RAVINDER KUMAR & ORS. vs SHRI NITIN AGARWAL & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 968/2023
RAVINDER KUMAR & ORS. ….. Petitioners
Through: Mr. Vijay Kumar, Advocate.

versus

SHRI NITIN AGARWAL & ORS. ….. Respondents
Through: Ms. Aakanksha Kaul and Ms. Rhea Borkotoky, Advocates for UOI.

CORAM:
HON’BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
14.05.2024
MINI PUSHKARNA, J:

1. The present petition has been filed alleging willful disobedience of the judgment dated 20th March, 2023 passed by the Division Bench of this Court in W.P. (C) No. 3443/2023, whereby the respondents were directed to decide the representation dated 15th December, 2022 of the petitioners, within a period of eight weeks from the date of the said order. It was further directed that the decision be communicated to the petitioners in writing, within one week thereafter.
2. The present petition came to be filed on the ground that the respondents vide common order dated 25th June, 2023, have rejected the representations of the petitioners, without considering the judgments rendered by this Court as well as Hon’ble Supreme Court, as mentioned in the judgment dated 20th March, 2023.
3. Learned counsel appearing for the petitioner submitted that the petitioners were entitled to the benefit of the Assured Career Progression (“ACP”)/Modified Assured Career Progression (“MACP”) Scheme benefits from the date of their reporting to the Basic Recruit Training (“BRT”), considering that all petitioners have successfully completed their training. Thus, appropriate orders ought to be issued by the respondents within a time bound manner.
3.1 The order dated 25th June, 2023, by which the respondents have purportedly decided the representations of the petitioners, has not decided the representations of the petitioners as per the mandate of the judgment dated 20th March, 2023 passed by the Division Bench of this Court. While deciding the representations, the respondents have misconstrued the directions given by the said Court.
3.2 Learned counsel appearing for the petitioner has also handed over a copy of second Speaking Order dated 09th January, 2024 which was passed subsequently by the respondents, during the pendency of the present petition. The same is taken on record.
3.3 It is submitted that the subsequent Speaking Order dated 09th January, 2024 is also not in terms of the directions passed by Division Bench of this Court in judgment dated 20th March, 2023. The respondents have wrongly distinguished the various judgments to deny the benefits of ACP/MACP Scheme to the petitioners.
3.4 It is submitted that this Court, from time to time, has issued directions to the respondents to consider the period of training for grant of benefits of the ACP/MACP Scheme. In view of the various directions, the petitioners are also entitled for grant of the benefits of the ACP/MACP Scheme reckoning from the date when the petitioners reported for mandatory BRT.
3.5 It is submitted that by judgments dated 03rd May, 2021 in SLP (C) 581/2021 and 22nd September, 2022 in SLP (C) 6738/2021 passed by the Hon’ble Supreme Court, in the cases of Director General, Border Security Force & Others Versus Bablu Mallick and Another, the Hon’ble Supreme Court has already settled the issue of grant of benefit of ACP/MACP Scheme with effect from the date of reporting for BRT. Thus, now it is not open to the respondents to re-open such an issue of BRTs afresh, which has attained finality.
3.6 The Speaking Orders dated 25th June 2023 and 09th January, 2024 have been passed in clear violation of the various judgments rendered by this Court and affirmed by the Hon’ble Supreme Court on the issue of grant of benefits of ACP/MACP Scheme with effect from the date of reporting for BRT. The respondents have not followed the view upheld by the Hon’ble Supreme Court at the time of passing the two Speaking Orders, as aforesaid. As such, the respondents have committed a clear violation and contempt of the orders passed by this Court.
4. Per contra, learned counsel appearing for the respondents has submitted that the representations of the petitioners were considered again after passing of the initial Speaking Order dated 25th June, 2023. Subsequently, a fresh Speaking Order dated 09th January, 2024 has been passed, which has considered each and every judgment that has been mentioned in the judgment dated 20th March, 2023, passed by the Division Bench in W.P.(C) No. 3443/2023.
4.1 Learned counsel appearing for the respondents further submitted that the order passed by this Court to decide the representations of the petitioners, has already been complied with. The petitioners have already challenged the Speaking Orders passed by the respondents. Thus, the challenge by the petitioners, to the said Speaking Orders on their merits, is beyond the ambit of this Court under contempt jurisdiction.
5. I have heard learned counsels for the parties and have perused the records.
6. At the outset, it is to be noted that by judgment dated 20th March, 2023 passed in W.P.(C) No. 3443/2023, the Division Bench of this Court disposed of the petition filed by the petitioners with directions to decide their representation within eight weeks, in the light of the various judgments, as noted therein. Relevant portion of the aforesaid judgment, reads as under:
“xxx xxx xxx
4. Accordingly, we hereby dispose of the present petition directing the respondents to decide the Representation dated 15.12.2022 within eight weeks from today, not only qua the petitioners herein, but also qua all the similarly situated persons.

