Sh. Virender Kumar vs Sh. P.K. Pradhan & Ors.
2011 Latest Caselaw 4357 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Judgment: 06.09.2011


+ Cont. Cas.(C) No. 437/2003 and CM No. 11216/2004


SH. VIRENDER KUMAR               ...........Petitioner
                  Through: Raman Duggal, Advocate.

                      Versus

SH. P.K. PRADHAN & ORS.            ..........Respondents
                    Through: Mr. Rajinder Dhawan, Advocate
                              for HUDCO.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                       Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The petitioner is aggrieved by the conduct of the

respondent; his contention is that the directions contained in the

order of the Division Bench dated 29.05.2002 have not been

complied with in true letter and spirit; although, he has admittedly

been promoted to the post of Assistant Design Officer Grade I as

also subsequent promotions have also been accorded to him i.e.

from an Assistant Design officer to an Assistant Appraisal officer;

thereafter, to Senior Appraisal Officer and lastly, to an Assistant

Chief; but the date of his promotion as an Assistant Chief which

has been with effect from the year 2009 should actually have been

from the year 2002. This is the grievance of the petitioner.

2. Record shows that writ petition i.e. WP(C) No.5171/1993

had been filed by the petitioner; his grievance as is evident from

the averments made in the petition, were that the petitioner was

appointed as Design Assistant in HUDCO in the pay scale of

Rs.425-800/-; the second respondent, namely, Mr. Sunil Talwar

(hereinafter referred to as „the second respondent‟) had joined the

services of the Department on 07.06.1983 in a lower pay scale of

Rs. 330-560/-; however on 10.03.1984, the second respondent was

designated as a Design Assistant upon the upgradation of his post;

contention is that the petitioner and the second respondent were

promoted as Assistant Design Officer Grade II on 30.06.1989 in

the pay scale of Rs. 900-1650/-; petitioner was senior to the

second respondent; however, vide order dated 03.12.1992, the

second respondent was promoted to the post of Assistant

Appraisal Officer in terms of the decision of the Board of Directors

whereas the petitioner was promoted as an Assistant Appraisal

Officer only on 27.05.1994; the respondent No. 2 was thereafter

promoted as an Appraisal Officer in the pay scale of Rs. 4800-

8275/- whereas the petitioner was promoted as an Assistant

Appraisal Officer only on 09.07.1988; present writ petition was

accordingly filed; there are four prayers in the writ petition;

prayer C is that a writ of mandamus be issued to the respondent

that the petitioner should be declared promoted in the grade of

Rs. 700-1300 (pre-revised) to any post; to direct the first

respondent to grant him the said promotion; further, another writ

of mandamus be issued commanding the first respondent not to

effect further promotion and confirmation in the grade of Rs. 700-

1300 (pre-revised) without considering the promotion of the

petitioner. Thus, as is evident from the writ petition, the grievance

of the petitioner qua his future promotion was for the grade of Rs.

700-1300 (pre-revised); contention being that no future

promotions should be effected in this grade without considering

the case of the petitioner in the first instance.

3. This writ petition was disposed of on 29.05.2002. The order

dated 03.12.1992 of the Department impugned by the petitioner

had been allowed; the first respondent was directed to consider

the case of the petitioner and the respondent No. 2 afresh for

fixing their promotion in the light of this judgment. The relevant

extract of the said order reads as under:

"We therefore, are of the opinion that in the facts and circumstances of the case, the impugned order dated 03.12.1992 cannot be sustained. It is set aside accordingly. This writ petition is allowed. The first respondent is directed to consider the case of the petitioner and respondent No. 2 for fixing their cases for promotion afresh in the light of this judgment."

4. The contention of the petitioner before this court is that

although he has admittedly been promoted along with the second

respondent from the post of Assistant Appraisal Officer Grade I to

Appraisal Officer, thereafter to Senior Appraisal Officer yet his

promotion as Assistant Chief had to be with effect from the year

2002 and not from the year 2009.

5. These contentions raised by the petitioner have been

disputed. Attention has been drawn to the Minutes of a Special

Departmental Promotion Committee held on 13.07.2007 and

19.07.2007 (page No. 191 of paper book). The petitioner/Virender

Kumar and the second respondent/Sunil Talwar had been

promoted as Assistant Design Officer Grade I with effect from

01.07.1990; as Appraisal Officer with effect from 01.07.1994 and

lastly as Senor Appraisal Officer with effect from 01.07.1998.

6. The writ petition as noted above was only founded upon the

prayer that the promotion in the pre-revised pay scale of Rs. 700-

1300/- be not given effect to till the promotion of the petitioner is

first decided as per his seniority; directions given in the order

dated 29.05.2002 were qua this prayer; the first respondent had

been directed to consider the case of both the petitioner and the

respondent No. 2, namely, Sunil Talwar and to fix their cases for

promotion afresh; that has already been considered and granted

right up to the post of Senior Appraisal Officer.

7. The prayer in the writ petition was confined only for

promotion up to the post of Assistant Design Officer as is evident

from the prayer clause in the petition; prayer clause being

confined to the pay scale of Rs. 700-1300/- which was the grade

of the Assistant Design Officer. Up to this count i.e. promotion

to the post of Assistant Design Officer Grade I, petitioner has no

grievance; in fact, he has no grievance even in his

subsequent promotions i.e. as Appraisal Officer and Senior

Appraisal Officer; his grievance is that his promotion as Assistant

Chief which has been granted to him in 2009 has to be counted

with effect from the year 2002. This was not the subject matter of

the writ petition in which the directions dated 29.05.2002 was

passed and which is the subject matter of the present contempt

petition. It is clear that even as per the petitioner‟s own showing,

no case for contempt is made out.

8. The submission of the learned counsel for the petitioner that

the order dated 03.02.1994 which was passed as an interim

measure in the present writ petition clearly shows that all

subsequent promotions, appointment and regularization shall be

done subject to the decision of the writ petition which order has

not been complied with; is an argument without any force. The

order dated 03.02.1994 reads herein as under:-

"Present: Mr. Navenn R. Nath for the petitioner.

CM No. 923/1994

We clarify our interim order and it would be to the following effect:

"Any promotion, appointment or regularization made/done shall be subject to decision of this writ petition."

CM stands disposed of. Dasti."

9. This order was by way of an interim measure passed in the

present writ petition i.e. W.P.(C) No. 5171/1993; after the passing

of the final order on 29.05.2002 (on which date this petition was

disposed of) the interim order had obviously merged with the final

order. Directions contained were passed in this final order dated

29.05.2002. As noted supra, there has been no disobedience of

this order.

10. In (1996) 10 SCC 102 titled as V. Kanakarajan Vs. General

Manager, South Eastern Railway and others, the Apex Court had

noted the directions have been given by the Division Bench qua

the question of the appellant‟s promotion; the Authorities having

refused to promote him on the ground of unsuitability, it was held

by the Apex Court that the High Court had rightly refused to

entertain an application for contempt; such an appellant had been

advised to challenge by separate proceedings the consequential

orders passed by the Authority; contempt petition was held not

maintainable .

11. In the present case as well the petitioner is aggrieved by the

act of the respondent in not giving him promotion to the post of

Assistant Chief with effect from 2002, he has a separate

independent remedy for this.

12. Contempt petition is not maintainable; it is dismissed.

INDERMEET KAUR, J.

SEPTEMBER 06, 2011 rb