# Shivam Das Chandani & Ors v. Prabhu N Singh & Ors

- **Citation:** (2022) 2 ILRA 890
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-14
- **Case number:** Special Appeal No. 38 of 2022
- **Bench:** Mrs. Sangeeta Chandra, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-das-chandani-ors-v-prabhu-n-singh-ors-48165
- **Pages:** 10

## Headnote

A. Service Law - Maintainability of
special
appeal-no
appeal
is
maintainable under Chapter VIII Rule
5 of this Rules of the Court against
any
order
passed
in
proceedings
under Contempt of Courts Act as it is
a self contained Code and it also
provides for a remedy of appeal under
section
19

though
only
against
specific type of orders or decisions-In
the
present
case
also
since
the
Hon'ble single Judge has refused to
entertain
contempt
petition,
the
appeal
is
not
maintainable
under
Chapter VIII Rule 5 of the Rules to
such
proceedings
where
an
order
dismissing
an
application
for
contempt is challenged would not be
attracted except when the contempt
court decides to pass orders issuing
directions
in
exercise
of
powers
beyond the Contempt of Courts Act,
which order would be referable to the
powers vested in the High Court under
Article 226 of the Constitution of
India rather than Contempt of Courts
Act.(Para 1 to 23)

The writ petition is dismissed. (E-6)
List of Cases cited:

## Text

890 INDIAN LAW REPORTS ALLAHABAD SERIES
in accordance with Rule 7 of the Rules,
1978 and the candidates do possess the
requisite essential qualification and the
selection is made free and fair. In the
present case, the selection has not been
made free and fair inasmuch as three
candidates
had
received
envelops
containing blank papers sent by petitioner
no.1 intimating the date for interview. If the
Basic Shiksha Adhikari was not granting
approval, petitioner no.1 could have
approached the higher authorities or the
Court against the alleged inaction of the
Basic Shiksha Adhikari, but petitioner no.1
went
ahead
to
advertise
the
posts.
Therefore, I do not find any ground to
interfered with the impugned orders.

47. In view thereof, the writ petition
fails, which is hereby dismissed.
----------
(2022)02ILR A890
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Special Appeal No. 38 of 2022

Shivam Das Chandani & Ors. ...Appellants
Versus
Prabhu N Singh & Ors. ...Respondents

Counsel for the Appellants:
Virendra Kumar Dubey

Counsel for the Respondents:
Ratnesh Chandra

A. Service Law - Maintainability of
special
appeal-no
appeal
is
maintainable under Chapter VIII Rule
5 of this Rules of the Court against
any
order
passed
in
proceedings
under Contempt of Courts Act as it is
a self contained Code and it also
provides for a remedy of appeal under
section
19

though
only
against
specific type of orders or decisions-In
the
present
case
also
since
the
Hon'ble single Judge has refused to
entertain
contempt
petition,
the
appeal
is
not
maintainable
under
Chapter VIII Rule 5 of the Rules to
such
proceedings
where
an
order
dismissing
an
application
for
contempt is challenged would not be
attracted except when the contempt
court decides to pass orders issuing
directions
in
exercise
of
powers
beyond the Contempt of Courts Act,
which order would be referable to the
powers vested in the High Court under
Article 226 of the Constitution of
India rather than Contempt of Courts
Act.(Para 1 to 23)

The writ petition is dismissed. (E-6)
List of Cases cited:

1.
Pune
Municipal
Corp.
&
anr.
Vs
Harakchand Misirimal Solanki & ors. (2014)
3 SCC 183

2. St. of Har. & ors. Vs G.D. Goenka
Tourism Corp. Ltd. & anr. (2018) 3 SCC
585

3.
Indore
Development
Authority
Vs
Shailendra (Dead) thru LRs & ors. (2018) 3
SCC 412

4. Midnapore Peoples' Coop. Bank Ltd. &
ors. Vs Chunilal Nanda & ors. (2006) 5 SCC
399

5. Roop Singh Vs Vinay Kumar Jauhari &
ors. (2020) 142 ALR 144

6. Hub Lal Yadav Vs Mahendra & ors., Spl.
Appeal No. 23 of 2017

7. Sheet Gupta Vs St. of U.P. & ors. (2020)
AIR All 46 FB

8. Smt. Shubhawati Devi Vs R.K. Singh &
anr.(2004) 3 AWC 2414
2 All. Shivam Das Chandani & Ors. Vs. Prabhu N Singh & Ors.
891
9. Chandra Shekhar Vs J.P. Rajpoot & ors.
(2006) 3 AWC 2904

