# Rajesh Kumar Srivastava v. A.P. Verma

- **Citation:** (2004) 2 ILRA 596
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-18
- **Case number:** Special Appeal No. 817 of 2004
- **Bench:** Dr. B.S. Chauhan, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-srivastava-v-a-p-verma-40266
- **Pages:** 7

## Headnote

Sri S.M.A. Kazmi
S.C.

Contempt
of
Court
Act-Section
12
Jurisdiction of Contempt Court-Power of
punishment inherent power of every
Court of record-Court while exercising
power can not go beyond order passed
earlier-alleged to be not complied withBut in exceptional circumstances, where
facts so warrant, Court can also pass
orders
if
necessary
in
facts
and
circumstances of case.

Held: Para 16

Thus, in view of the above, the law on
the issue can be summarised that the
power of punishing a contemner, is
inherent in every Court of record. It is
essential and necessary for the purpose
of smooth working of the Court. The
Court while exercising the power of
contempt generally does not go beyond
the order passed earlier which has not
been complied with, but in exceptional
circumstances,
where
the
facts
so
warrant the Court can also pass the
orders which are necessary in the facts
and circumstances of the case.
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2 All] Provincial Medical Services Association U.P. and others V. State of U.P. and others
597
Case law discussed:
Spl. Appeal 320 of 2004, decided on 27.4.04
(1994) Supp. 2 SCC 303
AIR 2002 SC 2215
(2000) 10 SCC 251
AIR 2003 SC 3044
AIR 1959 All. 675
AIR 1991 Mad 323 (FB)
AIR 1954 SC 186

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
596
8. However, according to the
guidelines as laid down by the Apex
Court itself, it is open for the claimant to
make an application and on sufficient
reasons, the Tribunal can always release
the amount. In the present case, the
Tribunal has rejected the amount. In the
present case, the Tribunal has rejected the
application of the petitioner observing
that no details of the business or other
important work has been disclosed in the
application. Copy of the application has
been filed as annexure 3 to the writ
petition which clearly shows that there
was no details of the purpose for which
amount was sought to be withdrawn. No
error has been committed by the Tribunal
in rejecting such vague application which
do not mention any details or purpose for
which
amount
was
sought
to
be
withdrawn.

9. In view of the aforesaid, it is held
that no error has been committed by the
Tribunal in rejecting the application.
However, in case petitioner makes an
application giving details of purpose for
which amount is sought to be withdrawn,
the Tribunal will consider the same and
pass appropriate order in accordance with
law.

10. With the aforesaid observations,
the writ petition is disposed of.
Petition disposed off.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.8.2004

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 817 of 2004

Provincial Medical Services Association,
U.P. and others

...Appellants
Versus
State of U.P. and others ...Respondents

Counsel for the Appellants:
Sri Ravi Kant
Sri Sishir Kumar

Counsel for the Respondents:
Sri S.M.A. Kazmi
S.C.

Contempt
of
Court
Act-Section
12
Jurisdiction of Contempt Court-Power of
punishment inherent power of every
Court of record-Court while exercising
power can not go beyond order passed
earlier-alleged to be not complied withBut in exceptional circumstances, where
facts so warrant, Court can also pass
orders
if
necessary
in
facts
and
circumstances of case.

Held: Para 16

Thus, in view of the above, the law on
the issue can be summarised that the
power of punishing a contemner, is
inherent in every Court of record. It is
essential and necessary for the purpose
of smooth working of the Court. The
Court while exercising the power of
contempt generally does not go beyond
the order passed earlier which has not
been complied with, but in exceptional
circumstances,
where
the
facts
so
warrant the Court can also pass the
orders which are necessary in the facts
and circumstances of the case.
http://www.allahabadhighcourt.nic.in
2 All] Provincial Medical Services Association U.P. and others V. State of U.P. and others
597
Case law discussed:
Spl. Appeal 320 of 2004, decided on 27.4.04
(1994) Supp. 2 SCC 303
AIR 2002 SC 2215
(2000) 10 SCC 251
AIR 2003 SC 3044
AIR 1959 All. 675
AIR 1991 Mad 323 (FB)
AIR 1954 SC 186

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This special appeal has been
preferred
against
the
orders
dated
17.5.2004 and 30.4.2004, passed by the
learned Single Judge while dealing with
the Contempt Petition No. 820 of 2002
Rajesh Kumar Srivastava Vs. A.P. Verma
& ors., by which earlier order dated
28.1.2004, passed in the same contempt
petition is being enforced directing the
State Government to frame the transfer
policy and implement the same for the
Doctors.

