# State of Himachal Pradesh and another v. Shashi

- **Citation:** Special Appeal No. 1225 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-12
- **Case number:** Special Appeal No. 1225 of 2019
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-himachal-pradesh-and-another-v-shashi-46307
- **Pages:** 12

## Headnote

A. - Contempt Courts Act, 1971- Section 12, 19
- Contempt - Jurisdiction - Service/Payment
of arrears of salary- Scope of contempt
jurisdiction is to see whether the order of the Court
has been complied with - in substance - or
deliberately flouted leading to an inference of a
"wilful, deliberate and contumacious" violation of the
order of which non-compliance is alleged.

In the present case, where there is no direction to
dispose of the applications/representation of the
petitioner in a particular manner, the correctness,
legality or propriety of the order passed by the
respondent authority, in compliance of the directions
under the order of the writ Court, cannot be gone
into in contempt proceedings, since its scope, even
otherwise is extremely limited and narrow. The
correctness or otherwise of the orders which have
been passed by the respondent, if required, may be
tested in appropriate proceedings but not in
contempt jurisdiction. (Para 24)

Appeal allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,503 of 41,311. This is a partial read: ask again with offset=39503 for what follows._

3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1165
specifically dealing with a circular of the
Comptroller and Auditor General of India
which
had
imposed
income
limits
respectively for Group ''B', ''C' and ''D'
posts for the purpose of guiding the
decision in the case of compassionate
appointment. The fixation of income limits
was not construed to be and is not an
arbitrary exercise of power. However, what
we find from the record of this case is that
the income limit was fixed (as the High
Court observed) on 29 September 2008 by
the letter of the Finance Department. The
income limit of Rs.1,00,000/- for a family of
four persons has since been revised to
Rs.1,50,000/- on 20 April 2011. Mr. P.S.
Patwalia has, on instructions, stated before
this Court that this ceiling has been
reiterated on 27 July 2017. What should be
the
appropriate
income
criterion
is
undoubtedly a matter of policy for the State
Government to determine. However, we
would impress upon the State Government
the need to periodically revise the income
limits preferably at intervals of three years.
Inflation and the increase in the cost of
living have an important bearing on
financial exigencies faced by families of
serving as well as deceased employees. In
fixing the income criteria for considering
cases of compassionate appointment, it
would be appropriate if the State revisits
the income limit at periodic intervals, as we
have indicated above. We clarify that it
would be open to the State to revise the
income limits at a frequency of less than
three years, if the State is so advised."

12. Thus, in view of the guidelines
laid down by the Apex Court in the case of
State of Himachal Pradesh and another v.
Shashi
Kumar
(supra)
and
the
pronouncement made in Clauses 7 and 8 of
the scheme of recruitment of dependants of
deceased employees on compassionate
ground
which
provide
that
while
considering the claim for compassionate
appointment under the scheme, the income
of the bereaved family from sources
specified in the scheme is required to be
taken
into
consideration,
are
neither
unreasonable nor suffer from the vice of
arbitrariness. Thus, we find that the view
taken by learned Single Judge is wholly
untenable and cannot be sustained. In our
opinion, the learned Single Judge was not
at all justified in striking down Clauses 7
and 8 of the scheme.

13. We accordingly allow the appeal
and set aside the impugned order passed by
learned Single Judge to the extent it seeks
to strike down Clauses 7 and 8 of the
scheme.

14. However, we leave it open to
appellant to consider and examine the
claim of the petitioner-respondent on
compassionate
ground
strictly
in
accordance with the provisions of the
scheme.
----------

(2020)03-05ILR A1165
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2020

BEFORE

THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 1225 of 2019

Vinod Kumar Sharma, Distt. Inspector of
Schools, Azamgarh & Anr. ...Appellants
Versus
Shiv Mohan Dwivedi, Assistant Teacher,
Inter College, Sarai Brindaban, Azamgarh
 ...Respondent
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Kushmondeya Shahi

Counsel for the Respondent:
Sri Daya Shankar Prasad Singh, Sri Anjani
Kumar Mishra, Sushma Devi

A. - Contempt Courts Act, 1971- Section 12, 19
- Contempt - Jurisdiction - Service/Payment
of arrears of salary- Scope of contempt
jurisdiction is to see whether the order of the Court
has been complied with - in substance - or
deliberately flouted leading to an inference of a
"wilful, deliberate and contumacious" violation of the
order of which non-compliance is alleged.