10. Vinita M. Khanolkar Vs Pragna M. Pai &
ors. (1998) 1 SCC 500

11. J.S. Parihar Vs Ganpat Duggar (1996) 6 SCC
291

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J. &
Hon'ble Mohd. Faiz Alam Khan, J.)

1. Heard Mr. O.P. Srivastava, learned
Senior Advocate assisted by Mr. Virendra
Kumar Dubey, learned counsel for the
appellant and Mr. Ratnesh Chandra,
learned counsel for the respondent no. 1.

2. A preliminary objection regarding
maintainability of the special appeal under
Chapter VIII Rule 5 of the Rules of the
Court has been raised on the ground that
the order impugned dated 05.01.2022 has
been passed in the Contempt Application
(Civil) No. 1261 of 2017; Shivam Das
Chandani and 3 others vs. Prabhu N. Singh
posted as Vice Chairman and others;
whereby the learned Contempt Judge
finding that the judgment and order dated
07.10.2015 passed by the Division Bench
in Review Petition No. 7291(MB) of 2005
has been complied with, has dismissed the
contempt application and consigned it to
record.

3. The learned Senior Counsel
appearing on behalf of the appellants says
that the order impugned is not a judgment
dismissing the contempt application as no
finding has been recorded regarding the
compliance of the judgment and order
dated 07.10.2015 passed by the writ Court.
It has been submitted that the Hon'ble
Contempt Judge has only mentioned the
facts as argued by the learned counsel for
the appellants and as argued by the learned
counsel for the contemnors and thereafter
observed that no cause of action survives
and
the
contempt
application
was
accordingly consigned to record. He has
read out the relevant portion of the order
dated 05.01.2022 which is being quoted
hereinbelow:

"3. This contempt application has
been filed for wilful disobedience of
judgment and order dated 07.10.2015
passed by this Court in Review Petition
No.7291 (M/B) of 2005.

4. Learned Senior counsel for the
applicants submitted that the opposite party
has deliberately not complied with the
aforesaid order of this Hon'ble Court.

5. On the other hand, learned counsel
for the opposite party has opposed the
submission of learned counsel for the
applicants and drawn attention of this
Court towards compliance affidavit filed on
27.09.2018, wherein in paragraphs 5 to 8 it
has been mentioned that compliance of the
order dated 07.10.2015 has been made.

6. In view of the above, no cause of
action survives in the present contempt
application.

7.
The
contempt
application
is,
accordingly, consigned to record."

It has been submitted that by referring
to "cause of action" and by referring to the
expression by the Court "consigned to
record", the contempt Judge has exercised
writ jurisdiction and not the contempt
jurisdiction.

4. It has been submitted that a writ
petition was filed for compensation for land
acquired by the respondents which writ
petition was initially dismissed. Later on,
on the basis of the judgment of the Apex
Court in the case of Pune Municipal
Corporation and another vs. Harakchand
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Misirimal Solanki and others (2014) 3
SCC 183 a Review Petition was filed which
was entertained and the writ petition
eventually allowed and the acquisition
proceedings relating to the plots of the
appellants were held to have lapsed and a
direction was issued that the respondents
will make payment of compensation to the
review-petitioners
according
to
the
provisions of the Act of 2013. Later on, a
reference had been made to a Larger Bench
of the Supreme Court to decide the
question with regard to "whether if
compensation is not actually paid to the
tenure holder on acquisition of his land,
Section 24 (2) of the New Act of 2013
would apply and it would mean that the
entire acquisition would lapse?"

