Jitendra Gupta vs C. Chandramouli Ias

CIVIL APPEAL NO(S).3298 of 2020 (Arising out of SLP(C)No.2978 of 2020)

DR. JITENDRA GUPTA PETITIONER(S)

VERSUS

DR. C. CHANDRAMOULI, IAS RESPONDENT(S) (SECRETARY, DoP&T, GOVERNMENT OF INDIA)

With

Contempt of Court Petitoin©No.416 of 2020 (Dr. Jintendra Gupta vs. Dr. C. Chandramouli)

O R D E R

ASHOK BHUSHAN, J.

Leave granted.

2. The appeal and contempt petition have been filed by

the same person, Dr. Jitendra Gupta. The appeal has Signature Not Verified

been filed against the judgment of the Delhi High Court Digitally signed by MEENAKSHI KOHLI Date: 2020.09.25 17:05:27 IST Reason:

dated 24.12.2019 rejected the Contempt Case(C) No.1140

1 of 2019 filed by the appellant where contempt

proceedings were requested to be initiated for

violation of judgment of Division Bench dated

02.07.2019 of the High Court passed in W.P.(C)No.5648

of 2018. The contempt petition has been filed in this

Court for initiating contempt proceedings against the

respondent for disobedience of the order dated

03.02.2020 passed by this Court in SLP(C)No.2978 of

2020 out of which C.A.No.3298 of 2020 has arisen.

3. Back ground facts giving rise to these proceedings

need to be briefly noted.

Dr. Jitendra Gupta, the appellant, is an IAS

Officer, Bihar Cadre of 2013 Batch. While posted as

Sub-Divisional Officer in District, Kaimur, State of

Bihar, a First Information Report was lodged against

the appellant. Disciplinary proceedings were also

initiated by the State of Bihar against the Officer.

The appellant alleging victimization and persecution by

the State of Bihar filed writ petition in the Patna

High Court. The High Court quashed the criminal

2 proceedings vide judgment dated 28.10.2016 which order

was also upheld by this Court on 06.02.2017. The

appellant applied for Cadre transfer from Bihar by his

representation dated 21.03.2017. A writ petition was

filed in this Court being Writ Petition(C)No.338 of

2017 which petition was disposed by this Court by order

dated 09.05.2017 directing the Central Government to

look into the grievance of the appellant and take

appropriate action within three months. After the order

by this Court dated 09.05.2017, the Central Government

considered the case of the appellant and sought consent

from the Government of Haryana by letter dated

19.07.2017. The State of Haryana communicated its

consent for Cadre transfer of the appellant. The

Central Government vide Order dated 06.12.2017 declined

to approve the appellant’s Cadre transfer from Bihar to

Haryana. Challenging the order dated 06.12.2017, the

appellant filed O.A.No.292 of 2018 in the Central

Administrative Tribunal which application was allowed

by the Central Administrative Tribunal vide its

3 judgment dated 22.03.2018. The Tribunal set aside the

order dated 06.12.2017 and directed the Union of India

through its Secretary, Department of Personnel &

Training to consider the case of the appellant for

inter-State Cadre transfer for State of Haryana under

Rule 5(2) of IAS (Cadre) Rules, 1954 or for Central

Government deputation under Rule 6 of the said Rules.

The State of Bihar was directed not to withhold its

consent for the inter-State deputation/Central

deputation.

4. The State of Bihar aggrieved by the aforesaid order

dated 22.03.2018 filed the writ petition in the Delhi

High Court being Writ Petition (C)No.5648 of 2018.

Before the High Court counsel for the Union of India

made a statement that Union of India does not propose

to challenge the judgment of the Tribunal. The writ

petition came to be dismissed by the Division Bench of

the Delhi High Court vide its judgment dated

02.07.2019. While dismissing the writ petition

4 following directions were issued by the High Court in

paragraph 48:

“48. We thus find that there is no merit in the present petition and the same is dismissed with the following directions:

(i) The consent communicated by the State of Bihar to the Central Government vide letter dated 5.3.2019 for Central Deputation be treated as a consent for transfer. The Central Government is directed to initiate the process of transfer of the petitioner forthwith and issue an order transferring respondent no.1 to a cadre outside the Bihar cadre.

Needless to state that the willingness/consent of respondent No.1 would also be sought for the transfer as per law. The entire process should be completed within a period of four weeks from today.

