Cont. Case (C) No.30 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938** **Con.Case(C).No. 30 of 2016 (S) IN WA.1149/2015 -----------------------------------------------AGAINST THE NON-COMPLIANCE OF THE JUDGMENT IN WA 1149/2015 DATED 26-10-2015** **---------------------** ## **PETITIONER(S)/RESPONDENT IN W.A. :-** **-------------------------------------** **R.SURESH, AGED 54, S/O.RAMAKRISHNAN, RESIDING AT VALIYAVEEDU, PAPRETTIL, MOONGODE P.O, VARKALA, DEVELOPMENT OFFICER, S.R NO.536775, LIC OF INDIA, SATELLITE OFFICE, VARAKALA.** **BY ADVS. SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** ## **RESPONDENT(S)/APPELLANTS IN W.A. :-** **-------------------------------------** **1. SRI.SHAJI M.SANKAR, AGED 56, S/O.SIVASANKARAN, SENIOR DIVISIONAL MANAGER, LIC OF INDIA, DIVISIONAL OFFICE, PATTOM P.O, THIRUVANANTHAPURAM - 695 004.** **2. SRI.K.RAJIVAN NAIR, AGED 52, REGIONAL MANAGER (P&IR), LIC OF INDIA, SOUTHERN ZONAL OFFICE, P.B NO. 2450, LIC BUILDING, 153, AANNASALAI, CHENNAI - 600 002.** **BY ADV. SRI.S.EASWARAN** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 30.3.2016, THE COURT ON 6.4.2016, DELIVERED THE FOLLOWING:** **COC. No.30 OF 2016** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :-** **ANNEXURE-I :- CERTIFIED COPY OF JUDGMENT IN W.A.1149/15 DT.26.10.2015 OF THIS HON'BLE COURT. ANNEXURE-II :- TRUE COPY OF ORDER DT.30.4.2015 ISSUED BY LIC. ANNEXURE-III :- TRUE COPY OF ORDER DT.17.8.2015 ISSUED BY LIC. ANNEXURE-IV :- TRUE COPY OF ORDER DT.5.11.2015 ISSUED BY LIC. ANNEXURE-V :- TRUE COPY OF ORDER IN W.P(C)34629 OF 2015 DT.17.11.2015 OF THIS HON'BLE COURT. ANNEXURE-VI :- TRUE COPY OF ORDER DT.31.12.2015 ISSUED BY LIC. ANNEXURE-VII :- TRUE COPY OF PAY SLIP DT.5.5.2009 BY LIC. ANNEXURE-VIII :- TRUE COPY OF STATEMENT DT.2.2.2016 ISSUED BY LIC. ANNEXURE-IX :- TRUE COPY OF PAY SLIPS FOR THE YEAR 2009-2010. ANNEXURE-X :- TRUE COPY OF PAY SLIPS FOR THE YEAR 2010-2011. ANNEXURE-XI :- TRUE COPY OF THE PAY SLIPS FOR THE YEAR 20112012. ANNEXURE-XII :- TRUE COPY OF LETTER DT.19.11.2012 ISSUED BY LIC.** ## **RESPONDENT'S ANNEXURES :-** **ANNEXURE R1(a) :- COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION FOR PROMOTION DURING THE YEAR 2013.** **ANNEXURE R1(b) :- COPY OF THE CALCULATION SHEET EVIDENCING THE CONDUCT OF THE APPRAISAL FOR THE YEAR 5/2009 TO 4/2010.** **ANNEXURE R1(c) :- COPY OF THE CALCULATION SHEET EVIDENCING THE CONDUCT OF APPRAISAL FOR 5/2010 TO 4/2011.** ## **COC. No.30 OF 2016** **ANNEXURE R1(d) :- COPY OF THE CALCULATION SHEET EVIDENCING THE CONDUCT OF APPRAISAL FOR THE YEAR 5/2011 TO 4/2012.** **ANNEXURE R1(e) :- COPY OF THE NOTICE DATED 30.4.2015 ISSUED BY THE CORPORATION TO THE PETITIONER.** **ANNEXURE R1(f) :- COPY OF THE ORDER DATED 17.8.2015 ISSUED BY THE CORPORATION TO THE PETITIONER.** //TRUE COPY// P.A. TO JUDGE ## **ASHOK BHUSHAN, C.J & A.M. SHAFFIQUE, J.** ## **---------------------------------------Cont. Case (C) No.30 of 2016 ------------------------------------------------------Dated this the 6[th] day of April 2016** ## **J U D G M E N T** ## **Ashok Bhushan, CJ.** This contempt case has been filed by the petitioner alleging non-compliance of the directions issued in the judgment dated 26.10.2015 passed in W.A.No.1149 of 2015. 2. Brief facts giving rise to this contempt case are :- The petitioner had joined as Development Officer in the Life Insurance Corporation of India (hereinafter referred to as 'Corporation') on 1.3.1984. He was dismissed from service with effect from 19.4.1989. An Industrial Dispute was raised by the petitioner before the Tribunal and the Tribunal, vide its Award dated 6.2.1993 held that the punishment of dismissal is too harsh and disproportionate and directed the Management to reinstate the petitioner without back wages and any other benefits. The Corporation challenged the said Award before the High Court and the Apex Court unsuccessfully. Ultimately, after dismissal of the Special Leave Petition and the Review Petition, the petitioner was Cont. Case (C) No.30 of 2016 -: 2 :- reinstated in service on 19.2.2009. The period of absence from the date of removal till the date of reinstatement was treated as extraordinary leave by the Corporation. W.P.