5. It has been submitted by the
learned counsel for the appellants that
when the compensation was not paid in
accordance with the Act of 2013 a
contempt application was filed, namely,
Contempt Application (Civil) No. 1261 of
2017. A compliance affidavit was filed
therein by the respondents wherein they
stated that the compensation had been paid
after constitution of a committee in this
regard for the determination of such
compensation and as per the decision taken
in its meeting dated 14.08.2017. The
appellants had filed objection to such
compliance affidavit and this Court by its
order dated 25.04.2018 granted time to the
counsel for the respondents to place
relevant documents to substantiate their
claim that calculation has been done in
accordance with the Act of 2013 and the
appellants
are
entitled
to
get
the
compensation according to the circle rate
prevalent at the time of acquisition in the
year 1986.

Another affidavit of compliance was
filed by the contemnors in which in
paragraph 5 to 8 the details of the Members
of
the
Committee
constituted
for
determining the compensation by the State
Government were mentioned and also the
preparing of calculation sheet by the ADM
(Land and Acquisition) regarding the
compensation to the affected persons. The
calculation sheet was reconsidered in
compliance of the Court's order passed in
Contempt Application on 09.05.2018 and
compensation for a total area of 1 bigha 2
biswa of the three plots in question was
redetermined
to
the
tune
of
Rs.
6,07,666.09.

6. It has been submitted by the
learned counsel for the appellants that the
compliance affidavit was refuted by filing
another objection by the appellants. In the
meantime, the Vice Chairman of the
Lucknow Development Authority was
transferred out and a new Vice Chairman
came and an impleadment application was
filed which was placed on record but no
order
for
impleadment
of
the
new
incumbent was passed thereon. When the
case came up before the Court on two
subsequent occasions, the Contempt Judge
deferred the hearing of the contempt
application in view of the orders passed by
the Supreme Court in the case of State of
Haryana and others vs. G.D. Goenka
Tourism Corporation Limited and another;
(2018) 3 SCC 585 and Indore Development
Authority vs. Shailendra (Dead) through
Legal Representatives and Ors; (2018) 3
SCC 412 observing that an application for
review of the judgment of the writ Court
dated 07.10.2015 has been filed which was
pending and directed the matter to listed in
the month of January, 2022.

7. When the matter was listed on
05.01.2022, the contempt Judge relying
upon the paragraphs 5 to 8 of the affidavit
2 All. Shivam Das Chandani & Ors. Vs. Prabhu N Singh & Ors.
893
of
compliance
filed
on
27.09.2018
observed that the compliance has been
made and no cause of action survives in the
contempt application and the contempt
application be consigned to record.

8. The learned Senior Counsel
appearing on behalf of the appellants stated
before the Court that while on earlier two
dates there was an observation that the writ
Court's order has not been complied with,
by the order dated 05.01.2022 the learned
Contempt Judge dismissed the contempt
application without recording any finding
with regard to whether writ Court's order
has been complied with and only observed
that no cause of action survives and the
application be consigned to record. Such an
order could not have been passed in the
contempt jurisdiction and was actually
passed as if the Contempt Judge was sitting
in the Writ jurisdiction and, therefore, the
Special Appeal under Chapter VIII Rule 5
of the Rules of the Court shall lie against
such an order.

9. The learned Senior Counsel has
placed reliance upon the judgment of the
Apex Court in the case of Midnapore
Peoples' Coop. Bank Ltd. & Others vs.
Chunilal Nanda and others; (2006) 5 SCC
399 wherein the Supreme Court had
observed that if any directions are given by
the Contempt Judge that go beyond his
jurisdiction,
but
not
punishing
the
contemnors for contempt of the writ Court's
order, no appeal would lie under Section 19
of the Contempt of Courts Act. However,
the petitioner is not without remedy and an
intra Court appeal under Clause 15 of the
Letters Patent may be entertained.

