IN THE HIGH COURT OF KERALA AT ERNAKULAM
Con.Case(C).No. 103 of 2009(S)
1. K.P. RAJAGOPALAN NAIR, AGED 56 YEARS,
... Petitioner
Vs
1. K.J. MATHEW, AGED ABOUT 59, S/O.JOSEPH,
... Respondent
For Petitioner :SRI.ISSAC GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :12/02/2009
O R D E R
T.R. Ramachandran Nair, J.
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C.O.(C) No.103 of 2009-S
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Dated this the 12th day of February, 2009.
JUDGMENT
This Contempt of Court Case is filed alleging that there is willful
disobedience of the directions contained in Annexure A2 judgment.
2. While the petitioner was working as Superintendent in District
Jail, Trivandrum, he sought promotion to the post of Central Prison
Superintendent. He approached this court by filing Writ Petition
No.2718/2007 for a direction to the respondents to pass appropriate orders
in the light of Ext.P6 communication produced therein sent by the Director
General of Police (Prisons) to the Addl. Chief Secretary to Government.
This court directed the second respondent to consider Ext.P7 taking into
consideration Ext.P6 as well and pass appropriate orders in accordance
with law, within two weeks from the date of receipt of a copy of that
judgment. This judgment is dated 24.1.2007. Annexure A3 is the order
passed in compliance with the same, which is dated 13.3.2007. The
representation was rejected by stating that since the provisional promotion
to a sensitive post like Superintendent, Central Prison is not advisable
without the recommendation of the DPC, his request for provisional
COC 103/2009 2
promotion as Superintendent, Central Prison is declined.
3. According to the petitioner, while rejecting the representation,
Ext.P6 produced in the writ petition was not considered. Thus, there is non-
compliance of the directions in the judgment amounting to contempt of
court. In Annexure A3, one E. Sudheer, Joint Secretary has signed the
order which according to the petitioner, is disrespect towards this court.
Annexure A3 defeats his fundamental right and he was also holding a
sensitive post. A clearance by the DPC is not necessary for those who are
retiring within six months. Again, he submitted Annexure A4
representation.
4. The petitioner is relying upon Annexures A5, A5(1), A6, etc.
which are orders issued by the concerned departments granting provisional
promotions to different personnel to show that even in sensitive posts the
Government have been granting provisional promotion and therefore the
reasons stated in Annexure A3 cannot be supported. Annexure A8 is an
order whereby one Shri N. Sasidharan, Superintendent, Open Prison,
Nettukaltheri, was granted retrospective promotion after retirement which
is also pointed out as an instance of wilful disobedience of this court.
According to the petitioner, he was entitled for such a promotion. Annexure
A10 is the last representation submitted by the petitioner informing the
COC 103/2009 3
respondents about the non-compliance of the judgment.
5. Heard learned counsel for the petitioner.
6. The question is whether there is any wilful disobedience of the
judgment passed by this court as per Annexure A2. It is true that the second
respondent was directed to consider Ext.P7 therein after taking into
consideration Ext.P6 as well. Ext.P6 was a report sent by the Director
General of Police (Prisons) to the Addl. Chief Secretary to the Government.
There is nothing to show that the Government was restrained from taking an
independent decision. The decision reflected in Annexure A3 is a conscious
one and it cannot be said that the grant of provisional promotion will be an
automatic consequence of the directions contained in Annexure A2. In any
view of the matter, the representation has been disposed of. The orders
produced by the petitioner will not show that there is any wilful
disobedience by not granting him promotion. The circumstances under
which those orders have been passed cannot advance the case of the
petitioner in support of the plea that the respondents have committed
contempt of this court. The remedy of the petitioner was to challenge
Annexure A3 at the appropriate time, if he is aggrieved by the denial of
such promotion.
7. Further, going by Section 20 of the Contempt of Courts Act, the
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present CCC is filed beyond the period of one year. Annexure A2 judgment
is dated 24.1.2007, Annexure A3 order is dated 13.2.2007 and this CCC is
filed only on 22.1.2009.
8. It is well settled that it is upto this court to consider whether any
action is required to be taken on a plea raised by a party alleging contempt
on the part of the respondent. Applying that test, I am not satisfied that this
is a fit case to initiate action under the Contempt of Courts Act against the
respondent.
I am not entertaining this CCC. It is accordingly dismissed
(T.R. Ramachandran Nair, Judge.)
kav/