[Cites 4, Cited by 0]
Delhi High Court
Ashutosh Mishra vs Anoop Kumar Mendiratta & Ors on 10 April, 2026
Author: Sachin Datta
Bench: Sachin Datta
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 10.04.2026
+ CONT.CAS(C) 180/2022 and CM APPLs.5392/2024, 45687/2024,
73205/2024
ASHUTOSH MISHRA .....Petitioner
Through: Mr. Rahul Tyagi along with Ms. Priya
Rai, Mr. Shubham Goel, Mr. Karan
Grover, Mr. Sangeet Sibou,
Ms. Laxmi Mr. Aniket Kumar Singh
and Mr. Priyansh Raj Singh,
Advocates.
versus
ANOOP KUMAR MENDIRATTA & ORS. .....Respondents
Through: Mr. Ashish K. Dixit, CGSC along
with Mr. Umar Hashmi, Mr. Gautam
Yadav, Ms. Urmila Sharma,
Ms. Deepika Kalra and Ms. Iqra
Sheikh, Advocates for UOI.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
JUDGMENT
1. The present petition has been filed by the petitioner alleging wilful
disobedience of the directions contained in the judgment/order dated
26.07.2021 passed in W.P.(C) 899/2021. The said order reads as under:-
"1. Mr. Nidhesh Gupta, learned senior counsel, who appears on behalf of
the petitioners, on instructions, says that, although, the petitioners, in the
above-captioned matter, have assailed the judgment of the Tribunal dated
04.03.2020, they underwent the selection process [albeit, without
prejudice to their rights and contentions], and have come out successful.
1.1 This position is not denied by Mr. R.V. Sinha, who appears on behalf
of respondent no.1/UPSC as well as Mr. Ajay Digpaul, who appears on
behalf of respondent no. 2/UOI.
2. Accordingly, the writ petition is disposed of with a direction that, since
the petitioners have been declared successful, the concerned respondent
[i.e. Union of India] will give effect to the result as impugned judgement
cannot, now, stand in their way.
2.1. The net result will be that, the petitioners will stand appointed to the
post of Joint Secretary and Legal Advisor in the Ministry of Law and
Justice. Let the needful be done at the earliest, though not later than six
weeks from the date of receipt of a copy of this order.
3. The writ petition is disposed of in the aforesaid terms. Consequently,
pending applications shall also stand closed."
2. It is the case of the petitioner that there has been wilful disobedience
on the part of the respondents, with the directions contained in the aforesaid
order, inasmuch as the petitioner's appointment was not made within the
time period prescribed therein.
3. In terms of the aforesaid order dated 26.07.2021, the appointment of
the petitioner to the post of Joint Secretary and Legal Advisor in the
Ministry of Law and Justice was to be made not later than six weeks from
the date of the receipt of the copy of the said order.
4. It transpires that an offer of appointment was made to the petitioner
on 08.11.2021. The same reads as follows:-
5. In the aftermath thereof, the petitioner accepted the said offer vide
communication dated 11.11.2021. The same reads as under:-
6. Thereafter, certain additional documents were sought from the
petitioner vide communication dated 17.12.2021 (Annexure P-11). The said
communication reads as under:-
7. For reasons not attributable to the petitioner, the appointment of the
petitioner could not fructify.
8. In the circumstances, the present petition came to be filed on
07.02.2022. During the pendency of the present petition, a judgment/order
dated 23.12.2022 was rendered by a Division Bench of this Court while
disposing of CM APPL. 8388/2022 in W.P.(C) 899/2021. The same
copiously deals with the controversy and the objection/s as regards the
petitioner's appointment, and ultimately concludes as under:-
"12. We agree with the submission made by learned counsel appearing on
behalf of petitioner no.2 and 4 that the goalpost cannot be changed after
the match has begun. In the present case, respondent no.2/Ministry of Law
& Justice is trying to change the goalpost after the match has finished.
Under no circumstances, respondent no.2 can go beyond the educational
qualification and the experience prescribed in ILS Rules, and the
requisition sent to UPSC, which forms basis of the selection of the five
candidates, including the petitioner no.2 and 4.
13. It appears that the application under discussion has been moved by
respondent no.2 only with a view to find an escape route in the contempt
petition moved by petitioner no.2 and 4 as the order passed by this Court
on 26.07.2021 has not been complied with till date irrespective of the fact
that six weeks' time was granted to comply with the same and about 1 year
and 5 months have already passed since the passing of the said order.