10. The learned Senior Counsel read
out the paragraphs 6, 7 and 8 of the
judgment rendered in Midnapore Peoples'
Coop. Bank Ltd. & Others (supra) and
also read out its paragraph 10.3 and
paragraph 11 in their entirety to say that the
Contempt Judge cannot make observations
on the merits of the case, if such
observations are made, but not punishing
the contemnors in the contempt petition,
the said order would be appeallabe under
Chapter VIII Rule 5 of the Rules of the
Court.

11. The learned Senior Counsel has
also referred to the judgment rendered by
the Division Bench of this Court in the case
of Roop Singh vs. Vinay Kumar Jauhari
and others; 2020 (142) ALR 144 and read
out paragraph 7 of the said judgment
wherein paragraph 11 of the judgment in
the case of Midnapore Peoples' Coop.
Bank Ltd. & Others (supra) has been
relied upon to say that if any directions are
made by the Contempt Judge which go
beyond the original order passed by the
writ Court, then special appeal would lie in
such a case.

12. Mr. Ratnesh Chandra, learned
counsel appearing for the respondent no. 1
in reply to the said submissions of the
learned counsel for the appellants has
pointed out from the judgment rendered by
the Supreme Court in Midnapore Peoples'
Coop. Bank Ltd. & Others (supra)
paragraph 4, and referred to the facts of the
said case where an employee had been
suspended and had approached the writ
Court pending initiation of disciplinary
proceedings against him. The employee
had filed a writ petition challenging the
suspension order on the ground that the
charge-sheet had not been issued. The said
writ petition was disposed of directing the
Bank to deliver a copy of the charge-sheet
which had been issued by the Bank and
also directing the delinquent employee to
894 INDIAN LAW REPORTS ALLAHABAD SERIES
submit his reply and the Enquiry Officer to
conclude the enquiry within a period of
three
months
from
the
date
of
communication of the order, subject to the
employee rendering full cooperation for the
conduct of the disciplinary proceedings.
The Bank in compliance issued the chargesheet. The employee filed his reply. The
Enquiry Officer concluded the enquiry and
submitted his report holding the delinquent
employee to be guilty on all the charges. A
show cause notice was issued on the basis
of the said report to the employee giving
him opportunity to submit a representation.

At this stage, the employee filed
another writ petition before the High Court
for quashing the enquiry proceedings,
which writ petition was allowed and the
writ Court directed the enquiry proceedings
and the consequential action taken by the
Bank to have become non est and the same
were set aside. A direction was issued to
the Chairman of the Bank to appoint
someone who is not a Member of the
Bank's Board of Directors as Enquiry
Officer, and to conduct the enquiry de novo
and to complete the same within four
months from the date of its first sitting and
the disciplinary authority was directed to
take suitable action on the basis of such
report. The Bank was directed to pay
suitable subsistence allowance to the
employee during the period of suspension.
No order was passed by the writ Court
setting aside the suspension order. The
Bank in its wisdom and on the basis of the
legal advice complied with the writ Court
order, however, the enquiry was not
completed within four months.

The employee moved a contempt
petition impleading the Officers of the
Bank, the Enquiry Officer "eo-nominee" as
respondents no. 1 to 4 in the said contempt
petition. The contempt Judge summoned
the enquiry report from the Enquiry Officer
and made observations that the Enquiry
Officer had not proceeded with due
diligence. The contempt Judge passed an
order directing the Enquiry Officer to show
cause as to why he should not be punished
for committing contempt and that the
respondents to remain present personally
on all the dates thereafter and held him to
be disqualified to be Enquiry Officer and
directed that he shall cease to be Enquiry
Officer and directed the Chairman of the
Bank to appoint another persons as Enquiry
Office.
The
contempt
Judge
further
proceeded
to
direct
immediate
reinstatement in service of the delinquent
employee by the Bank and the that he
should be deemed to be in service and to be
paid his salary including all arrears within
four weeks from the date of passing of the
order and revoking the suspension order
with immediate effect.

