JUDGMENT
Ravi R. Tripathi, J.
1. The petitioner is before this Court basically for implementation of the directions given by this Court in Special Civil Application No.3174 of 1979 as it is prayed by the petitioner that,
“17(a) Your Lordships will be pleased to issue a writ of or a writ in the nature of mandamus and/or any other appropriate writ, orderor direction directing the respondents to forthwith carry out and implement the directions given by this Hon’bleCourtin Special Civil Application No.3174 of 1979 on September 29, 1981 and to grantbenefitsof promotions with deemed date and other consequential promotionswith the monetary benefitsflowing therefrom from such deemed date;”
2. There cannot be a better misconceived case of approaching this Court, after having failed before this Court in Special Civil Application No.333 of 1987, in which case, according to the learned Advocate appearing for the petitioner herein, all the contentions, which are raised in this petition, were raised.So far as the relief/s sought for are concerned, all what is prayed herein was prayed in that earlier petition along with an additional prayer for sanctioning salary for more than 12 months and sanctioning of leave report, which was alleged to have been submitted on the ground of sickness. In this Special Civil Application No.333 of 1987, following order/s were passed, copies of which are produced at Annexure-D to this petition. The first order is dated 30th April, 1987, which reads as under:
“Rule – By interim order the respondent authorities are directed to decide the question of sick leave and salary of the Petitioner within 4 weeks from to-day and make payment accordingly within one week thereafter.”
The second order is dated 5th August, 1988, which reads as under:
“Mr.M.B.Buch for Mr.K.R.Vyas states that he wants to make a departmental representation as he hopes of sympathetic and expeditious considerations and therefore wishes to withdraw this petition at this stage with liberty to file a fresh petition on the same cause of action if necessary, hence granted. Hence, dismissed as withdrawn.
Rule discharged.”
3. Miscellaneous Civil Application No.575 of 1991 was filed before this Court under Section-11 of the Contempt of Courts , 1971. The same was disposed of with the following observations, which are set out in paragraph-7 of this petition, which read as under:
“….. this Hon’ble High Court was of the view that for the redressal of the petitioner’s reliefs can best be dealt with by filing a petition under Art.226 and therefore the same was withdrawn on 22.4.1991.”
4. Even earlier, this petitioner had approached this Court in the year 1979 by way of Special Civil Application No.3174 of 1979, which was heard and finally disposed of by Judgement and Order dated 29th September, 1981, a copy of which is produced at Annexure-A to this petition.
4.1 The case of the petitioner in that petition is set out in the initial paragraph of the judgement, which reads as under:
“The main grievance of the petitioner in this petition is that he was not considered for promotion to the post of Head Constable Grade-II, when he became eligible for promotion to that post and his juniors were promoted to that post, although there were no adverse remarks passed against him. Petitioner has, therefore, prayed that the respondents be directed to promote him to the post of Head Constable Grade II from the date on which police constables junior to him were promoted.”
As is seen from the judgement, the case of the petitioner before this Court was that the petitioner was recruited as an Unarmed Police Constable in the Police Force in the year 1954. Thereafter, the petitioner was asked to hold charge of the outpost at Village-Sudasana from 23rd November, 1976 to 6th March, 1977.The petitioner contended that it was only the `Head Constable’, who was supposed to hold charge of the police outpost and as he was asked to hold charge of an outpost, he ought to have been promoted to the post of `Head Constable’, but then, he was paid only extra allowance for holding the charge of the outpost. A grievance was made that till 14th November, 1979 i.e. filing of the petition, the petitioner was not granted regular promotion.
4.2 This claim of the petitioner was contested by the respondent by filing an affidavit-in-reply, contending that as the petitioner was not found fit to be promoted, he was not promoted; that there were adverse remarks against the petitioner, which were communicated to him orally as per the prevailing practice; that a committee consisting of the Superintendent of Police and two Sub-Divisional Police Officers, was formed for review of cases of all superseded constables and other constables, who were due for promotion. The Committee did not find the petitioner fit for promotion and hence, the petitioner was not promoted.
4.3 The aforesaid petition (Special Civil Application No.3174 of 1979) was admitted by this Court and the respondent was directed to file an affidavit showing the comparative rating of those who had been promoted on last two occasions, on the basis of their sheet remarks. The District Superintendent of Police, Mehsana filed further affidavit dated 21st January, 1980 and produced the relevant material. The learned Judge has observed that
“it appears from the statement filed with the second affidavit of the District Superintendent of Police that the Police Constables, junior to the petitioner, have been promoted to the post of Head Constable Grade-II in 1978 and 1979.”
The learned Judge has also observed in his judgement that:
“It may be mentioned here that during the pendency of the petition, the petitioner has in fact been promoted to the post of head constable grade-II in 1981.”
The learned Judge, after considering the relevant material, has passed the following order:
“It is, however, difficult to give any relief to the petitioner in the absence of relevant material and facts on record. In my opinion the proper cause (sic, “course”) to adopt is to ask the petitioner to make representation to the authorities concerned and direct the authorities concerned to consider the question of the petitioner’s promotion to the post of head constable grade II a afresh. The authority concerned which is in possession of all the relevant facts, would be in a better position to deal with this question.
