Karnataka High Court
Hidayathulla K.A vs Smt. Vandita Sharma on 20 December, 2024
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CIVIL CONTEMPT PETITION NO. 506 OF 2022
BETWEEN
HIDAYATHULLA K.A
S/O LATE ABDULLA,
AGED ABOUT 44 YEARS,
WORKING AS JOINT SECRETARY,
NOW WAITING FOR POSTING
R/AT NO.759, 5TH MAIN, 8TH CROSS,
2ND BLOCK, R.T. NAGAR,
BENGALURU-560 032.
...COMPLAINANT
(By PROF. RAVIVARMA KUMAR, SENIOR ADVOCATE
SRI. ARNAV A BAGALWADI, ADVOCATE)
AND
1 . SMT. VANDITA SHARMA
CHIEF SECRETARY TO
GOVERNMENT OF KARNATAKA,
ROOM NO.320, VIDHANA SOUDHA,
BENGALURU-560 001.
2 . SMT. P. HEMALATHA
SECRETARY,
DEPT OF PERSONNEL AND
ADMINISTRATIVE REFORMS, (DPAR)
GOVERNMENT OF KARNATAKA,
ROOM NO.246, VIDHANA SOUDHA,
BENGALURU-560 001.
2
3 . STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPT. OF PERSONNEL AND
ADMINISTRATIVE REFORMS (DPAR)
GOVERNMENT OF KARNATAKA
ROOM NO.246, VIDHANA SOUDHA
BENGALURU - 560 001
4 . MS.S. RADHA CHAUHAN
SECRETARY, DEPARTMENT OF
PERSONNEL AND TRAINING
NORTH BLOCK,
NEW DELHI-110 001.
5 . SRI.SHASHI RANJAN KUMAR
SECRETARY,
UNION PUBLIC SERVICE COMMISSION
DHOLPUR HOUSE, SHAH JAHAN ROAD
NEW DELHI-110 001.
...ACCUSED
(By SRI. RUEBEN JACOB, AAG FOR A1 TO A3
SRI. B. PRAMOD, CGC FOR A4
SRI. N. AMARESH, ADVOCATE FOR A5)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT PRAYING TO ISSUE SUMMONS TO
BOTH THE ACCUSED AND PROCEED AGAINST THEM FOR
COMMITTING AN ACT OF DISOBEYING ORDERS PASSED BY THIS
HON'BLE COURT DATED 22.04.2022 IN WP NO.14084/2020 (S-
KSAT)PRODUCED AT ANNEXURE-A.
THIS PETITION HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, K SOMASHEKAR,
J., AND RAJESH RAI.K, J., MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE RAJESH RAI K
3
CAV ORDER
(PER: HON'BLE MR JUSTICE K SOMASHEKAR)
and
HON'BLE MR JUSTICE RAJESH RAI K)
This contempt petition is initiated for wilful disobedience of
the order passed in W.P.No.14084/2020 and connected matters
dated 22.04.2022, whereby the learned Single Judge has passed
the following order:
ORDER
(I) Writ petition No. 14084/2020 is partly allowed.
(II) Order dated 03.09.2020 passed in Application
No.2139/2010 by the Karnataka Administrative
Tribunal is set aside.
(III) The Respondent-State is directed to create a
supernumerary post and appoint the petitioner
to the post of Assistant Commissioner,
Revenue Department, KAS-Group-A (Junior
Scale) from the earliest point available in the
recruitment notification dated 15.12.1999 for
such appointment and grant all notional
benefits including the seniority from the date of
such appointment.
(IV) In view of the observation made above, Writ
Petition No.795/2021 and Writ Petition
No.10411/2021 and Writ Petition
No.16349/2021 are disposed of.
(V) Under the facts and circumstances of the case
parties to bear their cost.
2. The grievance of the petitioner in the writ petition is as
under:
(a) On 15.12.1999, The Karnataka Public
Service Commission issued a notification for
recruitment of Gazetted Probationers to the post of
4Group A and B in the State Services. The said
notification did not provide for reservation for the
physically disabled person.
(b) In response to the aforesaid recruitment
notification, the complainant Sri. Hidayathulla.
K.A., being a physically disabled person applied to
a post in Group-A and B in the State Civil Services.
