Court No. - 07 Case :- CONTEMPT APPLICATION (CIVIL) No. - 1652 of 2018 Applicant :- Virendra Pal Singh Opposite Party :- K.K. Gupta And 2 Other Counsel for Applicant :- Hritudhwaj Pratap Sahi,Rajesh Kumar,Vijay Kumar Singh Hon'ble Surya Prakash Kesarwani,J.
Heard learned counsel for the applicant.
By order dated 01.02.2018 passed in Writ-A No.43135 of 2011 (Virendra Pal Singh vs. State of U.p. and others) filed by the applicant, the writ Court directed as under :
“Heard Sri V.K. Singh, learned counsel for the petitioner as well as Sri Ashok Kumar, learned Standing Counsel appearing for the respondents no. 1, 2 and 3, Sri S.K. Tiwari, learned counsel appearing for the respondent no. 4 and Sri Vijai Chandra, learned counsel appearing for the respondents no. 5, 8, 9 and 10. Respondents no. 6 and 7 were served by dasti notices and affidavit of service was filed but no one has put in appearance on behalf of respondents no. 6 and 7.
Present writ petition has been filed seeking a direction in the nature of mandamus commanding the respondents to grant promotion to the petitioner on the post of Lecturer in History with effect from 1.7.1998, the date on which the vacancy occurred as the petitioner was fully qualified, eligible and entitled for being promoted on that date, a fact which was also admitted by the Regional Level Committee.
The petitioner is claiming promotion with effect from 1.7.1998 on the post of Lecturer in History, the date on which the vacancy occurred. By order dated 11.2.2011 it was found that the petitioner was eligible on the date on which the vacancy arose on the aforesaid post i.e. 1.7.1998, however, the petitioner has been promoted with effect from the date of passing of the order i.e. 11.2.2011.
Submission of learned counsel for the petitioner is that once it is found that the petitioner was eligible on the date on which vacancy occurred, there was no occasion for denying promotion for more than 12 years and it is not in dispute that there was no fault on the part of the petitioner. Submission is that the petitioner is claiming his promotion right from the beginning but the same was denied and ultimately after a direction of this Court dated 23.8.2010 passed in Writ Petition No. 13862 of 2004, Virendra Pal Singh Vs. Joint Director of Education, which was filed challenging the orders dated 28.2.2004 and 8.3.2004 whereby the claim of the petitioner was rejected by the by the Regional Level Committee, was reconsidered and the petitioner was found to be eligible for such promotion on the date on which vacancy occurred i.e. 1.7.1998. He further submitted that no reason has been assigned for denying such promotion from the date on which vacancy had occurred.
Learned counsel for the petitioner has placed reliance on judgment of this Court in the case of Santosh Kumar Dubey Vs. State of U.P. and others 2010 (1) ESC 264 (All) wherein it was held that if an incumbent was entitled to be promoted but his promotion was made belated on account of inaction on the part of the respondents, then the said incumbent would be granted promotion with effect from the date on which he was qualified and eligible.
From the record it appears that the Committee of Management was initially contesting the claim of the petitioner for such promotion, however, in paragraph 9 of the counter affidavit filed by the Committee of Management it has been categorically stated that the Committee of Management has no objection in case the relief is granted to the petitioner. Other counsel appearing for the private respondents has also no objection in case the claim of the petitioner is allowed.
Learned Standing Counsel has opposed the present writ petition by drawing attention to various paragraphs including paragraphs 9 and 26 of the counter affidavit and submitted that the petitioner is not entitled for the relief as prayed for in this writ petition in view of the fact that his services were not satisfactory and there had been a long drawn litigation.
I have considered the rival submissions and have perused the record.
Before proceeding further it is pertinent to note that in earlier round of litigation in Writ Petition No. 13862 of 2004, Virendra Pal Singh Vs. Joint Director of Education the entire facts of the case regarding previous litigation have been considered which reflects that the petitioner is litigating for his right since 1999 itself and this Court has observed that in Writ Petition No. 43020 of 1999 the respondent no. 5 therein was not found eligible and his claim was rejected which was not challenged and therefore, in effect this order was passed in favour of the petitioner. Subsequently two more petitions were filed and in pursuance whereof the claim of the petitioner was considered and rejected by the Joint Director of Education being Chairman of the Regional Level Committee by order dated 28.2.2004 which alongwith the communication dated 8.3.2004 was under challenge in the aforesaid writ petition being Writ Petition No. 13862 of 2004. After quashing the aforesaid orders, the Regional Level Committee was directed to pass fresh orders after hearing both the parties. Relevant extract of the aforesaid judgment which appropriately takes care of the dispute involved in the present writ petition is quoted as under:
"The vacancy on the post of Lecturer in History came into existence on the retirement of the permanent incumbent on 30.6.1998. The respondent No. 5 is admittedly senior to the petitioner and one Shishu Pal Singh was also senior to the petitioner and the Respondent No. 5. The Respondent No. 5 succeeded in completing his Post Graduation in the subject of History with the declaration of his result on 8.7.1998. The Respondent No. 5 was, therefore, admittedly not qualified on the first day of the year of recruitment upon the vacancy coming into existence. The relevant date, which is admitted between the parties, would be 1.7.1998.