(ii) The State of Bihar is directed to pay a sum of Rs.5,00,000/- (Rupees five Lacs) towards compensation/damages in favour of respondent No.1 within a period of four weeks from today, and to pay all other outstanding dues, which may not have been paid to him.”

5. After the order of the High Court dated 02.07.2019,

the letter dated 13.12.2019 was issued by the

5 Government of India to the appellant. In paragraph 2 of

the letter following was communicated:

“2. In compliance of the judgment of the Hon’ble High Court of Delhi dated 02.07.2019, you are requested to convey your willingness/consent for inter cadre transfer to Nagaland, Andhra Pradesh or Manipur cadre which are having the maximum shortage of IAS officer as on date so that the matter could be considered further in this Department.”

6. The appellant aggrieved by the letter dated

13.12.2019 filed Contempt Case(C) No.1140 of 2019 in

the Delhi High Court. The High Court was of the view

that no prima facie case of willful disobedience of the

direction given by the Division Bench of the High Court

is found, hence the contempt petition was rejected by

order dated 24.12.2019. Aggrieved by the said judgment

SLP(C)No.2978 of 2020 has been filed giving rise to

C.A.No.3298 of 2020.

Contempt of Court Petition(C)No.416 of 2020

7. SLP(C) No.2978 of 2020 came before this Court. This

Court passed following order on 03.02.2020:

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“Issue notice. Notice is accepted by Mr. Kanu Aggarwal, learned counsel.

It is assured by Mr. Tushar Mehta, learned Solicitor General appearing on behalf of the respondent, that the needful of posting the petitioner in Haryana Cadre will be done within three weeks from today. The statement is placed on record. In view of the above, the Special Leave Petition is disposed of.

Pending interlocutory application(s), if any, is/are disposed of.”

8. The Contempt Petition (C)No.416 of 2020 was filed

alleging disobedience of the judgment of this Court

dated 03.02.2020. The respondent has also filed IA

D.No.13383 of 2020 to recall the order dated 03.02.2020

passed in SLP(C) No.2978 of 2020. When the Contempt

Petition No.416 of 2020 as well as application for

recall of the order came before this Court on

25.06.2020 this Court observed:

“We have requested the learned counsel to find out an amicable solution in the meantime. List the matter before an appropriate Bench in the 3rd week of July, 2020.”

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9. Again the contempt petition and SLP were listed

before this Court on 11.08.2020 this Court passed the

following order:

“Considering the facts and circumstances of the case, without prejudice to the rights of the parties, let the Central Government as well as the officer concerned workout some States in which the petitioner can be posted and let the proposal be placed before this Court on the next date of hearing. Otherwise, we will decide the matter.

List on 21.08.2020.”

10. The application for recall the order was heard by

this Court on 07.09.2020 and on which date this Court

made the following order:

“……………………We are of the view that the sufficient ground has been made out to withdraw the statement made by the applicant.

We order accordingly and order dated 03.02.2020 is withdrawn to the following extent:

“…..that the needful of posting the petitioner in Haryana cadre will be done within three weeks from today. The statement is placed on record. In view of the above, the special leave petition is disposed of. Pending interlocutory application(s), if any, is/are disposed of.”

8 Counter affidavit be filed within a week.

List the special leave petition on 15.09.2020.”

11. After the above order dated 07.09.2020 both SLP as

well as contempt petition were heard.

12. We have heard Shri Sachin Datta, learned senior

counsel for the appellant/applicant and Shri Tushar

Mehta, learned Solicitor General for the respondent.

13. Shri Datta submits that the order of the Delhi High

Court dated 02.07.2019 has not been complied by the

respondent. He submits that the respondents were

required to issue order in regard to inter-cadre

transfer of the appellant as State of Haryana has given

consent for transfer. It was not open for the

respondent to ask for consent of the appellant with

regard to State of Nagaland, Manipur and Andhra Pradesh

for inter-cadre transfer of the appellant. He submits

that reasons cited in the letter are not relevant for

the issue. He submits that inter-cadre transfer in the

9 case of the appellant is on account of the extreme

hardship to the appellant. By considering the case of

extreme hardship a large number of officers, IAS

officer, Central Government has always accommodated at

their choice. He submits that letter dated 13.12.2019

was contemptuous and the Delhi High Court ought to have

initiated contempt petition which erred in rejecting

the same.