In the present case, where there is no direction to
dispose of the applications/representation of the
petitioner in a particular manner, the correctness,
legality or propriety of the order passed by the
respondent authority, in compliance of the directions
under the order of the writ Court, cannot be gone
into in contempt proceedings, since its scope, even
otherwise is extremely limited and narrow. The
correctness or otherwise of the orders which have
been passed by the respondent, if required, may be
tested in appropriate proceedings but not in
contempt jurisdiction. (Para 24)

Appeal allowed. (E-4)

Precedent followed:

1. Midnapore Peoples Coop. Bank Ltd. & ors. Vs.
Chunilal Nanda & ors., (2006) 5 SCC 399 (Para 11)

2. Shah Babulal Khimji Vs. Jayaben D. Kania & anr.,
(1981) 4 SCC 8 (Para 12)

3. A.P. Verma & ors. Vs. U.P. Laboratory Technicians
Association & ors., 1998 (3) AWC 2264 (Para 13)

4. J. Parihar Vs. Ganpat Duggar & ors., (1996) 6 SCC
291 (Para 19)

5. Lalith Mathur Vs. Maheswara Rao, (2000) 10 SCC
285 (Para 20)

6. Jhareswar Prasad Paul & anr. Vs. Tarak Nath
Ganguly & ors., (2002) 5 SCC 352 (Para 21)

7.D.E., Uttaranchal and ors. Vs. Ved Prakash Joshi
and ors., (2005) 6 SCC 98 (Para 22)

8. Sudhir Vasudeva, Chairman and Managing
DirectorO.N.G.C. & ors. Vs. M. George Ravishekaran
& ors.,, (2014) 3 SCC 373 (Para 23)

Appeal against judgment and order dated
31.07.2019
and
21.08.2019,
passed
in
Contempt Petition No. 4283 of 2018.

(Delivered by Hon'ble Biswanath Somadder, J.
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Let the rejoinder affidavit filed in Court
today be taken on record.

2. This Special Appeal arises in respect of
two orders dated 31st July, 2019 and 21st
August, 2019, passed by a learned Single Judge
in Contempt Application (Civil) No.4283 of
2018 (Shiv Mohan Dwivedi Vs. Vinod Kumar
Sharma).

3. The appellants before us are the
incumbents holding the office of District
Inspector of Schools, Azamgarh and the
Director of Education, Secondary, U.P.,
Lucknow, respectively.

4. For convenience, both the impugned
orders are set-out hereinbelow in their entirety:-

Order dated 31st July, 2019

".....learned
Additional
Chief
Standing Counsel has apprised the Court of
the fact that the District Inspector of
Schools vide order dated 20.11.2018
requested the Director of Education,
Madhyamik for making available necessary
budget to facilitate payment of arrears of
salary of the applicant. The Director has
forwarded
the
entire
matter
to
the
Secretary, Secondary Education, Lucknow
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1167
being
the
competent
authority
for
sanctioning the budget.

Learned
Additional
Chief
Standing Counsel seeks time so that in the
meantime, the budget is sanctioned by the
State Government.

Accordingly,
the
matter
is
adjourned for three weeks.

List on 21.8.2019, by which date,
in case, the necessary budget is not
sanctioned and payment is not made, the
opposite party shall remain personally
present before this Court to justify the
delay in compliance of the order of this
Court."

Order dated 21st August, 2019

"In the affidavit filed by the
opposite party today before this Court, the
stand taken is that despite specific request
having been made by him to the Director of
Education (Madhyamik) and the State
Government to make available the required
budget so as to ensure payment of arrears
of salary to the applicant in terms of the
order of the Writ Court, the amount has not
been sanctioned so far.