(C) No.16769 of 2009 was filed by the petitioner, wherein, he challenged the reinstatement insofar as it denied the back wages from 27.4.1993. The said writ petition was decided by this Court on 17.9.2012 directing to pay the benefits consequent to reinstatement within two months. Another writ petition, W.P.(C) No.12919 of 2013, was filed by the petitioner claiming several reliefs. The learned Single Judge allowed the said writ petition on 13.3.2015 to the extend of granting relief regarding promotion and other consequential monetary benefits. The learned Single Judge directed that the petitioner be assigned notional promotion with retrospective basis, to the post of Assistant Branch Manager with effect from 24.7.2003 and to the post of Branch Manager with effect from 24.7.2011. Against the judgment of the learned Single Judge, W.A.No.1149 of 2015 was filed by the Corporation. The said writ appeal was partly allowed by this Court and in paragraph 20 of the said judgment, the following was stated :- Cont. Case (C) No.30 of 2016 -: 3 :- “ **20.** Work experience could have furnished the basis for consideration and if it was found that petitioner fulfilled the criteria as was applicable at the relevant period with effect from which he is being considered for promotion, he could have been granted notional promotion with effect from the earlier date and actual benefit of salary could have been paid from the date of the order. In the present case since the Senior Divisional Manager by order dated 7.9.2012 has considered and rejected the claim of petitioner for promotion, we direct that a fresh exercise be undertaken by the Corporation as if promotion is being considered on the said date, i.e., 7.9.2012. However, consideration of promotion of petitioner as Assistant Branch Manager shall be undertaken with effect from 24.7.2003 and in the post of Branch Manager on 24.7.2011 as has been directed by the learned Single Judge. However, direction of the learned Single Judge to extend the benefit of promotion from such dates is set aside. Judgment of the learned Single Judge is modified in the following manner :- - (i) Petitioner's claim for promotion to the post of Assistant Branch Manager from 24.7.2003 and to the post of Branch Manager with effect from 24.7.2011 shall be considered afresh by the Corporation. - (ii) If it is found that the petitioner was eligible for promotion, as per the norms applicable at the relevant time, he shall be given notional ## Cont. Case (C) No.30 of 2016 -: 4 :- promotion with effect from the aforesaid date, giving the benefit of fixation of salary. - (iii) Payment of salary on the promoted posts shall be made only from the date when the claim of petitioner was rejected by the Senior Divisional Manager, i.e., with effect from 7.9.2012. - (iv) Promotion exercise shall be undertaken by the Corporation on the basis of available work experience of the petitioner treating the same as relevant material for considering grant of promotion to the petitioner with retrospective effect. - (v) The above exercise shall be completed by the Corporation within a period of two months from the date of receipt of a copy of this judgment. Writ appeal is partly allowed as indicated above. Parties shall bear their costs.” After the judgment of this Court, the Corporation considered the claim of promotion of the petitioner, who was working as Development Officer, to the post of Assistant Branch Manager and by proceedings dated 31.12.2015, the Corporation, after taking into consideration the appraisals of the petitioner commencing from 2009-2010 to 2014-2015, came to the conclusion that since the petitioner has not worked within the prescribed cost ratio as per Cont. Case (C) No.30 of 2016 -: 5 :- the notification of promotions, he is not entitled for promotion to the post of Assistant Branch Manager. The petitioner has filed this contempt case alleging that the Corporation has deliberately and willfully violated the directions of this Court in the judgment dated 26.10.2015, in denying the promotion to the petitioner. 