Aggrieved by the such directions
passed by the contempt Judge the Bank
approached the Division Bench in a
Contempt Appeal which was rejected on
the ground that the order of the contempt
Judge did not punish the contemnors. The
Division Bench directed the appellant to
forthwith implement the order of the
contempt Judge. It had also observed in its
order that the appeal did not satisfy the
requirements of Clause 15 of the Letters
Patent and, therefore, could not be
entertained as a Letters Patent Appeal. The
Bank left with no other remedy approached
the Supreme Court under Article 136 of the
Constitution. The Supreme Court having
considered the arguments raised by the
Bank as well as the respondents therein,
framed three questions for it to decide as
mentioned in paragraph 9 of the judgment.

13. Paragraph 9 of the judgment has
been read out and is being quoted
hereinbelow:
2 All. Shivam Das Chandani & Ors. Vs. Prabhu N Singh & Ors.
895

"9. On the aforesaid facts and the
contentions urged, the following questions
arise for consideration :

(i) Where the High Court, in a
contempt proceedings, renders a decision
on the merits of a dispute between the
parties, either by an interlocutory order or
final judgment, whether it is appealable
under Section 19 of the Contempt of Courts
Act, 1971 ? If not, what is the remedy of the
person aggrieved ?

(ii) Where such a decision on merits,
is rendered by an interlocutory order of a
learned Single Judge, whether an intracourt appeal is available under clause 15
of the Letters Patent ?

(iii) In a contempt proceeding initiated
by a delinquent employee (against the
Enquiry Officer as also the Chairman and
Secretary in-charge of the employer-Bank),
complaining of disobedience of an order
directing completion of the enquiry in a
time bound schedule, whether the court can
direct (a) that the employer shall reinstate
the employee forthwith; (b) that the
employee shall not be prevented from
discharging his duties in any manner; (c)
that the employee shall be paid all arrears
of salary; (d) that the Enquiry Officer shall
cease to be the Enquiry Officer and the
employer shall appoint a fresh Enquiry
Officer; and (e) that the suspension shall be
deemed to have been revoked ?"

14. It has been argued by Mr. Ratnesh
Chandra that in Roop Singh (supra), the
Division Bench was considering whether a
special appeal would be maintainable
where the Contempt Judge did not decide
the rights of the parties and only directed
listing of the case by making certain
observations with regard to charges having
been framed, and directing the counsel for
the respondents therein to take further
instructions. The Court observed that under
Section 19 of the Contempt of Courts Act
and also under Chapter VIII Rule 5 of the
Rules of the Court, no direction on the
merits of the case having been given, no
appeal would lie and the appeal was held to
be not maintainable and dismissed.

15. The learned counsel for the
respondents, Mr. Ratnesh Chandra, has
referred to several judgments of this Court
given in the cases of Hub Lal Yadav vs.
Mahendra and 4 Others (Special Appeal
No. 23 of 2017) decided on 27.07.2017;
Sheet Gupta vs. State of U.P. & Others,
AIR 2010 All 46 (FB); Smt. Shubhawati
Devi vs. R.K. Singh and another; (2004) 3
AWC 2414 and in the case of Chandra
Shekhar vs. J.P. Rajpoot and Ors; 2006
(3) AWC 2904.

16. In response to the arguments
raised by the learned counsel for the
respondent no. 1, Mr. O.P. Srivastava,
learned Senior Counsel in rejoinder has
submitted that on earlier two occasions
when the contempt petition was listed
before the Contempt Judge and objection
was raised that the order of the Writ Court
has not been complied, the counsel for the
respondents had been given time to seek
instructions i.e., on 25.04.2018 and again
by the order dated 13.07.2019. The learned
counsel for the appellants has referred to
the objection raised and filed before the
Contempt Judge regarding the allegations
that the Writ Court's order had not been
complied with to say that the compensation
should have been given in accordance with
the Act of 2013 on the market value of the
land determined in 2014 and 2015 and not
as if the land had been acquired in 1986 as
this Court sitting in the Writ jurisdiction
had held that the earlier acquisition
proceedings had lapsed lapsed due to non
payment of compensation to the tenure
896 INDIAN LAW REPORTS ALLAHABAD SERIES
holder with respect to the alleged plots of
land in question.