Alongwith the affidavit, a letter
written by the State Government to
Director of Education dated 8.7.2019 has
been
filed,
whereunder
the
State
Government has directed the Director of
Education to submit his clear report and
also identify the officers who were guilty of
the delay in making payment.

It is always open to the State
Government to identify officers who are
responsible for the delay in making
payment to the applicant but that itself
could not be an excuse for sitting tight over
the matter and not sanctioning the required
amount.

Leave is granted to learned
counsel for the applicant to implead
Principal Secretary, Secondary Education,
U.P. Lucknow and Director of Secondary
Education, U.P. Lucknow as respondents to
the instant contempt petition by name.

Learned standing counsel shall
communicate this order to the newly
impleaded respondents within three days.
They shall file their affidavits showing
cause as to why the necessary budget has
not been sanctioned so far. This is without
prejudice to their right to proceed against
the officers guilty for delay in making
payment of the arrears to the applicant.

List on 23.9.2019."

5. The genesis of the contempt
application is a judgment and order dated
8th December, 2016, passed by a learned
Single Judge in Writ-A No.23338 of 2013
(Shiv Mohan Dwivedi Vs. State of U.P. and
four others). The operative portion of the
said
judgment
and order
dated 8th
December, 2016 is required to be noticed
and is set-out hereinbelow:-

"The petitioner shall, within a
period of two weeks from today, submit a
detailed representation before the second
respondent in regard to his claim for the
release of salary which had been stopped in
2013. He shall alongwith his reply also
furnish for the consideration of the second
respondent a copy of the supplementary
short counter affidavit filed in these
proceedings
on
behalf
of
the
Sampurnanand Sanskrit Vishwa Vidyalaya,
Varanasi. In case a representation is so
made by the petitioner within the time
aforementioned, the respondent No.2 shall
pass appropriate orders in accordance with
law with due expedition and preferably
within a period of one month from the date
of production of a certified copy of this
order."

6. A bare perusal of the operative
portion of the said judgment and order
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 8th December, 2016, clearly reveals
that there was a mandatory direction upon
the respondent no.2 (being the appellant
no.1 before us) to pass appropriate orders
in accordance with law in respect of a
representation
to
be
made
by
the
respondent-writ petitioners within a certain
time frame.

7. It is admitted position that pursuant
to the directions as contained in the
judgment and order dated 8th December,
2016, two orders have been passed by the
respondent no.2 (being the appellant no.1
before us) being orders dated 11th January,
2017 and 27th August, 2018. Both the
aforesaid orders had been placed on record
along with the complaince affidavit of the
opposite party no. 1 (District Inspector of
Schools, Azamgarh) filed in the contempt
case.

8. The principal contention of the
learned counsel for the appellant is that the
direction of the writ court was for
consideration of the representation of the
writ petitioner, and the said direction
having been complied with in terms of the
orders passed by the concerned respondent
(appellant no. 1 herein), the contempt court
could not have gone beyond the directions
of the writ court and proceeded with the
matter.

9. Learned counsel appearing for the
respondent has tried to support the orders
impugned by seeking to contend that the
orders passed by the concerned authority
stated to be in compliance of the directions
of the writ court, have not been correctly
passed.

10. Before proceeding to advert to the
rival contentions of the parties, it may be
necessary to take up the question with
regard to maintainability of the present
intra court special appeal, filed under
Chapter VIII Rule 5 of the Allahabad High
Court Rules (Rules of the Court, 1952)1,
against
orders
passed
in
contempt
proceedings
initiated
by
filing
an
application under Section 12 of the
Contempt of Courts Act, 1971.

11. In a case where the High Court, in
a contempt proceeding, renders a decision
on the merits of a dispute between the
parties, either by an interlocutory order or
final judgment, the question whether the
same would be appealable under Section 19
of the Contempt of Courts Act, 1971, and if
not, what would be the remedy of the
person aggrieved, was considered in the
case of Midnapore Peoples' Coop. Bank
Ltd. and others Vs. Chunilal Nanda and
others, and it was held that any direction
issued or decision made by the High Court,
in contempt proceedings, on the merits of a
dispute between the parties, unless the
same is incidental to or inextricably
connected with the order punishing for
contempt, would not be in the exercise of
"jurisdiction to punish for contempt" and,
therefore, would not be appealable under
Section 19 of the Act, 1971. Such an order,
passed by the Contempt Court, was held,
amenable to a challenge in an intra court
appeal under the relevant rules of the High
Court. The position with regard to filing of
appeals
against
orders
in
contempt
proceedings were summarized thus :-

"11. The position emerging from
these decisions, in regard to appeals against
orders in contempt proceedings may be
summarised 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
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1169
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 Contempt of Courts
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 the Contempt of Courts
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)."