3. Notices were issued in this contempt case, in response to which, an affidavit dated 23.1.2016 has been filed by the first respondent. In the affidavit, the first respondent has stated that the criteria for promotion as applicable to the Development Officers for the post of Assistant Branch Manager is that the Development Officers, who have completed five years of service and worked within the prescribed cost ratio during each of the last three appraisal years, provided that they have brought in an average Scheduled First Year Premium Income of not less than `10,00,000/and average number of lives of not less than 500. In the affidavit, the cost ratio of the petitioner from 2009-2010 to 2014-2015 were mentioned and it was stated that after considering the said cost ratio, the petitioner's promotion was rightly denied. 4. Reply affidavit was filed by the petitioner, in which, the petitioner came with the case that his cost ratio as mentioned in Cont. Case (C) No.30 of 2016 -: 6 :- the affidavit filed by the first respondent is incorrect and the cost ratio of the petitioner was well within the prescribed expense limit and he is clearly entitled for promotion and the action of the Corporation in not promoting the petitioner is deliberate and willfull disobedience of the judgment. Certain additional documents were also filed by the petitioner including pay-slips to show the salary received for the month of May, 2009 till April, 2012. A letter dated 19.11.2012 issued by the Senior Branch Manager to the petitioner was also brought on record, by which, the Senior Branch Manager has sent a cheque of `17,95,141/- for back wages from 27.4.1993 to 31.10.2012, after deduction of Income Tax. 5. An additional affidavit dated 29.2.2016 was filed by the first respondent, wherein, it was pleaded that the cost ratio of the petitioner was not within the prescribed limit. It is stated that the arrears of salary, which were received by the petitioner during the period from 2009-2010 to 2011-2012 were added in the emoluments of the petitioner and after adding the said amount, the cost ratio of the petitioner as was earlier stated by the Corporation is the same, ie; exceeding the prescribed limit. It was further Cont. Case (C) No.30 of 2016 -: 7 :- stated that with regard to performance of the petitioner for the appraisal year ended on 30.4.2010, the petitioner was issued a letter dated 30.4.2015. The cost ratio already communicated is 66.18%, which has been filed as Annexure II to the affidavit filed by the petitioner himself. Further, against the letter dated 30.4.2015, which was confirmed on 17.8.2015, W.P.(C) No.34629 of 2015 was filed by the petitioner, wherein, this Court had passed an interim order on 17.11.2015. It clearly indicates that some appraisals, which were held even before the judgment of this Court dated 26.10.2015 are already under challenge before this Court in a writ petition. 6. We have heard Sri.N.Dharmadan, the learned Senior Counsel appearing for the petitioner and Sri.S.Easwaran, the learned counsel appearing for the Corporation. 7. Sri.N.Dharmadan, the learned Senior Counsel appearing for the petitioner contends that the amount, which was received during the period after the reinstatement of the petitioner ought not to have been taken into consideration for finding out the cost ratio and the increments received by the petitioner during the period would clearly indicate that he was eligible for promotion. Cont. Case (C) No.30 of 2016 -: 8 :- The arrears of salary, which was subsequently paid during the period could not have been added in the emoluments of the respective year. He further contended that the period of working of the petitioner even before his dismissal was excellent, on which basis, the petitioner could have been promoted. The action of the Corporation is deliberate disobedience of the judgment of this Court dated 26.10.2015. Hence, the Corporation is liable to be proceeded with in this contempt case. 8. Sri.S.Easwaran, the learned