Dharam Singh v. Union of India

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J.: Dharam Singh, the petitioner herein was appointed as Nursing Orderly at Dr. Ram Manohar Lohia Hospital with effect from 5th October, 1972. He was promoted on ad hoc basis as Operation Theatre Assistant with effect from 1st September,

1984. He continued to work as Operation Theatre Assistant on ad hoc basis till 2001.

2. As there was threat of reversion, the petitioner filed O.A. No. 591/2001 before Central Administrative Tribunal, Delhi (tribunal, for short) which was disposed of vide order dated 10th 2011:DHC:3336-DB August, 2001. The tribunal noticed that the petitioner’s promotion as Operation Theatre Assistant was on ad hoc basis against the promotion quota post, as at that time no one from the feeder cadre, i.e., Operation Theatre Orderly, was found eligible for promotion as Operation Theatre Assistant. The petitioner was a Nursing Orderly and not Operation Theatre Orderly and, therefore, not from the feeder cadre and thus was not eligible for promotion. As per the recruitment rules, 50% of the post of Operation Theatre Assistant were to be filled up by direct recruitment and 50% by promotion from the feeder cadre subject to fulfillment of other eligibility requirements. Accordingly, the tribunal observed that the petitioner was not eligible for promotion as Operation Theatre Assistant, as per the recruitment rules. However, noticing the fact that the petitioner had continued to work from 1984 till 2002, the following limited directions were issued:

3. The petitioner is not aggrieved by the said order. The grievance of the petitioner is that the respondents have not implemented the said order and that the tribunal has erred in dismissing the contempt petition by the impugned order dated 8th March, 2002. The petitioner had laid emphasis on the word “shall” in paragraph 7 of the order dated 10th August, 2001. It was urged before us that the tribunal had issued a mandamus that relaxation must be granted to the petitioner and there is, therefore, a contradiction between the order dated 10th August, 2001 and the order dated 8th March, 2002. The relevant portion of the impugned order dated 8th March, 2002 reads:-

4. We have examined the order dated 10th August, 2001 and do not perceive and accept the contention of the petitioner that mandamus was granted to the respondents to grant relaxation. Use of the word “shall” in one of the sentences in paragraph 7 does give rise to some doubt but the said paragraph has to be read in entirety to understand the purport and the directions issued by the tribunal in the said order. The tribunal has used the word “consider” with the expression “in accordance with the rules, instructions and judicial pronouncements” and thereafter had asked the respondents to consider the case of the petitioner sympathetically. Thus, words and expressions if read in entirety elucidate and exposit that the tribunal had not issued a mandatory direction that relaxation must be granted. The direction given was that the case of the petitioner should be considered for relaxation as per the rules and in accordance with law, in a sympathetic manner. What had weighed with the tribunal was a long period of 17-18 years during which the petitioner had continued to work at the post of Operation Theatre Assistant on ad hoc basis. In these circumstances, we do not find any error in the order dated 8th March, 2002 passed by the tribunal dismissing the contempt application that there was no mandatory direction issued by the tribunal that relaxation must be granted. Discretion was given in the order dated 10th August, 2001 to the concerned authorities to decide the question of relaxation in accordance with law but the tribunal felt that the petitioner was entitled to a sympathetic consideration.

5. Accordingly, we do not find any error in order dated 8th March, 2002 passed by the tribunal dismissing the contempt application. The tribunal has rightly interpreted the earlier order dated 10th August, 2001.

6. The petitioner has submitted that the respondents had filed a writ petition in this Court impugning order dated 10th August, 2001 but the writ petition was dismissed. We have examined the said contention but do not find any merit in the same. The respondents had filed Writ Petition (Civil) NO. 1487/2002 impugning order dated 10th August, 2001. However, in the meanwhile, the tribunal in the contempt petition and other miscellaneous applications on 6th February 2002 had recorded the following preliminary findings:

7. In the Writ Petition (C) No. 1487/2002, though only the order dated 10th August, 2001 was challenged, but the Court noticed the subsequent order dated 6th February, 2002 and disposed of the writ petition on 4th March, 2002, inter alia, recording as under:- “CWP No. 1487/2002 Having regard to the fact that where only a notice has been issued in the contempt matter, we are of the opinion that at this stage this court cannot exercise its jurisdiction under Article 226 of the Constitution of India. Although it appears that the purported conclusion has been arrived at to the effect that the petitioners herein have committed a contempt, we are of the opinion that it is tentative in nature and it would be open to the petitioners herein to contend that direction in the judgment stands complied with and there is no contempt on their part. Dismissed.”