M.G. PRABHAKARA PANICKER v. M.S.S. RAO

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 24TH DAY OF NOVEMBER 2014/3RD AGRAHAYANA, 1936** **Con.Case(C).No. 485 of 2014 (S) ---------------------------------------------** **AGAINST THE JUDGMENT IN WA 1756/2006 OF THIS HONOURABLE COURT, DATED 23-09-2011** **--------------** ## **PETITIONER(S)/APPELLANT-PETITIONER IN THE WRIT PETITION:** **--------------------------------------------------------------------------------------------** **M.G. PRABHAKARA PANICKER, 39/180A, PISHARIKOVIL ROAD, EROOR NORTH TRIPUNITHURA, PRESNELTY WORKING AS SUB DIVISIONAL ENGINEER, MARKTING, BSNL MOBILE, 40/597 SWAMI CHINMAYANANDA ROAD, KOCHI-16.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.MANU SEBASTIAN** ## **RESPONDENT(S):** **-------------------------** **M.S.S. RAO, (AGE AND NAME OF FATHER NOT KNOWN TO THE PETITIONER) CHIEF GENERAL MANAGER, BHARATH SANCHAR NIGAM LIMITED THIRUVANANTHAPURAM 695 001.** ## **BY ADV. SMT.I.SHEELA DEVI, SC, BSNL** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2014 THE COURT ON 24-11-2014, DELIVERED THE FOLLOWING:** **PJ** ## **Con.Case(C).No. 485 of 2014 (S) ---------------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURS** ## **--------------------------------------** - **ANNEXURE 1: COPY OF THE JUDGMENT DATED 23/9/11 IN WA.NO.1796/2006 OF THIS HON'BLE COURT.** - **ANNEXURE 2: COPY OF REPRESENTATION DATED 4/10/11 FORWARDED TO THE RESPONDENT WITHOUT ITS ANNEXURES** - **ANNEXURE 3: COPY OF ORDER DATED 24/1/12 IN RP.49/11 IN WA.1756/2006 OF THIS HONOURABLE COURT.** - **ANNEXURE 4: COPY OF RP.49/12 FILED BY THE RESPONDENT SEEKING TO REVIEW ANNEX.1 ORDER** **ANNEXURE 5: COPY OF ORDER NO.ST.III/1-5 GENI DATED 24/3/98** - **ANNEXURE 6: COPY OF ORDER NO.ST.III/3-25(R)/2005 DATED 12/5/2005** - **ANNEXURE 7: COPY OF ORDER NO.F.NO.HR-III/3-20/COURT CASE/MGP PANICKER/2011/5 DATED 28/3/12** - **ANNEXURE 8: COPY OF AFFIDAVIT FILED BY THE RESPONDENT IN CCC.263/12** - **ANNEXURE 9: COPY OF ORDER DATED 25//3/14 IN CCC.263/12** - **ANNEXURE 10: COPY OF JUDGMENT DATED 8/10/13 OF THE HON'BLE SUPREME COURT OF INDIA IN CA.9096/13** - **ANNEXURE 11: COPY OF JUDGMENT DATED 4/12/13 OF THE HON'BLE COURT OF BOMBAY** - **ANNEXURE 12: COPY OF JUIDGMENT DATED 4/8/10 IN WPC.2821/10 OF THE HON'BLE HIGH COURT OF DELHI** - **ANNEXURE 13: COPY OF ORDER DATED 10/12/13 IN SLP(C) 9473/11 IN THE HON'BLE SUPREME COURT OF INDIA.** ## **RESPONDENTS' ANNEXURES** **------------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** Con.Case (C) No.485 of 2014 ---------------------------------------Dated this the 24[th] day of November 2014 ## **J U D G M E N T** ## **Shaffique,J** This contempt is filed alleging non-compliance of the directions issued by this Court in W.A.No.1756 of 2006 arising from W.P.C.No.19415 of 2005. By the judgment aforesaid, this Court set aside Exts.P9 and P14 and directed the 2[nd] respondent to reconsider the matter and pass a speaking order in the light of the observations made in the judgment and in accordance with law after hearing the parties, within a period of three months. The main contention urged by the petitioner is that subsequent to the judgment, though an order was passed by the respondent as Annexure 7 dated 28/03/2012, the said order is not in accordance with the purport of the judgment as the authority had reiterated their earlier stand as reflected in Exts.P9 and P14 which were already set aside, and has Con.Case No.485/2014 2 ignored the observations made by the Division Bench in the judgment. The learned counsel submits that when directions have been issued to reconsider the matter after observing that the reasons given in Exts.P9 and P14 were not established, the same view cannot be expressed in the order passed pursuant to the writ appeal judgment. Specific reference is made to paragraphs 12 and 13 of the judgment which reads as under: _“12. The averments of the respondents in the Counter affidavit filed in the writ petition that the writ petitioner got qualified as per Ext.P1 Recruitment Rules of 1996 only in the year 2001 does not appear to be correct; as the requisite experience is only 3 years' regular service in the feeder category for promotion to the post of Sub Divisional Engineer (Group B) and six years thereafter to the post of Divisional Engineer (Group A). Similarly, the contents of the statement dated 16/07/2011 as to the amendment of the Recruitment Rules in the subsequent years do not have any bearing or relevance to the case in hand, as the issue pertains to the period after the commencement of Ext.P1 Recruitment Rules and the claim is in respect of the vacancies in the posts, which occurred till 2001 when the petitioner was given regular promotion as Sub Divisional Engineer, vide_ Con.Case No.485/2014 3 _Ext.P3 order dated 02/04/2002 w.e.f 12/03/2002. There is