counsel appearing for the Corporation, refuting the submission of the learned counsel for the petitioner, contends that present is a case, where, the direction of this Court has been truthfully complied with by the Corporation. The assessment of the work after his reinstatement was taken into consideration and proceedings were issued mentioning all the relevant reasons including the reason that the cost ratio of the petitioner have exceeded the prescribed limit and hence, he is not eligible for promotion. There is no question of any willfull disobedience. It is further contended that with regard to appraisals communicated on 30.4.2015, the petitioner has already filed a writ petition, W.P.(C) No.34629 of 2015, wherein, an interim order had Cont. Case (C) No.30 of 2016 -: 9 :- been passed and the matter is still under adjudication. Whether the denial of the promotion to the petitioner is valid or not is a question, which cannot be adjudicated in a contempt proceedings. The petitioner is free to agitate his claim for promotion to the post of Assistant Branch Manager and to the post of Branch Manager in appropriate proceedings and the said issue cannot be allowed to be raised by the petitioner in a contempt proceedings. 9. Learned counsel for the respondents has placed reliance on the judgment of the Apex Court in **V. Kanakarajan** v. **General Manager, South Eastern Railway and others** [(1996) 10 SCC 102]. 10. We have considered the submissions of the parties and perused the records. 11. The direction issued by this Court on 26.10.2015 indicates that this Court had directed consideration of the case of the petitioner for promotion to the post of Assistant Branch Manager from 24.7.2003 and to the post of Branch Manager with effect from 24.7.2011. It was further directed that if the petitioner is found eligible for promotion as per the norms applicable at the relevant time, he shall be given notional promotion with effect from Cont. Case (C) No.30 of 2016 -: 10 :- the aforesaid date. It was further directed that the promotion shall be undertaken by the Corporation on the basis of available work experience of the petitioner, treating the same as relevant material for considering grant of promotion. The above said directions have already been extracted above. In compliance of the directions issued by this Court, the Corporation considered the claim of the petitioner and issued a proceedings dated 31.12.2015, which is produced as Annexure VI in the contempt case. In the said proceedings, after noticing the sequence of events leading to various proceedings before this Court and the Apex Court, the following was recorded in the last two paragraphs :- “xx xx xx xx And whereas the eligibility conditions for considering promotion to the cadre of ABM(S) in the year 2012-13 is “all the Development Officers who have completed 8 years or more service in their cadre on 30.11.2012 and who have worked within the prescribed cost ratio during each of the last three appraisal years (OR) all the Development Officers who have completed 5 years or more service in their cadre but less than 8 years as on 30.11.2012 and who have worked with in the prescribed cost ratio during each of the last 3 appraisal years provided they have brought in an average Scheduled First year Premium income of not less than Rs.10,00,000 Cont. Case (C) No.30 of 2016 ## -: 11 :- and average number of lives 500.” And whereas, I, the Competent Authority find that Sri.R.Suresh has not worked within the cost ratio in any of the appraisals commencing from 2009-10 to 2014-15, especially 3 years preceding 07.09.2012, where prescribed cost ratio is mandatory for considering his request for promotion. Since, he had not worked within the prescribed cost ratio as per the notification of promotions of 2011-12 and 2012-13 as well as that of prevailing promotion rules, I hereby, by virtue of powers vested in me and in compliance to the court directives, order that the Development Officer, Sri.R.Suresh, is not eligible for promotion as per the Life Insurance Corporation of India Promotion of Development Officers to the cadre of ABM(S) Rules, amended time to time. Dated at Chennai this 31[st] day of December 2015. Sd/- Zonal Manager.” The above proceedings indicates that the period of appraisal commencing from 2009-10 to 2014-15 was taken into consideration. The finding was that the petitioner has not worked within the prescribed cost ratio as per the notification of promotion. 