In the combined competitive examination which
was held, the complainant was successful and was
called for interview. The Respondent-State
Government had again issued recruitment
notification for the Gazette probationers selection
during the year 2005. Yet again, there was no
provision of reservation made for the physically
disabled persons.
(c) Since, the aforesaid recruitment
notifications did not provide for reservation for the
physically disabled person in accordance with the
provisions of Act, 1995, complainant approached
the Tribunal by filing an application No.6276/2005
seeking implementation of the provisions of the
Act, 1995.
(d) The Tribunal by its common Order dated
14.07.2006 allowed the aforesaid application with
a series of directions, directing the Respondent-
State and the Union to fully comply with the
provisions of the Act, 1995.
(e) Being aggrieved by the aforesaid Order
dated 14.07.2006, Respondents-State preferred a
writ petition in W.P.No.13511/2006 before this
Court. This Court had declined to grant any interim
order of stay and had directed the Respondent-
State to implement the order by creating a
Supernumerary post and subject to result of the
writ petition. Contempt proceedings were also
initiated against the Respondent-State for non-
compliance of the order of the Tribunal. The
Respondent-State had accordingly passed an order
creating five Supernumerary post and the
complainant and others were appointed pursuant
to the said order by Notification dated 19.03.2009
to the post of Section Officer, a Group-B post. In
5
view of the appointment of the complainant and
others in the supernumerary post and they having
completed three years six months of their service
and their probationary period having been
declared as satisfactory, the writ petition was
dismissed as it did not survive for Consideration by
Order dated 31.07.2008.
(f) That after filing of the aforesaid application
before the Tribunal the second Respondent had
made amendment to Rule 9(1A) of the Karnataka
Civil Services (General Recruitment) Rules, 1997,
and issued Notification dated 13.09.2005 by
providing 3% horizontal reservation in Group-A
and B effective from 13.09.2005 to the persons
suffering from (i) blindness, (ii) hearing
impairment (iii) loco-moto disability and (iv)
Celebral palsy and mental illness.
(g) The complainant aggrieved by the aforesaid
Amendment by the Respondent-State effective
from 13.09.2005 once again approached the
Tribunal by filing an Application No.2139/2010
seeking various reliefs in the nature of direction to
the Respondent-State to appoint the complainant
to the post of Assistant Commissioner, Group-A
(Junior Scale) by making proper arrangements in
accordance with the provisions of Act, 1995, and
for consequential reliefs, on the premise that if 3%
reservation had been provided in 1999 Gazette
Probationary recruitment notification, the
complainant would have been selected to Group-A
post i.e. to the post of Assistant Commissioner,
and that non-implementation of the provisions of
the Act, 1995 which came into effect from
07.02.1996 and the Respondent-State
Government not having provided the reservation
accordingly, the petitioner was denied of
opportunity and of his statutory rights.
(h) However, the Tribunal by its Order dated
03.09.2020 passed in Application No.2139/2010
filed by the petitioner for similar relief as that of in
the aforesaid application Nos.2124/2010 and
3605/2010 dismissed the same for the reasons of
same having been barred by “res-judicata” and
6
also for the reasons of the petitioner having
“acquiesced” by accepting his appointment to
Group-B post pursuant to its earlier Order dated
14.07.2006, and was thus “estopped” from
seeking any further reliefs. As regards question of
parity, the Tribunal declined the plea of the
petitioner on the premise that each and every
employee shall not approach the Court to seek
relief already granted to co-employee or Officer.
However, it reserved the liberty to the petitioner to
submit his representation for consideration of the
Respondent-State.
