Triyugi Narain Tripathi vs Suresh Chandra & Ors.
2018 Latest Caselaw 3133 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 8
 

 
Case :- CONTEMPT No. - 435 of 2016
 
Applicant :- Triyugi Narain Tripathi
 
Opposite Party :- Suresh Chandra & Ors.
 
Counsel for Applicant :- Laltaprasad Misra,Abhishek Mishra
 

 
Hon'ble Abdul Moin,J.

1. Heard.

2. In pursuance to the order dated 24.09.2018, Sri Suresh Chandra, Principal Secretary, Revenue, Government of Uttar Pradesh, Lucknow is present before the Court.

3. Two affidavits filed today by the learned Counsel appearing for the respondents on behalf of Chief Secretary, Government of Uttar Pradesh, Lucknow as well as Principal Secretary, Revenue, Government of Uttar Pradesh, Lucknow, are taken on record.

4. Present contempt petition has been preferred alleging non compliance of the judgement and order dated 14.09.2015 passed by this Court in Writ Petition No.1167 (S/B) of 2010 in Re: Triyugi Narain Tripathi versus State of U.P. and others, the operative portion of which reads as follows:-

"In view of the conclusions drawn above, writ petition is allowed partly. The impugned reversion order dated 5.8.2010 is hereby quashed with direction to opposite parties to consider regular promotion of the petitioner on the post of Assistant Director/ Statistical Officer in accordance with U.P. Regularization of Adhoc Promotion Rules, 1988 as well as proposition laid down by Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra vs. State of Orissa (supra) and to take appropriate decision within three months. If petitioner is not found suitable for regular promotion, he may be reverted to his substantive post in accordance with Rule 8 of the said Rules, 1988."

5. After notices were issued, a compliance affidavit was filed by the respondent no.1 dated 26.04.2016. Along-with the said affidavit, an order dated 18.04.2016 alleging to have been passed in compliance to the judgement passed by this Court was also filed.

6. A perusal of the order indicated that it was a very cursory order and having been passed without considering the specific observations made by this Court in the judgement and order dated 14.09.2015. As such, this Court had passed the following order on 31.05.2016:-

"Prima-facie, the order dated 18.04.2016, passed by the State Government appears to be in conflict and contradiction with the order dated 14.09.2015, passed by the Division Bench of this court in Writ Petition No. 1167(SB) of 2010 filed by the petitioner.

Accordingly, let respondent No. 1 show cause within four weeks as to why the charges should not be framed for disobeying the aforesaid judgment and order 14.09.2015. The counter affidavit to be filed under this order on behalf of the respondent No.1 shall be served to the learned counsel for the petitioner who shall file reply/rejoinder affidavit thereto within next two weeks.

List this case in the third week of July, 2016.

Learned Standing Counsel will apprise respondent No.1 of the order being passed today by this Court."

7. Thereafter another order dated 02.09.2016 was passed by the respondents purportedly in compliance of the judgement and order dated 14.09.2015. The said order was brought on record by means of compliance affidavit dated 18.12.2016. However, when the contempt petition was taken up on 09.07.2018, this Court did not find the order dated 02.09.2016 to be in compliance of the writ Court's order rather found it to be an evasive tactic and in order to evade the direction of this Court and defeat the finality of litigation. This Court also observed that the compliance made in the order dated 02.09.2016 does not follow the essence of the Court order and hence it cannot be accepted. For the sake of convenience, the order dated 09.07.2018 is reproduced as under:-

"Heard Dr. L.P. Mishra, learned counsel for the petitioner and Sri Pankaj Khare, learned counsel appearing on behalf of the opposite parties.

It is informed that presently the post of Principal Secretary Revenue Department, U.P. is held by one Smt. Renuka Kumar (I.A.S).

The opposite parties for the purpose of making compliance of the judgment passed by this Court on 14.09.2015 in W.P.No.1167(S/B) of 2010 have placed reliance upon the decision communicated by Sri Arvind Kumar, Principal Secretary Revenue on 02.09.2016 filed as Annexure-1 to the short counter affidavit. To cut the controversy short, this Court may straightaway refer to the directions issued by this Court which reads as under:--

"In view of the conclusions drawn above, writ petition is allowed partly. The impugned reversion order dated 5.8.2010 is hereby quashed with direction to opposite parties to consider regular promotion of the petitioner on the post of Assistant Director/ Statistical Officer in accordance with U.P. Regularization of Adhoc Promotion Rules, 1988 as well as proposition laid down by Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra vs. State of Orissa (supra) and to take appropriate decision within three months. If petitioner is not found suitable for regular promotion, he may be reverted to his substantive post in accordance with Rule 8 of the said Rules, 1988. "

This Court may note that in the matters of consideration for promotion the twin conditions that are to be satisfied as per Rules are (a) eligibility and (b) suitability. The criteria of suitability is either merit or seniority subject to rejection of unfit.

In the present case the petitioner had approached the court against the order of reversion passed on 05.08.2010 and had also prayed  that he being entitled to be considered for absorption/promotion on the post of Statistical Officer/Assistant Director has been deprived of such a consideration before the order of reversion was passed.

Having regard to the rival contentions raised before the writ court, the matter was heard and decided. This Court would note that the eligibility of the petitioner for consideration was open to be contested in the writ proceedings, however, the consideration of his suitability is a process that fallows out of the judgment rendered by this Court. In case there was anything wrong with the determination of petitioner's eligibility by the writ court, such an aspect was either amenable to review or challenge to the judgment passed by this Court before the higher court.

It is not disputed that the judgment passed by this Court has attained finality and thus, the direction issued by this court is to be carried out in its true spirit and context.

Sri Pankaj Khare, learned counsel for opposite parties took this court through the order dated 02.09.2016 and it is on the basis of reasoning assigned therein that the compliance of court order has been justified. This Court has no hesitation to put on record that the order passed on 02.09.2016 re-opens the case of petitioner's eligibility on merit which is impermissible after the judgment was rendered for assessing the petitioner's suitability.

The order passed on 02.09.2016 calling it to be a compliance of this Court's order is an evasive tactics and has been adopted not only to evade the direction but to defeat the very finality of litigation. It is well settled that the suitability of a person for service benefits is judged on the basis of service record and it is for this purpose that a direction was issued. The compliance made in the order dated 02.09.2016 and the justification contained therein does not follow the essence of court order, hence it cannot be accepted.

In the circumstances of the case, this Court would not approve of such a practice whereby the State authorities have misread and mis-interpreted the final judgment/direction of this court.

Sri Pankaj Khare, learned counsel for the opposite parties at this stage prays that since the consideration of petitioner's suitability in the order passed on 02.09.2016 is seriously lacking, therefore, the competent authority may be at liberty to consider the petitioner's grievance in the light of direction issued by this Court.

The Principal Secretary Revenue presently in office may revisit the issue in the light of what has been observed herein-above as well as in the judgment rendered by writ court.

In case, the affidavit of compliance is not filed by the date fixed, the newly added Principal Secretary Revenue Department, U.P. shall appear in person on the next date fixed.

List/put up on 30.08.2018. "

8. Thereafter another order dated 29.08.2018 was passed by the respondents which was brought on record by means of an affidavit dated 30.08.2018. When the matter was taken up on 30.08.2018, this Court received an assurance from the learned Additional Advocate General that the order passed on 29.08.2018 would be revisited by the Competent Authority in the light of the arguments that had been advanced on 30.08.2018. For the sake of convenience, the order dated 30.08.2018 is reproduced below :-

"Sri R.K. Singh, learned Addl. Advocate General having taken this Court through the order passed by the Principal Secretary, Revenue on 29.8.2018, has concededly assured this Court that the order so passed shall be revisited by the competent authority in the light of what has been argued today.

It is also assured that the concern of the Court expressed in the previous order passed on 9.7.2018 as also on 31.5.2016, shall be duly addressed. This exercise, according to him, would take three days' time and the needful shall be done.

This Court taking a lenient view would postpone the matter for a week.

List on 10.9.2018.

It is expected that on the date fixed, learned Addl. Advocate General shall come up with a stand that does not amount to any derogation or violation of the Court's order much less a deliberate or intentional contempt.

The Principal Secretary, Revenue, in the event of default, is expected to appear in person on the date fixed."

9. Thereafter another order dated 06.09.2018 has been passed by the respondents in compliance of the judgement and order dated 14.09.2015 passed by the writ Court. The same has been brought on record with the affidavit dated 07.09.2018 itself. Thereafter on 24.09.2018 this Court passed the following order:-

"The Court in the present case has witnessed an unethical attitude both on the part of State Officers and Law Officers of the state.

The co-opearation of the State Government in the present case is absolutely unhealthy. Time and again assurances were extended that the judgment rendered by this Court shall be complied with in its letter and spirit but contrary to what was stated before the Court, the competent authority i.e. Principal Secretary, Revenue has not carried forward the finality of a judicial verdict even by a step.

Today when the case was taken up in the light of orders already passed on the contempt petition, it is stated at the Bar that the State has now proposed to approach the apex court by filing an SLP, therefore, the proceedings may be deferred. The judgment sought to be implemented in the present contempt petition was passed as far back as on 14.09.2015. Faced with the contempt proceedings in this petition filed in the year 2016, a decision for approaching the apex Court at such a belated stage by itself is an act of willful disobedience.

The State Government is bound to evolve a litigation policy. In what circumstances the State has now chosen to file an SLP before the apex court deserves to be spelt out and the reasons exposed for the scrutiny of this Court. The Court would not take a lenient view of such a situation where the dereliction of duty on the part of the State by itself tantamounts to defeat the very object of administration of justice and that too when assurances were extended time and again that the mandate of law shall be complied with. The orders passed by this Court on 31.05.2016, 01.02.2018, 09.07.2018, 30.08.2018 & 11.09.2018 are an indicator of the manner in which the State Government has acted to flout the court orders.

Let this order be brought to the notice of Chief Secretary, Government of U.P., who shall file an affidavit explaining the circumstances under which the judgment rendered by this Court has been allowed to be flouted for three long years despite specific orders and assurances extended before this Court. The reasons for approaching the apex court after such a delay must also be spelt out so that the contemnors are proceeded against under the Contempt of Court's Act without any further delay.

Let an affidavit in response to the court's order be filed within a period of two weeks from today.

List this case on 09.10.2018 for framing of charges against the opposite party.

On the date fixed, the Principal Secretary, Revenue shall appear before this Court."

10. In pursuance to the same, Sri Suresh Chandra, Principal Secretary, Revenue, Government of Uttar Pradesh, Lucknow is present.

11. It is argued by learned Counsel for the respondents that on passing the detailed order dated 06.09.2018, the observations made by the writ Court and the directions given by the writ Court which were (a) to consider regular promotion of the petitioner on the post of Assistant Director/Statistical Officer in accordance with U.P. Regularization of Adhoc Promotion Rules, 1988 and (b) to consider the proposition laid down by Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra vs. State of Orissa, have both been considered in detail while passing the said order and consequently the judgement and order dated 14.09.2015 passed by the writ Court has been complied with.

12. On the other hand, the learned Counsel for the petitioner submits that the respondents have repeatedly passed orders in purported compliance to the judgement dated 14.09.2015 which would be apparent from the fact that four alleged compliance orders have been passed till date of which two compliance orders have been rejected by this Court while third order was itself sought to be revisited by the respondent no.1. Thus, it is argued that the contemnors are repeatedly passing orders in order to frustrate the order passed by the writ Court and hence are in contempt.

13. It is further argued that the respondents have not complied with the judgement dated 14.09.2015 passed by the writ Court in letter and spirit and consequently they are in contempt. He argues that this Court vide order dated 24.09.2018 has considered all the aspects of matter and thereafter the case has been fixed today for framing charges against the Principal Secretary, Revenue, Government of Uttar Pradesh, Lucknow and order dated 06.09.2018 is simply a sham compliance of the judgement and order dated 14.09.2015 and the respondents contemnors still continues to run in contempt of the judgement and order dated 14.09.2015 passed by the writ Court.

14. Learned Counsel for the petitioner also argues that the order dated 06.09.2018 is a verbatim reproduction of the order dated 29.08.2018 which being found to be running contrary to the directions issued by the writ Court dated 14.09.2015, was itself sought to be revisited by the respondent and consequently now the respondent cannot be allowed to turn around and reiterate the same order.

15. A further argument is advanced that all aspects of the matter were considered by the writ Court while passing the judgement dated 14.09.2015 and consequently now the respondents cannot be allowed to sit over the judgement of the writ Court and reject the claim of the petitioner on certain grounds which have already been considered by the writ Court while delivering the judgement and order dated 14.09.2015.

16. Heard the learned Counsel for the contesting parties and perused the order passed by the writ Court dated 14.09.2015 and the order dated 06.09.2018 passed in purported compliance of the order passed in the writ Court.

17. At the outset, this Court may consider the law of contempt where an order has been passed in purported compliance to the direction issued by the Court.

18. The Hon'ble Supreme Court in the case of J.S. Parihar versus Ganpat Duggar and others reported in 1996 (6) SCC 291 has held as under :-

"The question then is whether the Division Bench was right in setting aside the direction issued by the learned single Judge to redraw the seniority list. It is contended by Mr. S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision take by the Government in preparation of the seniority list in the light of the law laid down by three benches, the learned Judge cannot come to a conclusion whether or not the respondent had willfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is: whether seniority list is open to review in the contempt proceedings to find out, whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the Court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the willful violation of the order. After re-exercising the judicial review in contempt proceedings, afresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the single Judge, the Division Bench corrected the mistake committed by the learned single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned single Judge when the matter was already seized of the Division Bench. "

19. The Hon'ble Supreme Court in the case of Manish Gupta and others versus Gurudas Roy reported in 1995 (3) SCC 559 has held as under :-

"21. We do not propose to go into the question of interpretation of Rule 55(4) of the Rules. But, at the same time, we cannot say that there is no merit in the submission of Shri Sanghi that in view of the proviso to Rule 55(4) the respondent cannot claim the fixation of his basic pay on the same level as the basic pay drawn by Hrishikesh Roy. In our view the appellants could reasonably proceed on the basis that in view of the proviso contained in Rule 55(4) of the Rules the pay of the respondent cannot be fixed at the same level as that of Hrishikesh Roy and, therefore, in fixing the basic pay of the respondent it cannot be said that the appellants had wilfully and deliberately disobeyed the directions given by the Appellate Bench in its order dated 20.09.1989. On that view of the matter the learned Judges of the High Court were, in our opinion, not justified in holding the appellants guilty of contempt of court for not complying with the directions of the Appellate Bench regarding fixation of basic pay of the respondent. If the respondent feels that the refixation of his pay has not been made in accordance with the relevant rules he may, if so advised, pursue the remedy available to him in law for enforcing his rights."

20. The Hon'ble Supreme Court in the case of Chhotu Ram versus Urvashi Gultati and another reported in 2001 (7) SCC 530 has held as under :-

"7 . Briefly stated the petitioner's grievance is based on the factum of nonconsideration of the petitioner's case or if considered not properly so considered on the basis that the petitioner was qualified by the cut-off date (1.1.1980). Be it noted however, that this Court as noticed above directed in the event the petitioner is fit for promotion as in September, 1980, he should be given the necessary promotion with all consequential benefits.

8. Mr. Mahabir Singh, learned counsel, appearing for the respondents however, firstly, very strongly contended that question of there being any act or conduct contemptuous in nature in the matter under consideration cannot arise. The conduct in order to come within the purview of the statutory provisions must be wilful and deliberate and in the contextual facts, question of there being any wilful and deliberate act does not and cannot arise. There is not even a whisper even in the petition of contempt as regards wilful neglect to comply with the order of the Court. The language of the statute begin a requirement in order to bring home the charge of contempt shall have to be complied with in is observance rather than in breach and in the absence of which, the same cannot be termed to be an act of contempt and resultantly therefore the application must fail. The submission of Mr. Mahabir Singh appears to be of some significance. The proceeding in the Concepts of Courts Act being quasi-criminal in nature and the burden being in the nature of criminal prosecution, namely to prove beyond reasonable doubt as noticed above, requirements of the statute thus has a pivotal role to play. On merits as well Mr. Mahabir Singh contended that the petitioner is confusing the issue by treating the direction as a mandate for his promotion whereas this Court had directed the respondents to consider the promotion by treating the petitioner to be qualified on the cut-off date on 1.1.1980. There was no mandate as such to offer promotion to the petitioner. Incidentally, the petitioner's case was duly considered but since the latter was not found eligible and fit for promotion of reasons noticed as below, no promotion could be offered to the petitioner. Promotion was to be offered only however, upon compliance with certain eligibility criteria. This Court by reason of the order dated 8th October, 1999 did not issue a mandate but issued a direction for consideration only. In the event however, the matter being not considered or in the event consideration was effected in a manner to whittle down the claim of the petitioner, mitigation of the proceedings cannot but be said to be justified. But in the event, however, contextual facts depict that the consideration was effected in accordance with the normal rules, practice and procedure and upon such consideration, no promotion could be offered to the petitioner, question of there being any set of contempt would not arise. It is on this score, the order of the Governor dated 20th November, 2000 stands as a significant piece of evidence. The relevant extract whereof is noticed herein below:-

"Now the name of the appellant has been considered in the ranking list of the year 1980 considering him eligible as on 1.1.80 and the ranking list has been redrawn as per the directions of the Apex Court. The names have been reproduced above. A personal hearing has also been granted to Sh. Chhutu Ram on 8.6.2000.

In this regard the matter has been thrashed out and examined in detail. The name of Sh. Chhotu Ram does not find place in promotion zone, on the basis of inclusion of his name in the ranking list as on 1.1.80 prepared as per directions of the Hon'ble Apex Court dated 8.10.99. There were 5 (five) vacancies for promotion in the source of AMIE/BE in the year 1980 and there is no dispute regarding number of vacancies. The officers promoted in the year 1980, S/Sh. BS Sethi, KR Chopra, RP Kumar, SK Sodhi, RK Dagar beside Sh. JP Gupta promoted in 1981 for want of vacancy in 1980 are senior to the appellant Sh. Chhutu Ram. The ranking list from the year 1971 to 1999 were prepared after inviting objections of the concerned officers in view of the directions of the Apex Court dated 20.9.91. These lists were also approved by the Harayana Public Service Commission as stipulated/contemplated under Rule-9 of HSE Class-II Rules. 1970. Hence, version of Sh. Chhotu Ram that both these officers namely Sh. RP Kumar and RK Dagar be shifted from 1980 to 1979, cannot be considered. Actually both the officers were promoted in the year 1980 on ad hoc basis and later on they were promoted on regular basis vide order dated 30.11.92. The plea of Sh. Chhotu Ram that a post was kept reserved for him in the order dated 15.1.84 is also not in accordance with the rules as this order stands superseded vide order No.8/94/83-3IE. dated 30.11.92. Moreover the ranking list on the basis of which promotion order dated 15.1.84 was issued were not in accordance with the rules as observed by the Hon'ble Apex Court. So, this order of dated 15.1.84 cannot be considered a valid document in support of claim of the petitioner. So far his eligibility for promotion to the rank of Sub Divisional Officer in 1980 is concerned, he has earned only 3 good ACRs out of 8 ACRs. Thus he earned less than 50% Good ACRs and therefore, he is not eligible/fit for promotion as Sub-Divisional Officer.

In view of the position and facts detailed in the forgoing paras as well as personal hearing granted to the petitioner the petitioner's claim for promotion on the basis that he was qualified on 1.1.80 as per order of the Hon'ble Apex Court has been considered and he does not find place in promotion zone to the rank of Sub-Divisional Officer and his claim does not hold good and is therefore rejected."

9 . On the wake of the recordings as above, and having duly considered the submissions of the parties and on proper reading of the order of this Court dated 8th October, 1999 we do not feel inclined to record any concurrence with the submissions of the learned Advocate in support of the petition. The petition has no merit. The petition therefore fails and is dismissed without however any order as to costs."

21. The Hon'ble Supreme Court in the case of Director of Education, Uttaranchal and others versus Ved Prakash Joshi and others reported in 2005 (6) SCC 98 has held as under :-

"7. While dealing with an application for contempt, the Court is really concerned with the question whether the earlier decision which has received its finality had been complied with or not. It would not be permissible for a Court to examine the correctness of the earlier decision which had not been assailed and to take the view different than what was taken in the earlier decision. A similar view was taken in K.G. Derasari and Anr. v. Union of India and Ors. The Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party who 1s alleged to have committed default in complying with the directions in the judgment or order. If there was no ambiguity or indefiniteness in the order, it is for the concerned party to approach the higher Court if according to him the same is not legally tenable. Such a question has necessarily to be agitated before the higher Court. The Court exercising contempt jurisdiction cannot take upon itself power to decide the original proceedings in a manner not dealt with by the Court passing the judgment or order. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible. In that view of the matter, the order of the High Court is set aside.

8 . If the appellant has any grievance so far as the order dated 10.8.1998 is concerned denying him the arrears of salary, he may, if so advised, approach the appropriate forum for such remedy as is available in law."

22. The Hon'ble Supreme Court in the case of Lalith Mathur versus L. Maheswara Rao reported in 2000 (10) SCC 285 has held as under :-

"2. The respondent was an employee of A.P. State Cooperative Rice Federation which was wound up and he ceased to be an employee of that Federation. He filed a writ petition in the High Court seeking reliefs, inter-alia, that his representation for absorption in alternative government service may be directed to be considered by the State Government. The writ petition was allowed and the direction was issued to the State Government to consider and dispose of the representation. Pursuant to that direction, the State Government considered the representation and rejected the claim of the respondent for absorption in government service. The respondent, instead of challenging the order by which his representation was rejected in a fresh writ petition, file a contempt petition in which he relied upon a judgment of the High Court in Writ Petition No.22230 of 1997 and batch decided on 15.10.1997, and the High Court too, relying upon that decision, observed in the impugned judgment as under:

"The stand taken in the impugned order dated 15.04.1998 which has been reiterated in the counter affidavit filed on behalf of the respondents is that in view of Ordinance 4 of 1997 which was subsequently replaced by Act 14 of 1997 and the consequential order cancelling GOMs No. 329, Agriculture and Cooperation (Coop.I) Department dated 22.05.1993, the petitioner is not entitled to absorption in any government departments/organisations as sought for by him. I am afraid, it is not open to the respondents to take that stand in view of the order dated 05.12.1997 passed in the earlier Contempt Case No.1357 of 1997 where the said stand of the respondents was specifically considered and rejected by this Court and the 2nd respondent was directed to reconsider the case of the petitioner for absorption. That apart, Section 4 of Ordinance 4 of 1997 specifically provides that ''Nothing in this Ordinance shall disentitle any such employee to the benefits of any scheme of rehabilitation under the relevant orders issued by the Government form time to time'. Similarly, the order of status quo passed by the Hon'ble Supreme Court in SLPs (C) Nos. 1222-23 of 1998 does not in any way come in the way of absorption of the petitioner herein pursuant to the directions granted by this Court in WP No. 10208 of 1993 as well as in CC No.1357 of 1997. Admittedly, as many as 40 co-employees of the petitioner were already absorbed in other organisations and departments and one Satyanarayana who was a junior to the petitioner is also being continued in service by implementing the orders passed by the authority under the Shops and Establishments Act. Under these circumstances, I do not see why the petitioner herein should be denied the same consideration.

For the aforesaid reasons this contempt case is disposed of directing the respondent to absorb the petitioner in any suitable post in any government department or public undertaking within three months from the date of receipt of a copy of this order."

3. The above will show that the High Court has directed the State Government to absorb the respondent against a suitable post either in a government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceedings under the Contempt of Courts Act or Article 215 of the Constitution.

4. The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits.

5. For the reasons stated above, the appeal is allowed, the impugned judgment of the High dated 10.08.1998 is set aside and the contempt petition filed by the respondent is dismissed. We, however, make it clear that representation was dismissed on merits, in such proceedings as he may be advised. There shall be no order as to costs."

23. This Court may also peruse the law laid down by the Hon'ble Supreme Court per which there has to be deliberate and wilful disobedience by the contemnor in order to to make out a case for contempt.

24. In this regard, the Hon'ble Supreme Court in the case of Debabrata Bandopadbyay and others versus State of West Bengal and another reported in AIR 1969 SC 189 has held as under :-

"9. A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished. It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."

25. The Hon'ble Supreme Court in the case of B.K. Kar versus The Hon'ble the Chief Justice and his companion Justices of the Orissa High Court and others reported in AIR 1961 SC 1367 has held as under :-

"7. Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional. .................. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court."

26. The Hon'ble Supreme Court in the case of Niaz Mohammad and others versus State of Haryana and others reported in 1994 (6) SCC 332 has held as under :-

"9 . Section 2(b) of the Contempt of Court Act, 1971 (hereinafter referred to as 'the Act') defines "Civil Contempt" to mean "willful disobedience to any judgment, decree, direction, order, writ, or other process of a court...". Where the contempt consists in failure to comply with or carry out an order of the court made in favour of the party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under CPC. The party in whose favour an order has been passed, is entitled to the benefit of such order. The Court while considering the issue as to whether the alleged contemner should be punished for not having complied and carried out the direction of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be willful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner is punished for non compliance of the direction of a court the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was willful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequences thereof. But wile examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional."

27. The Hon'ble Supreme Court in the case of Mrityunjoy Das and another versus Sayed Hasibur Rahaman and others reported in 2002 (3) SCC 739 has held as under :-

"13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tentamounts to obstruction of justice which if allowed, would even permeate in our society (vide Murray & Co. v. Ashok Kr. Newatia & Anr.). This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of the this Court in Murray's case (supra) in which one of us (Banerjee, J.) was party needs to be noticed.

"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by Courts of Law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which even can remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the people in general."

14. The other aspect of the matter ought also to be noticed at this juncture viz., the burden and standard of proof. The common English phrase "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the 'standard of proof', be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Re Bramblevale 1969 3 All ER 1062 lend support to the aforesaid. Lord Denning in Re Bramblevale stated:

"A contempt of court is an offence of a criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To use the timehonoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt."

15. In this context, the observations of the Calcutta High Court in Archana Guha v. Ranjit Guha Neogi 1989 (II) CHN 252 in which one of us was a party (Banerjee, J.) seem to be rather apposite and we do lend credence to the same and thus record our concurrence therewith.

16. In The Aligarh Municipal Board and Others v. Ekka Tonga Mazdoor Union and Others MANU/SC/0075/1970 : 1970CriL J1520 , this Court in no uncertain term stated that in order to bring home a charge of contempt of court for disobeying orders of Courts, those who assert that the alleged contemners had knowledge of the order must prove this fact beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought to go to the person charged.

17. In a similar vein in V.G. Nigam and others v. Kedar Nath Gupta and another MANU/SC/0419/1992 : 1992CriL J3576 , this Court stated that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.

18. Having discussed the law on the subject, let us thus at this juncture analyse as to whether in fact, the contempt alleged to have been committed by the alleged contemners, can said to have been established firmly without there being any element of doubt involved in the matter and that the Court would not be acting on mere probabilities having however, due regard to the nature of jurisdiction being quasi criminal conferred on to the law courts. Admittedly, this Court directed maintenance of status quo with the following words - "the members of the petitioner-Sangha who were before the High Court in the writ petition out of which the present proceedings arise". And it is on this score the applicant contended categorically that the intent of the Court to include all the members presenting the Petition before this Court whereas for the Respondent Mr. Ray contended that the same is restricted to the members who filed the writ petition before the High Court which culminated in the initiation of proceeding before this Court. The Counter affidavit filed by the Respondents also record the same. The issue thus arises as to whether the order stands categorical to lend credence to the answers of the respondent or the same supports the contention as raised by the applicants herein - Incidentally, since the appeal is pending in this Court for adjudication, and since the matter under consideration have no bearing on such adjudication so far as the merits of the dispute are concerned, we are not expressing any opinion in the matter neither we are required to express opinion thereon, excepting however, recording that probabilities of the situation may also warrant a finding, in favour of the interpretation of the applicant. The doubt persists and as such in any event the respondents being the alleged contemners are entitled to have the benefit or advantage of such a doubt having regard to the nature of the proceeding as noticed herein before more fully."

28. What comes out from a perusal of the aforesaid judgements is that for an act of contempt to be made out against the contemnor, there has to be a deliberate and wilfull disobedience and defiance of the order passed by a Court of law, the directions which are alleged to have been violated should be unambiguous and passing of an order in purported compliance of the order passed by a Court of law would give rise to a fresh cause of action.

29. Accordingly when the order dated 06.09.2018 passed by the respondents in compliance of the judgement and order dated 14.09.2015 is tested on the principle of law laid down by the Hon'ble Supreme Court in the aforesaid decision, what is to be seen is whether the respondents have proceeded to pass the order in purported compliance to the order passed the Court of law.

30. The judgement dated 14.09.2015 passed by the writ Court has been complied with by the respondents contemnors by passing an order dated 06.09.2018 and as such it cannot be said that the judgement dated 14.09.2015 has not been complied with. It may be that the compliance order dated 06.09.2018 is not as per expectation of the petitioner but for an order not coming up to the expectation of the petitioner, the remedy is elsewhere and not by filing of a contempt petition. Thus it cannot be said that there is deliberate and wilfull disobedience of the judgement dated 14.09.2015 as is sought to be made during course of the argument by learned Counsel for the petitioner. In compliance to the judgement passed by the writ Court, the respondent has proceeded to pass the order dated 06.09.2018 and consequently in case the petitioner is aggrieved by the same, he may challenge the same before the appropriate Court in appropriate proceedings but no deliberate and wilful disobedience can be said to have been committed by the respondents contemnors. Consequently with the passing of the order dated 06.09.2018, there arises a fresh cause of action to the petitioner, in case he is so aggrieved by the said order dated 06.09.2018 and it would thus be open for the petitioner to challenge the same in appropriate proceeding but no deliberate or wilful disobedience can be said to have been committed.

31. Accordingly, once the respondents have proceed to pass order dated 06.09.2018 by which they have taken into consideration the judgement and order dated 14.09.2015 and the observations made therein pertaining to consider the case of the petitioner under the U.P. Regularization of Ad-hoc Promotion Rules, 1988 and have also considered the proposition of law laid down in the case of Amarendra Kumar Mohapatra vs. State of Orissa afresh, no deliberate and wilful disobedience can be said to have been committed by the respondents contemnor. Moreover this Court while exercising contempt jurisdiction is not expected to go into validity of the order passed by the respondents.

32. As regards the argument raised by learned Counsel for the petitioner that the respondents contemnors have repeatedly passed the orders in purported compliance to the judgement dated 14.09.2015, suffice to state that four orders had been passed by the respondent of which two compliance orders were rejected by this Court while the third order itself was sought to be revisited by the respondents. Now the respondents have proceeded to pass the order dated 06.09.2018, which has also been brought on record, in compliance to the order dated 14.09.2015 and thus merely because repeated orders were passed by the respondents, the said act would not bring them within the ambit of contempt.

33. As regards the argument on behalf of the petitioner that the judgement dated 14.09.2015 passed by the writ Court has not been complied with in letter and spirit, suffice to state that the judgement dated 14.09.2015 required consideration of the case of the petitioner for regular promotion in accordance with the 1988 Rules as well as the proposition laid down by Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra vs. State of Orissa. The respondents while proceeding to pass the order dated 06.09.2018 have considered both the aspects of the matter and thus the judgement dated 14.09.2015 has been complied with by the respondents. It goes without saying that in case the petitioner is aggrieved by the order dated 06.09.2018 his remedy lies by raising challenge to the said order before the appropriate Court in appropriate proceedings and not by way of contempt petition.

34. As regards the argument on behalf of the petitioner of the order dated 06.09.2018 being a verbatim reproduction of the order dated 29.08.2018, the said argument is misconceived as the order dated 29.08.2018 is an order comprising of one and one fourth page while the order dated 06.09.2018 is an order running in more than eight pages and thus the order dated 06.09.2018 cannot be considered to be a verbatim reproduction of the order dated 29.08.2018, accordingly the said argument is rejected.

35. As regards the argument on behalf of the petitioner that every thing had been considered by the writ Court while passing the judgement dated 14.09.2015 and now the respondents cannot be allowed to sit over the judgement of the writ Court and reject the claim of the petitioner on certain grounds, it is seen that the writ Court while partly allowing the writ petition vide judgement dated 14.09.2015 had required the respondent to consider the regular promotion of the petitioner in accordance with the Rules and the judgement of the Hon'ble Supreme Court. Thus the consideration was to be done by the respondent, keeping in view the directions issued by the writ Court and the respondents have thereafter proceeded to consider the case of the petitioner in accordance with the 1988 Rules and the judgement of the Hon'ble Supreme Court and thereafter proceeded to pass the order dated 06.09.2018. Thus once the writ Court left it to the respondents to consider the case of the petitioner and the said consideration has been done by the respondents, consequently the validity of the said order of consideration dated 06.09.2018 cannot be seen by a contempt Court keeping in view the settled proposition of law in this regard which has been discussed above and if aggrieved the petitioner can always challenge the said order before the appropriate Court in appropriate proceedings.

36. Keeping in view the aforesaid discussions and the law in this regard, it cannot be said that there is any deliberate or wilful disobedience of the judgement and order dated 14.09.2015 passed by the writ Court.

37. Accordingly, the contempt petition is dismissed and notices discharged.

38. However, it could be open to the petitioner to challenge the order dated 06.09.2018, in case, he is so aggrieved, before the appropriate Court in appropriate proceedings.

Order Date :- 9.10.2018

I.A. Siddiqui