Judgment:
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER
An order was passed in the above OA, on 29th June, 2007, read with order dated 01-11-2007, the operative portion of which is as under:
"In view of the above, OA is allowed to the extent that the respondents are directed to confer the benefits of letter dated 13-08-2003 (Annexure A-9) which was passed in pursuance of the decision of the Madras Bench in OA 27/1999 (Annexure A-7) to the applicant. It is clarified that if on conferring the benefit of letter dated 13-8-2003 (Annexure A-9) the applicant becomes eligible for further promotion/antedating of promotion as a consequential benefit, the same too shall be available to him. However, this shall be made subject to the final outcome of SLP supra and an undertaking to the effect that in case the judgment is set aside by the Apex Court the applicant shall refund the entire amount received by him, should be obtained."
2. As there was no compliance in full of the above order, the applicant has filed Contempt Petition No. 12/2008 and the respondents had filed a compliance report on 26th May 2008. In the said affidavit it was averred that the applicant, in pursuance of the order of this Tribunal has been paid a sum of Rs 33,324/-being arrears with effect from 01st Jan., 1996 to 30th Nov., 2005. The applicant filed reply to the affidavit of compliance stating that action taken by the respondents in compliance of the order of this Tribunal is far from full compliance and has narrated in detail as to how his entitlement is much more than what has been paid to them and further that his further promotion had not been considered and granted.
3. Respondents have filed their Additional Affidavit stating that identical matter in the Supreme Court is still pending. They had also submitted that the respondents give the highest regard to the orders passed by the Tribunal. However, promotion to the post of Office Superintendent etc., is granted purely on vacancies, seniority list and performance of each individual. In the case of the applicant, if the promotion is given at this stage while the SLP filed by the department is still under consideration before the Hon'ble Supreme Court of India, the seniors to the applicant would rush to various Courts and Tribunals for redressal of their grievances due to the injustice of juniors being promoted ahead of them. Thus, the respondents submit that further promotion to the applicant in compliance of the orders of this Hon'ble Tribunal shall be given after the judgment is pronounced by the Apex Court. Accordingly the pay of the applicant as Office Superintendent etc., shall also be fixed on finalization of the promotion. The respondents thus committed that the order of the Tribunal would be implemented in letter and spirit based on the judgment of the Hon'ble Supreme Court of India.
4. Further documents/affidavits have also been filed subsequently, in connection with calculations of arrears etc.,
5. After the pleadings were complete, hearing took place. Counsel for the applicant argued that there is a calculated move not to comply with the order in full. Otherwise, it would not have taken this much time for implementation of the order of the Tribunal in its entirety. The order fully clarifies that the applicant is entitled to consequential benefits arising out of conferring the benefit of letter dated 13-08-2003 (Annexure A-3 to the OA) to the applicant for further promotion or antedating of promotion as the case may be. Hence, it is imperative on the part of the respondents to draw due seniority in the grade of UDC with the date of promotion of the applicant as 01-01-1996 and the consequential benefit thereof for consideration for higher post of Office Superintendent and Administrative Officer should have been considered and granted to the applicant. There is no point in contending that the drill involves revision of seniority of a good number of individuals and it is a time consuming process. In fact the applicant is the senior most amongst the UDCs and as such, notwithstanding the revision of seniority, his case could easily be considered as the same is not going to unduly affect any other's promotion prospects. That the SLP is pending before the Hon'ble Apex Court cannot be the ground for non implementation in toto of the order of this tribunal.
6. On the other hand, senior counsel for the respondents submitted that the case of the applicant cannot be considered in isolation and in compliance with the order of the Tribunal as upheld by the High Court, the applicant's position as UDC has been advanced to 01-01-1996 and arrears arising out of the same paid, vide details of calculations filed in June 2008. Final fixation would be done only on the outcome of the pending special leave petition before the Apex Court. Further promotion and consequential benefits would also be considered only on the outcome of the SLP.
7. Arguments were heard and documents perused. Perusal of the documents reflects that part of the order has been complied with and what is left is consideration of the case of the applicant for further promotion, for which, the senior Central Government Standing Counsel states that the SLP is pending before the Apex Court.
8. In Modern Food Industries (India) Ltd. v. Sachidanand Dass, 1995 Supp (4) SCC 465, the Apex Court has held as under:
"Wherever the order whose disobedience is complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay stand-by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice. This is the view taken in State of J and K v. Mohd. Yaqoob Khan (1992) 4 SCC 167. "
9. The above is the situation when the stay petition and the contempt petition are in the same forum. However, in the instant case, the stay application is pending before the Apex Court. Nevertheless, it is appropriate if time is granted to the respondents till the stay application is considered by the Apex Court and depending upon the result of the same, further action should be taken.
10. In view of the above, the contempt petition is closed, with liberty to the applicant to revive the same by a Misc. Application if need arises.
11. No costs.