Pranbandhu Nag vs P.K. Prodhan

Satyabrata Sinha, J.—The Petitioners filed a public interest litigation against the Calcutta Metropolitan Development Authority and Ors. (hereinafter referred as the Authority) which was marked as C.O. No. 20151 (W)/94. In the said application it was, inter alia, contended that the Authority has been acting arbitrarily in the matter of appointment, promotion, retirement etc. It was contended that it had been inducting superannuated persons and/or extending the terms of reemployment of superannuated persons for years together in gross violation of recruitment regulations and in total disregard to the State Government policy.

By an order dated June 8, 1994 rule issued in the aforementioned case was made absolute. This Court observed:

These facts indicate that the superannuated persons are not being retained for public purpose but for ulterior reasons.

An appeal was preferred against the said judgment which was registered as F.M.A.T. No. 1946/94. K.C. Agarwal, Chief Justice and M.G. Mukherjee, J. (as the learned Acting Chief Justice of Rajasthan High Court then was) disposed of the said Appeal by an order dated July 27, 1994 modifying the order of the learned trial Judge holding:

...It is indeed true as was submitted by Mr. Bose appearing for the Respondent writ Petitioners that there was more or less an unregulated system of reemployment of superannuated persons prevailing in CMDA as is manifest enough from the different appointments made from time to time and not all such appointments have been actuated by proper and cogent reasons. We think that the judgment of the learned single Judge needs some modification which we should do to the effect following. CMDA shall not grant any re-employment to anyone of the superannuated employees for a period of more than six months at one time. In the event any reemployment is to be offered, the CMDA shall consider the case of the existing employees for promotional opportunities and in the event of availability of staff from the existing CMDA roll strength, the question of re-employment for a superannuated staff does not and cannot arise and it is only on the non-availability of the required staff for the job that the CMDA will take recourse to re-employment of the superannuated staff. The CMDA shall not create a new post in order to accommodate any one of the superannuated staff without first considering the eligibility of the existing staff. However, in the event there be a new scheme, the CMDA will be at liberty to introduce a new post. In so far as the existing superannuated employees are concerned whose services have already been extended, we make it clear that their services would terminate at the end of such extended period and there should not be any more extension granted to them.

A SLP was filed by the authority and its officer and by an order dated September 5, 1994 the said SLP was dismissed only when a clarification as to how to read and construe the said order of the Division Bench.

The Petitioners contend that despite the order of the Division Bench of this Court, the contemnors violated the said order. In para. 9 of the contempt application a few examples of the reemployed superannuated persons in CMDA whose tenure are getting extended continuously had been enumerated naming nine persons therein. It has been contended that the contemnors are extending the tenure of re-employment of superannuated persons for years together in violation of this Court''s order with impunity. It has further been contended that although this Court had set out six months maximum limit for any re-employment in the authority, the only meaning that can be attributed thereto was that such maximum limit in no circumstance can exceed six months in total.

The contemnors have filed two affidavits-in-opposition. It has been contended that as a matter of policy re-employment had not been given in any post which was to be filled up by promotion where eligible candidates are available. It is stated that the promotion prospect of no employee has been affected or curtailed by giving such appointments on re-employment. According to the contemnors some posts have been filled up by superannuated persons on re-employment on following reasons:

a) The posts which are non-promotional and also which are selection posts;

b) The posts have been filled up on the direction of the State Government. The development projects like Calcutta Slum Improvement Project and India Population Project-VIII are implemented with assistance from the Overseas Development Agency and World Bank respectively. These time bound projects are for a specific period only and for these projects regular employment has not been allowed by the State Government. The Projects will suffer a total set back if the posts attached to those Projects are not filled up according to the direction of the State Government. State Govt. have categorically specified that the posts under these projects are to be filled up by deputationists from Govt. or by re-employed officers or by engaging outsiders on contract. There is also communication from British Govt. Overseas Development Administration (ODA) suggesting engagement of same set of persons during the tenure of the Calcutta Slum Improvement Project.

c) The Promotional posts have been filled up by reemployment when CMDA employees who are holding the feeder posts have not attained the eligibility criteria specified in the promotion principle.

Mr. Bose, learned Counsel appearing on behalf of the applicants, inter alia, submitted that the authority is filling up the selection posts without giving an opportunity to the employees of CMDA to opt therefor. In this connection our attention has been drawn to the case of one Dr. Animesh Haider stating that he was not given any chance although one Mr. A.N. Mukherjee, Deputy Secretary of the State of West Bengal was given a chance therefor.

