Anurag Saxena vs Sjhri Radheshyam Julania and others

Shri Sethi, learned senior counsel referring to the order complained of passed by the writ Court in bunch of writ petitions lead case being W.P.No.1281/2006(S) Anurag Saxena Vs. State of M.P., decided on 20/04/2015 contends that now at a distance of more than four years, the order remained uncomplied with in the matter of convening review DPC, grant of promotions and consequential benefits within time bound period of four months from the date of the order passed by this Court. Learned senior counsel further submits that bunch of writ appeals lead case being W.A.No.374/2015 (State of M.P., and others Vs. Anurag Saxena) was dismissed by the Division Bench on 03/11/2015 and the S.L.P., (C)..CC No.7130/2016 arising therefrom was also dismissed by the Hon'ble Supreme Court on 14/09/2016. Thus, the order passed by the writ Court has attained finality almost three years ago, still, the applicant is unable to reap the fruits of the order so passed.

Learned senior counsel referring to the order passed by this Court on 16/04/2018 submits that on instructions of Shri Amit Rathore, Secretary, Madhya Pradesh Panchayat and Rural Development Department, Bhopal, Shri Sunil Jain, learned senior counsel appearing for the contemnors had made submissions which are quoted below:

Shri Jain, learned senior counsel fairly submits that the order complained of though has not been complied with in full within time stipulated but substantial part of the order in the matter of preparation of revised list has been complied. Shri Jain Senior Counsel submits that within four weeks, DPC shall be convened and consent of PSC shall be procured. Promotion orders of eligible persons shall be issued within 45 days'. This statement at Bar is made, on the instruction of Shri Amit Rathore the Secretory, Panchayat and Ruler Development Department.

Shri Rathore present in person has endorsed the same.

In view of the aforesaid, this Court defers further hearing in the contempt petition on the question of non-compliance of the Court orders and drawl of proceedings for hearing on punishment.

Let the case be called out on 18/06/2018 for further orders.

Today, the learned counsel for the respondents has rendered the aforesaid statement ineffective and the order passed by the writ Court has become dead letter due to callousness and inertia maintained under one or the other pretext by the officials. Hence, it is a fit case for initiation of contempt proceedings against Shri Amit Rathore, Secretary, M.P. Panchayat and Rural Development Department, Bhopal who has betrayed in the matter of compliance of the Court order.

Shri Jain, learned senior counsel submits that sincere efforts have been made by the department ensuring compliance of the Court order as well reflected from the subsequent order dated 18/06/2018 wherein this Court has recorded the statement of the respondents that they have written letters to the Madhya Pradesh Public Service Commission (for short, 'PSC') on 17/04/2018 to convene the review DPC but, the Under Secretary of the PSC has refused to convene the same vide letter dated 30/05/2018. Hence, their hands are tight and they cannot go any further in the matter of compliance of the Court order. Therefore, the respondents cannot be held responsible for contempt of the Court order.

Shri V.P.Khare, learned counsel for the newly added respondents/PSC submits that vide Annexure R/4-3 dated 30/05/2018, a communication was made to the Secretary, M.P.Panchayat and Rural Development Department, Bhopal that in view of the order passed by the Hon'ble Supreme Court on 14/09/2016 in S.L.PNo.6580/2016, it has been decided by the PSC on 24/05/2018 that no further DPC can be convened. Again on 04/07/2018 (Annexure R/4-4), the same facts were reiterated and lastly on 26/10/2018 (Annexure R/4-5) the guidance was sought from the Secretary, General Administration Department, State of M.P., in the matter; quoted below:

^vr% funsZ'kkuqlkj mijksDr iSjk&4 esa mYysf[kr izLrkoksa esa D;k eku] loksZPp U;k;ky; ds fu.kZ; fnukWad 12-05-16 esa ;FkkfLFkfr j[kus ds funsZ'k ds izdk'k esa iqufoZpkj @ifjHkze.k fo-i-l- dh cSBd vk;ksftr dh tk ldrh\ d`i;k ekxZn'kZu nsus dk d"V djsaA^

Thereafter, no further correspondence was made by the State Government in that behalf.

Shri Khare, learned counsel further refers to the order passed by a Division Bench of this Court in Contempt Case No.650/2017 on 03/10/2017 and according to him, the Division Bench has ordered for compliance of the order complained of in that case after disposal of S.L.P.No.13594/2016 by the Hon'ble Supreme Court. Hence, PSC regrets that it is unable to comply with the order passed by the writ Court.

Heard.

The operative portion of the writ Court order is quoted below:

(a) The respondent No.1 shall prepare a unified gradation list of all Additional Assistant Development Commissioners keeping in view the select list prepared by Public Service Commission dated 19/01/1998.

(b) The respondent No.1 shall thereafter grant proforma promotion to the petitioner and all other identically placed persons from the date the persons junior to him as per the select list (Annex.P/1) have been granted promotion to the next higher post in the Panchayat and Rural Development Department.