17. The Supreme Court in Midnapore
Peoples' Coop. Bank Ltd. & Others
(supra) while referring to question 1 made
observations that the appeal as of right
would lie under Section 19 of the Contempt
of Courts Act if the High Court exercises it
jurisdiction to punish for contempt. The
jurisdiction of the High Court in a contempt
petition is to punish. When no punishment
is imposed by the High Court it is difficult
to say that the High Court has exercised its
jurisdiction or power as conferred on it by
Article 215 of the Constitution. If no such
jurisdiction is exercised a Contempt Appeal
would not lie under Section 19 of the Act.
It further observed in paragraph 11 with
reference to the issues framed by it as
follows:

"11. The position emerging from these
decisions, in regard to appeals against
orders in contempt proceedings may be
summarized thus :

I. An appeal under section 19 is
maintainable only against an order or
decision of the High Court passed in
exercise of its jurisdiction to punish for
contempt, that is, an order imposing
punishment for contempt.

II. Neither an order declining to
initiate proceedings for contempt, nor an
order initiating proceedings for contempt
nor an order dropping the proceedings for
contempt nor an order acquitting or
exonerating the contemnor, is appealable
under Section 19 of the CC Act. In special
circumstances, they may be open to
challenge under Article 136 of the
Constitution.

III. In a proceeding for contempt, the
High Court can decide whether any
contempt of court has been committed, and
if so, what should be the punishment and
matters incidental thereto. In such a
proceeding, it is not appropriate to
adjudicate or decide any issue relating to
the merits of the dispute between the
parties.

IV. Any direction issued or decision
made by the High Court on the merits of a
dispute between the parties, will not be in
the exercise of 'jurisdiction to punish for
contempt' and therefore, not appealable
under section 19 of CC Act. The only
exception is where such direction or
decision is incidental to or inextricably
connected with the order punishing for
contempt, in which event the appeal under
section 19 of the Act, can also encompass
the incidental or inextricably connected
directions.

V. If the High Court, for whatsoever
reason, decides an issue or makes any
direction, relating to the merits of the
dispute between the parties, in a contempt
proceedings, the aggrieved person is not
without remedy. Such an order is open to
challenge in an intra-court appeal (if the
order was of a learned Single Judge and
there is a provision for an intra-court
appeal), or by seeking special leave to
appeal
under
Article
136
of
the
Constitution of India (in other cases). The
first point is answered accordingly."

18. In Hub Lal Yadav (supra), the
Court was considering the order passed by
the Contempt Judge dated 05.12.2016
dismissing the contempt application as not
maintainable
and
observing
that
the
applicant had remedy under Order XXXIX
Rule 2A of the Code of Civil Procedure.
The Division Bench referred to the
judgments rendered by the Supreme Court
in
Baradakanta
Mishra
Vs.
Justice
Gatikrushna Misra; (1975) 3 SCC 535,
Purshotam Dass Goel Vs Justice B.S.
2 All. Shivam Das Chandani & Ors. Vs. Prabhu N Singh & Ors.
897
Dhillon; (1978) 2 SCC 370, Union of India
Vs. Mario Cabral e Sa; (1982) 3 SCC 262,
D.N.Taneja Vs. Bhajan Lal; (1988) 3 SCC
26, State of Maharashtra Vs. Mahboob S.
Allibhoy;(1996) 4 SCC 411 and J.S.
Parihar Vs. Ganpat Duggar; (1996) 6 SCC
291 and observed that in all the aforesaid
cases, it has been held that if the contempt
Court
refuses
to
initiate
contempt
proceedings, an appeal would not be
maintainable under Section 19 of Contempt
of Courts Act. It referred to the judgment in
the case of Midnapore Peoples' Coop.
Bank Ltd. & Others (supra) and quoted
paragraph 11 thereof and also the judgment
rendered in Vinita M. Khanolkar vs.
Pragna M. Pai and others; (1998) 1 SCC
500 to say that no appeal even under
Chapter VIII Rule 5 of the Rules of the
Court would be maintainable. It observed
that the contempt proceedings are quasi
criminal in nature and, therefore, provisions
of Chapter VIII Rule 5 of the Rules of the
Court to such proceedings where an order
dismissing an application for contempt is
challenged would not be attracted except
when the contempt court decides to pass
orders issuing directions in exercise of
powers beyond the Contempt of Courts
Act, which order would be referable to the
powers vested in the High Court under
Article 226 of the Constitution of India
rather than the Contempt of Courts Act.