The learned Counsel also has drawn our attention to the case of one Mr. Seshadri. It has further been contended that assuming that the posts are selection posts, there must be an advertisement therefor, and a procedure for selection must be adheared to. Mr. Basu further submitted that the Division Bench of this Court satisfied itself upon perusal of the list of 1981 superannuated re-employed persons that at the material time total tenure of each of those 1981 superannuated re-employed persons in C.M.D.A. have crossed or being crossed shortly the six months permissible total limit and thus, a direction was made,

in so far as existing superannuated employees are concerned, we make it clear that their services would terminate at end of such extended period and there should not be any more extension granted to them.

According to Mr. Basu, learned Counsel, this Court directed:

i) Re-employment cannot be given if regular employee of CMDA are available for the job.

ii) If no one found from regular employees of CMDA, then and only then re-employment can be given to a superannuated person for six months at one time i.e. the total permissible limits of that persons re-employment on superannuation in CMDA would not exceed six months.

iii) No post can be created to accommodate any re-employed person.

iv) There shall not be any more extension granted to the serving re-employed persons in CMDA.

But despite the same according to the learned Counsel, the contemnors have violated the order of this Court. As noticed hereinbefore, certain examples had been stated in para. 9 of the contempt application and para. 8 of the affidavit-in-reply.

Mr. Panja, learned Counsel appearing on behalf of the contemnors, however, has drawn our attention to the records and filed a gist thereof with remarks and submitted that a perusal thereof would show that only in selection posts or in the time-bound projects which are funded by the World Bank, the authority had to make appointment or extend the tenure at the instance of the State Government as on failure thereof, the entire project would have been cancelled. It has been stated that there is not a single person who fulfils the eligibility criteria of the selection posts and all the promotional posts have been filled up. Our attention has been drawn to the fact that for the purpose of promotion to the post of Accounts Officers, the feeder post is Section Officer and a candidate is to fulfil the eligibility criteria in the feeder post and in view of the fact not a single person has fulfilled the said criteria, they could not be promoted. According to the learned Counsel the terms of 3 or 4 persons are going to expire soon and while filling up the said post the cases of the eligible employees will be considered. It is submitted that for the post of A.D.F.A. which is a promotional post, the feeder post is Accounts Officer and as nobody completed the eligibility period as Accounts Officer, no employee has been appointed. As regards the case of Sri Animesh Haider, it was submitted that Dr. A.N. Mukherjee was appointed at the direction of the State for development project under World Bank as no post is available in C.M.D.A. in relation thereto and the said post is not a promotional post.

According to Mr. Panja, there is no post of Doctor for Calcutta Urban Development Project and no person in the organisation fulfils the criteria. As regards appointment in a post to look after the telephones it was submitted that one ex-employee of the Tele-Corn, authorities was appointed as a part-time basis as services of any expert in that line is not available in their cadre. As regards the post of chaser, it is stated that his duty is to keep a Mason with the railway authorities so as to unload the consignments from the recks as soon as they arrive with a view to avoid payment of demurrage. According to Mr. Panja, the same is also not a promotional post.

The question, therefore, which arises for consideration in this application is as to whether the alleged contemnors have committed any wilful and deliberate violation of this Court''s order.

The order passed by the division bench is contained in Annex. B to the contempt application. In this proceeding, this Court is not concerned with the merit of the matter. The only question which arises for consideration in this proceeding is as to whether the contemnors have committed any wilful or intentional disobedience of the orders passed by the division bench of this Court as clarified by the Supreme Court of India. The directions of the division bench wise:

C.M.D.A. shall not grant any re-employment to any one of the superannuated employees far a period of more than six months at one time. In the event any re-employment is to be offered, the CMDA shall consider the case of the existing employees for promotional opportunities and in the event of availability of staff from the existing CMDA roll strength, the question of re-employment for a superannuated staff does not and cannot arise and it is only on the non-availability of the required staff for the job that the CMDA will take recourse to re-employment of the superannuated staff;

The CMDA shall not create a new post in order to accommodate any one of the superannuated staff without first considering the eligibility of the existing staff. However, in the event there be a new scheme, the CMDA will be at liberty to introduce a new post;

In so far as the existing superannuated employees are concerned whose services have already been extended, it was made clear that their services would terminate at the end of such extended period and there should not be any more extension granted to them.