3. On passing of the order by the learned Single Judge
supra, the complainant approached respondents No.1 to 3 vide
representation dated 12.05.2022 to comply with the order passed
by the learned Single Judge. The respondents No.1 to 3 have failed
to comply the said order, aggrieved by the same, the complainant
initiated this contempt petition. However, following the initiation of
this contempt petition, the Government has passed the Notification
dated 08.04.2024, respondents No.1 to 3 had appointed the
complainant as KAS (Junior Scale) Group ‘A’ post by creating
supernumerary post with effect from 01.02.2006 i.e., the date on
which the appointment order issued to the last candidate selected
to KAS (Junior Scale) Group ‘A’ post vide recruitment Notification
issued by the Karnataka Public Service Commission dated
15.12.1999. The benefits extended to the last candidate selected
vide order dated 01.02.2006 (excluding the wages and allowance
with retrospective effect) was also extended to the complainant with
7
the pay scale of Rs.56800-99600 as applicable to KAS (Junior
Scale) Group ‘A’ post. Further, in view of providing notional benefits
to the complainant vide Notification dated 06.06.2024, the
retrospective promotion was also given to the complainant and
presently, the complainant is serving as KAS (Super Time Scale
Cadre) Personal Secretary to the Minister for Health and Family
Welfare, Government of Karnataka. The same is admitted by the
complainant. However, it is the contention of the learned Senior
counsel for the complainant that all other KAS Officers in the Batch
of 1998, 1999 and 2005 have already been considered for IAS
confirmation from State service and the complainant has been
appointed through Notification dated 08.04.2024 to the post of KAS
(Junior Scale) Group ‘A’ post with effect from 01.02.2006. As per
the order passed by the Writ Court, notional benefits from earliest
point available in the recruitment Notification dated 15.12.1999 is
required to be extended to the complainant. The learned Senior
counsel by emphasizing on the reply issued by the Department of
Personnel and Administrative Reforms (Services-6) for an RTI
application of the applicant that the Secretariat Cadre in which the
complainant served is equivalent to various KAS Cadres, submitted
that, the complainant worked in Group ‘A’ post equivalent to KAS
(in different Cadres) for more than 12 years and that he worked in
the posts of Secretary, Under Secretary, Deputy Secretary, Joint
8
Secretary as well as Additional Secretary on deputation basis, his
service has to be considered for State Civil Service (hereinafter
referred to as ‘SCS’) IAS confirmation by considering the direction
issued by the learned Single Judge of this Court in the writ petition
i.e., ‘grant all notional benefits including seniority from the date of
such appointment’. He submitted that, the seniority has to be taken
into consideration from the year 1999 and the other officers who
were appointed in the year 1999 have already been considered by
the State Government for IAS Cadre and they have been working as
IAS officers, however, the complainant is deprived of similar
benefits which clearly falls within the purview of wilful disobedience
of the order passed by the learned Single Judge in
W.P.No.14804/2020.
4. The learned Senior counsel by emphasizing the order
passed by the Central Administrative Tribunal in
O.A.No.170/00410/2019 dated 17.07.2019 (which is also
challenged along with W.P.No.14084/2020 by the State in
W.P.No.795/2021) submits that, in the said application, the
complainant challenged his placement in the seniority list as per the
Indian Administrative Service vide Regulations, 1955 and the KAT
has issued a mandamus to the State Government and the Central
Government to appoint him as an Assistant Commissioner in the list
following 1998 selection and clearly observed that there is a failure
9
on the part of State Government by not giving the seniority to the
complainant for all the notional benefits and once the applicant had
worked in a particular position, his total seniority will date back
from the day on which the first person in the 1998 selected list had
been appointed. The said order was not challenged by the Central
Government and strangely challenged by the State Government in
W.P.No.795/2021 c/w W.P.No.14084/2020 and the said writ
petition was disposed by the learned Single Judge without any
directions. Elaborating this contention, the learned Senior counsel
submitted that, it is the constitutional right of the complainant as
stipulated in Article 312 of the Constitution of India that if the
council of State has declared by resolution, the parliament may by
law provide for the creation of one or more All India Services
common to the Union and States. Further, by relying on Section 3
of the All India Services Act, 1951, he submitted that, the Central
Government may on consultation with the Government of the State
make rules for the regulation of recruitment and conditions of
service of persons appointed to an All India Service. Further, the
Indian Administrative Service (Appointment By Promotion)
Regulations, 1955, defines the SCS in Section 2(j)(ii) that in all
other cases any services or services approved for the purpose of
recruitment of rules by Central Government in consultation with
State Government, a member of which normally holds, for the
10
purpose of revenue and general administration, charge of Sub-
division of a District or a post of higher responsibility. Further,
learned Senior counsel by relying on the Indian Administrative
Service (Recruitment) Rules, 1954 submitted that, Rule 4 of the
said rules defines the method of recruitment of the service and 4(b)
of the same reads that the recruitment of service shall be on
commencement of said rules by competitive examination so also by
promotion of a substantive member of a civil service. The
disqualification of such appointment as stipulated in Rule 5
enumerates that, no person shall be qualified for appointment to
the Service unless he is a citizen of India or belongs to such
categories of persons as may, from time to time, be notified in this
behalf by the Central Government. However, Rule 5 is not
applicable to the complainant herein. He further laid emphasis on
Rule 8 of the said rules which stipulates that the Central
Government may on the recommendations of the State Government
concerned, in consultation with the Commission in accordance with
such regulation as the Central Government may after consultation
with State Government and the Commission from time to time,
make, recruit to the service such persons by promotion from
amongst the members of the SCS. This being the position, the State
Government and Central Government have collectively failed to
consider the case of the complainant for promotion to IAS Cadre
11
even on receiving specific directions by this Court to grant the
notional benefits including seniority.