12. In the affidavit filed by the first respondent, in paragraph 6, the performance of the petitioner during the relevant Cont. Case (C) No.30 of 2016 -: 12 :- years with figures were mentioned. It is useful to quote paragraph 6 of the affidavit dated 23.1.2016, which is to the following effect :- “ **6.** The performance of the petitioner during the relevant years after the reinstatement till he was considered for promotion is as follows. |follows.||||| |---|---|---|---|---| |Appraisal<br>Year|Prescribed<br>Cost Ratio|Cost Ratio of<br>the petitioner|Number of Lives|Schedule First year<br>Premium - in Rs.| |1.5.2009 to<br>30.4.2010|21.00%|66.18%|180|7,21,293/-| |1.5.2010 to<br>30.4.2011|21.00%|30.23%|223|17,17,255/10| |1.5.2011 to<br>30.4.2012|21.00%|29.31%|229|20,80,366/95| |1.5.2012 to<br>30.4.2013|21.00%|38.36%|164|17,08,460/35| |1.5.2013 to<br>30.4.2014|21.00%|57.16%|82|12,02,263/10| |1.5.2014 to<br>30.4.2015|21.00%|117.52%|56|6,20,386/25| |1.5.2014 to<br>30.4.2016<br>(period yet to<br>be completed)|21.00%||31|10,04,000/-| It is respectfully submitted that the conditions prescribed for promotion clearly stipulates that even if non performance of the development officer stands condoned, the prescription regarding the cost ratio will still stand and hence it was not possible for the authorities to ignore the said stipulation and promote the petitioner. If the petitioner has a grievance that the consideration was not on the basis of relevant materials,then it is open for him to question the decision in appropriate proceedings.” Cont. Case (C) No.30 of 2016 -: 13 :- ## Annexure R1(a) contains the conditions for promotion. 13. In the reply affidavit, the petitioner, refuting the averments made in the affidavit filed by the first respondent, has stated that his cost ratio was within the prescribed limit. In paragraph 8 of the reply affidavit, the following has been stated :- “ **8.** Even if Ext.R1(a) is applicable and the LIC really wanted to consider my performance for three appraisal years before promotion ie. 01.05.2009 to 30.04.2010 (2009-2010) 01.05.2010 to 30.04.2011 (2010-2011) 01.05.2011 to 30.04.2012 (2011-2012) I am well within the prescribed expense limit as per the Special Rules of the year 1989 and 2009 and therefore I cannot be denied promotions. The correct details of remunerations, premium, calculation etc. and the figures thereof are shown below : |Appraisal<br>Year|Annual<br>Remuneration<br>(AR)<br>Scheduled First<br>Year Premium<br>(SFYP)<br>Cost Ratio<br>(AR/SFYP)<br>x100<br>Prescribed<br>Expenses<br>Limit| |---|---| |2009-10|Rs.1,86,101.94<br>Rs.7,21,293.00<br>25.88%<br>26% *| |2010-11|Rs.2,70,353.22<br>Rs.17,17,255.10<br>15.74%<br>25% **| |2011-12|Rs.3,42,787.08<br>Rs.20,80,366.95<br>16.47%<br>24% **| Additional documents were also filed by the petitioner showing details of salary received during the period from May, 2009 to April, 2012 in support of the averments made in paragraph 8 as quoted above. In the additional affidavit, Annexure XII has been Cont. Case (C) No.30 of 2016 -: 14 :- filed by the petitioner, which is a letter dated 19.11.2012 issued to the petitioner informing that a cheque for `17,95,141/- as back wages from 27.4.1993 to 31.10.2012 after deduction of Income Tax had been sent to him. In the additional affidavit dated 29.2.2016 filed by the first respondent, the respondent has again given cost ratio of the petitioner and annual remuneration received by the petitioner. A subsequent affidavit has again been filed by the Corporation, wherein, in paragraph 4, the details of the cost ratio on the basis of annual remuneration prior to fixation of wages and annual remuneration after fixation of wages have been given. Paragraph 4 of the said affidavit reads as under :- “ **4.