14. It is also pertinent to note here that the Competent Authority, i.e.,
Minister of Law & Justice, has already accepted the recommendation of
UPSC and has directed for issuance of offers of appointment, which were
duly issued on 08.11.2021 and the said offers were duly accepted by
petitioner no.2 and 4 on 11.11.2021 and the only consequent step for
respondent no.2 was to issue appointment letters, which, it has failed to
issue for the reasons best known to its officials."
9. The SLP (C) No. 4410-4411/2023 came to be filed against the
aforesaid judgment dated 23.12.2022, which was dismissed by the Supreme
Court on 19.10.2023. In the aftermath thereof, an appointment letter dated
30.11.2023 was issued to the petitioner. The same reads as under:-
10. It is the case of the petitioner that even the said appointment letter is
not consistent with the judgment/order dated 26.07.2021 passed in W.P.(C)
899/2021 [read with the judgment/order dated 23.12.2022 passed while
disposing of CM APPL. 8388/2022 in W.P.(C) 899/2021], inasmuch as the
said appointment has been purportedly made with prospective effect, viz.
with effect from the date of assumption of charge and not with effect from
the timeline referred to in the aforesaid judgment/order dated 26.07.2021.
11. It is the case of the petitioner that the post of Joint Secretary and
Legal Advisor in the Department of Legal Affairs was advertised in the year
2018 for selection through direct recruitment. The selection process of the
petitioner attained finality by the judgment/order dated 26.07.2021 passed in
W.P.(C) 889/2021.
12. The respondents dragged the matter into further litigation and the
appointment letter came to be issued only on 30.11.2023.
13. In the meantime, during the pendency of the said litigation, certain
other candidates were promoted to the post, as a result of which the seniority
of the petitioner was affected.
14. It is the case of the petitioner that the respondents have wilfully and
deliberately defied the binding orders of this Court by not giving effect to
the appointment of the petitioner from a date not later than six weeks from
the date of receipt of a copy of the final judgment/order dated 26.07.2021.
15. It is the case of the petitioner that by issuing the offer of appointment
dated 30.11.2023 to the petitioner, effective from a prospective date, the
orders passed by this Court (as affirmed by the Supreme Court) have been
sought to be circumvented.
16. On 14.01.2026, the respondents were directed to produce the relevant
files and correspondence/s pertaining to the petitioner's appointment.
17. Again, vide order dated 18.02.2026, after hearing the respective
counsel at length, this Court directed the respondents to produce, for the
perusal of this Court, the proposal put forth to the ACC pursuant to D.O.
letter No. A-60011/13/2021-Admn.(LA) dated 26.10.2023 and Letter No. A-
60011/13/2021-Admn.(LA) dated 13.11.2023, forwarded by the Department
of Legal Affairs to DoP&T with the approval of MOS (IC) for L&J.
18. A perusal of the relevant files produced by the Ministry of Law and
Justice reveals that, in the note that was enclosed along with the
communication dated 26.10.2023 addressed to DoPT, it was specifically
sought as under :-
"25. In view of the aforesaid factual matrix, it is requested to seek
approval of the ACC on the following:-
(a). For compliance of the order dated 26.07.2021 of Hon'ble Delhi High
Court in WP (C) No. 899/2021, approval of ACC may be sought to
appoint Sh. Ashutosh Mishra and Sh. Sher Singh Dagar as Joint Secretary
and legal Adviser w.e.f. 21.09.2021;
(b). The notional appointment of Sh. Ashutosh Mishra and Sh. Sher Singh
Dagar as Joint Secretary and legal Adviser may be considered w.e.f.
21.09.2021 for the purpose of seniority and pay fixation. They would be
treated as notionally appointed on 21.09.2021 i.e. in the normal course on
the expiry of the six weeks as has been directed by the Hon'ble Delhi High
Court in the judgment dated 26.07.2021 in WP (C) No. 899/2021.
However, they would not be entitled for the back wages as decided by
Hon'ble High Court of Delhi in its judgment dated 17.05.2017 in WP (C)
No. 6205/2014 (relevant Para 49) (Praveen Srivastava & others vs.
UPSC) and subsequently confirmed by the Hon'ble Supreme Court in its
order 18.05.2018 in SLP (C) No. 24215/2017 (UPSC & others vs. Praveen
Srivastava &1 others).
26. Approval of the Hon'ble MoS (I/C) L&J has been obtained for Para 25
above."