5. The learned Senior counsel additionally submitted that,
the Central Administrative Tribunal, Cuttack Bench in the case of
Surya Madhaba Panigrahi vs. Union of India and others in
O.A.No.521/2021 held that, ‘the rejection of candidature for the
reason that the applicant does not complete 8 years of continuous
service in terms of 3rd proviso to Regulation 5(2) of Indian
Administrative Service (appointment by promotion) Regulation 1955
does not hold good’. Further, by relying on the judgment passed in
Union of India v. Maj. Gen. Madan Lal Yadav, reported in
(1996) 4 SCC 127 submitted that, the State Government and
Central Government committed error by denying promotions and
seniority to the complainant as per the Rules following his
appointment, as such having done the said wrong and ‘a wrong
doer ought not be permitted to make a profit of his own wrong’.
The learned Senior counsel by relying on the judgment of the
Hon’ble Apex Court in the case of Union of India and Others vs.
K.B.Rajoria reported in 2000 3 SCC 562, argued that, ‘regular
service’ does not mean ‘actual service’ and the expression on a
regular basis would mean the appointment to the post on a regular
basis in contra distinction to appoint on adhoc or stoppage or purely
temporary basis. Similarly, in the case on hand, the complainant
12
was recruited and given notional promotion as per the Court order,
as it shall be construed as a regular basis service, he is entitled for
all subsequent seniority. Accordingly, learned Senior counsel
submitted that, the State Government and the Central Government
both have failed to comply the order passed by the learned Single
Judge in W.P.No.14804/2020 and hence, he prays to frame the
charges against the respondents/accused.
6. Per contra, learned AAG Sri Reuben Jacob, contended
that, the order passed by the Writ Court has been comprehensively
complied with in the following manner:
“A. In terms of Notification dated 08-05-2024, the
complainant has been appointed to the Cadre of KAS –
Group-A (Junior Scale) with effect from 01-02-2006,
which is the date of issuance of appointment orders at
the earliest point in time to selected candidates in
terms of recruitment notification dated 15-12- 1999. In
the same order the complainant has been extended
pay scale of Rs.56800-99600, which is the KAS Group-
A (Junior Scale) pay scale with effect from 01-02-2006
notionally. Copy of the said notification dated 08-04-
2024 is produced herewith as Annexure-R1.
B As per Notification dated 08-05-2024, the
complainant has bean declared to have successfully
completed the probationary period, by exempting the
actual completion of the probationary period by the
complainant. Copy of the Notification dated 08- 05-
2024 is produced herewith as Annexure-R2.
C. As per Notification dated 16-05-2024 the
complainant has been placed in the seniority lists of
KAS (Junior Scale), KAS (Senior Scale), KAS (Selection
Grade) and KAS (Super Time Scale) on the basis of
notional placement of the complainant in the seniority
13lists of each of the said Cadres. Copy of the Notification
dated 16-05-2024 is produced herewith as Annexure-
R3.
D. As per Notification dated 06-06-2024,
retrospective promotion has been granted to the
complainant to the KAS (Senior Scale), KAS (Selection
Grade) and KAS (Super Time Scale) with effect from
17-09-2011, 20-09-2019 and 13-12-2021 respectively.
Copy of the Notification dated 06-06-2024 is produced
herewith as Annexure-R4″.