I, therefore, direct that the petitioner shall submit his representation on the question of promotion to the post of head constable grade II to the authorities concerned within four weeks from to-day. The authorities concerned shall consider his representation on merits and record their decision on the question of the petitioner’s promotion to the post of head constable grade II within four weeks from the receipt of the representation of the petitioner.
The authorities concerned while considering the question of petitioner’s promotion shall bear in mind comparative merits of the petitioner vis-a-vis his junior or juniors who have been promoted and also the principles on which the promotion is given.The authorities concerned shall decide from which date the petitioner has become eligible for promotion and shall give him deemed date of promotion, while rendering its decision, the authority concerned shall pass a speaking order.”
5. The learned Advocate for the petitioner submitted that after the judgement of this Court, a representation was made on 23rd October, 1981, a copy of which is produced at Annexure-B to this petition. It is the say of the petitioner that the said representation was replied by communication dated 21st November, 1981, a copy of which is produced at Annexure-C, intimating the petitioner that `necessary action will be taken with regard to the application of the petitioner, after the by-elections are over’ .
6. After the aforesaid communication dated 21st November, 1981, the petitioner went in a slumber for long six years. `What is done by the petitioner to get implemented the time bound direction issued by this Court’ is not on record. Only on this `ground’, the petition deserves to be dismissed. To complain to this Court by filing a petition in the year 1991 that, `a direction issued by this Court on 29th September, 1981 is not complied with by the authorities and, therefore, they should be held guilty of contempt of court and by so holding the affidavit-in-reply, filed in this petition, be taken into consideration until the respondents purge the contempt, is too high a claim made by the petitioner. After receipt of communication dated 21st November, 1981, the only documents produced on record are orders passed by this Court in Special Civil Application No.333 of 1987 on 30th April, 1987 and 5th August, 1988.
7. The learned Advocate for the petitioner submitted that the petitioner had filed Special Civil Application No.333 of 1987 complaining `non-compliance’ of the directions issued by this Court in Special Civil Application No.3174 of 1979.In support of these submissions, the learned Advocate for the petitioner produced a copy of the petition memo of Special Civil Application No.333 of 1987 and invited the attention of the Court to the prayer clause-(A) of paragraph-25.On perusal, it is noticed that it is verbatim the same to the prayer made in this petition in clause-(a) of paragraph-17. It is true that in addition to the aforesaid prayer, the petitioner had also prayed in that petition (Special Civil Application No.333 of 1987) for release of salary of the petitioner on the basis of sick leave and other leave to his credit, as per the applications for leave with medical certificates. The Court, after taking into consideration the submission made by the learned Advocate for the petitioner, at the relevant time, has passed the order, which is referred to hereinabove.
8. The learned Advocate for the petitioner, though strenuously contended that the said petition was filed for complaining `non-compliance’ of the direction issued in Special Civil Application No.3174 of 1979 vide judgement and order 29th September, 1981, the order does not deal with the same. The order refers to the only question of sick leave and salary of the petitioner. The question still survives as to whether even at that stage i.e. after lapse of almost six years, such a complaint deserved to be entertained by this Court.
9. The learned Advocate for the petitioner submitted that the petitioner had filed an application under Contempt of Courts Act, 1971, being Miscellaneous Civil Application No.575 of 1991. He made available a copy of the memo of Miscellaneous Civil Application No.575 of 1991. In that application also, the applicant, original petitioner (petitioner herein) has not mentioned anything as to what did he do after having received communication dated 21st November, 1981 till the filing of that Miscellaneous Civil Application in the year 1991.
As mentioned in paragraph-7 of this petition, the same was withdrawn because according to the learned Advocate for the petitioner, the Court was of the view that `for redressal of the petitioner’s grievance can best be dealt with by filing a petition under Article-226 of the Constitution of India’. In an application under the Contempt of Courts Act, alleging non-compliance of the direction issued by order dated 29th September, 1981, no better order could have been passed by this Court.
10. What follows is again interesting. A copy of representation dated 6th August, 1990 is placed at Annexure-E to the petition, wherein it is stated that:
“I belong to Harijan Community; I am deprived promotion according to my seniority and according to the orders of the Government to give promotion to the backward community; and, in light of the fact that so many junior persons were given promotions, with the earlier dates, I had approached the Honourable Gujarat High Court by filing Special Civil Application No.317 of 1979 (sic, “3174 of 1979”) and the High Court of Gujarat, by order dated 9th September, 1981 (sic, “29th September, 1981) has ordered to give me promotion with deemed date. Accordingly, I have made the aforesaid application to you.”
There cannot be a better case of misrepresenting the facts before the authority. Besides the fact that the petitioner is late in making representation, he is asking the authorities to give promotion, contending that there is an order of the High Court to give promotion with deem date.