12. The question as to whether an
intra court appeal would be available
against
an
interlocutory
order
containing directions on merits of the
dispute was answered by referring to
the decision in Shah Babulal Khimji
Vs. Jayaben D.Kania and another,
and it was held that interlocutory orders
which finally decide a question or issue
in controversy in the main case or
which finally decide a collateral issue
or a question which is not the subject
matter
of
the
main
case,
are
"judgments" for the purpose of filing
appeals under the relevant rules of the
High Court.

13. Taking note of the position that in
a proceeding initiated under the Contempt
of Courts Act, the High Court could either
punish or discharge the alleged contemnor
and in doing so, it could pass all such
ancillary orders which are necessary for
exercise of such powers but it could not
issue any directions or orders regarding the
main dispute or controversy between the
parties which had led to the filing of writ
petition, this Court, in A.P. Verma and
Ors. Vs. U.P. Laboratory Technicians
Association and Ors., held that if any
order or direction is made by the Court
concerning the merit of the controversy or
dispute
between
the
parties,
or
for
implementation of any judgment or order,
the same would be de hors the provision of
the Contempt of Courts Act, and would be
deemed to have been issued in exercise of
powers conferred under Article 226 of the
Constitution, and such direction would,
therefore, be amenable to an appeal under
Chapter VIII, Rule 5 of the Rules of the
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
Court . The observations made in the
judgment are as follows :-

"7....Thus there can be no doubt
that in any proceeding initiated under the
Contempt of Courts Act, the High Court
can either punish or discharge the alleged
contemner and in doing so it can pass all
such ancillary orders which are necessary
for exercise of such power but it cannot
issue any directions or orders regarding the
main dispute or controversy between the
parties which has led to the filing of writ
petition by either of the parties. However, if
any order or direction is made by the Court
concerning the merit of the controversy or
dispute
between
the
parties,
or
for
implementation of any judgment or order, it
will be de hors the provision of Contempt
of Courts Act and they can only be deemed
to have been issued in exercise of power
conferred
by
Article
226
of
the
Constitution.
Such
direction
would,
therefore, be amenable to an appeal under
Chapter VIII, Rule 5 of the Rules of the
Court as they are not issued in exercise of
any power conferred by the Act..."

14. In the instant case, a bare reading
of the two orders dated 31st July, 2019 and
21st August, 2019 passed in the contempt
proceedings clearly show that orders touch
the merits of the dispute between the
parties and relate to the manner of
implementation of the judgment passed by
the writ court, as such, the said directions
would be referable to the powers conferred
under Article 226 of the Constitution of
India, and accordingly, the same would be
amenable to an intra court appeal under
Chapter VIII Rule 5 of the Rules of the
Court.

15. Coming to the merits of the
present appeal, as we have already taken
note of, the writ petition, being Writ A No.
23338 of 2013, had been disposed of in
terms of judgment dated 8th December,
2016 whereunder the writ petitioner was
required to submit a detailed representation
before the respondent no.2 with regard to
his claim for release of salary, and upon the
representation
being
filed,
the
said
respondent was to pass appropriate orders
in accordance with law.

16. It is not in dispute that the
aforementioned directions issued by the
writ court in its judgment dated 8th
December, 2016 had been complied with
by the concerned respondent by passing
orders dated 11th January 2017 and 27th
August, 2018.

17. The question which thus arises is
as to whether necessary orders having been
passed by the authority concerned, stated to
be in compliance of the directions issued by
the writ court, was it open for the court
exercising contempt jurisdiction to go
beyond the directions contained in the
judgment of the writ court and enter into
the question of correctness, or otherwise, of
the orders passed.