7. He further contended that, the contention of the learned
Senior counsel to consider the case of complainant in SCS IAS
confirmation is wholly out of purview of the order passed by the
learned Single Judge and the same cannot be considered by the
State Government for the reason that the Regulation 2(j) of Indian
Administrative Service (Appointment by Promotion) Regulation,
1955 defines the term “State Civil Service” as follows:
“2(j) “State Civil Service” means,
(i) for the purpose of filling up the vacancies in the
Indian Administrative Service Cadre of the
Arunachal Pradesh-Goa- Mizoram-Union
Territories under rule 9 of the Recruitment Rules,
any of the following services, namely:-
(a) the Delhi and Andaman and Nicobar
Islands Civil Service;
(b) the Goa Civil Service;
(c) the Pondicherry Civil Service;
(d) the Mizoram Civil Service;
(e) the Arunachal Pradesh Civil Service;
14
(ii) in all other cases, any service or services,
approved for purposes of the Recruitment Rules
by the Central Government in consultation with
the State Government, a member of which
normally holds, for purposes of revenue and
general administration, charge of a sub-division
of a district or a post of higher responsibility.”
8. It is submitted by the learned AAG that, in the State of
Karnataka, “State Civil Service” [as defined in aforesaid Rule 2(j)]
means, The Karnataka Administrative Service and all the Cadres
above and including the Cadre of KAS Group ‘A’ (Junior Scale) are
eligible to be considered for promotion [subject to fulfilment of
other eligibility criteria] in terms of the Indian Administrative
Service (Appointment by Promotion) Regulation, 1955.
9. As per third proviso to Rule 5(2) “the Committee shall
not consider the case of a member of the SCS, unless on the first
day of January of the year for which the selection list is prepared,
he is substantive in the SCS and has completed not less than eight
years continuous service (whether officiating or substantive) in the
post of Deputy Collector or in any other posts declared equivalent
thereto by the State Government”. He further contended that, for
the purpose of said proviso, notional service will not be counted and
only eight years of actual continuous service (whether officiating or
substantive) is a mandatory condition. In view of the fact, the
complainant was appointed to the Cadre of KAS (Junior Scale)
15
Group ‘A’ post only on 08.05.2024, as the complainant has not
completed eight years of actual continuous service (whether
officiating or substantive) in the Cadre of KAS (Junior Scale) Group
‘A’ post, hence, the complainant is not entitled to be considered for
promotion under the SCS IAS (Appointment by Promotion)
Regulation, 1955. Accordingly, he prays to drop the contempt
proceedings. In order to buttress his argument, he relied on the
following judgments:
1. 2019 6 SCC 647 (Girish Kumar v. State of
Maharashtra and Others).
2. 2023 SCC OnLine MP 7037 (Vidya Bhushan Mishra
v. State of M.P. and Others)
3. 2014 3 SCC 373 (Sudhir Vasudeva v. M. George
Ravishekaran)
4. W.P.No.1252-1256/2018 and connected matters
passed by the Co-ordinate Bench of this Court
dated 08.02.2018.
10. Learned ASGI Sri Aravind Kamath contended that,
though this Court impleaded the respondent No.4 as party to the
proceedings by allowing the I.A.No.1/2024 filed by the complainant
under Sections 11 and 12 of Contempt of Courts Act, 1971 vide
order dated 07.08.2024, respondent No.4-Central Government is
not a relevant party to the proceedings and there is no such
directions issued by the learned Single Judge in writ proceedings
against the respondent No.4-Central Government. The Central
16
Government was arrayed as a party to this petition on lapse of two
years from the date of filing of this contempt petition. Moreover, the
learned Single Judge disposed the W.P.No.795/2021 without any
such direction/order.
11. By relying on the arguments advanced by the learned
AAG, he submitted that in terms of Regulation 5(2) of the SCS
Officer to IAS under IAS (Appointment By Promotion) Regulation,
1955, it is clear that 8 years of continuous service (whether
officiating or substantive) in the post of Deputy Collector is a
mandatory condition for an SCS Officer to be eligible for
consideration for promotion as an IAS. Any presumption of
evaluating the case of an officer based upon the service record
which are not of relevant period had also not of the relevant post
would tantamount to officiating the entire selection committee
proceedings and may deliver altogether different results.