** During the course of arguments, the Hon'ble Division Bench was pleased to direct me to file an affidavit showing the calculation of the annual remuneration of the Petitioner without giving credit to the arrears of wages and after giving credit to the arrears of wages. It is accordingly that this affidavit is filed. Details of the annual remuneration prior to the fixation of wages and after fixation of wages are given below. It is respectfully submitted that this affidavit may be taken into consideration while considering the contempt of court case. Cont. Case (C) No.30 of 2016 ## -: 15 :- ## **Annual remuneration prior to the fixation of wages** |Appraisal<br>year|Salary|Other expenses|Annual<br>Remuneration| |---|---|---|---| |1.5.2009 -<br>1.4.2010|Rs 2,03,280.03|Rs 57,819|Rs.2,61,099.03| |1.5.2010 -<br>1.4.2011|Rs 2,41,125.24|Rs 39,761|Rs.2,80,886.24| |1.5.2011 -<br>1.4.2012|Rs 2,73,961.08|Rs 68,796|Rs.3,42,757.08| **Annual remuneration after fixation of wages** |Appraisal<br>year|Salary|Other expenses|Annual<br>Remuneration| |---|---|---|---| |1.5.2009 -<br>1.4.2010|Rs 4,19,543.85|Rs 57,819.00|Rs.4,77,362.82| |1.5.2010 -<br>1.4.2011|Rs 4,79,522.46|Rs 39,761.00|Rs.5,19,283.46| |1.5.2011 -<br>1.4.2012|Rs 5,41,139.25|Rs 68,796.00|Rs.6,09,935.25| Learned counsel for the petitioner has insisted that the annual remuneration, which was received during the period as claimed by the petitioner should be taken into consideration for determining the cost ratio. 14. From the materials brought on record, it is clear that the appraisal of the petitioner in the year ended on 30.4.2010 was communicated to the petitioner by letter dated 30.4.2015, which is produced as Annexure II, which reads as under :- Cont. Case (C) No.30 of 2016 -: 16 :- “Dear Sir, **Re:** Life Insurance Corporation of India Development Officers (Revision of Certain Terms and Conditions of Service) Rules, 1989 ## Your performance for the appraisal year ended on 30.04.2010 Your performance for the appraisal year ended on 30.04.2010 has been assessed as under : (A)(i) Expense Limit : 24% (ii)Prescribed Expense Limit : 24% (iii)Eligible Premium : Rs.721293.00/(iv)Annual Remuneration : Rs.477362.85/- (B) Cost Ratio for the relevant appraisal year on the basis of the Annual Remuneration : **66.18%** (C) In view of your cost ratio as mentioned at 'B' above, provisions relating to above mentioned rules are attracted. **60% cut in conveyance allowance from 01.05.2010 and the basic pay admissible to you with effect from 01.05.2010 shall be Rs.24665/p.m.”** The petitioner submitted representation, which too, was rejected on 17.8.2015. W.P.(C) No.34629 of 2015 was filed by the petitioner challenging the communication dated 30.4.2015, which is pending Cont. Case (C) No.30 of 2016 -: 17 :- consideration. In the assessment ending upto 30.4.2010, it was clearly mentioned that his cost ratio is 66.18%, which has exceeded the prescribed expense limit of 24%. The action taken by the Corporation was prior to issuance of the directions of this Court dated 26.10.2015. The appraisals communicated as per letter dated 30.4.2015 is the subject matter of challenge in another writ petition, which is pending before this Court. There is no denial of the performance for the appraisal year ended on 30.04.2010 was one of the factors, which was taken into consideration while considering the claim of the petitioner for promotion as directed by this Court on 26.10.2015. In this contempt proceedings, we are not expressing any opinion on merits of the appraisal, which was communicated to the petitioner, when the petitioner has already challenged the appraisal in the Writ Court. Further, whether the fixation of pay consequent to payment of back wages prior to reinstatement as has been detailed in paragraph 4 of the affidavit dated 18.3.2016 as extracted above, is relevant for determining the cost ratio during the relevant period is being already agitated by the petitioner in a writ petition challenging the appraisal ended on 30.4.2010. It is the categorical