18. The broad contours governing the
exercise of contempt jurisdiction are fairly
laid out. The High Court, while exercising
jurisdiction to punish for a breach or
disobedience of its order, has to have due
regard to the directions which had been
issued and of which a breach is alleged. It
has been consistently held that in dealing
with a contempt petition, the High Court
cannot go behind the order of which a
breach is complained or, to take upon itself
to decide issues which were not touched in
the original order. The orders which seek to
supplement the directions issued in terms
of the original order, of which a breach is
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1171
complained, cannot be passed in the
exercise of contempt jurisdiction. In doing
so, the Court would be expanding the scope
of contempt jurisdiction, which would not
be permissible.

19.

The
scope
of
contempt
jurisdiction, in a case where an order had
already been passed on the basis of the
directions issued by the court, came up for
consideration in J. Parihar Vs. Ganpat
Duggar and Ors., and it was held that the
authority concerned having passed an
order, may be right or may be wrong, the
contempt court could not proceed to
consider the matter on merits. A fresh
cause of action having arisen, it would be
open to the party concerned to seek
redressal before an appropriate forum. The
observations made in the judgment are as
follows :-

"6...The question is whether
seniority list is open to review in the
contempt proceedings to find out,
whether it is in conformity with the
directions issued by the earlier Benches.
It is seen that once there is an order
passed by the Government on the basis
of the directions issued by the court,
there arises a fresh cause of action to
seek redressal in an appropriate forum.
The preparation of the seniority list may
be wrong or may be right or may or
may not be in conformity with the
directions. But that would be a fresh
cause of action for the aggrieved party
to avail of the opportunity of judicial
review. But that cannot be considered to
be the willful violation of the order.
After re-exercising the judicial review
in
contempt
proceedings,
a
fresh
direction by the learned Single Judge
cannot be given to redraw the seniority
list. In other words, the learned Judge
was
exercising
the
jurisdiction
to
consider the matter on merits in the
contempt proceedings..."

20. In a somewhat similar set of
facts, as in the present case, in Lalith
Mathur Vs. Maheswara Rao, the
question
of
maintainability
of
a
contempt
petition
came
up
for
consideration in a case when the court's
direction
was
to
consider
the
employees' representation, which was
duly
complied
with,
though
the
representation was rejected on merits. It
was held that the direction issued by the
contempt court, that the employee be
absorbed on a suitable post, was
without jurisdiction and should not have
been passed. The relevant extract of the
judgment is as follows:-

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

21. The basic parameters governing
the exercise of contempt jurisdiction were
examined in Jhareswar Prasad Paul and
another vs. Tarak Nath Ganguly and
others, and it was held that the court
cannot, in the guise of exercising contempt
jurisdiction, grant substantive relief not
covered by the order which is subject
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
matter of the proceedings and that a
substantive relief not covered by the initial
order could not be considered in contempt
proceedings. In this case also, the contempt
court had proceeded on the basis of the
allegation that the respondent authorities
had not complied with the initial order,
"effectively" and "in appropriate manner".
In
the
aforesaid
background,
the
observations made in the judgment are as
follows :-

"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 judiciary 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 court 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
is 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.

12. Judging the case in hand on
the touchstone of the principles noted
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1173
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 Clerks/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.

13. In the facts and circumstances
of the case, we are constrained to hold that
the judgment/order passed by the High
Court was without jurisdiction. In the
result, the appeals are allowed. The
judgment/order under challenge is set
aside. The petition filed by the writ
petitioners for taking action for contempt of
court against the respondents is dismissed."