So far as the last direction of the division bench is concerned, as noticed hereinbefore the same has been clarified by the Supreme Court to mean that the same would be subject to the qualification applicable in all cases of re-employment contained in the earlier part of the said order.

As indicated hereinbefore, the Petitioners have sought to bring home the point of wilful disobedience of this Court''s order on the part of the alleged contemnors by citing examples as mentioned in para. 9 of the application and Annex. X to the Affidavit-in-Reply. The Respondents in their affidavit-in-opposition, the written submissions as also the relevant records and as also in their written submission have clarified each and every case in great details.

The explanation submitted by the contemnors appears to be satisfactory. They have also stated that they obtained legal opinion and acted strictly on that basis. It has further been pointed out that no reemployment has been given in any post which could be filled up by promotion where eligible candidates are available. It has further been categorically stated that promotion prospect of a single employee of the CMDA has not been affected or curtailed by giving appointment on re-employment.

We are further satisfied that the question of consideration of the regular employees of CMDA for such Projects which are time-bound ones like Calcutta Slum Improvement Project and India Population Project-VIII which are being implemented with assistance from the Overseas Development Agency and World Bank being time-bound project, the tenure of such employment would come to an end along with the project. Mr. Panja stated categorically that if any employee who is qualified therefor intends to put his regular service at stake and joins such a post, he may do so.

The reasons assigned for filling up of such posts, as noticed hereinbefore, in our opinion cannot be said to be wholly unsatisfactory. Furthermore, the Respondents have categorically stated that the posts under Calcutta Slum Improvement Project have to be filled up under the direct on of State Government as would appear from the documents annexed with the written submissions. The CMDA, cannot ignore the directions of the State Government and as noticed hereinbefore the complaint of the writ Petitioners in the writ application, inter alia, was that the CMDA had been flouting the orders passed by the State Government.

Furthermore, according to CMDA, some posts are not promotional. In this proceeding the court cannot determine such a question and only when an appropriate writ application stating the relevant facts is filed, the court can go into such question. Furthermore, this Court is not in a position to come to a decision as to whether the claim of any particular employee who although was eligible had not been considered keeping in view the fact that the concerned employee has not raised any grievance. It may further be noticed that in respect of some of the cases, the assertions of the Petitioners have been denied and disputed as for example in the cases of Mr. H.M. Mukherjee and Mr. D.K. Barman. The contemnors, however, admit that some superannuated officers had been engaged in the post of Assistant Director/Assistant Controller of Finance and Accounts although they are promotional posts on the ground that no departmental officer had till date acquired eligibility criteria for promotion as per the criteria adopted by the authority. It has also been stated that even the resolution of the authority to lower down the period of experience from four years to three years had not been acceeded to by the State Government which has again been moved for reconsideration of its decision. It has categorically been stated that before appointing any superannuated person, the establishment committee discuss the matter in meetings held therefor and examine the re-employment case keeping in view the judgment of this Court as also the Supreme Court of India. Copies of such meetings which are at pages 58 to 82 of the written submission have been placed before us. However, we may note that almost all the cases for extension of services had been considered favourably allegedly on the ground that their experience and their extensions of services is vital for the authority. Even no such reason has been assigned-in some cases as for example in the minutes of the meeting dated December 31, 1994. The order of this Court as clarified by the Supreme Court of India must be complied with in letter and spirit. Grant of extension is not a rule but in view of the judgment of this Court the same is a matter of exception which may be done only if the contingencies stated therein are fulfilled.

However, civil contempt has been defined in Section 2(b) of the Contempt of Court''s Act, 1971 to mean any wilful disobedience. A contempt proceeding is initiated for effective implementation of the order. The disobedience of any judgment or order or decree must be wilful. As indicated hereinbefore, the contemnors have given more or less satisfactory explanation. We, therefore, are of the opinion that it cannot be said that they have committed wilful dis-obedience of this Court''s order.

It is now well known that the act on the part of the contemnors must be a contimacious. A person cannot be held guilty for wilful disobedience of the court''s order even in a case where two interpretations are possible. There cannot be any doubt that the court shall take every step to see that the orders passed by it are not violated but it is also its duty to see that persons who are not guilty of contempt is not punished.

For the reasons aforementioned this application is dismissed but in the facts and circumstances of this case there will be no order as to costs.

Satya Narayan Chakrabarty, J.

I agree.