also a specific contention for the appellant, as stated in the reply affidavit, that since several vacancies had arisen after 1996 and the qualification is only 3 years regular service in the feeder category, the contention of the respondents that the petitioner was given promotion on becoming qualified as per Ext.P1 Recruitment Rules in the year “2001”, is not correct._ _13. The pleading raised by the appellant, that the posts have been identified as borne by Ext.P15 and P16, is not specifically and successfully rebutted. If there is no dispute with regard to the factum of identification of posts in Group A & B categories, to which promotion is claimed and when the respondents admit that the method of recruitment is solely by promotion (without any direct recruitment) as per Ext.P1/P2 Recruitment Rules and above all, when it is conceded in paragraph 8 of the Counter affidavit dated 05/07/2007 filed in the Appeal that the benefit of reservation, to the requisite extent can be provided even in the matters where the method of recruitment is solely by way of promotion, this Court finds that the reasoning given in Ext.P9/P14 and in the judgment under challenge cannot stand as it is and the matter requires to be reconsidered more meticulously, with reference to the relevant facts and figures as aforesaid. This is more so, in view fo the reservation_ Con.Case No.485/2014 4 _provided to Group A & B posts as well (as in Group C & D posts), in tune with the relevant provisions of the Act, as per O.M. Dated 29/12/2005, a full extract of which has been produced by the respondents as Annexure R2(b) along with the Statement dated 17/06/2011 filed through the standing counsel appearing for the respondents.”_ 2. The issue involved in the case projected by the petitioner was regarding his entitlement for being promoted to the post of Sub Divisional Engineer in the year 1996 by invoking the provisions of Persons with Physical Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He also claimed to have completed the qualifying service for promotion to the said post. According to the petitioner, for the post of Sub Divisional Engineer, 3% of the said post had to be filled with persons with physical disabilities irrespective of the method of recruitment, and the same principle applies to the post of Divisional Engineer as well. According to him, he is eligible for being considered against the 3% vacancies with effect from 23/07/1996 whereas he was given promotion with Con.Case No.485/2014 5 effect from 02/04/2002. His claim was rejected on the ground that there was no enabling provision to provide reservation to Group A and B posts. Further, it was mentioned that he does not possess test qualification for promotion to the post of Sub Divisional Engineer as on 07/02/1996 in terms with the Recruitment Rules. According to the petitioner, when the reasons stated in Exts.P9 and P14 have been set aside and found to be incorrect by this Court, the same reasons should not have been mentioned to deny him the due promotion in terms of Annexure 7 and therefore, according to the petitioner, Annexure 7 order clearly indicates wilful contempt of the directions issued by this Court. 3. Counter affidavit is filed by the respondent inter alia stating that the respondent has issued Annexure 7 order in terms of various Government orders, statutory rules and circulars on the point. It was further mentioned that the claim of the petitioner was based on a mistaken statement made in paragraph 8 of the counter affidavit in the Writ Con.Case No.485/2014 6 Appeal which inter alia stated that even if no posts are filled up by promotion, the statutory percentage can be maintained. It is stated that in spite of best efforts, the respondent could not trace out any such statutory basis. It is contended that no order of the Central Government permits reservation to the handicapped persons in the promotion quota to Group A and B posts. In the absence of any such orders, petitioner was not entitled for promotion to Group A and B posts. 4. Heard Sri.George Varghese, the learned counsel for the petitioner and Adv.Sri.Ramakumar, the learned senior counsel appearing on behalf of the respondent. 5. The learned counsel for the petitioner submits that when this Court, relying upon the statement made by the respondent had come to a definite conclusion that petitioner can also be considered for promotion to Group A and B posts, there is no basis for now contending that the statement made in paragraph 8 of the counter affidavit is a mistake. The relevant statement is extracted hereunder: Con.Case No.485/2014 7 _“When the selection to these posts is made only by promotion, then also statutory '%' can be maintained by regular promotion from the feeder category on the basis of merit and seniority.”