5. It is made clear that the said Representation dated 15.12.2022 be decided in view of the judgements rendered by this Court, the Supreme Court and the Kerala High in the following cases:

(i) K. Bangaru Naidu & Ors. vs. Ministry of Home Affairs and Anr. W.P.(C) 5799/2015 decided on 07.12.2015,

(ii) Satish Kumar & Ors. vs. Ministry of Home Affairs & Anr. W.P.(C) 3461/2016 decided on 26.04.2026,

(iii) Bablu Mallick & Anr. vs. Directorate General, Border Security Force & Ors. W.P.(C) 7011/2015, decided on

(iv) Director General Border Security Force & Ors. vs. Bablu Mallick & Anr. SLP (C) Diary No. 581/2021 decided on 03.05.2021 by the Hon’ble Supreme Court.

(v) Shine S. & Ors. vs. Union of India & Ors. W.P.(C) 17277/2021 decided on 23.09.2021 by the Kerala High Court.

(vi) Director General Border Security Force & Ors. vs. Bablu Mallick & Anr. Review Petition in SLP (C) 6738/2021 decided on 22.09.2022 by the Hon’ble Supreme Court.

6. The decision, so taken, shall be communicated to the petitioners and other similarly situated persons in writing with a reasoned order within one week thereafter.

7. Accordingly, the present petition along with pending application is disposed of.

8. Needless to state that if the petitioners are still aggrieved by the decision of the respondents, they may challenge the same before the appropriate forum.”

7. Pursuant to the aforesaid judgment, the respondents passed a common reasoned order dated 25th June, 2023, wherein it was held that the period of service (training period), which is not counted for regular promotion/seniority, will not be counted for the purpose of grant of financial up-gradation. Only such service, which is reckoned for financial promotion, in accordance with the Recruitment Rules, is to be counted for the purposes of grant of ACP benefits. The Speaking Order dated 25th June, 2023, reads as under:
“xxx xxx xxx

12. Whereas, as per of Ministry of Personnel, Public Grievance and pensions (DoP&T) OM No. 35034/3/2008-Estt(D) Dated 19 May 2009, Para 9 of Annexure -I, ‘Regular Service’ for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning.

13. Whereas, petitioners of all the writ petitions referred here-in-above in para-1, are not eligible for granting financial up-gradation under ACP/MACP Scheme taking into account their regular service from the date of reporting for BRT or from the date of commencement of Trade Course/from the date of conversion in hierarchy of the post held as the Regular Service for the purpose of ACP Scheme shall he interpreted to mean the eligibility service for regular promotion in terms of relevant Recruitment/Service Rules. Petitioners’ regular service for the purpose of promotion etc is/was counted from the date of appointment as NK/HC(RO) and HC/ASI(RM), except for the purpose of pension.

14. Whereas, there are no changes in the policy guidelines of MACP Scheme and it still holds good. Moreover, judgments pronounced favoring the petitioners by the Hon’ble Courts in Rev Petitioin No. 222/2019 in WP(C) No. 7011/2015 titled Bablu Mallick & Ors Vs MHA & Anr. and in WP(C) No. 17277/2021 titled Shine S & Ors Vs MHA & Anr. have been implemented in personam and taken as an exception/aberration and such Orders were implemented on attaining finality and due to pending contempt cases. However, the same cannot be extended to other employees, being not permissible under the relevant policy/guidelines.

15. Whereas, the request of the petitioners for grant of financial up-gradation under ACP/MACP scheme from the date of reporting for BRT or from commencement of Trade Course of respective trade or from the date of qualifying conversion test has been considered in light of above facts and policy/instructions and found devoid of merits in view of reasons explained above accordingly the DG BSF has considered the representation of the petitioners in Writ Petitions mentioned at para 1 above in length and found no merit in their prayer for extending the benefits of ACP/MACP Scheme from the date of commencement of BRT/Trade Course and thus, rejected the representations, being devoid of merit.

16. This order is issued in respectful compliance of Hon’ble Court Orders as mentioned in para-1 above and in terms of existing provisions regarding benefits of ACP/MACP Scheme.

xxx xxx xxx”

8. Since the petitioners were aggrieved by the fact that the aforesaid Speaking Order was not in terms of the mandate of the Division Bench, and did not take into account all the judgments as mentioned therein, the respondents considered the case of the petitioners afresh. Thus, Speaking Order dated 09th January, 2024 was passed, wherein, the respondents considered all the judgments as enlisted in the judgment dated 20th March, 2023. After considering the said judgments, the same were distinguished by the respondents in their Speaking Order dated 09th January, 2024, and it was held that the case of the petitioners was not at par with the said judgments. Thus, fresh Speaking Order dated 09th January, 2024 was passed in the following terms:

“xxx xxx xxx

12. Whereas, in terms of Ministry of Personnel, Public Grievance and pensions (DoP&T) OM No. 35034/3/2008-Estt(D) Dated 19 May, 2009, Para 9 of Annexure-I, ‘Regular Service’ for the purposes of the MACPS shall commence from the date of joining of a post in direct entry grade on a regular basis either on direct recruitment basis or on absorption/re-employment basis. Service rendered on adhoc/contract basis before regular appointment on pre-appointment training shall not be taken into reckoning.