......
The Respondent No. 5 had staked his claim before the District Inspector of Schools which was not being considered as a result whereof he filed Writ Petition No. 43020 of 1999 which was disposed of on 6.10.1999 to consider his claim. The matter was taken up by the District Inspector of Schools who vide order dated 19.8.2000 came to the conclusion that the Respondent no. 5 was not qualified as on the first date of the year of recruitment and hence his claim was, accordingly, rejected. The order, therefore, practically went in favour of the petitioner and which was never challenged in any court of law.
The said order of the District Inspector of Schools was not being implemented by the Committee of Management as a result whereof the petitioner approached this Court by filing Writ Petition No. 28605 of 2001 in which orders were issued on 6.8.2001 commanding the Management to take a decision with regard to the claim of the petitioner. The Manager, on his own, passed an order on 1.10.2001 rejecting the claim of the petitioner. It is in these circumstances that the dispute came to be taken up further before the Joint Director of Education. The petitioner filed another Writ Petition No. 21997 of 2002 which was disposed of with a direction to decide the claim of the petitioner. Accordingly, the Joint Director of Education, being the Chairman of the Regional Level Committee, proceeded to pass the order dated 28.2.2004 and rejected the claim of the petitioner and reversed the order of the District Inspector of Schools passed earlier accepting the claim of the Respondent No. 5. The Joint Director of Education recorded a finding that the date of occurrence of vacancy stands shifted to 1.7.1999 on account of the circumstances indicated therein namely that the claim of Shishu Pal Singh had not been recognized and then held that the Respondent No. 5 was qualified on the said date and, therefore, deserves to be promoted.
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Having heard learned counsel for the parties, the Rules require the possession of the requisite qualification as on the first day of the year of recruitment. The relevant Rule is Rule 14 of the U.P. Secondary Education Service Selection Board Rules, 1998. There is no dispute that the vacancy occurred on 30.6.1998 and, therefore, the qualification had to be seen on 1.7.19998. The Committee of Management did proceed to make a promotion but it promoted Shishu Pal Singh and did not consider the claim either of the petitioner or of the Respondent No. 5. The Respondent No. 5 subsequently staked his claim on the ground that he has acquired qualification on 8.7.1998. It appears that after Shishu Pal Singh retired, the Respondent No. 5 was supported by the Committee of Management. In the opinion of the Court, this could not have been done inasmuch as the vacancy which occurred on 30.6.1998 cannot be said to have been occupied lawfully by Shishu Pal Singh in the absence of any approval by the competent authority. It is the same vacancy which continued and, therefore, the date on which the qualification had to be considered according to Rule 14 aforesaid was 1.7.1998. The Joint Director of Education committed a manifest error by shifting the said date of consideration on the ground of the alleged action of the Committee of Management by promoting Shishu Pal Singh which was never approved by the competent authority. In such a situation, the impugned oder is unsustainable.
So far as the claim of the petitioner is concerned, the District Inspector of Schools had passed an order on 19.8.2000. The said order has not been appreciated in correct perspective by the Joint Director of Education while proceeding to pass the impugned order.
Accordingly, the writ petition is allowed and the orders dated 28.2.2004 and 8.3.2004 are set aside. The matter is remitted back to the Regional Level Committee to pass fresh orders after hearing both the parties in the light of the observations made herein above within 3 months from the date of production of a certified copy of this order before the concerned authority."
In this background the matter was considered and the petitioner was found to be eligible for promotion on 1.7.1998, the date on which the vacancy had occurred.
A perusal of the order dated 11.2.2011 clearly indicates consideration of the claim of the petitioner on merits after providing opportunity of hearing to all concerned parties but no reason has been assigned as to why the petitioner is not entitled for benefit of promotion with effect from 1.7.1998, whereas he is making his claim right from the beginning.
In such view of the matter, this writ petition stands allowed.
Considering the passage of time I am not inclined to remand back the matter to the authority concerned.
The respondents are directed to promote the petitioner on the post of Lecturer in History with effect from 1.7.1998, the date on which vacancy has occurred and he shall be entitled for all consequential benefits from the aforesaid date. Necessary orders shall be passed by the authority concerned within one month from the date of production of a certified copy of this order before it.
No order as to costs.”
Learned counsel for the applicant submits that a certified copy of the aforesaid order was submitted for compliance before the opposite parties but the opposite parties have wilfully not complied with the order and thus have committed civil contempt liable for punishment under Section 12 of the Contempt of Courts Act 1971.
Prima facie a case of contempt has been made out. However, considering the facts and circumstances of the case one more opportunity is afforded to the opposite parties to comply with the aforesaid order of the writ Court within a further period of one month from the date of receipt of this order.
The applicant shall supply a duly stamped registered envelop addressed to the opposite party and another self-addressed envelope to the office within one week from today. The office shall send a copy of this order along with the self-addressed envelop of the applicant with a copy of contempt application to the opposite parties within one week thereafter and keep a record thereof.
With the aforesaid observations, this application is disposed of at this stage with liberty to the applicant to move a fresh application, if the order is not complied with by the opposite parties within the stipulated time as aforementioned.
Order Date :- 30.03.2018
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