22. Taking a similar view in Director
of Education, Uttaranchal and Ors. Vs.
Ved Prakash Joshi and Ors., it was held
that review of decision, contempt in respect
of which is in question, in contempt
proceedings was not permissible. It was
reiterated that all that the contempt court is
concerned with is whether the decision in
question has been complied with or not,
and it cannot test the correctness or
otherwise of the order, traverse beyond it or
give additional directions. The observations
made in the judgment are being extracted
below :-

"7.
While
dealing
with
an
application for contempt, the Court is really
concerned with the question whether the
earlier decision which has received its
finality had been complied with or not. It
would not be permissible for a court to
examine the correctness of the earlier
decision which had not been assailed and to
take a view different than what was taken
in the earlier decision. A similar view was
taken in K.G. Derasari v. Union of India
[(2001)10 SCC 496]. The court exercising
contempt
jurisdiction
is
primarily
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned
with
the
question
of
contumacious conduct of the party who is
alleged to have committed default in
complying with the directions in the
judgment or order. If there was no
ambiguity or indefiniteness in the order, it
is for the party concerned to approach the
higher court if according to him the same is
not legally tenable. Such a question has
necessarily to be agitated before the higher
court. The court exercising contempt
jurisdiction cannot take upon itself power
to decide the original proceedings in a
manner not dealt with by the court passing
the judgment or order. Right or wrong the
order has to be obeyed. Flouting an order of
the court would render the party liable for
contempt.
While
dealing
with
an
application for contempt, the court cannot
traverse beyond the order, non-compliance
of which is alleged. In other words, it
cannot say what should not have been done
or what should have been done. It cannot
traverse beyond the order. It cannot test
correctness or otherwise of the order or
give additional directions or delete any
direction. That would be exercising review
jurisdiction
while
dealing
with
an
application for initiation of contempt
proceedings.
The
same
would
be
impermissible and indefensible. In that
view of the matter, the order of the High
Court is set aside."

23. The question as to whether a
Court exercising contempt jurisdiction
could pass supplemental order to the main
order passed in the writ petition was taken
up in the case of Sudhir Vasudeva,
Chairman and Managing Director, Oil
and Natural Gas Corporation and others
Vs. M.George Ravishekaran and others,
and it was held that the directions issued by
the
contempt
judge
which
virtually
amounted to supplementing the directions
contained in the original order was beyond
jurisdiction and could not be countenanced.
The observations made in the judgment are
as follows :-

"19. The power vested in the
High Courts as well as this Court to punish
for contempt is a special and rare power
available both under the Constitution as
well as the Contempt of Courts Act, 1971.
It is a drastic power which, if misdirected,
could even curb the liberty of the individual
charged with commission of contempt. The
very nature of the power casts a sacred duty
in the Courts to exercise the same with the
greatest of care and caution. This is also
necessary
as,
more
often
than
not,
adjudication of a contempt plea involves a
process of self-determination of the sweep,
meaning and effect of the order in respect
of which disobedience is alleged. The
Courts must not, therefore, travel beyond
the four corners of the order which is
alleged to have been flouted or enter into
questions that have not been dealt with or
decided in the judgment or the order
violation of which is alleged. Only such
directions which are explicit in a judgment
or order or are plainly self-evident ought to
be taken into account for the purpose of
consideration as to whether there has been
any disobedience or wilful violation of the
same. Decided issues cannot be reopened;
nor can the plea of equities be considered.
The Courts must also ensure that while
considering a contempt plea the power
available to the Court in other corrective
jurisdictions like review or appeal is not
trenched upon. No order or direction
supplemental to what has been already
expressed should be issued by the Court
while exercising jurisdiction in the domain
of the contempt law; such an exercise is
more appropriate in other jurisdictions
vested in the Court, as noticed above. The
3-5 All. Vinod Kumar Sharma, Distt. Inspector of Schools, Azamgarh & Anr. Vs.Shiv Mohan
Dwivedi, Assistant Teacher, Inter College, Sarai Brindaban, Azamgarh
1175
above principles would appear to be the
cumulative outcome of the precedents cited
at the Bar, namely, Jhareswar Prasad Paul
v. Tarak Nath Ganguly [(2002) 5 SCC 352,
V.M. Manohar Prasad v. N.Ratnam Raju
[(2004) 13 SCC 610], Bihar Finance
Service House Construction Coop. Society
Ltd. v. Gautam Goswami [(2008) 5 SCC
339] and Union of India v. Subedar
Devassy PV[(2006) 1 SCC 613].

