly dismissed.
Notice issued is discharged.
No order is passed as to costs.
PK/31.05.2011