2. The facts and circumstances
giving rise to this case are that the Hon'ble
Apex Court decided the public interest
litigation D.K. Joshi Vs. State of U.P. &
ors., (2000) 5 SCC 80, issuing certain
directions to the State Government to
restrain
the
unqualified/unregistered
Doctors to indulge in any kind of medical
practice.
Subsequently,
a
Contempt
Petition No. 292 of 2002, Rajesh Kumar
Srivastava
Vs.
A.P.
Verma,
Chief
Secretary, U.P. was filed before the
Hon'ble Apex Court raising the grievance
that the directions issued by their
Lordships in the said judgment were not
being complied with at all and the State
Government was not taking any steps to
ensure the compliance of the same. The
Hon'ble Supreme Court vide its order
dated 8.10.2001 did not entertain the
petition, rather gave liberty to the
petitioner therein to file the petition
before this Court and in pursuance of the
same, the said contempt petition has been
filed herein and entertained by this Court.
In order to prevent the quacks to spoil the
life of the members of the society, a large
number of directions have been issued
from time to time by this Court. In order
to check the menace of private practice
and running their own Nursing Homes or
working in other Nursing Homes by the
Government Doctors at the cost of public,
in the said case, on 28.1.2004, amongst
others, the following directions were also
issued.

"The Principal Secretary, Medical
Health and Family Welfare, it is directed,
to ensure that no medical officer in the
Government Service is posted beyond
three years in any District, and that all
para medical staff serving in the Primary
Health
Centre/Community
Health
Centre/District
Hospitals
and
other
hospitals run by Government of U.P. for
more than five years shall be transferred
from that centre/hospital. Any Doctor in
employment
of
State
Government
offering their services to the unauthorised
medical practitioners shall face immediate
disciplinary
action
by
the
State
Government, and shall be prosecuted for
aiding and abetting such unauthorised
practice."

3. Being aggrieved, a large number
of special appeals have been preferred
against the same contending that a Court
while entertaining a contempt petition,
cannot issue this kind of direction. More
so, the petition is limited only to prevent
the unqualified and unregistered persons
to indulge in medical practice and issuing
such a direction is beyond the competence
of the contempt court. In a special appeal,
a Division Bench of this Court stayed the
operation of the above said direction.
However, in the Special Appeal No. 320
of 2004 Dr. Ravindra Kumar Goel & ors.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
598
Vs. State of U.P. & ors. decided on 27th
April, 2004, another Division Bench of
this Court held that the transfer is a
condition of service. It is a matter
between employer and employee and the
Court generally does not interfere in such
matters unless the transfer of employee is
found to be in violation of the statutory
provision or held to have been made mala
fide. But, while dealing with the issue of
competence of the Contempt Court to
issue such a direction, the Court held as
under:-

"In our opinion it is correct to say
that the principles of transfer are policy
matters, and they should ordinarily be
decided by the State Government and not
by this Court. Hence we modify direction
no. 8 contained in the judgment of the
learned Single Judge, and we hold that
this directive shall be treated as a
recommendation rather than a binding
directive on the State Government."

4.

Subsequently,
the
State
Government has framed the transfer
policy and implemented the same, hence
this special appeal has been preferred
challenging the consequential orders.

5. The issues involved herein are as
to whether a Court while dealing with the
Contempt Petition can issue a direction
beyond
the
scope
of
contempt
proceedings and a matter not related to
the issue involved in the contempt
petition.