20. Applying the above settled
principles to the case before us, it is clear
that the direction of the High Court for
creation of supernumerary posts of Marine
Assistant
Radio
Operator
cannot
be
countenanced. Not only the courts must act
with utmost restraint before compelling the
executive to create additional posts, the
impugned direction virtually amounts to
supplementing the directions contained in
the order of the High Court dated 2-82006...the
direction
to
create
supernumerary posts at the stage of
exercise of the contempt jurisdiction has to
be understood to be an addition to the
initial order passed in the writ petition. The
argument that such a direction is implicit in
the order dated 2-8-2006 [M. George
Ravishekeran v.ONGC Ltd., WP No.
21518 of 2000, order dated 2-8-2006
(Mad)] is self-defeating. Neither is such a
course of action open to balance the
equities
i.e.
not
to
foreclose
the
promotional avenues of the petitioners, as
vehemently urged by Shri Rao. The issue is
one of jurisdiction and not of justification.
Whether the direction issued would be
justified by way of review or in exercise of
any other jurisdiction is an aspect that does
not concern us in the present case. Of
relevance is the fact that an alternative
direction had been issued by the High
Court by its order dated 2-8-2006 [M.
George Ravishekeran v. ONGC Ltd., WP
No. 21518 of 2000, order dated 2-8-2006
(Mad)] and the appellants, as officers of the
Corporation, have complied with the same.
They cannot be, therefore, understood to
have acted in wilful disobedience of the
said order of the Court. All that was
required in terms of the second direction
having been
complied
with by
the
appellants, we are of the view that the order
dated 2-8-2006 passed in M. George
Ravishekeran v. ONGC Ltd. [M. George
Ravishekeran v. ONGC Ltd., WP No.
21518 of 2000, order dated 2-8-2006
(Mad)]
stands
duly
implemented.
Consequently, we set aside the order dated
19-1-2012 passed in Contempt Petition No.
161 of 2010, as well as the impugned order
dated
11-7-2012
passed
in
Sudhir
Vasudeva v. M. George Ravi Shekeran
[Contempt Appeal No. 2 of 2012, decided
on 11-7-2012 (Mad)] and allow the present
appeal."

24.

The
scope of
contempt
jurisdiction is to see whether the order
of the Court has been complied with -
in substance - or deliberately flouted
leading to an inference of a "wilful,
deliberate and contumacious" violation
of the order of which non-compliance is
alleged. In a case, such as the present
one, where there is no direction to
dispose
of
the
applications/representation
of
the
petitioner in a particular manner, the
correctness, legality or propriety of the
order
passed
by
the
respondent
authority,
in
compliance
of
the
directions under the order of the writ
Court, in our opinion, cannot be gone
into in contempt proceedings, since its
scope, even otherwise is extremely
limited and narrow. The correctness or
otherwise of the orders which have been
passed by the respondent, if required,
may
be
tested
in
appropriate
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings
but
not
in
contempt
jurisdiction.

25. Once the directions as contained
in the judgment and order dated 8th
December, 2016 had been complied with,
the necessity of passing of the two orders
could possibly not have arisen
in
contempt jurisdiction. The reason is that
the two orders expand the scope of
contempt jurisdiction and go behind the
directions as contained in the judgment
and order dated 8th December, 2016,
passed by the writ Court. In the event, the
writ petitioners were not satisfied, their
remedies
would
lie
elsewhere
but
certainly not by invoking the contempt
jurisdiction of this Court under section 12
of the Contempt of Courts Act, 1971.

26.

We,
therefore,
have
no
hesitation to set aside the two orders
dated 31st July, 2019 and 21st August,
2019, passed by the learned Single Judge
in Contempt Application (Civil) No.4283
of 2018 (Shiv Mohan Dwivedi Vs. Vinod
Kumar Sharma) and the same are
accordingly set aside.

27. The Special Appeal is, thus,
allowed.
----------
(2020)03-05ILR A1176
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT A No. 1915 of 2019

C/M, Shyamlal Khandelwal Inter College,
Vishnuganj, Kannauj ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Yogesh Kumar Saxena

Counsel for the Respondents:
C.S.C.

A. Constitution of India-Articles 14, 16(1);
U.P.