_ The learned counsel contends that when the aforesaid statement has been taken on record by the appellate court in the Writ Appeal judgment and direction had been issued quashing Exts.P9 and P14, there was no reason to pass Annexure 7 order again reiterating the said facts. 6. On the other hand, the learned senior counsel appearing on behalf of the respondent submits that the contempt petition is barred by limitation as it is not filed within one year from the date on which the impugned order had been passed. This contempt petition is filed on 11/04/2014, which according to the learned counsel, is beyond the period of limitation prescribed under the Contempt of Courts Act, 1971. It is also argued that this Court in the Writ Appeal had directed the respondent to consider the claim more meticulously with respect to the relevant facts and figures. That does not mean that the Con.Case No.485/2014 8 respondent will have to pass an order if the rule does not permit grant of promotions in Group A and B posts to physically challenged persons. 7. In regard to the question of limitation, the learned counsel for the petitioner relied upon the judgment in **State of W.B and Others v. Kartick Chandra Das and Others** _[(1996) 5 SCC 342]_ to contend that the period of limitation prescribed under Section 5 of the Limitation Act applies and the delay can be condoned. He also referred to the judgment of the Supreme Court in **Pallav Sheth v.Custodian and Others** _[(2001) 7 SCC 549]_ . It is contended that the limitation is only for initiating contempt proceedings and that the provisions of Limitation Act applies to Contempt of Courts Act as well. It is contended that though the petitioner had filed contempt case (C) No.263/2012 within one year from the date of the Writ Appeal judgment, this Court, by judgment dated 25/03/2014, observed that since Annexure 7 order came to be passed during the pendency of the contempt case, the contempt no Con.Case No.485/2014 9 longer exists and the petitioner was permitted to withdraw the contempt petition reserving liberty to file fresh contempt based on Annexure 7. It is therefore argued that, it is in continuation to the judgment dated 25/03/2014 in Cont.Case (C) No.263/2012 that the present contempt has been filed on 11/04/2014. 8. Having regard to the aforesaid submissions, we are of the view that since liberty had been granted by this Court to file fresh contempt, there is no delay in filing the present contempt. 9. In regard to the allegation that there is wilful contempt in passing Annexure 7 order, we are unable to agree with the learned counsel for the petitioner. The main question is whether Annexure 7 order is passed in contempt of the directions issued by this Court in the Writ Appeal judgment dated 23/09/2011. In the said judgment, while setting aside Exts.P9 and P14, the Division Bench noticed that the claim has to be considered meticulously and in accordance with law. When this Court observes that the Con.Case No.485/2014 10 claim of the petitioner is to be considered in accordance with law, it has to be verified whether law permits the claim of the petitioner. The question is one of availability of any rule or regulation by which the petitioner was entitled for promotion to Group A or B posts. As far as the pleadings raised in the Writ Appeal is concerned, according to the respondent, it was only a mistake which is stated in Annexure 7 order itself. Therefore, if it is a mistake, then definitely there is nothing wrong on the part of the respondent in stating so in the impugned order and passing an order based on availability of rules. Whether the respondent can take such a view in Annexure 7 order, especially on account of an admission made in the earlier proceedings, and whether it was only a mistake, cannot be decided in the contempt jurisdiction. 10. We are only concerned with the question whether the respondent has committed wilful contempt of the directions issued. Directions issued was to reconsider the matter in accordance with law and subject to the Con.Case No.485/2014 11 observations made in the judgment. There is dispute between the parties as to whether the pleadings raised in the Writ Appeal was a mistake or not. That apart, petitioner could not point out any rule or regulation which enabled the respondent to give promotion to the petitioner in a Group A or B post. If he has a different opinion which could be established, Annexure 7 is required to be challenged. 11. Under such circumstances, when the respondent had taken a particular view based on the prevalent rules, we do not think that this is a case in which action can be taken for wilful disobedience. In the result, the contempt proceeding is dropped. (sd/-) **(ASHOK BHUSHAN, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr Con.Case No.485/2014 12 Con.Case No.485/2014 13 Con.Case No.485/2014 14