Accordingly, learned ASGI submitted that, respondent No.4 had
neither received any communication in the case of the complainant
from the State Government nor from the UPSC, as such no action is
pending on part of the Central Government. Accordingly, he prays
to drop the contempt proceedings against respondent No.4.
12. We have given our anxious consideration for the
submission made by the respective parties to the proceedings. It is
17
not seriously disputed by the learned Senior counsel for the
complainant that the State Government has complied the order
passed by the learned Single Judge by creating the Supernumerary
post to the complainant so also given the notional pay scale and
subsequent promotions by placing him in the seniority list of KAS
and promoting him to KAS (Super Time Scale) on the basis of
notional placement. Further, as per Notification dated 06.06.2024,
retrospective promotion has been granted to the complainant as per
the direction issued by the learned Single Judge in
W.P.No.14084/2020. In such circumstances, the grievance of the
complainant is that, he has not been considered for promotion in
terms of Indian Administrative Service (Appointment by Promotion)
Regulation, 1955. As rightly contended by Sri Reuben Jacob,
learned AAG, as per Rule 5(2) of the Indian Administrative Service
(Appointment By Promotion) Regulations, 1955, in order to consider
the member of the SCS to IAS Cadre, the candidate has to as
stipulated in the SCS complete not less than eight years of actual
continuous service in the post of Deputy Collector or in any other
post or posts declared equivalent thereto by the State Government
which is a mandatory condition. Admittedly, the complainant has
not completed eight years of actual continuous service in KAS Cadre
(Junior Scale) Group ‘A’ post as he was appointed only on
18
08.05.2024. In such circumstances, the State Government cannot
consider his service to IAS Cadre.
13. We are unable to accept the contention made by the
learned Senior counsel that the service rendered by the complainant
in Group ‘A’ post equivalent to KAS for over 12 years and the State
Government is bound to consider his case for promotion to IAS
when there is a mandatory provision under the Regulations 5(2) so
also under the provisions of Rule 4 and 8 of Indian Administrative
Service (Recruitment) Rules, 1954. Nevertheless, there is no such
specific direction by the learned Single Judge to consider the case of
complainant for SCS to IAS promotion. Though the Indian
Administrative Service (Recruitment) Rules, 1954 describes the
method of recruitment of rules and recruitment by promotion or
selection for appointment of State and joint Cadre, the said rules
have to be followed as per the Indian Administrative Service
regulations, 1955 and Rule 5(2) is clear that in order to consider the
members of SCS for IAS Cadre, he shall complete not less than
eight years of continuous/actual service. When a regulation
prescribes the minimum qualification for the appointment of
Government servants for the specific post, the State Government or
Central Government cannot circumvent the same and consider his
claim for promotion. In the similar circumstances, the Co-ordinate
19
Bench of this Court in W.P.No.1252-1256/2018, held in Paragraphs
No.18 and 19, reads as under:
“18. It is indubitable that, appointment of SCS Officers
to Indian Administrative Service is governed by the
‘Regulations’. Unless, the name of an SCS Officer is
found in the list prepared as per Regulation No.5 by the
Selection Committee, his case cannot be considered by
the UPSC, while preparing the ‘select list’ under
Regulation No.7. Therefore, unquestionably, it shall be
the prerogative of the Committee constituted under
Regulation No.3 to prepare a list of eligible State Civil
Service Officers for appointment in the Indian
Administrative Service.
19. It is settled that, Courts do not sit as an appellate
authority to assess the suitability of SCS Officers. It
may be relevant to extract following passage from the
judgment of the Supreme Court of India in the case of
M.V.Thimmaiah and Others v. Union Public Service
Commission and Others reported in (2008) 2 SCC 119:
“36. Therefore, in view of a catena of
cases, Courts normally do not sit as a Court
of appeal to assess ACRs and much less the
Tribunal can be given this power to constitute
an Independent Selection Committee over
the statutory Selection Committee. The
guidelines have already been given by the
Commission as to how ACRs to be assessed
and how the marking has to be made. These
guidelines take care of the proper scrutiny
and not only by the Selection Committee but
also the views of the State Government are
obtained and ultimately the Commission after
scrutiny prepares the final list which is sent
to the Central Government for appointment.”