19. In Sheet Gupta (supra), the
Larger Bench observed in paragraph 18 as
follows:

"18. Having given our anxious
consideration to the various plea raised by
the learned counsel for the parties, we find
that from the perusal of Chapter VIII Rule
5 of the Rules a special appeal shall lie
before this Court from the judgment
passed by one Judge of the Court.
However, such special appeal will not lie
in the following circumstances:

1. The judgment passed by one Judge
in the exercise of appellate jurisdiction in
respect of a decree or order made by a
Court subject to the Superintendence of
the Court;

2. the order made by one Judge in the
exercise of revisional jurisdiction;

3. the order made by one Judge in the
exercise of the power of Superintendence
of the High Court;

4. the order made by one Judge in the
exercise of criminal jurisdiction;

5. the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution of India in respect of any
judgment, order or award by

(i) the tribunal,

(ii) Court or

(iii) statutory arbitrator made or
purported to be made in the exercise or
purported exercise of jurisdiction under
any Uttar Pradesh Act or under any
Central Act with respect to any of the
matters enumerated in the State List or the
Concurrent List in the Seventh Schedule to
the Constitution of India;

6. the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or 227 of the Constitution of
India in respect of any judgment, order or
award of

(i) the Government or

(ii) any officer or

(iii) authority, made or purported to
be made in the exercise or purported
exercise
of
appellate
or
revisional
jurisdiction under any such Act, i.e. under
any Uttar Pradesh Act or under any
Central Act, with respect to any of the
matters enumerated in the State List or the
Concurrent List in the Seventh Schedule to
the Constitution of India."
898 INDIAN LAW REPORTS ALLAHABAD SERIES

20. In Smt. Shubhawati Devi (supra),
this Court observed in paragraph 38 and 39
as follows:

"38. There may be another ground for
holding that an appeal under Chapter VIII.
Rule 5 of the Rules against an order
discharging the contempt notice is not
maintainable, in law. A Division Bench of
this Court in Sheo Charan v. Naval and
Ors., 1997 (2) UPLBEC 1215 : 1997 AWC
1909, has held that Section 19 of the Act
has created a right of appeal from an order
or
decision
of
the
Court
imposing
punishment for contempt. There is no
provision for appeal under the Act against
the decision discharging the notice of
contempt and/or dismissing the contempt
petition. In view of the fact that the Act
provides for appeal and also lays down the
orders/decisions against such an appeal
can be filed, the intention of the Legislature
must be said to be that an appeal cannot be
filed under Clause 10 or under Clause 15
read with Chapter VIII, Rule 5 of the Rules
as the Contempt of Courts Act is a
complete Code wherein provision for
appeal has been specifically provided.

39. Under Chapter VIII, Rule 5 of the
Rules appeal is provided before the
Division Bench of this Court from a
judgment not being a judgment specified
therein, of one of the learned Judges of this
Court. Therefore, the question that needs to
be decided as to whether an appeal from a
decision of the learned Judge made in the
exercise of his power under the Act is
maintainable even though the Act itself has
provided for an appeal from such a
decision. We are in full agreement with the
views expressed by the Division Bench of
this Court in Sheo Charan (supra), in
which it has been clearly established that if
the Statute, which has conferred the
jurisdiction on the Court, itself lays down
the procedure, and provides for appeal
from its decision, the appeal can be filed
only under and in accordance with such a
statute. In such a case general right of
appeal from a decision of the Court stands
excluded by the statute, which has
conferred the jurisdiction on the Court.
Such being the position, we are, therefore,
of the view that an appeal against a
decision rejecting the contempt petition
was not maintainable also under Chapter
VIII. Rule 5 of the Rules. The same view
has been expressed by a Division Bench of
this Court in A.P. Verma and Ors v. U.P.
Laboratory
Technicians
Association,
Lucknow and Ors., 1998 (3) AWC 2264 :
(1998) 3 UPLBEC 2333, wherein it has
been held that no appeal is maintainable
under Chapter VIII, Rule 5 of the Rules of
the Court against any order passed in a
proceeding under the Contempt of Courts
Act as it is a self contained Code."