(c) The respondent shall post the petitioner in the Panchayat and Rural Development Department on the promoted post after giving him proforma promotion.

(d) The respondent shall also be free to post the petitioner in the Tribal Welfare Department by posting him on deputation in case there is shortage of Chief Executive Officer or other officers in the Tribal Welfare Department, however, he will be entitled for all benefits by treating him member of Panchayat and Rural Development Department and taking into account the benefits which have already extended to his counterparts who are enjoying their posting in the parent department right from 06/10/2003 on the promotional post.

(e) The exercise of recasting gradation list, holding of review DPC and grant of proforma promotion to all identically placed persons shall be completed within a period of four months from the date of receipt of certified copy of this order,

(f) The petitioner and all other identically placed persons shall be entitled for all consequential benefits except back wages."

Thereafter writ appeal arising therefrom being W.A.No.374/2015 (State of M.P., and others Vs. Anurag Saxena) was dismissed by the Division Bench on 03/11/2015 and the S.L.P., (C)..CC No.7130/2016 was also dismissed by the Hon'ble Supreme Court on 14/09/2016. As such, the order passed by the writ Court has attained finality.

A bare reading of the mandate issued by the writ Court is well explicit and admits of no confusion or uncertainity either in terms of its compliance or the period during which the order is to be complied with. There is no explanation on record as to why the order was not complied with within the stipulated period of four months from the date the Special Leave Petition was dismissed by the Hon'ble Supreme Court on 14/09/2016.

This Court has taken strong exception to the non-compliance of the Court order on 05/02/2018. On 16/04/2018, this Court had further given indulgence in the matter of compliance. Subsequent order dated 18/06/2018 reflects that the respondents got their statements recorded that they have written letter to the PSC to convene review DPC but, the PSC declined to do the same.

Shri Khare, learned counsel appearing for concerned officers of the PSC has referred to the communication made between the PSC and the departments but, he has not been able to demonstrate how the controversy involved in SLP pending before the Hon'ble Supreme Court and the order of status quo passed therein has bearing on the mandate issued by the writ Court to divest PSC to comply the order of the writ Court which has been affirmed by the Hon'ble Supreme Court (supra).

This Court is also at loss to observe that mere correspondence between PSC and the departments by itself shall be no explanation for non-compliance of the Court order. Moreso, as the PSC is found to be playing fast and loose with its authority as on one hand it shield itself with the order of status quo without having applied its mind to its applicability on facts in hand and on the other hand further seeks guidance from the General Administration Department in the matter of compliance. As such, the stand of the PSC is vulnerable and intended to underscore the mandate of the order complained of. The General Administration Department also appears to remained indifferent and did not take appropriate steps ensuring compliance of the order passed by the writ Court.

It is not out of place to mention that in the instant case, the writ Court has ordered for revision of gradation list and consideration of the cases of petitioners for promotion by convening review DPC. It is not a case of filling up of the vacancies through promotion channel with due observance of the Roster system. In fact, the compliance is required to be done extending promotional benefits to the petitioners who have been otherwise denied due to their wrong placement in the gradation list in the past.

At this stage, Shri Sethi, learned senior counsel points out that the order of status quo has been modified by the Hon'ble Supreme Court on 17/05/2018 (Annexure P/6) at the instance of the Union of India and the same reads as under:

"It is directed that the pendency of this Special Leave Petition shall not stand in the way of Union of India taking steps for the purpose of promotion from 'reserved to reserved' and 'unreserved to unreserved' and also in the matter of promotion on merits."

Based whereupon, the Union of India has issued a Office Memorandum on 15/6/2018 (Annexure P/8) wherein the State Governments have been advised to take necessary action in accordance with the modified order of the Hon'ble Supreme Court in the matter of promotions.

The compliance of the Court order in the instant case is for consideration of the claim of the applicant through review DPC on the basis of the revised seniority list amongst unreserved category persons.

Under such circumstances, the stand of the respondents/departments and PSC appears to be reprehensible as it chose not take appropriate steps resulting into avoidance of the compliance of the Court order complained of.

Therefore, it is a fit case to order for personal appearance of the erring officers who are not serious in the matter of either understanding seriousness of the mandate issued by the writ Court or ensuring compliance of the Court orders passed from time to time.

Shri Amit Rathore, Secretary, M.P. Panchayat and Rural Development Department, Bhopal and Smt. Renu Pant, Secretary, M.P.Public Service Commission, Indore shall appear in person before the Court on the next date of hearing.

Non-compliance of the order passed today shall be viewed seriously and the possibility of passing adverse order is not ruled out.

Registry is directed to supply a copy of this order to the learned counsel for the respondents for necessary compliance and onward transmission.

Call out on 29/01/2019 for further orders.

Certified copy as per rules.