11. The learned Advocate for the petitioner relied upon the following judgements in the matter of:
(i) Kum. Sudhaben Vishnuprasad Shukla vs. Regional Passport Officer, Ahmedabad & Anr.[1983(2) G.L.R. 1297];
(ii) R.K.Sabharwal & Ors. vs. State of Punjab & Ors. [1995 (2) S.C.C. 745];
(iii) Tshering Tendul La vs.Union of India & Anr. [1984 G.L.H. (N.O.C.) 22]; and,
(iv) Khudiram Gope vs.State of W.B.& Ors. [2002(3) S.L.R. 523].
The learned Advocate could not make out any relevance of these cases to the facts of the case on hand. Despite an honest attempt, this Court could not find out as to how any of these judgements are applicable to the case on hand.
12. An affidavit-in-reply is filed by the District Superintendent of Police affirmed on 6th December, 1991 wherein in paragraph-4 it is specifically mentioned that:
“In pursuance of the directions given by this Hon’ble Court in Special Civil Application No:3174 of 1979, Respondent No.2 had considered Petitioner’s case for giving deemed date for appointment in the cadre of Un-armed Head Constable Grade-II.It is submitted that while re-considering the petitioner’s case, Respondent no.2 had perused selection Registers and Select lists prepared in the years 1977, 1978, 1979 and 1981.It is submitted that case of the petitioner was compared with persons who were given promotions during the above referred years. It is submitted that persons who were found suitable for promotion during the above referred years were better than the petitioner and Respondent no.2 had come to a conclusion that the petitioner was rightly not given promotion at the relevant time as the petitioner did not deserve promotion at the relevant time. It is submitted that ultimately the petitioner was promoted to the post in question by an order dated 6th May 1981. Respondent No.2 was satisfied with the fact that the petitioner was rightly promoted on 6th May, 1981 to the post of un-Armed Head Constable Grade-II. It is therefore, not true that the case of the petitioner was not re-considered, in pursuance of his representation and directions given by the Hon’ble Court. It is submitted that for the purpose of comparing case of the petitioner with other persons, old record had to be scanned and therefore some time was required for the purpose of taking final decision in pursuance of the order passed by this Hon’ble Court in Special Civil Application No:3174 of 1979.”
13. The petitioner has filedan affidavit-in-rejoinder to the aforesaid affidavit-in-reply and in paragraph-2, he has denied all statements, submissions, averments and allegations made in the affidavit-in-reply.
The petitioner has stated in paragraph-4 that: In reply to para-4 of the affidavit in reply I say that this Hon’ble High Court has directed that irrespective of 1977, 1978, 1979 and 1981 promotion committee recommendations the petitioner was entitled to promotion from not earlier date and the same in total disregard of the Hon’ble High Court’s reasoned order, the respondents have neglected to consider or give the petitioner the dim (sic, “deemed”) date of promotion from much earlier date. The petitioner says that as far as he is recollection of his initial appointment with comparison of his juniors, during the year 1965 to 1969 my juniors without having proved merit and efficiency were promoted and the same do not appear to have been considered at any place of time as has been represented by affidavit in reply filed by the respondent.”
From the aforesaid averments, it is clear that the affidavit-in-rejoinder is filed in a most casual manner, misrepresenting again that the High Court has directed that irrespective of 1977, 1978, 1979 and 1981 Promotion Committee recommendations, the petitioner was entitled to promotion. The petitioner has also shown his casual approach to the matter by saying, “as far as his recollection of his initial appointment”. The matter of appointment is a matter of fact and there cannot be any recollection about the same, especially when the matter is before the Court. The petitioner cannot make submissions on the basis of his recollections.
14. At the request of the learned Advocate for the petitioner, the Court had called for the papers of Special Civil Application No.3174 of 1979. The same were perused, as suggested by the learned Advocate for the petitioner.
14.1 In the said petition, it is stated that, “the petitioner has become due for promotion in the IInd Grade Head Constable since 1969, but, however, the respondents did not prepare any seniority list of unarmed constables and were giving promotion at random and at their sweet will to their liking constables”. It is also stated that,”the petitioner has also made several representations to the superior officers right from 1969 to 1979.But during the period of 10 years, nobody has heard his voice and neglected him like an unwanted person in the department”.
14.2 What is prayed for in that petition in paragraph-8(a) is that, “the respondent no.1 be directed to give promotion to the petitioner from the date on which his junior most constables were promoted as per Annexure A by issuing a writ of mandamus or any other appropriate writ order or direction”.
14.3 In the memo of the petition (Special Civil Application No.3174 of 1979), it is not stated as to on which date, which junior was promoted and from which date, the petitioner should be given promotion to the post of Head Constable Grade-II.That being so, the Court directed the authorities that “the authorities concerned while considering the question of petitioner’s promotion shall bear in mind comparative merits of the petitioner vis-a-vis his junior or juniors who have been promoted and also the principle on which the promotion is given. The authorities concerned shall decide from which date, the petitioner has become eligible for promotion and shall give him deemed date of promotion.”
15. In view of the aforesaid discussion, this Court finds that the petition is thoroughly misconceived and deserves to be dismissed with costs. The petition is dismissed with costs, which is quantified at Rs.5,500=00, which shall be paid directly to the department. Rule is discharged.