13. Whereas, petitioners are not eligible for granting financial up-gradation under ACP/MACP Scheme taking into account their regular service from the date of reporting for BRT as the Regular Service for the purpose of ACP Scheme shall be interpreted to mean the eligibility service for regular promotion in terms of relevant Recruitment/Service Rules. Petitioners’ regular service for the purpose of promotion etc is/was counted from the date of appointment as NK/HC, except for the purpose of pension.

14. In the light of above facts/policy/instructions, the Competent Authority has re-considered the representation of the petitioner dated 15.12.2022 (AnnexureP-15 of W.P.(C) No. 3443/2023) in length and found no merit in the prayers made in the said representation for extending the benefits of ACP/MACP Scheme from the date of commencement/reporting for BRT and thus, rejected the representation, being devoid of merit.

15. This order is being issued further to earlier reasoned order issued vide ICT Dte, HQ DG BSF order No. 15/07/2020/C-Estt/BSF/8867-74 dated 26.06.2023 and in respectful compliance of the Order dated 20.03.2023 passed in W.P. (C) No. 3443/2023 titled Ravinder Kumar & Ors. Versus UOI & Ors.

xxx xxx xxx”

9. Accordingly, the respondents considered the various judgments as mentioned by the Division Bench in its judgment dated 20th March, 2023, and came to a decision, that the representation of the petitioners for extending the benefits of ACP/MACP Scheme from the date of commencement/reporting for BRT, has no merit.
10. This Court notes that the aforesaid Speaking Orders passed by the respondents, have also been challenged by the petitioners by way of writ petition, being W.P.(C) No. 9557/2023, which is pending before the Division Bench of this Court.
11. Considering the aforesaid, it is manifest that the respondents have already complied with the judgment dated 20th March, 2023 passed by the Division Bench, by deciding the representation of the petitioners, after considering the various judgments, as enlisted in the said judgment. This Court will not go into the rightness or wrongness of the Speaking Orders passed by the respondents. Once the respondents have considered the representation of the petitioners in the light of the directions passed by the Division Bench, this Court will not proceed against the respondents for contempt of Court. The merits of the Speaking Order, passed by the respondents, cannot be adjudicated in contempt proceedings.
12. Thus, holding that rightness or wrongness of an order cannot be urged in contempt proceedings, the Hon’ble Supreme Court in the case of Midnapore Peoples’ Coop. Bank Ltd. and Others Versus Chunilal Nanda and Others1, has held as follows:
“xxx xxx xxx

11. The position emerging from these decisions, in regard to appeals against orders in contempt proceedings may be summarised thus:
I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt.
II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contemnor, is appealable under Section 19 of the CC Act. In special circumstances, they may be open to challenge under Article 136 of the Constitution.
III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties.
IV. Any direction issued or decision made by the High Court on the merits of a dispute between the parties, will not be in the exercise of “jurisdiction to punish for contempt” and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions.
V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an intra-court appeal (if the order was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases).
The first point is answered accordingly.

xxx xxx xxx”

(Emphasis Supplied)

13. Likewise, while dealing with contempt proceedings, a Court cannot transgress the jurisdiction of an Appellate Court and deal with the merits of the decision that has been passed in compliance of a Court order. Thus, in the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and Others Versus M. George Ravishekaran and Others2, the Hon’ble Supreme Court has held as follows:
“xxx xxx xxx
19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self-determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. 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. Decided issues cannot 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 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. The above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul v. Tarak Nath Ganguly [(2002) 5 SCC 352 : 2002 SCC (L&S) 703] , V.M. Manohar Prasad v. N. Ratnam Raju [(2004) 13 SCC 610 : 2006 SCC (L&S) 907] , Bihar Finance Service House Construction Coop. Society Ltd. v. Gautam Goswami [(2008) 5 SCC 339] and Union of India v. Subedar Devassy PV [(2006) 1 SCC 613].

xxx xxx xxx”
(Emphasis Supplied)

14. Accordingly, it is held that no contempt has been committed by the respondents. Having considered the representation of the petitioners and having passed Speaking Orders thereto, after considering the various judgments, in terms of the mandate of the learned Division Bench, it is manifest that the respondents have complied with the directions passed by this Court. This Court will not adjudicate on the correctness of the decision made by the respondents, as this Court in contempt jurisdiction is only concerned with the implementation of an order, which has been done in the present case. It would not be proper for this Court to adjudicate on the merits of the decision given by the respondents, in exercise of contempt jurisdiction.
15. Consequently, no merit is found in the present petition. The same is, accordingly, dismissed.

(MINI PUSHKARNA)
JUDGE
MAY 14, 2024
kr/c
1 (2006) 5 SCC 399
2 (2014) 3 SCC 373
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