19. Certain comments were made and clarification/s sought by the DoPT
pursuant to the said communication. The same was responded to by the
Ministry of Law vide Office Memorandum dated 13.11.2023. It was, inter
alia, stated therein as under :-
"So far as the effect of appointment of Sh. Ashutosh Mishra and Sh. Sher
Singh Dagar to the post of JS&LA w.e.f. 21.09.2021 on the date of
appointment of Sh. Vijay Kumar Sharma (who was one of the petitioners in
the aforesaid WP (C) 899/2021) is concerned, it is to be noted that the
directions of the Hon'ble Supreme Court and Hon'ble High Court, on which
the present proposal is based, has to be implemented on or 30.11.2023 (as
the next date of hearing in the contempt petition is 01.12.2023) irrespective
of its effect on the service condition of Sh. Vijay Kumar Sharma, who
superannuated on 30.09.2023 or any other person. At present this issue is
not relevant to the context. However, according to the requirement, the
issue can be analysed in accordance with the Rules and Law."
20. Vide Office Memorandum dated 13.11.2023, issued by Ministry of
Law and Justice, Department of Legal Affairs, it was further conveyed as
under:
"2. .....
(a). Comments on para-2:-
The proposal of the Department of Legal Affairs for appointment of Sh.
Ashutosh Mishra and Sh. Sher Singh Dagar to the post of JS & LA w.e.f
21.09.2021 is not in any discretionary exercise of power of this
department rather has been forwarded with the approval of Hon'ble
Minister of State (I/C) for Law & Justice for full compliance of the order
of Hon'ble High Court dated 26.07.2021 and 23.12.2022 and of Hon'ble
Supreme Court dated 19.10.2023 and in order to avoid any breach of the
said order(s) which may give rise to punitive action under ongoing
contempt proceeding vide Cont. CAS (C) No. 180/2022 in the High Court
of Delhi and is fixed for hearing on 01.12.2023."
21. As such, the proposal made by the Department of Legal Affairs was
for the appointment of the petitioner with effect from 21.09.2021, in terms
of the judgment/order dated 26.07.2021 and 23.12.2022 passed by this
Court.
22. In the above background, this Court also deemed it necessary to
peruse the relevant DoPT proposal on which the approval of ACC was
obtained qua the petitioner's appointment. The original file containing the
said DoPT proposal was produced in the Court on 06.04.2026. A perusal of
the same reveals that the ACC was required to give its approval on the basis
of a note dated 15.11.2023 prepared by Secretary, ACC, which concludes as
follows-
"11. Point for consideration of the ACC:
In the light of the aforesaid background, the ACC may consider for
appropriate orders, the proposal of the Department of Legal Affairs for
the appointment of Shri Ashutosh Mishra and Shri Sher Singh Dagar to
the posts of Joint Secretary & Legal Adviser (Grade I of Legal Advisers'
Service cadre of Indian Legal Service) in the Department of Legal Affairs
on notional basis w.e.f 21.09.2021 and on actual basis w.e.f. the date of
assumption of charge of the post till the age of superannuation, or until
further orders, whichever is earlier, without any back wages, in
compliance of the order dated 26.07.2021 of Delhi High Court in WP (C)
No. 899/2021 consequent to dismissal of SLP (C) No. 4410-4411/2023
vide order dated 19.10.2023."
23. The following order dated 30.11.2023 came to be thereafter issued,
pursuant to approval granted by the ACC, based on the aforesaid proposal :-
24. It is noticed that the aforesaid order records the approval by the ACC
to the appointment of the petitioner to the post of Joint Secretary and Legal
Advisor with effect from the date of assumption of charge of the post till the
date of superannuation, or till further orders, whichever is earlier.
25. However, as noticed hereinabove, the note dated 15.11.2023 prepared
by the Secretary, ACC (on the basis of which ACC accorded its approval)
expressly records that the proposal was for the appointment of the petitioner
on a 'notional basis' with effect from 21.09.2021 and on 'actual basis' with
effect from the date of assumption of charge.
26. Despite the same, the formal approval of the ACC, and the order
dated 30.11.2023, omits to mention that the petitioner's notional
appointment would be with effect from 21.09.2021. This is an omission
which is required to be corrected. The same is evident not only from the
aforementioned note prepared by the Secretary, ACC but also from the fact
that the order dated 30.11.2023, itself specifically mentions that the
appointment of the petitioner was being made in compliance with the
judgment/order passed by this Court in W.P.(C) 889/2021 and consequent to
the dismissal of SLP(C) No. 4410-4411/2023 vide order dated 19.10.2023.
In terms thereof, it was required that the petitioner's appointment was to be
made within the timeline referred to in the judgment/order dated 26.07.2021.