14. Further, the Hon’ble Apex Court in the case of Girish
Kumar v. State of Maharashtra and Others reported in 2019 6
SCC 647, held in paragraph No.9 as under:
20
“9. In the present case, the High Court has considered
Rule 5 of the Seniority Rules, 1982 and has not at all
considered the Recruitment Rules, 1967. Respondent 3
might have been granted the deemed date of promotion
to the post of Office Superintendent with effect from 7-
10-2005. However, he was actually promoted as Office
Superintendent on 22-10-2007. Therefore, in fact, he
has rendered service as Office Superintendent only
from 22-10-2007. As per Appendix IX to the
Recruitment Rules, 1967, the eligibility for appointment
to the promotional post of Section Officer requires three
years’ continuous service. The language used in
Appendix IX is unambiguous, simple and plain.
Therefore, on a fair reading of Appendix IX of the
Recruitment Rules, 1967, to become eligible for the
promotional post of Section Officer, a person ought to
have rendered continuous service of not less than three
years. “Continuous service” might have been defined
under the Seniority Rules, 1982. However, the same
shall be for the purpose of seniority and the Seniority
Rules only. Therefore, if any employee is granted the
deemed date of promotion, his seniority shall be
considered accordingly from the deemed date of
promotion. However, that shall be only for the purpose
of inter se seniority only and the same shall not be
applicable while considering the eligibility criteria under
the Recruitment Rules. In the Recruitment Rules,
“continuous service” is not defined. Therefore, one has
to consider the ordinary dictionary meaning of
“continuous” which means “uninterrupted or unbroken”.
The High Court has added the word “actual” which as
such is not there in Appendix IX. While considering the
relevant provisions and as per the rule of interpretation,
when the language used is unambiguous, plain and
simple, the provision is required to be read as it is and
nothing is to be added. Therefore, when in Appendix IX,
the eligibility criteria is that no person shall be eligible
for promotion unless he has completed service for a
continuous service of not less than three years means
he has to render/complete service for a continuous
period of uninterrupted/unbroken three years’ service.
Therefore, when Respondent 3 has not completed three
years of service for a continuous period of not less than
three years in the feeder Cadre in District Service (Class
III) (Ministerial) Grade II, he was not eligible for
promotion to the post of Section Officer. The High Court
21
has committed a grave error in holding otherwise.
Therefore, the Additional Divisional Commissioner,
Aurangabad rightly allowed the appeal and rightly set
aside the order of promotion of Respondent 3 dated 1-
2-2008 to the post of Section Officer.”
15. The facts of this case juxtapose with the findings of the
Hon’ble Apex Court judgment enumerated supra, it is clear that, ‘if
an employee is granted the deemed date of promotion, his seniority
shall be considered accordingly from the deemed date of promotion.
However that shall be only for the purpose of inter se seniority only
and the same shall not be applicable while considering the eligibility
criteria under the Recruitment Rules’. Further, it is clarified that the
continuous service means ‘uninterrupted or unbroken service’. In
the case on hand, admittedly, the complainant has given notional
benefits and promotions, albeit, he has served in multiple posts, he
has not completed actual service of eight years as stipulated under
Rule 5(2) of the Regulations. The Hon’ble Apex Court in the case of
Vidya Buhsan Mishara v. State of M.P. reported in 2023 SCC
OnLine MP 7037, held in Paragraphs No.30, 31, 32 as under:
“30. Thus, besides requirement of seniority to be
considered while preparing a list of suitable officers in
terms of Regulation (5), third proviso below it, provides
two more contingencies that on the date i.e. 1st
January of the year for which select list is prepared, the
concerned officer should be substantive in the State
Forest Service and, secondly, should have completed
not less than 8 years of continuous service.
22
31. In the present case, whole dispute is in regard to
interpretation of words “Continuous Service”.
32. As far as judgment on which reliance is placed by
learned counsel for the petitioners i.e. K.B.
Rajoria (supra) is concerned, requirement of the Central
Public Works Department (Director General of Works)
Recruitment Rules, 1986, was two years regular service
on feeder post for becoming eligible for promotion.
There the Supreme Court was dealing with the
interpretation of words “Regular Service” and not with
the interpretation of words “Continuous Service”.