case of the Corporation that for the Cont. Case (C) No.30 of 2016 -: 18 :- purposes of determining cost ratio, the annual remuneration has to be taken into consideration. The annual remuneration means the basic pay, personal pay, dearness allowance and all other allowances and non-profit sharing or ex-gratia bonus due to or paid to a Development Officer during the appraisal year and includes the expenses payable or reimbursed or incurred by the Corporation during that year in respect of travelling, residential, telephone and insurance premium and taxes or motor vehicles but does not include incentive bonus and additional conveyance allowance paid to him. It is submitted that the payment received by the petitioner during the relevant year consequent to his pay fixation was the actual payment received and were to be added in the remuneration. The stand taken by the Corporation with regard to considering the claim of the petitioner for promotion consequent to the judgment of this Court dated 26.10.2015 cannot be said to be willful disobedience of the directions issued by this Court, when with available materials, the Corporation proceeded to consider and came to the conclusion that the conditions for promotion are not being fulfilled by the petitioner. In this contempt case, we are not expressing any opinion on merits of the decision of the Corporation Cont. Case (C) No.30 of 2016 -: 19 :- denying promotion to the petitioner since the appraisal as communicated vide letter dated 30.4.2015 has been made the subject matter of challenge in a writ proceedings as noted above. Hence, any observation by us on merits of the claim might prejudice the claim of the petitioner and so, we have refrained ourselves from considering the claim of promotion/non-promotion on merits. For the purposes of this case, we have to look into whether the action of the Corporation in denying the promotion is willful disobedience of the order or the Corporation has proceeded to take steps as directed by this Court. 15. From the facts and circumstances brought on record and the pleadings of the parties, there is no basis to accept the submission of the petitioner that the proceedings undertaken by the Corporation, by which, it was held that the petitioner is not entitled for promotion to the post of Assistant Branch Manager is willful disobedience of the judgment of this Court. The Corporation has bonafide proceeded to examine the claim as per available materials and appraisals, taking to consideration the remuneration received by the petitioner and the cost ratio, in which, we do not Cont. Case (C) No.30 of 2016 -: 20 :- find any deliberate action on the part of the Corporation to deny promotion to the petitioner. 16. The judgment relied upon by the learned counsel for the Corporation in **V.Kanakarajan's case** (supra) fully supports the submission raised by the learned counsel for the Corporation. In the case before the Calcutta High Court, the contempt application was rejected, wherein, the question of non-promotion of a Railway Officer was challenged. In the above case, the High Court had directed that the question of promotion of the petitioner should be considered on the basis of confidential reports. It is useful to quote paragraphs 2 to 5 of the said judgment, which are to the following effect :- “ **2.** Inasmuch as the scope of the present appeal, which is directed against the dismissal of contempt application, is very limited, we are not inclined to go into other contentions raised by the appellant challenging the validity of certain related orders passed by the authorities. As a matter of fact, the High Court by the judgment under appeal held as follows while rejecting the contempt application : “It was not directed by us that the question of promotion of the petitioner should be considered only on the basis of the confidential reports. It may be that the effect of the confidential reports being in favour of the Cont. Case (C) No.30 of 2016 **==> picture [37 x 10] intentionally omitted <==** petitioner, the respondents should have granted him