14. Shri Tushar Mehta, learned Solicitor General

appearing for the respondent submits that no contempt

was committed by the respondent. He submits that under

the order of the Delhi High Court dated 02.07.2019 it

was the Central Government who was to take decision

regarding inter-cadre transfer of the appellant as per

law. Shri Mehta referred to Rule 5(2) of IAS (Cadre)

Rules, 1954 as well as O.M. dated 08.11.2004. He has

relied on Clause 2(viii) of the O.M. dated 08.11.2004.

He submits that if a request on the ground of threat is

made the Central Government may initially send the

officer on a three years deputation of State of its

10 choice. He submits that the choice is of the Central

Government where the officer is to be sent from one

cadre to another cadre. He submits that no contempt was

committed by the respondent in issuing the letter dated

13.12.2019. He further submits that the appellant

cannot be sent to a State of his choice, it is the

prerogative of Central Government to take a decision in

which inter-cadre transfer is to be affected.

15. We have considered the submissions of the learned

counsel for the parties and perused the records.

16. The Central Administrative Tribunal in its judgment

dated 22.03.2018 after quashing the order dated

06.12.2017 has directed the Central Government to

consider the case of the appellant for inter-State

deputation to Haryana. The Delhi High Court in the

operative portion of the judgment in paragraph 48

directed the Central Government to initiate the process

of inter-cadre transfer of the appellant forthwith and

issue an order transferring the appellant to a cadre

outside the Bihar cadre. The High Court has also

11 directed the willingness/consent of the officer, i.e.,

the appellant would also be sought for the inter-cadre

transfer as per law. In paragraph 43 of the judgment,

the Delhi High Court has also observed:

“43. There is no doubt, that the decision on transfer of cadre falls in the domain of the Central Government, and it is the prerogative of the Central Government to examine the said issue. We have no intention, whatsoever, to interfere with the same. We would thus leave it to the Central Government to take a decision on the Cadre to which the respondent no.1 should be transferred. We may, however, add a caveat, that the State of Haryana is the home State of respondent No.1, and he had given a preference to be transferred to the said State. It is also undisputed that the State of Haryana has already conveyed its no-objection to such a transfer. Thus, while considering the case of Respondent No.1 for inter-cadre transfer, the aspect may also be considered by the Central Government. The Central Government must complete the process of inter-cadre transfer as soon as possible, but not later than four weeks from the date of this judgment and till then status qua on the respondent no.1 being placed at Delhi would continue. Needless to state that he would be paid his full salary including any arrears, if outstanding.”

17. Learned counsel for the appellant has submitted

that observation made in paragraph 43 of the Delhi High

Court judgment that State of Haryana is the home State

12 of the appellant was incorrect and the home State of

the appellant is U.P. which cannot be disputed.

18. In the facts of the present case, we are of the

view that present was not a case of any willful

disobedience of the direction of the High Court dated

02.07.2019 and the High Court rightly refused to

initiate contempt proceedings.

19. We, however, notice that this Court in the SLP

giving rise to this appeal as well as contempt petition

filed by the appellant in this Court passed two orders

on 26.06.2020 as well as on 11.08.2020 with the hope

that matter may be amicably settled, and the issue

between the appellant and the Central Government be

settled amicably but learned Solicitor General submits

that no amicable settlement could be arrived at as

hoped by this Court.

20. Under the order passed by the Delhi High Court

dated 02.07.2019, the appellant’s inter-cadre transfer

under Rules 1954 is to be affected by the Central

Government. The proceedings of inter-cadre transfer are

13 awaiting finalization for the last more than two years.

The appellant who is ready to render his services in

any other State, which State needs to utilize his

services for the welfare of the people. There is no

doubt that it is the Central Government which is

authority competent to transfer the appellant from one

cadre to another. We are also of the view that the

appellant cannot insist that he should be transferred

to State of Haryana. We, however, are inclined to grant

a liberty to the appellant to make a fresh

representation to the Secretary, Department of

Personnel and Training, Government of India in

reference to letter dated 13.12.2019 within two weeks

from today with regard to his inter-cadre transfer in

light of judgment of Delhi High Court dated 02.07.2019.

It shall be open for the appellant to give his

willingness/consent with regard to any other State. The

representation may be considered by the competent

authority sympathetically and appropriate decision be

14 communicated at an early date preferably within two

months from the date of receipt of the representation.

21. The civil appeal is disposed of accordingly. The

Contempt of Court Petition(C) No.416 of 2020 is

rejected.

......................J. [ASHOK BHUSHAN]

......................J. [R. SUBHASH REDDY]

......................J. [M.R. SHAH]

NEW DELHI;

SEPTEMBER 25, 2020.

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