27. In the circumstances, although the petitioner's appointment was
eventually made pursuant to the directions contained in the order/s passed by
this Court, the same was not altogether in conformity with the said order/s.
For the petitioner's appointment to be fully in accord with the said order/s,
the same has to be made with effect from 21.09.2021, (as also mentioned in
the note dated 15.11.2023 prepared by Secretary, ACC), even though the
petitioner actually took charge on 21.12.2023.
28. Non-adherence on the part of the respondent/s, with the time frame set
out in the judgment/order dated 26.07.2021, cannot possibly operate to the
detriment to the petitioner. In such a situation, it is incumbent on this Court
to pass consequential orders to ensure that the petitioner is not prejudiced on
account of delayed compliance by the respondents. This is mandated in
terms of the judgment of the Supreme Court in Balwantbhai Somabhai
Bhandari v. Hiralal Somabhai, (2023) 17 SCC 545. The relevant portion of
the judgement is reproduced as under -
"81. A three-Judge Bench of this Court in SBI v. Vijay Mallya [SBI v. Vijay
Mallya, (2024) 12 SCC 85 : 2022 SCC OnLine SC 826] , in clear terms
said that apart from punishing the contemnor for his contumacious
conduct, the majesty of law may demand that appropriate directions be
issued by the Court so that any advantage secured as a result of such
contumacious conduct is completely nullified. The approach may require
the Court to issue directions either for reversal of the transactions in
question by declaring said transactions to be void or passing appropriate
directions to the authorities concerned to see that the contumacious
conduct on the part of the contemnor does not continue to enure to the
advantage of the contemnor or anyone claiming under him.
xxx xxx xxx
89. Thus, although Section 52 of the 1882 Act does not render a
transfer pendente lite void yet the court while exercising contempt
jurisdiction may be justified to pass directions either for reversal of the
transactions in question by declaring the said transactions to be void or
proceed to pass appropriate directions to the authorities concerned to
ensure that the contumacious conduct on the part of the contemnor does
not continue to enure to the advantage of the contemnor or anyone
claiming under him.
xxx xxx xxx
117. We may summarise our final conclusion as under:....
117.3. Although the transfer of the suit property pendente lite may not be
termed as void ab initio yet when the court is looking into such transfers in
contempt proceedings the court can definitely declare such transactions to
be void in order to maintain the majesty of law. Apart from punishing the
contemnor, for his contumacious conduct, the majesty of law may demand
that appropriate directions be issued by the court so that any advantage
secured as a result of such contumacious conduct is completely nullified.
This may include issue of directions either for reversal of the transactions
by declaring such transactions to be void or passing appropriate
directions to the authorities concerned to ensure that the contumacious
conduct on the part of the contemnor does not continue to enure to the
advantage of the contemnor or any one claiming under him."
29. In Anil Kumar Shahi v. Prof. Ram Sevak Yadav, (2008) 14 SCC 115,
the Supreme Court has observed as under:-
"50. It is by now well settled under the Act and under Article 129 of the
Constitution of India that if it is alleged before this Court that a person
has wilfully violated its order it can invoke its jurisdiction under the Act
to enquire whether the allegation is true or not and if found to be true it
can punish the offenders for having committed "civil contempt" and if
need be, can pass consequential orders for enforcement of execution of
the order, as the case may be, for violation of which, the proceeding for
contempt was initiated. In other words, while exercising its power under
the Act, it is not open to the Court to pass an order, which will materially
add to or alter the order for alleged disobedience of which contempt
jurisdiction was invoked. When the Court directs the authority to
consider a matter in accordance with law, it means that the matter
should be considered to the best of understanding by the authority and,
therefore, a mere error of judgment with regard to the legal position
cannot constitute contempt of Court. There is no wilful disobedience if
best efforts are made to comply with the order."
30. Accordingly, it is directed that the appointment of petitioner shall
notionally relate back to 21.09.2021. During the course of proceedings on
06.04.2026, learned counsel for the petitioner has acceded that the petitioner
is not desirous of claiming any financial benefits with effect from the date of
the said notional appointment. The said statement is taken on record.
31. The above redresses the grievance of the petitioner.
32. In the circumstances, subject to the respondents adhering to/acting in
accordance with the aforesaid direction/s, this Court is not inclined to take
action against the respondent/s for committing wilful disobedience of the
order dated 26.07.2021 passed by this Court.
33. The petition is disposed of in the above terms. Pending applications
also stand disposed of.
SACHIN DATTA, J
APRIL 10, 2026
r, sv