21. In Chandra Shekhar (supra), the
Division Bench observed in paragraph 10
and 11 as follows:

"10. In A. P. Verma (supra) also the
Division Bench of this Court agreeing with
the view taken in the aforesaid case has
held that under Chapter VIII, Rule 5 such
an appeal is not maintainable and in para
6 this Court has observed as under:

... We are in respectful agreement with
the view taken in the aforesaid decisions
that no appeal is maintainable under
Chapter VIII. Rule 5 of this Rules of the
Court against any order passed in
proceedings under Contempt of Courts Act
as it is a self contained Code and it also
provides for a remedy of appeal under
Section 19 though only against specific
type of orders or decisions.

11. In the present case also since the
Hon'ble single Judge has refused to
2 All. Anand Bihari Vs. State of U.P. & Ors.
899
entertain contempt petition, the appeal
under Chapter VIII, Rule 5 of the Rules of
the Court, is not maintainable and the
contention of the learned Counsel for the
appellant, therefore, is rejected."

22. This Court having heard the
learned counsel for the parties and having
gone through the judgments referred to by
the learned Senior Counsel for the
appellants and also Mr. Ratnesh Chandra,
learned
counsel
appearing
for
the
respondent no. 1, finds that the Contempt
Judge has expressed a definite opinion in
his judgment dated 05.01.2022 that the
Writ Court order dated 07.10.2015 has
been complied with, even though not in so
many words, by observing that no cause of
action survives and by consigning the
contempt application to record. Such an
order dismissing the contempt application
would not be amenable to intra Court
appeal under Chapter VIII Rule 5 of the
Rules of the Court and there is no
observation at all in the exercise of writ
jurisdiction under Article 226 of the
Constitution as argued by the learned
Senior Counsel. In view of the judgment in
the case of J.S. Parihar Vs. Ganpat
Duggar; (1996) 6 SCC 291, it will always
be open for the appellants to challenge the
orders passed by the respondents before the
appropriate Forum.

23. The preliminary objection raised
regarding maintainability of the special
appeal is sustained and the special appeal is
dismissed as not maintainable with a cost
of Rs. 50,000/- which is to be paid by the
appellants in the Registry of this Court
within four weeks from today. In case of
failure to deposit the cost as directed by
this Court within the time prescribed, it
shall be the duty of the Senior Registrar of
this Court to inform the District Magistrate,
Lucknow of the order passed by this Court
and the District Magistrate shall proceed to
collect the cost as arrears of land revenue
from the appellants and to deposit it in this
Court.
----------
(2022)02ILR A899
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 15873 of 2021

Anand Bihari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Kumar Singh, Sri Risabh Srivastava,
Sri H.N. Singh (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Avanish Mishra, Sri M.N. Singh, Sri
Nipun Singh

A. Service Law - Medical Council of India
Minimum Qualification for Teachers in
Medical Institutions Regulations, 1998challenge
to-appointment-unexplained
delay of 4 years in filing the writ petitionpost of
lecturer-cum-Statistician is a
specialized post in a medical fraternity
and the prescription of qualification is a
specialized task of the experts being
academicians which cannot be made a
subject matter of a judicial review,
particularly when there is nothing on
record to show that the rule making
authority has no legislative competence to
lay down the qualification-limitation does
not strictly apply to proceedings under
Article 32 or 226 of the Constitution of
India, nevertheless, such rights cannot be
enforced after an unreasonable lapse of
time-delay defeats equity-it is a trite law