M.K. Sthapak vs Prashant Mehta And Others

Today, the matter is listed for further arguments by the petitioner. However, Shri Rajendra Tiwari, learned Sr. Counsel, appearing for the petitioner

submits that he does not want to add anything further to what has already been said and prays that the Court may pass appropriate order in the

contempt petition.

Learned counsel for the respondents, on the other hand, submits that the Court while exercising the contempt jurisdiction has only to see whether

the directions given in the order of which the noncompliance is alleged, were complied with or not and while doing so, the court cannot go into the

validity of the order passed one way or other. The learned counsel has placed before this Court another Division Bench decision in the case of K.L.

Sharma Vs. Shastri Higher Secondary School, CONA No.1/2016 and 2012 (2) MPLJ 29 State of M.P. and another Vs. Virendra Singh Parihar and

others. In K.L. Sharma (supra) the Division Bench after taking into consideration the previous decision of Court in Manjula Choudhary Vs.

Priyanka Chouhan reported in 2015(4) MPLJ 704Â and the decision of the Supreme court in V. Kanakarajan Vs. General Manager, South Eastern

Railway and others (1996) 10 SCC 102 has held that in contempt proceedings, the Court is only required to see whether the directions issued by the

writ court has been complied with or not and court in the contempt jurisdiction cannot go into merits and order and grant relief beyond the relief

granted in the original writ petition.

It is further contended that hearing the contempt petition to issue such directions and the order being an interim order is open to interference and

correction. The learned counsel has relied on (1997) 1 SCC 156 State of M.P. and others Vs. M.V. Vyavsaya company.

Before, we pass any order, the facts, which are relevant to the present proceedings are being mentioned hereinafter as under :-

The petitioner after retirement, alongwith one M.L Kharche filed an O.A. No. 2461/1989 before the M.P. State Administrative Tribunal, Jabalpur,

aggrieved by non-assignment of proper seniority in the seniority list of State Forest Service Officers issued on 01.04.1988 by memo dated 14.09.1988

of the State Government. The main relief which was sought in the application was to quash the said seniority list and to direct the respondents to

refix the seniority in accordance with the principles of law laid in the case of one J.P. Agrawal and and also in the case of one M.K. Kutty, and to

give them retrospective seniority with monetary advantage from 1964 in the cadre of Extra Assistant Conservator of Forest.

As per the petitioners therein, one Gangadhar Rao, Devendra Singh and F.C. Malhotra, who were junior as per the merit list prepared at the end of

training course of same batch were shown as senior to them and due to this wrong assignment of seniority, the petitioners therein had not been

promoted to the post of Extra Assistant Conservator of Forest in time and subsequently were not considered for induction to IFS because of the lower

position assigned to them in the seniority list.

The Tribunal considering the arguments of the parties came to hold that, the nature of appointment of the petitioners were clearly permanent and

the petitioners were senior to F.C. Malhotra. Being of this view, the Tribunal allowed the original application of both the petitioners on 18.01.2002

with the following directions :-Â

(i) The petitioner No.1 along with the other Rangers of his batch shall be placed in the final combined gradation list issued vide notification dated 4-7-

1964 gazetted on 10th September 1964 (Annexure R-2) as amended subsequently by the notification dated 9th October 1966 gazetted on 9th June

1967 as per Annexure R-3 at the same place as Shri F.C. Malhotra. In the list as finally amended on 9th October 1965 the name of Shri F.C.

Malhotra appears at serial No.175 in the permanent part. The names of all the Rangers of the batch of 1953-55 shall be placed either above or below

him keeping in view their inter-se seniority as shown in the gradation list of the Mahakoshal region issued on 1-11-1956, copy marked as Annexure A-

Similarly, petitioner No.2 along with the Rangers of his batch, that is to say 1954-56 batch shall be placed in the permanent part of the said list at

the appropriate place keeping in view the inter-se position shown in Annex. A-21.

(ii) The case of both the petitioners along with other Rangers of their batches shall be considered for promotion to the post of Extra Assistant

Conservator of Forests as in the year 1964 by a review meeting of the Departmental Promotion Committee which shall make its recommendation on

the basis of the same criteria which were adopted while promoting the Rangers in that year by the order dated 27-101964 and if found fit for

promotion they shall be promoted with consequential benefit of seniority in the cadre of Extra Assistant Conservator of Forests, which post was later

re-designated as Assistant Conservator of Forests and pay fixation. Based on this revised seniority their cases for further promotion to the next higher

post and appointment to the Indian Forest Service shall be considered from the date from which any one of their juniors was considered for

promotion/appointment to the Indian Forest Service and if found fit they shall be given such promotion/appointment in the Indian Forest Service with

consequential benefit of pay fixation.

(iii) No payment of arrears of salary on account of the pay fixation in terms of the above directions shall be made to anyone because the dispute

related to seniority and the petitioners themselves delayed approaching the appropriate court for redressal of their grievance particularly after the

finalisation of the combined gradation list of the integrating units.

(iv) The above directions shall be carried out within a period of six months from the date of receipt of this order by the respondent State.

The aforesaid order of the Tribunal was challenged by the State in a writ proceeding (W.P. No. 3047/2002), which was however, dismissed by the

Division Bench of this court with the following observations :-Â

In view of the aforesaid, we are of the considered opinion that the Tribunal is absolutely justified in not rejecting the claim of the respondents on the

ground of delay and laches. The chronology of events, grievance agitated from time to time, concession given by the State before this court, filing of

representation within a reasonable period of time and rejection of the same, do establish a chain of events which deserve to be determined by the legal

forum as per law. That apart, as has been held hereinabove, the finding of the Tribunal with regard to the conferral of benefit on the respondent herein

cannot be found fault with. Hence, on both the counts the order of the Tribunal does withstand close scrutiny and accordingly, we give the stamp of

approval to the same.