6. A coordinate Bench does not have
a right to examine the correctness of a
Division Bench judgment unless it is held
to be per incuriam or based on evidence
not on record, being perverse, and even
for that purpose, the matter is to be
referred to a larger Bench. The judicial
discipline does not warrant sitting in
appeal against the judgment of the
coordinate Bench.

7. In Noorali Babul Thanewala Vs.
Sh. K.M.M. Shetty & ors., AIR 1990 SC
464 the Hon'ble Supreme Court while
dealing with a similar issue, held that a
Court dealing with the contempt matter
has a right not only to pass an order to
purge the contempt by directing the
contemnor to implement the order passed
by it but also has competence to issue
necessary
further

consequential
directions for the enforcement of the said
order.

8. In Major Gen. (Old Capt.)
Virender Kumar Vs. Chief of the Army
Staff & ors., (1994) Supp 2 SCC 303, the
Hon'ble
Supreme
Court
held
that
contempt proceedings are meant for
implementation of the orders passed by
the Court, but it does not have the power
to decide an issue which had not been
involved earlier while passing the main
order. Similar view had been reiterated in
Satyabrata Biswas & ors. Vs. Kalyan
Kumar Kisku & ors., AIR 1994 SC 1837.

9. Similar view has been reiterated
by the Hon'ble Apex Court in Director,
Elementary Education & ors. Vs. Pratap
Kumar Nayak, (1997) 9 SCC 107
observing that a Court or Tribunal cannot
issue a direction in contravention of the
direction issued in the main order, and it
does not have the power to act beyond the
main order and issue fresh directions.

10. In Jhareswar Prasad Paul & anr.
Vs. Tarak Nath Gangoli & ors., AIR 2002
SC 2215 while dealing with a similar
issue the Apex Court observed as under:-

"The contempt jurisdiction should be
confined to the question whether there has
been any deliberate disobedience of the
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2 All] Provincial Medical Services Association U.P. and others V. State of U.P. and others
599
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 levelled
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."

11. In Baldeobhai Gopalbhai Patel
Vs. K.M.V. Cooperative Housing Society
Limited & ors., (2000) 10 SCC 251, the
Hon'ble Supreme Court dealt with an
issue where the High Court issued the
direction to demolish the construction
raised in violation of the order of the
Court
in
addition
to
sending
the
contemnor to jail for imposing the
punishment
holding
him
guilty
of
contempt of Court. The Apex Court held
that as the matter was yet to be decided
finally, the High Court ought not to have
passed the order of demolition of the
construction raised in the breach of the
Court's order.

12. In Special Leave Petition
(Criminal) No. 585 of 2004 Smt Shail Vs.
Shri Manoj Kumar & ors., decided on 29th
March, 2004 the Hon'ble Apex Court
dealt with an issue wherein the petitioner
therein had filed an application for
maintenance before the Family Court, and
as it was not decided, she approached this
Court, wherein this Court passed the order
directing the Family Court to decide her
application within stipulated period. As
the same was not decided, she filed the
contempt petition and proceedings were
initiated against the Presiding Officer of
the Family Court. The matter went to the
Hon'ble Supreme Court and the petitioner
therein urged that whatever may be the
legal and factual position as it was
difficult for her to survive, this Court
ought
to
have
awarded
her
the
maintenance in order to save her from
destitution. The Hon'ble Supreme Court
placing reliance upon its earlier judgment
Surya Dev Rai Vs. Ram Chander Rai &
ors., AIR 2003 SC 3044, held that the
High
Court
while
exercising
the
supervisory powers, which are required to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
600
be exercised sparingly with care and
caution, ought to have granted the
maintenance itself and the direction
issued to the petitioner to appear before
this Court on the next date of hearing in
the said contempt petition and seek the
relief of maintenance from the High
Court.