promotion. But we are not considering the merits of the report of the competent authority in not recommending the promotion of the petitioner. We are also unable to consider whether the competent authority was justified in observing that the petitioner is not a suitable candidate for promotion as per rules. The remedy of the petitioner, in our opinion, lies not in an application for contempt but in a separate writ petition against the order that was communicated to him by the Chief Personnel Officer dated 18-5-1981. In the circumstances, we do not think that the petitioner has been able to make out a case for contempt against the respondents. The petitioner will, however, be at liberty to move against the said order of the Chief Personnel Officer by writ application.” **3.** We are of the view that the High Court was right in declining to entertain the application for any contempt and reserving the right of the petitioner by separate proceedings to challenge the consequential orders passed by the authorities. **4.** When the appeal was pending, the attention of the Court was drawn to a memorandum dated 28-12-1982 issued from the office of the Chief Personnel Officer, South Eastern Railway. According to the appellant, the said memorandum clothes him with certain rights and the authorities are not extending the benefits arising out of that memorandum. This Court by order dated 10-4-1996 directed the learned counsel appearing for the respondents to seek instructions on that contention. In the Cont. Case (C) No.30 of 2016 -: 22 :- additional counter-affidavit filed on behalf of the respondents on 23-4-1996 inter alia, it is stated as follows : “Even though the Committee did not recommend his promotion, the General Manager taking a lenient view decided to give him an opportunity to work in senior scale on condition that a special report should be called for on his working and a review made. His performance was reviewed on the basis of a special report on his working in senior scale for the period 21-81985 to 20-2-1986. The Report did not support his continuance in senior scale and decision was, therefore, reached to revert him to Group B/AEN. He was reverted w.e.f.21-5-1986. Shri Kanakrajan filed an application (OA No.765 of 1990) in the Central Administrative Tribunal, Madras Bench against the orders of his reversion as AEN. The Tribunal, in its order dated 23-6-1986, dismissed the application. A copy of the order of the Tribunal is attached as Annexure II.” **5.** No doubt a rejoinder has been filed to this additional counter-affidavit by the appellant. Be that as it may, as pointed out earlier, the arguments now raised and decisions sought on that will be beyond the scope of the present appeal which arises out of dismissal of an application for contempt. In the circumstances, we do not find any ground to interfere with the judgment and order of the High Court except reaffirming the liberty reserved to the appellant to agitate by separate proceedings if he is so advised against any proceeding which has gone against him. In other words, the dismissal of this appeal will Cont. Case (C) No.30 of 2016 **==> picture [37 x 10] intentionally omitted <==** not stand in the way of the appellant from challenging orders passed by the respondents subsequent to the disposal of the main case by the High Court. In the result, the appeal fails and is accordingly dismissed. No costs.” The Apex Court has confirmed the judgment of the High Court with the observation that the High Court rightly gave an opportunity to the appellant to agitate the question of non-promotion by separate proceedings. Following the aforesaid judgment, we also observe that the petitioner will be at liberty to challenge the decision of the Corporation denying him promotion as Assistant Branch Manager, in appropriate proceedings. We do not find that in this case, there is any deliberate and willful disobedience of the judgment of this Court dated 26.10.2015. Hence, this contempt application is rejected. **Sd/-** **ASHOK BHUSHAN CHIEF JUSTICE** **Sd/A.M. SHAFFIQUE JUDGE** Jvt/5.4.2016