JAGJIWAN MOHAN WALIA Vs. JASBIR SINGH AHLUWALIA

JUDGEMENT

(1.) After civil suit was decreed in favour of the petitioner that he be considered for promotion to the post of Assistant Archivist irrespective of the illegality or that some departmental proceedings were pending, the State was required to promptly pass appropriate orders for promoting the petitioner with effect from January 3, 1983 as the appeal was decided on February 8, 1988. No communication was sent to the petitioner that his name was being considered. In reply to the petition moved for taking contempt proceedings it was represented that the case of the petitioner was considered and rejected. Copy of the order Annexure R1, was filed in this respect. This is dated May 8, 1990.

(2.) Learned counsel for the petitioner has argued that in order to cover up the lapse on the part of the respondents this order has been passed after filing of the present contempt petition and secondly, it has been argued that order-Annexure R-1 is contrary to the instruction on the subject and the dictum of law laid down by the Supreme Court in Government of India and Anr. v. C.A. Balakrishnan and Ors., 1975 1 SLR 31, State of Kerala and another v. N.M. Thomas and others, 1976 AIR(SC) 490. As per ratio of these decisions in the matter of promotion on the basis of seniority-cum-merit, the emphasis primarily is on the seniority and if the man is found not fit otherwise, he was to be promoted whereas in the case of merit-cum-seniority, it was the most suitable person to be appointed in spite of the seniority.

(3.) After hearing counsel for the parties, I am of the opinion that in these contempt proceedings it is not necessary to adjudicate upon the legality or otherwise of the order Annexure R-1. It is left to the petitioner, if he so chooses, to challenge it in the proper forum. Just for the purposes of satisfying that in the written statement as well as averment made in the order is correct, the A.C.Rs. of the petitioner have been produced and perused after he was promoted as Record Officer in 1976. Throughout his annual reports are satisfactory/average.