C. CHAKKARAVARTY AND ORS.versusTMT. M. SATYAVATHY, IAS AND ORS.

                         [2015) 12 S.C.R. 950


A                 C. CHAKKARAVARTY AND ORS.
                              v.
               TMT. M. SATYAVATHY, IASAND ORS.
           (Contempt Petition (Civil) No. 339 of 2013 etc.)
B
                                   IN
                   (Civil Appeal No. 8468 of 2003)
                         OCTOBER 16, 2015
c          [T.S.THAKUR AND V. GOPALA GOWDA, JJ.]
         Contempt of Court- Contempt petition under Art. 129 of
    Constitution oflndia rlw. s. 12 of Contempt of Courts Act, 19 71
    - Alleging violation of order passed by Supreme Court -
    Whereby the Court had held that the practice of the State
0
    Government of counting the service of Section Officer/Junior
    Engineers (who had qualified as graduates while in service)
    from the date they passed the degree for the purpose of
    promotion to the post of Assistant Engineer ulr.11 (1) of
E   Recruitment Rules of 1965, was violative of r. 5 of the Rules
    - The Court also held that counting of entire service of such
    Junior Engineer for the purpose of seniority and promotion
    to the post ofAssistant Engineer was to be made only on the
    basis of comparative merit of eligible candidates - Direction
F   given to the State to consider the cases of Section Officers/
    Junior Engineers, who had completed 3 years service in the
    grade of SO/JE for promotion to the post ofAE, on the basis
    of inter se merit- The review DPC issued new list of eligible
    candidates on the basis of the date of their acquiring eligibility
G   - Contempt petition challenging the procedure adopted by
    DoPT - Held: The procedure adopted by DPC is erroneous
    - However, the error occurred due to erroneous perception
    that the method was sanctioned by law and order of this Court
H   - Thus, there is no deliberate or contumacious breach of
                                  950
   C. CHAKKARAVARTYv. TMT. M. SATYAVATHY, IAS                 951


direction of this Court, to warrant pu_nitive action- Contempt A
of Courts Act, 1971 - s.12 - Constitution of India, 1950 -
Art. 129- Service Law- Promotion.

    Disposing of the petition, the Court
                                                              B
     HELD: 1. There is no gainsaying that this Court has
unequivocally declared that promotion to the post of
Assistant Engineers in the service shall be on the basis
of merit and merit alone and that seniority of the
candidates cannot be taken as an input for determining c
such merit. This Court has also very clearly rejected the
procedure followed by the Government whereby the date
on which the candidate had acquired his degree
qualification was taken as a determining factor. That
being so, and given the large number of candidates D
eligible for consideration, the Government was entitled
to adopt the method of restricting the zone of
consideration based on the number of vacancies.[Para
9) [959-E-G]
                                                              .E
     2. Inasmuch as the Government relied upon the
DoPT guidelines for achieving that objective, it
committed no fault. As between the date of acquiring
eligibility and the date of entering service as a Section
Officer/Junior Engineer, the latter was a more intelligible, F
fair and reasonable yardstick to be applied for drawing-
up the list of eligible candidates by the review DPC.
Inasmuch as the review DPC relied upon the date of
acquiring eligibility as the basis for preparation of the
                                                             G
list of eligible candidates, it committed a mistake which
needs to be corrected. [Para 9) [959-G-H; 960-C-D]

    3. Thus, there is no deliberate or contumacious ·
breach of the directions of this Court to warrant punitive
action against those responsible for taking the said H
952         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A decision. The error has occurred more because of an
   erroneous perception on the part of the Government and
   the review DPC that the method adopted by them was
   sanctioned by law and the orders of this Court.
   Therefore, there is no need .to pass any orders of
13 punishment against the respondent on that score,
   although they are expected to be more careful and
   circumspect in fl;lture. [Para 1O] [960-E-F]

           N. Suresh Nathan and Ors. v. Union of India &
c          Ors. 2010 (4) SCR 1014: {'2010) s sec 692-
           referred to.

                       Case Law Reference

D       2010 (4) SCR 1014          referred to.        Para 1

           CIVIL ORIGINAL JURISDICTION: Contempt Petition
      (Civil) No. 339 of 2013.
                                     IN
E
          Civil Appeal No. 8468 of 2003.

       From the Judgment and Order dated 23.06.2003 of the
   Hon'ble High Court of Judicature at Madras in Writ Petition
 F No. 11236 of 2000.

                                   WITH
          Contempt Petition (Civil) No. 340 of 2013 in Civil Appeal
      No. 8468 of 2003.
G
       K. V. Vishwanathan, P. P. Rao, V. Giri, A. K. Ganguli, ~r.
  Advs., M. A. Chinnasamy, Sathyawan Rathee, V. Senthil
  Kumar, V. S. Lakshmi, A. Venayagam Balan, V. G. Pragasam,
  Prabu Ramasubramanian, T. V. Ratnam, Sankara Kaushik,
H S. Thananjayan, M.A. Krishna Moorthy,Advs., for the appearing
  parties.
       C. CHAKKARAVARTY v. TMT. M. SATYAVATHY, IAS                 953


       The Judgment of the Court was delivered by                  A

     T.S. THAKUR, J. 1. In this petition under Article 129 of
the Constitution of India read with Section 12 of Contempt of
Courts Act, 1971 the petitioners allege deliberate violation by
the respondents of the judgment and order dated 22nd April, B
2010 passed by this Court in N. Suresh Nathan and Ors. v.
Union of India & Ors. (2010) 5 SCC 692. The question that
feUfor consideration therein was whether the practice adopted
by the Government of Pondicherry of counting the service of
Section Officers/Junior Engineers who have qualified as            C
graduates while in service only from the date they passed the
degree or equivalent examination for purposes of promotion
to the post of Assistant Engineers under Rule 11(1) of the
Government of Pondicherry Assistant Engineers (including
                                                                   D
Deputy Director of Public Works Department) Group 'B'
(Tecflnical) Recruitment (Amendment) Rules, 1965 (for short
'Recruitment Rules') was legally sound. Rule 5 of the
Recruitment Rules provide for the method of appointment as
Assistant Engineer to be by 'selection' and reads as:              E.

       "5. Whether Selection post or:          Selection"
           Non-Selection Post:

     2. Reference may also be made to Rule 11 of the said          F
rules which is as under:

"11.     In case of recruitment    Promotion
         by
         promotion/deputation/tr   1.     Section        Officer   G
         ansfer grades      from    posressing a recognised
         which                      degree in Civil Engineering
         promotion/deputation/tr    or equivalent with 3 years
         ansfer to be made          service in the grade failing
                                    which Section Officers
                                    ho~ding
                                                                   H
954       SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A                                     diploma      in     Civil
                                      Engineering with 6 years
                                      service in the grade -
                                      50%.

                                      2.     Section      Officers
 B                                    possessing a recognised
                                      diploma        in       Civil
                                      Engineering with 6 years ·
                                      service in the grade - 50%


c       3. This Court on a consideration of the rival submissions
  urged before it and the decisions of this Court relied upon by
  the parties in support of their respective submissions held that
  the practice adopted by the Government of Pondicherry of
0 placing the Junior Engineers qualified as graduates in the order
  of seniority according to the date on which they passed the
  degree examination was contrary to Rule 5 of the Recruitment
  Rules. Having said that this Court held that the directions
  issued by the High Court directing that the entire service of a
E person should be counted for purposes of seniority and
  promotion to the post of Assistant Engineer was also contrary
  to the provisions of Rule 5 of the Recruitment Rules (supra).
  The following passage appearing in the judgment of this Court
  is, in this regard, apposite:
 F
         "41. The practice adopted by the Government of
         Pondicherry in consultation with UPSC of counting the
         services of Section Officers or Junior Engineers, who
         qualified as graduates while in service from the date
G        they passed the degree or equivalent examination and
         placing them in order of seniority accordingly for the
         purpose of consideration for promotion to the post of
         Assistant Engineer under Clause 1 of Rule 11 of the
         Recruitment Rules is contrary to Rule 5 of the
H
         Recruitment Rules. Similarly, the direction of the High
       C. CHAKKARAVARTYv. TMT. M. SATYAVATHY, IAS                955
                    [T.S. THAKUR, J.]

         Court in the impugned judgment and order to count the A
         entire service of a person concerned even before
         acquiring degree in Civil Engineering for the purpose
         of seniority and promotion to the post of Assistant
         Engineer under Clause 1 of Rule 11 of the Recruitment
         Rules is contrary to Rule 5 of the Recruitment Rules." B

         4. This Court then proceeded to declare that recruitment
    to the post of Assistant Engineers was by way of selection
    meaning thereby that seniority in the cadre of Section Offic-
    ers/Junior Engineers was not of much significance. Selection c
    for promotion to the post of Assistant Engineers was, declared
    this Court, to be made only on the basis of comparative merit
    of eligible candidates in which persons found most meritori-
    ous were to be selected for appointment. Such a method of
                                                                   D
    selection would, according to this Court, not only be consis-
/   tent with Rule 5 of the Recruitment Rules but also satisfy the
    demands of equality of opportunity contained in Article 16 of
    the Constitution. This Court observed:

         "48. As we have seen, Rule 5 of the Recruitment Rules E
         in the present case states that the post of Assistant.
         Engineer is a selection post and the Recruitment Rules
         nowhere provide that seniority-cum-merit would be the
         criteria for promotion. In the absence of any indication
                                                                  F
         in the Recruitment Rules that seniority in the grade of
         Section Officers/Junior Engineers will be counted for
         the purpose of promotions to the post of Assistant
         Erigineer, consideration of all Section Officers/Junior
         Engineers under Clause 1. of Rule 11 of the G
         Recruitment Rules who are eligible for such
         consideration has to be done on the basis of
         assessment of the comparative merit of the eligible
         candidates and the most suitable or meritorious
         candidate has to be selected for the post of Assistant H
956      SUPREME COURT REPORTS                  [2015] 12S.C.R.


A        Engineer. Such a method of selection will be consistent
         with Rule 5 of the Recruitment Rules and Article 16 of
         the Constitution which guarantees to all citizens equality
         of opportunity in matters of public employment."

B      5. Having said so, this Court set aside the impugned
  judgment of the High Court and directed the Government of
  Pondicherry to consider the cases of Section Officer/Junior
  Engineer who have completed 3 years service in the grade of
  Section Officers/Junior Engineers for promotion to the
C vacancies in the post of Assistant Engineers, Public Works
  Department, Government of Pondicherry on the basis of their
  inter se merit. The operative portion of the order passed by
  this Court runs as under:
D       "50. For the aforesaid reasons, we set aside the
        impugned judgment of the High Court and direct the
        Government of Pondicherry to consider the cases of
        all Section Officers or Junior Engineers, who have
        completed three years' service in the grade of Section
E       Officers or Junior Engineers, for promotion to the
        vacancies in the post of Assistant Engineer, Public
        Works Department, Government of Pondicherry, in
        accordance with their merit. We make it clear that the
F
        promotions to the post of Assistant Engineer already
        made pursuant to the judgment and order of the High
        Court will not be disturbed until the exercise is carried
        out for promotion in accordance with merit as directed
        in this judgment and on completion of such exercise,
G       formal orders of promotion to the vacancies in the posts
        ofAssistant Engineer which arose during the pendency
        of the cases before this Court are passed in case of
        those who are selected for promotion and after such
        exercise only those who are not selected for promotion
H       may be reverted to the post of Section Officer or Junior
    C. CHAKKARAVARTYv. TMT. M. SATYAVATHY, IAS                       957
                [T.S. THAKUR, J.]

     Engineer"                                                       A

     6. Considering the fact that the number of candidates
eligible for consideration will be large, this Court reserved
liberty to the Government to issue executive instructions as to
the method to be followed for consideration of such eligible         B
candidates for promotion. This Court said:

      "Where, therefore, there are a large number of eligible
      caf1didates available for consideration for promotion to
      a selection post, the Government can issue executive           c
      instructions consistent with the principle of merit on the
      method to be followed for considering such eligible
      candidates for promotion to the selection post."

       7. Pursuant to the liberty so reserved, the review DPC        o
appears to have. taken note of certain pre-existing Government
of India Order dated 6 1h January, 2006 issued by the
Department of Personnel and Training, for purposes of
selecting suitable officers for promotion on the basis of 'Merit'.
The said order set out guidelines to be followed for restricting     E
the field of selection to a manageable number of candidates
in cases where the number of such candidates was large. The
case of the respondent-State of Pondicherry is that the review
DPC evolved a procedure keeping in mind the observations
made by this Court as also the DoPT guidelines referred to           F
above for identifying the field of selection and applying the
criteria for determination of inter se merit of the candidates.
The procedure so evolved comprised six steps which the
respondent-state has identified in the counter affidavit filed by
                                                                     0
it in the following words.                                 ·

      "A. Identify the available vacancies of Asst. Engineers
      for the relevant year

      B. Make a list of eligible candidates based on the date        H
958       SUPREME COURT REPORTS                  [2015] 12 S.C.R:


 A        of attaining eligibility in terms of the Rule 11 of the
          Recruitment Rules.

          C. In view of the large number of candidates available
          for selection to less number of available posts, identify
 B        the Field of Selection using the DoPT prescribed
          formula of 2 x Available Vacancies + 4. For example
          for 10 vacancies, the field of selection would be 24.

          D. Fix the benchmark. In the present case it is 'good'.
 c
          E. In the field of Selection, the grading is marked.

          F. Prepare the Select List of the most meritorious
          candidates in terms of this Hon'ble Court's criterion in
          paras 39 to 42 of Judgment in CA No. 846812003 and
 D
          batch, and listing of the successful candjdates in
          accordance with their merit with reference to the entries
          given in Annual Confidential Reports, which inter a/ia
          included all or most of the ingredients constituting merit
 E         as enunciated by this Hon'ble Court in Para 42 of the
          judgment, and not in accordance with senioritv. for that
          year of selection."

        8. A new list of promotees was, on the above basis, pre-
 F pared by the review DPC, which according to the respondents
   was based on the inter se merit of the candidates. The peti-
   tioners find fault with the above procedure but only to the ex-
   tent para 'B' reproduced above determines the zone of con-
   sideration, based on the date the candidates acquired their
 G eligibility in terms of Rule 11 of the Recruitment Rules. The
   grievance of the petitioner is that this action of the respondent
   has totally distorted the picture and denied to persons who
   were otherwise eligible and senior in terms of their length of
   service, an opportunity to compete for promotion. It is argued
 H on their behalf that the process of preparing a list of eligible
    C. CHAKKARAVARTYv. TMT. M. SATYAVATHY, IAS                       959
                 [T.S. THAKUR, J.]

candidates on the basis of the date of obtaining eligibility is A
totally wrong, unfair and discriminatory. The date on which a
candidate acquires his eligibility would depend upon the date
on which he completes three years after obtaining the degree
qualification. The obtaining of degree qualification would, in
turn, depend upon several imponderables beyond the control 8
of the candidates including whether the candidates were work-
ing on a hard or soft posting over which the candidates have
no control. It was urged that while length of service of Sec-
tions Officers/Junior Engineers may not count for purposes of c
determining their inter se merit, the same was the only sound
basis for identifying the zone of consideration. Inasmuch as
the Government has ignored the length of service of the candi-
dates and departed from the principle of seniority of candi-
dates who served in the same cadre while drawing-up of the D
list of eligible candidates, it has committed a mistake that
needs 1:D be corrected.

      9. There is, in our opinion, considerable merit in that sub-
 mission of the petitioners. There is no gainsaying that this        E
 Court has unequivocally declared that promotion to the post of
Assistant Engineers in the service shall be on the basis of
 merit and merit alone and that seniority of the candidates can-
 not be taken as an input for determining such merit. This Court
 has also very clearly rejected the procedure followed by the        F
Government whereby the date on which the candidate had
acquired his degree qualification was taken as a determining
factor. That being so, and given the large number of candi-
dates eligible for consideration the Government was entitled
to adopt the method of restricting the zone of considerati.on        G
based on the number of vacancies. Inasmuch as the Govern-
ment relied upon the DoPT guidelines for achieving that ob-
jective it committed no fault. The question, however, is whether
the Government could draw-up a list of eligible candidates not
by reference to the length of service in the cadre but by refer-     H
960         SUPREME COURT REPORTS                [2015] 12 S.C.R.


A  ence to the dat.e on which the candidates acquired the eligibil-
   ity which, as not~ced earlier, was itself dependent upon the
   date on which the candidate acquired the degree qualifica-
   tion. Since, however, the acquisition of a degree qualification
   itself was not based on any consistently uniform criterion, test
 8 or procedure, the date on which such a qualification was ac-
   quired and resultantly the date on which the candidate attained
   their eligibility was also bound to be anything but uniform and
   non-discriminatory. As between the date of acquiring eligibil-
 c ity and the date of entering service as a Section Officer/Jun-
   ior Engineer the latter was, in our opinion, a more intelligible,
   fair and reasonable yardstick to be applied for drawing-up the
    list of eligible candidates by the review DPC. Inasmuch as
   the review DPC relied upon the date of acquiring eligibility as
 o the basis for preparation of the list of eligible candidates, it
    committed a mistake which needs to be corrected.

        10. Having said so, there is, in our opinion, no deliberate
   or contumacious breach of the directions of this Court to war-
 E rant punitive action against those responsible for taking the
   said decision. The error it appears has occurred more be-
   cause of an erroneous perception on the part of the govern-
   ment and the review DPC that the method adopted by them
   was sanctioned by law and the orders of this Court. We do
 F not, therefore, consider it necessary to pass any orders of
   punishment against the respondent on that score although we
   would expect them to be more careful and circumspect in fu-
   ture. With the above observation we dispose of this contempt
   petition yvith a direction to the respondent-State to redo the
 G exercise in terms of the directions of this Court in N. Suresh
   Nathan (supra) keeping in view the observations made here-
   inabove. No costs.

      Kalpana K. Tripathy                          Petition disposed of.