Therefore, when the said judgment is examined on the
basis of context in which it was delivered, then it is
evident that words “Continuous Service” were not the
subject matter of the said petition in K.B.
Rajoria (supra) and, therefore, Supreme Court had no
occasion to deal with interpretation of words
“Continuous Service, which is the subject-matter of
present petition and which is the language used in the
third proviso below Regulation 5(2)“.
16. Further, the Hon’ble Apex Court by referring the
judgment in Girish kumar v. State of Maharashtra and Others
supra held in paragraph No.34 as under:
“34. In Girish Kumar (supra), Hon’ble Supreme Court
has held that ordinary dictionary meaning of
‘continuous’, means uninterrupted or unbroken service
of 8 years in the Cadre of Assistant Conservator of
Forest. In fact, that is not the case and as held by
Supreme Court and which is an established principle of
interpretation of statute, which provides that language
used in a regulation or a statute, if unambiguous,
simple and plain, then it is not required to cause any
violence to give any other interpretation than which can
be derived from reading of the statute, this Court is of
the opinion that meaning assigned to words ‘continuous
service,’ means uninterrupted or unbroken service and
when order dated 19-11-2022 is examined in this light,
then it cannot be said that there is violation of third
proviso to Regulation 5(2) of the Indian Forest Service
23(Appointment by Promotion) Regulation, 1966, which
provides that the committee shall not consider the case
of a member of the State Forest Service unless on the
1st day of January of the year for which the select list is
prepared, he is substantive in the State Forest Service
and has completed not less than 8 years of continuous
service. Therefore, when examined in totality neither
the communication dated 29-11-2022, nor the
Regulation can be said to have been violated by the
Union Public Service Commission while issuing the
communication calling for names of next two eligible
officer.”
17. Thus, it is settled that, the complainant is not entitled
for a promotion to IAS Cadre by virtue of notional promotion he
obtained though the order passed by this Court. The Hon’ble Apex
Court in the case of Sudhir Vasudeva v. M.George
Ravishekaran reported in 2014 3 SCC 373, has held that, the
Courts must not, therefore, travel beyond the four corners of the
order which is alleged to have been flouted or enter into questions
that have not been dealt with or decided in the judgment or the
order violation of which is alleged. Only such directions which are
explicit in a judgment or order or are plainly self-evident ought to
be taken into account for the purpose of consideration as to
whether there has been any disobedience or wilful violation of the
same. As such, neither the decided issues can be reopened nor can
the plea of equities be considered. The Courts must also ensure that
while considering a contempt plea the power available to the Court
in other corrective jurisdictions like review or appeal is not trenched
24
upon. No order or direction supplemental to what has been already
expressed should be issued by the Court while exercising
jurisdiction in the domain of the contempt law; such an exercise is
more appropriate in other jurisdictions vested in the Court, as
noticed above.
18. Against this backdrop, it could be construed that, as per
the directions issued by this Court, the respondent-State has
complied with the order by giving notional benefits and seniority to
the complainant. The present claim of the complainant for
consideration to IAS Cadre by the State does not arise as the same
is out of purview of this contempt petition.
19. The grievance of the complainant, if any, in the said
aspect, he is entitled to obtain such necessary order from the
appropriate forum to that effect. This being a contempt petition,
this Court cannot extend and egress the scope of contempt beyond
the direction/order passed by the learned Single Judge. On
meticulous examination of the order passed by the learned Single
Judge, the State Government has comprehensively complied with
the order by creating Supernumerary post to the complainant; also,
by giving notional promotion and benefits including seniority from
the earliest point available in the Recruitment Notification dated
15.12.1999. The other grievance of the complainant cannot be dealt
25
within this contempt petition owing to the limited scope as
stipulated under Sections 2(b), 11 and 12 of the Contempt of Courts
Act, 1971 along Article 215 of the Constitution of India. Further, as
rightly contended by the learned ASGI, the role of the Central
Government in the instant case is not established by the
complainant. Hence, respondent No.4-Central Government is not a
necessary party to this contempt. In view of the above discussion,
in our considered opinion, the contempt petition does not survive
for further consideration.
Accordingly, the contempt proceeding is dropped.
Notice is discharged against the respondents.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV