Dr. Sandeep Kumar And Anr. vs Dr. Lalji Singh And 7 Ors.
2022 Latest Caselaw 5393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Court No. - 10
 

 
Case :-
 
Contempt Application (Civil) No. - 2828 of 2014
 
Applicant :-
 
Dr. Sandeep Kumar and another
 
Opposite Party :-
 
Dr. Lalji Singh and 7 others
 
Counsel for Applicant :- 
 
Sri Siddhartha Khare
 
Sri Ravi Prakash Pandey
 
Counsel for Opposite Party :- 
 
Sri Naveen Sinha, Sri Vimlendu Tripathi, Sri V.K. Upadhyay, Sri K.R. Singh Jadaun, Sri Manish Goyal, Sri K.K. Rao, Sri Ujjawal Satsangi, Sri Chandan Sharma
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Siddhartha Khare, along with Sri Ravi Prakash Pandey, learned counsel for the applicants, Sri Navin Sinha, learned Senior Advocate assisted by Sri Vimlendu Tripathi, learned counsel for opposite party nos. 3, 6 and 8, Sri V.K. Upadhayay, learned Senior Advocate assisted by Sri K.R. Singh Jadaun, learned counsel for respondent no. 7, Sri Ujjawal Satsangi, learned counsel for respondent no. 5, Sri Chandan Sharma, learned counsel for respondent no. 2 and Sri Manish Goyal, learned Senior Counsel assisted by Sri K.K. Rao, learned counsel for respondent no. 4.

2. This contempt application has been filed under Section 12 of the Contempt of Courts Act, 1971 (hereinafter called as the ''Act of 1971') for punishing the opposite parties for deliberately and wilfully disobeying the order dated 03.02.2014 and the judgment/order dated 17.02.2014 passed in Writ-A No. 66598 of 2013 (Dr. Abhishek Chandra and others Vs. Union of India and others).

3. This case has a long history, a brief narration of the facts are necessary for better appreciation of the case, which are as under.

4. Banaras Hindu University (hereinafter referred as the ''University') which is a central university and governed by the provisions of Banaras Hindu University Act, Statute and Ordinances framed thereunder. It has an institute of medical sciences, which runs a hospital.

5. In the year 2013, a rolling advertisement No. 05/2012-2013 was published with cut off date as 21.03.2013, subsequently extended up to 30.03.2013 for filling up 117 posts of Professor, 195 posts of Associate Professor and 333 posts of Assistant Professor in different disciplines of the University. The advertisement also displayed the post in the Department of Orthopaedics, Trauma Orthopaedics, Ophthalmology and Anatomy. One post of Assistant Professor in Orthopaedics (Occupational Therapist) under general category (Post Code-3010), one post of Assistant Professor in Orthopaedics (Physical Medicine & Rehabilitation) under OBC category (Post Code-3011), one post of Associate Professor in Orthopaedics under SC category (Post Code-2656), two posts of Associate Professor in Trauma Orthopaedics, one post under SC category and one post under general category, (Post Code-2657), while one post of Assistant Professor in Orthopaedics (Physiotherapy) under SC category (Post Code-3012).

6. Similarly, one post of Professor in Ophthalmology under general category (Post Code-1496), one post of Associate Professor in Ophthalmology (Post Code-2655) and one post of Assistant Professor in Ophthalmology under OBC category (Post Code-3009) was also advertised.

7. As no interview letter was issued to one Dr. Abhishek Chandra who had applied for post of Associate Professor in Ophthalmology, Dr. Sandeep Kumar, present applicant no. 1, for the post of Associate Professor in Orthopaedics (reserved for SC) and for the post of Associate Professor in Trauma Orthopaedics (reserved for SC), Dr. Royana Singh for the post of Professor of Anatomy (Treatology), Dr. O.P.S. Maurya for the post of Professor in Ophthalmology, filed Writ-A No. 66598 of 2013 for quashing of the rolling advertisement No. 5/2012-2013 issued by the University. The writ Court on 03.02.2014 directed that the recommendations made for the post which are subject matter of consideration in the writ petition was not to be put up before the Executive Council. The said writ petition was finally allowed on 17.02.2014 and the advertisement as far as the post of Associate Professor and Professor in the department of Orthopaedics and Anatomy were quashed and the University was directed to publish an advertisement afresh in accordance with the qualifications as duly prescribed.

8. The order dated 17.02.2014 was thereafter corrected on 11.03.2014 and 01.04.2014 and in the operative portion Department of Ophthalmology and the post of Assistant Professor was added. The process of selection and recruitment was going on when the interim order dated 03.02.2014 was passed by the Division Bench of this Court, and was placed before the Executive Council of the University in its meeting held on 05.02.2014, and the Executive Council on that day resolved that Vice Chancellor was authorized to open the envelope and approve the recommendation of selection committee, except the posts which were subject matter of consideration in the writ petition.

9. Accordingly, the post of Assistant Professor in Ophthalmology (Post Code-3009) which was reserved for OBC category and there was no claimant amongst the writ petitioners and selection committee had recommended the name of one Dr. R.P. Maurya, appointment letter was issued on 06.02.2014. Petitioner no. 1 Dr. Abhishek Chandra had applied for the post of Associate Professor in Ophthalmology in general category, while petitioner no. 2 of the writ petition, who was already working in the department of Ophthalmology since 01.01.2009 did not raise any claim on any of the post.

10. After passing of the final judgment on 17.02.2014 in Writ-A No. 66598 of 2013, one Dr. Saurabh Singh, who was an aspirant to the post of Associate Professor in Trauma Orthopaedics (Post Code-2657) in Trauma Center under unreserved category, filed Writ-A No. 17668 of 2014 and the Division Bench of this Court on 26.03.2014 disposed off the said writ petition directing the University that result of the selection held shall be declared keeping in mind the judgment passed in Writ-A No. 66598 of 2013 decided on 17.02.2014 within two weeks.

11. The then Vice Chancellor late Dr. Lalji Singh on 30.03.2014 passed an order complying the directions of the writ Court dated 26.03.2014 and held that Dr. Saurabh Singh had applied for the post of Associate Professor in Trauma Orthopaedics (Trauma Center) under the Post-Code 2657 under unreserved category, while Dr. Saurabh Kumar, petitioner no. 3 in Writ-A No. 66598 of 2013, had applied under SC category. It was further held that the envelope for the post of Associate Professor in Trauma Orthopaedics (Post-Code 2657) was not placed before the Executive Council due to the interim order dated 03.02.2014.

12. By the order of Vice Chancellor he was allowed to join the post, and on 31.03.2014 Dr. Saurabh Singh joined as Associate Professor in Trauma Orthopaedics (Trauma Center). After joining of Dr. Saurabh Singh, present contempt proceedings were initiated.

13. On 04.12.2019, the contempt Court has framed the following charges against the opposite parties;

"You Dr. Lalji Singh, Vice-Chancellor (opposite party no. 1), Dr. G.S. Yadav, Registrar, Dr. Ashwani Kumar Singh, Deputy Registrar, Recruitment and Assessment Cell, (opposite party no. 3), Sri Rakesh Bhatnagar, Vice-Chancellor (opposite party no. 6), Sri Neeraj Tripathi, Registrar (opposite party no. 7) and Smt. Sunita Chandra, Deputy Registrar, Recruitment and Assessment Cell (opposite party no. 8) to show cause within six weeks why you should not be tried and punished under Section 10/12 of the Contempt of Courts Act, 1971 for deliberate and wilful violation of the orders dated 3 February 2014 and 17 February 2014 of this Court passed in Writ - A No. 66598 of 2013 (Dr. Abhishek Chandra and 4 others vs. Union of India & 4 others)."

14. Sri Siddhartha Khare, learned counsel appearing for the applicants, submitted that writ Court on 03.02.2014 had specifically directed that the posts which were subject matter of consideration in the writ petition was not to be put before the Executive Council for taking any decision. According to him, despite the said fact, the Executive Council proceeded and appointments were given to Dr. R.P. Maurya on 06.02.2014 as well as to Dr. Saurabh Singh on 31.03.2014.

15. He next contended that not only the interim order was granted by the Division Bench of this Court, but also the advertisement in relation to appointment for the post of Assistant Professor, Associate Professor and Professor of the Department of Orthopaedics, Ophthalmology and Anatomy were quashed and it was directed for re-advertising the said post. Once the posts under challenge were quashed by the Division Bench no occasion arose for appointing anyone against those posts which were not in existence. He then invited the attention of the Court to the order dated 04.12.2019 whereby the charges have been framed against the opposite parties for violating and wilfully disobeying the order dated 03.02.2014 and judgment/order dated 17.02.2014. According to the applicants' counsel, once the posts in question were not in existence, no appointment could be made subsequently and the University was required to re-advertise the vacancies as directed vide judgment dated 17.02.2014.

16. Sri Navin Sinha, learned Senior Counsel appearing for the opposite party nos. 3, 6 and 8, submitted that so far as the appointment of Dr. R.P. Maurya, opposite party no. 5, is concerned, there was neither any pleading nor any claim over the post of Assistant Professor in Ophthalmology (under OBC category) (Post-Code No. 3009), nor there was any reference in the order dated 03.02.2014 and 17.02.2014.

17. According to him, the decision to appoint Dr. R.P. Maurya was taken on 06.02.2014 as the writ Court on 03.02.2014 had said that posts which are subject matter of consideration was not to be put before the Executive Council. The Executive Council on 05.02.2014 had proceeded to consider only those cases which were not subject matter of consideration in the writ petition, and had authorized the Vice Chancellor to open and approve the recommendation of the selection committee.

18. He next contended that post of Assistant Professor in Ophthalmology came into picture in the proceedings of writ petition for the first time on 01.04.2014 when by way of modification/correction post of Assistant Professor was included in the judgment/order dated 17.02.2014, while appointment on the said post was already made on 06.02.2014 and the petitioners of Writ-A No. 66598 of 2013 had neither challenged the appointment of Dr. R.P. Maurya in the said writ petition, nor there was any order to that extent.

19. He next contended that the opposite party no. 6 on 30.11.2019 had cancelled the appointment of opposite party no. 5, which is a matter under consideration before this Court in Writ-A No. 20832 of 2019 in which an interim order has been granted on 18.12.2019 staying the cancellation of appointment of Dr. R.P. Maurya.

20. Coming to the appointment of Dr. Saurabh Singh as Associate Professor in Trauma Orthopaedics in Trauma Centre, he submitted that Dr. Sandeep Kumar, the applicant no. 1, had applied for two different posts, Post-Code 2656 under SC category and Post-Code 2657 in SC category. According to him, Dr. Sandeep Kumar, who was petitioner no. 3 in Writ-A No. 66598 of 2013, had made a specific claim only for the post of Associate Professor (Orthopaedics) in SC category (Post-Code 2656), paragraph nos. 11 and 16 of Writ-A No. 66598 of 2013, while Dr. Saurabh Singh had applied for the post of Associate Professor in Trauma Orthopaedics (Post-Code 2657) under general category.

21. The University authorities had taken abundant caution and did not open the envelope pertaining to the post of Associate Professor in Trauma Orthopaedics (Post-Code 2657) under ''unreserved category'. It was upon the directions of the Division Bench on 26.03.2014 passed in Writ-A No. 17668 of 2014 that the Vice-Chancellor took decision and passed a detailed order on 30.03.2014 disclosing the reasons and he was permitted to join on 31.03.2014.

22. According to learned Senior Counsel, applicant no. 1 Dr. Sandeep Kumar had left the services of University and his lien on his earlier post of Assistant Professor (Orthopaedics) came to an end w.e.f. 01.03.2013 vide order of termination of lien dated 10.07.2014. According to him, Dr. Sandeep Kumar joined Jamia Hamdard Institute of Medical Sciences and Research, New Delhi as Associate Professor and later on promoted as Professor. According to him, the University again readvertised through rolling advertisement No. 7/14/2015 dated 20.02.2015 and Dr. Sandeep Kumar applied in subsequent recruitment process but failed in screening of application forms.

23. Lastly, learned Senior Counsel submitted that opposite party no. 1 Dr. Lalji Singh, the then Vice-Chancellor unfortunately passed away on 10.12.2017, much before the framing of charges by this Court on 04.12.2019, while opposite party nos. 2 and 3 are not the decision making authorities and are duty bound to comply the instructions of the Executive Council and the Vice-Chancellor. Further, the opposite party nos. 6, 7 and 8 were not holding their respective post of Vice-Chancellor, Registrar or Deputy Registrar at the time of appointment of opposite party nos. 4 and 5.

24. Reliance has been placed upon the decision of Apex Court in cases of Kapildeo Prasad Sah and others Vs. State of Bihar (1999) 7 SCC 569, Avishek Raja and others Vs. Sanjay Guta (2017) 8 SCC 435, Akhauri Ramesh Chandra Sinha Vs. State of Bihar (1997) 3 SCC 25, Indian Airport Employees Union Vs. Ranjan Chatterjee (1999) 2 SCC 537, Welfare Association of Absorbed Central Government Employees Vs. Arvind Verma and others (1999) 9 SCC 58, Satyendra Singh Vs. Saroj Rani and others, (2017) 11 SCC 471, Om Prakash Jaiswal Vs. D.K. Mittal and another (2000) 3 SCC 171 and Dr. U.N. Bora, Ex. Chief Executive Officer and others Vs. Assam Roller Flour Mills Association and another (2022) 1 SCC 101.

25. Sri Manish Goyal, learned Senior Counsel appearing for opposite party no. 4, submitted that the present contempt proceedings at the behest of the applicants are not maintainable on three counts. Firstly, both Dr. Sandeep Kumar and Dr. Abhishek Chandra had already left the job and have joined at different places. According to him, services of Dr. Sandeep Kumar was terminated w.e.f. 01.03.2013 and at present he is working as a Professor at Jamia Hamdard Institute of Medical Sciences and Research, New Delhi. Further, applicant no. 2 resigned from the post of Assistant Professor, Department of Ophthalmology, Institute of Medical Sciences, Banaras Hindu University w.e.f. 05.03.2014.

26. Secondly, Dr. Sandeep Kumar had applied on the post of Associate Professor in Orthopaedics under SC category (Post-Code 2656) and also on the post of Associate Professor in Trauma Orthopaedics under SC category (Post-Code 2657), while opposite party no. 4 Dr. Saurabh Singh had applied for Associate Professor in Trauma Orthopaedics under general category (Post-Code 2657) and, thus, there was no clash for the post claimed by the applicant no. 1 and the opposite party no. 4. The relief sought in Writ-A No. 66598 of 2013 was for the post applied by Dr. Sandeep Kumar under Post-Code 2656 and Post-Code 2657 both under SC category, while opposite party no. 4 Dr. Saurabh Singh was appointed under Post-Code 2657 under general category and that too after the directions of the writ Court dated 26.03.2014 passed in Writ-A No. 17688 of 2014.

27. Thirdly, appointment of Dr. Saurabh Singh was never challenged by the applicants before any Court of law nor he was made party in earlier round of litigation by the applicants. It was only on the directions of the Division Bench that the papers relating to the appointment on the Post-Code 2657 under general category was opened and order was passed by the Vice-Chancellor appointing opposite party no. 4 on 30.03.2014.

28. According to learned Senior Counsel, the contempt proceedings cannot be used as tool to harass and if alternative remedy is available to the applicants, present contempt proceedings are liable to be dropped. He has relied upon the decision of Apex Court in case of Dr. U.N. Bora (Supra) and decision of this Court in Contempt Application (Civil) No. 5344 of 2021 (Prem Shankar Vs. Rajeev Pandey, Special Land Acquisition Officer) dated 25.05.2022.

29. Sri V.K. Upadhyay, learned Senior Counsel appearing for the opposite party no. 7, Registrar of the University, submitted that the matter relating to the appointment pursuant to the advertisement of the year 2013 is within the domain of the Executive Council and the Vice-Chancellor. The Registrar has no role, he placed before the Court the Statute of the University wherein Statute 4 deals with the Registrar of the University.

30. Sub-clause 1 provides that the Registrar shall be appointed by the Executive Council on the recommendation of the selection committee constituted for the purpose. Sub-clause 4 provides the various functions, he shall perform in the University. Statute 5 provides for the power of the Registrar.

31. According to learned Senior Counsel, Sub-clause 4 (b) of Statute 4, the Registrar acts under the directions of Vice-Chancellor and he has no role as far as appointment to any post in the University. He relied upon a decision of the Apex Court in case of D.P. Gupta Vs. Parsuram Tiwari and another (2004) 13 SCC 746.

32. Learned counsel appearing for respondent no. 5 submitted that the present applicants had applied for the post of Associate Professor in the Department of Orthopaedics and Department of Ophthalmology whereas opposite party no. 5 applied for the post of Assistant Professor in the Department of Ophthalmology, which was reserved for OBC having Post-Code 3009.

33. According to him, once there was no dispute to the appointment on the post of Assistant Professor in Ophthalmology and the writ Court on 03.02.2014 by way of interim order had directed the Executive Council to proceed with the posts which were not subject matter of consideration. As the case of the opposite party no. 5 was not under challenge before the writ Court, the envelope was opened and he was given appointment on 06.02.2014.

34. Learned counsel next contended that during the period starting from 06.02.2014 till 17.02.2014 when the writ petition was finally decided the appointment of opposite party no. 5 was not subjected to any challenge by the applicants in their writ petition nor they were made party in the said writ petition.

35. According to him, no contempt proceedings lies against the opposite no. 5 as his appointment was made prior to the decision of the Writ-A No. 66958 of 2013 on 17.02.2014, when no objection was made to his appointment.

36. I have heard the respective counsel for the parties and perused the material on record.

37. This Court on 04.12.2019 framed the charges against the opposite party nos. 1, 2, 3, 6, 7 and 8 as to why they should not be punished for wilfully disobeying and flouting the order dated 03.02.2014 and 17.02.2014 passed in Writ-A No. 66958 of 2013. Time was granted to file reply, which they have filed.

38. After going through the reply submitted by the opposite parties and hearing their respective counsel question arises as to whether the opposite parties are in contempt of this Court's order and liable to be tried and punished under Section 10/12 of the Act of 1971, or whether the charges framed be dropped looking to the reply submitted by them.

39. Before proceeding, so as to decide whether the charges framed are sustainable or not, a glimpse of Section 2 (b) of the Act of 1971 is necessary for better appreciation of the case, which is extracted hereasunder;

"2. (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;"

40. The word ''civil contempt' means wilful disobedience to any judgment, decree, direction order, writ or other process of a Court or wilful breach of an undertaking given to a Court. From the reading of the above provision, it is clear that a civil contempt would only be attracted when there is wilful disobedience of any judgment, decree, direction, order, writ or other process of the Court or a wilful breach of an undertaking given to a Court.

41. Through present contempt application wilful disobedience and breach of an undertaking given to a Court has been alleged by the applicants of the order dated 03.02.2014 and 17.02.2014. Before proceeding further, a glimpse of undertaking given by the counsel appearing for the University on 03.02.2014 before the writ Court is necessary, which is extracted hereasunder;

"It has been stated by the learned counsel appearing on behalf of the Banaras Hindu University that till 7.2.2014, the recommendations made for the posts which are the subject matter of consideration, in the present writ petition, shall not be put up before the Executive Council."

42. It is clear that the undertaking given by the learned counsel appearing for the University was only for the posts which were subject matter of consideration in the writ petition and were not to be placed before the Executive Council. The advertisement of the University was for filling of 117 posts of Professor, 195 posts of Associate Professor and 333 posts of Assistant Professor in different disciplines of the University. Five writ petitioners of Writ-A No. 66598 of 2013 had only applied for the post of Associate Professor in Ophthalmology (Petitioner No. 1), for the post of Professor in Ophthalmology (Petitioner No. 2), for the post of Associate Professor in Orthopaedics (Petitioner No. 3), for the post of Professor in the Department of Anatomy (Petitioner No. 4). Thus, the subject matter in the writ petition was only to the post of Professor and Associate Professor in Ophthalmology, Associate Professor in Orthopaedics and Professor in Anatomy.

43. In the meeting of Executive Council held on 05.02.2014 the Council considered all the matters except for the posts which were subject matter of consideration in the writ petition before this Court. So far as the post of Assistant Professor in Ophthalmology was concerned, it was not under challenge in Writ-A No. 66958 of 2013, thus, the Vice-Chancellor opened the envelope and proceeded to appoint Dr. R.P. Maurya, opposite party no. 5, as Assistant Professor in Ophthalmology under OBC category.

44. There was no claim for the said post nor it was under challenge. Moreover, the said writ petition was finally decided on 17.02.2014 and the petitioners of that writ petition never objected to the appointment of Dr. R.P. Maurya as Assistant Professor in Ophthalmology.

45. Now coming to the appointment of Dr. Saurabh Singh on the post of Associate Professor in Trauma Orthopaedics at Trauma Center under the Post-Code 2657 is concerned, it is clear that when his envelope was not opened by the Executive Council, he filed Writ-A No. 17668 of 2014 wherein the Division Bench on 26.03.2014 directed the Vice-Chancellor to take decision in the matter in the light of the judgment/order dated 17.02.2014 passed in Writ-A No. 66598 of 2013.

46. The Vice-Chancellor acting on the directions of the Division Bench on 30.03.2014 held that Dr. Saurabh Singh had applied under unreserved category for the post of Associate Professor in Trauma Orthopaedics, at Trauma Center, and the said post was not covered by the judgment dated 17.02.2014, as the petitioners in that writ petition had applied for the post of Associate Professor in Orthopaedics under Post-Code 2656 and Associate Professor in Trauma Orthopaedics at Trauma Center under reserved category Post-Code 2657, and thus granted appointment to Dr. Saurabh Singh.

47. Dr. Sandeep Kumar, present applicant no. 1, was petitioner no. 3 in Writ-A No. 66598 of 2013 and his claim was only under SC category for the Post-Code 2656 and 2657 and had no lien on the Post-Code 2657 under unreserved category.

48. In these circumstances, it has to be seen whether any wilful disobedience is made out by the opposite parties to the interim order dated 03.02.2014, which was by way of undertaking and final judgment dated 17.02.2014. The Apex Court had occasion to consider the term "wilful" in case of Ram Kishan Vs. Tarun Bajaj and others 2014 (16) SCC 204, and the Court held that the word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. According to the Court, the word "wilful" means knowingly, intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The relevant paragraph nos. 11 and 12 of the judgment are extracted hereasunder:-

"11. Contempt jurisdiction conferred onto the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.

12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is ''wilful'. The word ''wilful' introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of one's state of mind. ''Wilful' means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct"

49. In Sushila Raje Holkar Vs. Anil Kak (Retd.) 2008 (14) SCC 392, the Apex Court held that the proceedings under the Act of 1971 has a serious consequence. The proceedings for contempt should be initiated with utmost reservation. It should be exercised with due care and caution. The Apex Court relied upon its earlier judgment in P.C. Sen (1969) 2 SCR 649 and Jhareswar Prasad Paul and Another v. Tarak Nath Ganguly & Ors. (2002) 5 SCC 352. The relevant Paragraph no. 23 of the judgment is extracted hereasunder:-

"A proceeding under the Contempt of Courts Act has a serious consequence. Whether the alleged contemnor has willfully committed breach of the order passed by a competent court of law or not having regard to the civil/evil consequences ensuing therefor require strict scrutiny. For the said purpose, it may be permissible to read the order of the court in its entirety. The effect and purport of the order should be taken into consideration. Whereas the court shall always zealously enforce its order but a mere technicality should not be a ground to punish the contemnor. A proceeding for contempt should be initiated with utmost reservation. It should be exercised with due care and caution. The power of the court in imposing punishment for contempt of the court is not an uncontrolled or unlimited power. It is a controlled power and restrictive in nature (See Re: P.C. Sen [(1969) 2 SCR 649] and Jhareswar Prasad Paul and Another v. Tarak Nath Ganguly & Ors. [(2002) 5 SCC 352]. A contemnor, thus, may be punished only when a clear case for contumacious conduct has been made out."

50. In Kapildeo Prasad Sah (Supra), the Apex Court held as under;

"No person can defy court's order. Wilful would exclude casual, accidental bonafide or unintentional acts or genuine inability to comply with the terms of the order. A petitioner who complains breach of court's order must allege deliberate or contumacious disobedience of the court's order."

51. In Indian Airport Employees Union (Supra) the Apex Court held that proof of mere disobedience is not sufficient. Relevant paragraph no. 7 is extracted hereasunder;

"7. It is well settled that disobedience of orders of Court, in order to amount to `Civil Contempt' under section 2 (b) of the Contempt of Courts' Act, 1971 must be `wilful' and proof of mere disobedience is not sufficient. [S.S. Roy vs. State of Orissa & Others AIR 1960 SC 190]. Where there is no deliberate flouting of the orders of the Court but a mere misinterpretation of the executive instructions, it would not be a case of Civil Contempt [Ashok Kumar Singh & Others vs. State of Bihar & Others AIR 1992 SC 407]."

52. In Jhareshwar Prasad Paul and another Vs. Tarak Nath Ganguli and others (2002) 5 SCC 352 the Supreme Court in depth described the purpose of the Act of 1971 and dealt as to when the contempt of an order is made out. Relevant paragraph nos. 11 and 12 are extracted hereasunder;

"11. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. Since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the juidiciary is undermined. The Contempt of Courts Act, 1971 has been introduced under the statute for the purpose of securing the feeling of confidence of the people in general for true and proper administration of justice in the country. The power to punish for contempt of courts is a special power vested under the Constitution in the courts of record and also under the statute. The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct. It is to be kept in mind that the court exercising the jurisdiction to punish for contempt does not function as an original or appellate court for determination of the disputes between the parties. The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition be it stated here that the court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the court which disposed of the matter for clarification of the order instead of the court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes leveled against the courts exercising contempt of court jurisdiction "that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute" in its entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may give rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of courts.

12. Judging the case in hand on the touchstone of the principles noted above, we find that the directions issued by the Division Bench in the impugned judgment in effect granted substantive reliefs not covered by the judgment/order passed in the original proceeding. In the judgment no direction was issued by the High Court that the writ petitioners will be admitted to the cadre of Upper Division Clerks/Assistants in the Directorate. As noted earlier, they have all along been holding the posts of Clerk- cum-Cash Collector which are ex-cadre posts. Entry of such persons into the cadre of Upper Division Clerk/Assistants has to be considered taking into account various aspects of the matter. It is one thing to say that the benefits under the Government Order may be extended to the writ petitioners also and extending benefits of the Government Order to the writ petitioners is one thing and directing their entry into the existing cadre of Office Assistants is a different thing. Such a dispute can only be determined on consideration of all relevant aspects of the matter and cannot be and should not be ordered in the summary proceeding for taking action for contempt of court. If the High Court felt that the grievance of the writ petitioners relating to the question of their entry into the cadre of Upper Division Clerks/ Assistants has not been dealt with by the court and specific direction has not been issued while disposing of the writ petitions/appeals then the appropriate course was to leave it to the parties (writ petitioners) to agitate the matter before the competent forum. Further the question of entry of holders of ex-cadre posts, like the writ petitioners, into an existing cadre is a matter of policy which the Government has to decide. Be it noted here that on consideration of the matter the High Court held that no action for contempt of court need be taken against the respondents in the writ petition for deliberate disobedience of the judgment or order passed by the High Court. Thereafter it was not open to the court to pass any order granting substantive relief to the applicants (writ petitioners) on the plea that the question raised was also a part of their grievance in the writ petition. "

53. In Om Prakash Jaiswal (Supra) the Apex Court held that a jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of. Relevant paragraph no. 17 is extracted hereasunder;

"17. The jurisdiction to punish for contempt is summary but the consequences are serious. That is why the jurisdiction to initiate proceedings in contempt as also the jurisdiction to punish for contempt in spite of a case of contempt having been made out are both discretionary with the Court. Contempt generally and criminal contempt certainly is a matter between the Court and the alleged Contemnor. No one can compel or demand as of right initiation of proceedings for contempt. Certain principles have emerged. A jurisdiction in contempt shall be exercised only on a clear case having been made out. Mere technical contempt may not be taken note of. It is not personal glorification of a Judge in his office but an anxiety to maintain the efficacy of justice administration system effectively which dictates the conscience of a Judge to move or not to move in contempt jurisdiction. Often an apology is accepted and the felony condoned if the Judge feels convinced of the genuineness of the apology and the prestige of the Court having been restored. Source of initiation of contempt proceedings may be suo motu, on a Reference being made by the Advocate General or any other person with the consent in writing of the Advocate General or on Reference made by a Subordinate Court in case of criminal contempt. A private party or a litigant may also invite the attention of the Court to such facts as may persuade the Court in initiating proceedings for contempt. However, such person filing an application or petition before the Court does not become a complainant or petitioner in the proceedings. He is just an informer or relator. His duty ends with the facts being brought to the notice of the Court. It is thereafter for the Court to act on such information or not to act though the private party or litigant moving the Court may at the discretion of the Court continue to render its assistance during the course of proceedings. That is why it has been held that an informant does not have a right of filing an appeal under Section 19 of the Act against an order refusing to initiate the contempt proceedings or disposing the application or petition filed for initiating such proceedings. He cannot be called an aggrieved party."

54. Recently the Apex Court in case of Dr. U.N. Bora (Supra), held that wilful disobedience will arise only where the action is deliberate, conscious and intentional. The Court further held that a roving inquiry is not expected by the contempt Court and it cannot go beyond the very judgment which is alleged to be violated. The relevant paragraph no. 8 is extracted hereasunder:-

"8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the "willful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings."

55. Thus, it is clear that unless and until the disobedience is wilful on the part of the contemnor, the contempt Court cannot punish for deliberate and wilful disobedience of the order alleged.

56. Thus, in the present case, as there was no challenge to the post of Assistant Professor in Ophthalmology under OBC category (Post-Code 3009) and Associate Professor in Trauma Orthopaedics under unreserved category (Post-Code 2657), it cannot be said that the University authorities violated the order dated 03.02.2014 and 17.02.2014 and granted appointment to the opposite party nos. 4 and 5.

57. Moreover, the appointment given to the opposite party no. 4 was pursuant to the directions of Division Bench of this Court dated 26.03.2014, which had taken note of the judgment dated 17.02.2014 and had directed the Vice-Chancellor to take decision within two weeks. The Vice-Chancellor complied the orders of writ Court and passed a detailed order and granted the appointment to the opposite party no. 4 on the post of Associate Professor in Trauma Orthopaedics under Post-Code 2657 under unreserved category.

58. Once both these posts were not under challenge before the writ Court, nor the opposite party nos. 4 and 5 were party in the writ petition, no case of contempt is made out either against the opposite party nos. 4 and 5 as well as the opposite party nos. 2, 3, 6, 7 and 8. It was informed that opposite party no. 1 Dr. Lalji Singh, the then Vice-Chancellor of the University, unfortunately died on 10.12.2017.

59. This Court finds that there is no violation of the order dated 03.02.2014 or 17.02.2014 passed by the Division Bench of this Court in Writ-A No. 66598 of 2013 as the Executive Council had taken decision only on the posts which were not subject matter of consideration before the writ Court. From the perusal of the writ petition and the averments made in paragraph nos. 11 and 16 filed by the applicants, it is clear that the post in question on which opposite party nos. 4 and 5 were appointed was not under challenge, nor the writ Court had restrained the University authorities from proceeding to make appointment on the said post.

60. This Court also finds that the applicant no. 1 Dr. Sandeep Kumar had applied both under the Post-Code 2656 and Post-Code 2657 under SC category, while the appointment of Dr. Saurabh Singh was made on the post of Associate Professor in Trauma Orthopaedics at Trauma Center (Post-Code 2657) under unreserved category. Moreover, Dr. Sandeep Kumar had given up his lien as Associate Professor in Orthopaedics and services was terminated w.e.f. 01.03.2013 and joined at Jamia Hamdard Institute of Medical Sciences and Research, New Delhi and is now a Professor in the said university.

61. Similarly, applicant no. 2 Dr. Abhishek Chandra had applied for the post of Associate Professor in Ophthalmology, while opposite party no. 5 was appointed on the post of Assistant Professor in Ophthalmology under OBC category where he was the sole applicant under Post-Code 3009.

62. The facts of the case are conclusive proof of itself that no wilful disobedience of the order of writ Court dated 03.02.2014 which was in the form of an undertaking given to a Court as well as the judgment/order dated 17.02.2014 has been made out.

63. This Court finds that the charges framed against the opposite party nos. 1, 2, 3, 6, 7 and 8 are unsustainable and the reply submitted by the opposite parties narrates the clear picture of the case, which are acceptable.

64. In view of the above, the Court drops the charges framed against the said opposite parties. Contempt notices stands discharged.

65. Contempt application is misconceived and is hereby dismissed.

[Rohit Ranjan Agarwal,J.]

Order Date: 27.06.2022

Shekhar