13. In Smt Abida Begam Vs.
R.C.E.O., AIR 1959 All 675 a Division
Bench of this Court held:

"It may not be possible for us to
grant a decree in the suit, but, in spite of
that fact, we think that this Court has
jurisdiction under Article 226 of the
Constitution to grant the relief as against
the defendant no. 1, even though this
matter had not come in its writ
jurisdiction on an application under
Article 226."

14. It may be mentioned that in the
said case, the Division Bench was
deciding a special appeal against the
judgment of a learned Single Judge who
had decided a second appeal under
Section 100 C.P.C. Thus, the Court was
not exercising writ jurisdiction but the
jurisdiction of second appeal. However, it
was observed that even in such a
jurisdiction in certain exceptional cases
the Court can issue writs. Thus the
decision in Abida Begam's case (Supra) is
an authority for the proposition that in
exceptional cases a Judge sitting in a
particular jurisdiction can issue a directive
relating to another jurisdiction also so as
to do justice.

15. A similar view has been
reiterated by the Full Bench of Madras
High Court in Vidya Charan Shukla Vs.
Tamil Nadu Olympic Association & anr.,
AIR 1991 Mad 323, where the Court held
that every court of record has an inherent
jurisdiction to punish the contemnor and
even
in
contempt
proceedings
the
contempt of court is not limited only to
enforce the order passed earlier, and to
punish the contemnor but also to pass an
appropriate order as required in the facts
and circumstances of the case. While
deciding the said case, the reliance had
been placed upon a large number of
earlier judgments of various Courts,
including the judgment of the Hon'ble
Supreme Court in Sukhdev Singh Vs.
Hon'ble C.J. S. Teja Singh & Hon'ble
Judges of the Pepsu High Court at Patiala,
AIR 1954 SC 186.

16. Thus, in view of the above, the
law on the issue can be summarised that
the power of punishing a contemner, is
inherent in every Court of record. It is
essential and necessary for the purpose of
smooth working of the Court. The Court
while exercising the power of contempt
generally does not go beyond the order
passed earlier which has not been
complied
with,
but
in
exceptional
circumstances, where the facts so warrant
the Court can also pass the orders which
are
necessary
in
the
facts
and
circumstances of the case.

17. There is another aspect of the
matter
which
also
requires
to
be
examined. The petitioner-appellants in
this case had approached earlier the
Hon'ble Supreme Court raising their
grievance that the order passed by the
Hon'ble Supreme Court is not being
complied with. The Hon'ble Supreme
Court did not consider it proper to
entertain the contempt petition and it was
disposed of vide order dated 8.10.2001
observing as under:-
"It is appropriate for the petitioner to
move the High Court for the relief sought
for. The contempt petition is dismissed
accordingly."
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2 All] Provincial Medical Services Association U.P. and others V. State of U.P. and others
601

18. There can be no dispute to the
settled legal proposition that the Court of
record is competent to initiate the
contempt proceedings in respect of a
matter seized by it and also in respect of
the contempt of the Court subordinate to
it, but it is beyond imagination that the
High Court can entertain the contempt
petition for non-compliance of the order
passed by the Hon'ble Supreme Court.
The Hon'ble Apex Court did not ask the
petitioner therein to file the Contempt
Petition rather directed to approach this
Court for seeking appropriate relief.
Though petitioner therein approached this
Court by filing contempt petition, but in
strict legal sense, considering the scope of
contempt jurisdiction, it cannot be held
that it is a contempt petition, but
directions issued by their Lordships
cannot be ignored. It is misnomer and in
such circumstances, there cannot be any
bar in passing the orders which are
incidental and necessary in such a case.
The submission made by the learned
counsel for the petitioner-appellants that
an order without jurisdiction is void, is
acceptable, but such an issue is neither
involved herein nor it is required to be
examined at all.

19. The Coordinate Bench of this
Court already held that the order passed
by the learned Single Judge issuing a
direction for transfer and framing the
transfer
policy
is
merely
a
recommendation. Therefore, appellants
herein
cannot
have
any
grievance
whatsoever as the issues raised by the
appellants herein have already been dealt
with by the coordinate Bench in Ravinder
Kumar Goel and others (Supra).

20. Secondly, the Government
frames the transfer policy in respect of its
employees from time to time. Doctors
cannot claim to be of a separate class, nor
it is their case that they are not to be
governed by the said policy. The transfer
policies framed by the State always
provide a guideline to transfer an
employee
after
serving
three
years
generally at a particular place. The said
transfer policy or any other guidelines
issued by the State Government from time
to time in respect of transfer of the
Medical Officers, separately had not been
implemented strictly in their cases. State
Government considering the directions
issued by this Court which have been held
to be recommendatory only, framed the
transfer policy of transferring the Doctors
who have served at a particular place for
ten years. A government servant does not
have a right to serve at a place of his
choice. It is for the employer to consider
as to where and for how long the services
of a particular employee are required.
How
the
appellants
could have a
grievance for implementing the transfer
policy which the State is required to
enforce even without direction of any
Court. It is not something which this
Court has directed to do, which was not
permissible in law or not known to the
State
Authorities.
It
was
only
a
recommendation to wake up the so called
administration from its deep slumber as
under what circumstances the Authorities
were discriminating the other government
employees from the medical officers by
not transferring them from a particular
place for the decades altogether; and as to
why
the
other
officers
are
being
transferred generally after serving at one
place for three years. It cannot be a legal
issue for examination by any Court when
appellants who are government servants
and know very well that transfer is an
incidence of service. Be that as it may, it
is for the State to adopt the policy and the
Court has to keep its hands off unless the
policy is found to be unreasonable and
arbitrary. Framing the policy of transfer
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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after 10 years' stay at one particular place
may be a premium for the Doctors for
flourishing their Nursing Homes at the
place of their service or serving in the
Private Nursing Homes to the disadvantage of the society as a whole. The
transfer policy framed by the State
Government may be counter-productive
of its desired aims. It is strange that the
appellants have a grievance against a
discriminatory policy framed by the State
Government, which is totally to their
advantage and discriminatory against all
other employees and against the public
interest. Thus, seeing the present state of
affairs in the Medical Service, we have no
hesitation to say that 10 years' stay policy
may be counter-productive.

21. As the Division Bench of this
Court has already held that the said
directions are only recommendatory, we
see no reason to take a view contrary to
the same. Appeal is devoid of any merit.
The facts of the appeal do not warrant any
interference. It is accordingly dismissed.
Appeal Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 33529 of 2004

Natha Ram Pathak

...Petitioner
Versus
Director, Prashikshan Evam Sevayojan,
U.P. Lucknow and others ...Respondents

Constitution
of
India-Art.
226-Order
directing
representation
to
be
filed
within two weeks and decide same
within three weeks. Not mandatory-High
Court's order, held, cannot be read as
prescribing
limitation
for
filing
representation- Nor is it open to Director
to reject the representation on ground
that same has been filed beyond two
weeks.

Held: Para 5

However, in the opinion of the Court, the
order dated 17.11.2003, passed by this
Court, cannot be read as limitation
prescribing
limitation
for
filing
the
representation nor it is open to Director
to reject the representation on the
ground that the same has not been filed
beyond two weeks.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Pankaj Agrawal
Advocate on behalf of the petitioner and
Learned Standing Counsel on behalf of
the respondents 1 and 3.

2. It is not necessary to issue notice
to Respondent Nos. 2 and 4 in view of the
order proposed to be passed by this Court
today.

3. The petitioner has filed present
writ petition against the order of the
Director, Prashikshan Evam Sevayojan,
U.P. Lucknow dated 15th July, 2004,
whereby the objections filed by the
petitioner in pursuance of the order of this
Court dated 17.11.2003, passed in Civil
Misc. Writ Petition No. 7830 of 2003
have been rejected only on the ground
that the same has not been filed within
two weeks as was directed under order of
this Court dated 17.11.2003, which has
been enclosed as Annexure-10 to the writ
petition.

4. From the order passed by this
Court, it is apparently clear that the
direction to file the representation within
two weeks was issued in view of the
further direction that the representation