It is reflected from the record that a belated SLP (Civil) No. CC7782/2011 was preferred by the State, which was dismissed on 10.05.2011, on the

ground of delay.

Since the benefit as per the direction of the Tribunal was not granted to the petitioner (petitioner No.2 in O.A. No.2461/1989), the instant

application for contempt alleging disobedience and non-implementation of the order dated 18.01.2002 was initiated on 16.02.2009.

After notices were issued to the respondents, they filed a compliance report on 05.09.2011, stating that vide Annexure R-2 dated 02.09.2011, the

petitioner has been granted seniority and notional benefit of promotion on the post of Extra Assistant Conservator of Forest from 27.10.1964, as per

the direction of the Tribunal. However, as the matter of award of IFS was not within the competence of State Government,  a proposal for

considering the case of petitioner for inclusion in the IFS with 1981 allottee was sent to the UPSC, vide letter dated 01.12.2011.

After this compliance report was submitted, the petitioner herein filed an affidavit on 08.09.2011, bringing additional facts and documents on record

to show that one C.L. Ohari, though less meritorious than the petitioner in the final examination merit list was granted appointment in the cadre of IFS

and prayed that he be granted all benefits at par with C.L. Ohari.

It is borne out of record that UPSC was subsequently made a party to the contempt petition vide order dated 03.12.2013 and filed its compliance

report on 19.06.2014, stating that the case of petitioner for inclusion in IFS cadre stands rejected after due deliberations in the review DPC meeting

held on 13.06.2014.Â

This Court vide order dated 14.02.2017, took note of the fact that the Tribunal vide order dated 18.01.2002 has dealt the case of both the

petitioners therein, i.e., the petitioner herein and the co-petitioner M.L. Kharche, and whereas M.L. Kharche was granted the entire benefit of the

order passed by the Tribunal and approved by the High Court, but the case of petitioner herein for confirment of IFS has been rejected.

Further, considering the additional documents and facts brought on record by the petitioner claiming similar relief as had been granted to Shri C.L.

Ohari and also taking note of the fact that if conventional method of dealing with this matter is followed, the petitioner, who is an 84 years old senior

citizen and retired 27 years back may not be able to reap the benefit of the orders passed by the Tribunal and affirmed by the Division Bench of this

Court, hence with a view to do complete justice, while exercising its jurisdiction under contempt proceedings, also exercised its original jurisdiction

under Article 226 and 227 of the Constitution of India and issued the following directions :-

Having analyzed the matter in detail as indicated herein above, we are satisfied that the order passed by the Tribunal has not been complied with in

its letter and spirit and by misreading or ignoring vital directions issued by the M.P. State Administrative Tribunal an effort has been made to show that

the order in question has not been complied with. Once we are satisfied that the order in question has not been complied with, in a contempt

proceedings, the respondents are required to purge the contempt, make compliance of the order and thereafter this Court is required to proceed in the

matter for imposing punishment by recording a finding as to whether the Court's order has been deliberately or intentionally flouted or disobeyed. This

petition is pending since 2009, the cause of action for filing of the original application u/s 19 of the Administrative Tribunals Act accrued to the

petitioner in the year 1989, now he is more than 84 years of age, retired more than 27 years back and now if we follow the conventional method of

dealing with the matter, it may so happen that things may further be delayed and the petitioner who is more than 84 years of age, may be, that the

petitioner not be able to reap the benefit of the orders passed in his favour during this life time. Taking note of all these peculiar facts and exceptional

circumstances that are available in the matter, we apart from exercising our jurisdiction in a contempt proceeding under Article 215 of the Constitution

of India propose to deal with the matter as if we are exercising our original jurisdiction under Article 226 and 227 of the Constitution of India and with

a view to do complete justice to an 84 years old senior citizen, we propose to deal with the matter and ensure that relief ensuing to the petitioner by

virtue of the order passed is given to him immediately as far as possible. For implementing the order passed by the Tribunal, now the petitioner is to be

treated at par with Shri C.L. Ohari and treating him to be just senior to Shri C.L. Ohari in the seniority list all benefit of promotion as has been granted

to Shri C.L. Ohari should be granted to him w.e.f. the same date as has been granted to Shri C.L. Ohari. As far as the present petitioner is concerned,

we find that except for granting him appointment in the cadre of IFS all other benefits have been granted to him from a particular date. However, we

direct the State Government to modify all such orders passed granting benefit to the petitioner and treat the petitioner to have received those

promotion on the date it was granted to Shri C.L. Ohari. Accordingly, pass an amended order granting all benefits to the petitioner at par with Shri

C.L. Ohari w.e.f. the date it was granted to Shri C.L. Ohari and undertake the process of refixation of his pay, pension etc. as has been granted to

Shri C.L. Ohari. Being conscious of the order passed by the Tribunal in para 62(iii), which says that no arrears shall be paid to the petitioner, we direct

arrears shall be paid to the petitioner on refixation of pay and pension w.e.f. 1st of March 2009 i.e. the month immediately following which this

contempt application was filed by him. Accordingly, all arrears accruing to the petitioner by virtue of the order to be passed shall be made to him

w.e.f. 1st of March 2009 and not with effect from the date it was originally granted to Shri C.L. Ohari.

In the matter of considering petitioner’s case for grant of IFS cadre, the Union Public Service Commission has considered the case of the

petitioner and has rejected as is evident from the compliance report filed on behalf of the UPSC by Shri S.P. Singh, Advocate. On a perusal of the

minutes of the Review Selection Committee of the UPSC which considered the case for appointment of petitioner and Shri M.L. Kharche, we find

that Shri Kharche has been granted the benefit of appointment on the post of IFS in the cadre of IFS, but, it has been rejected in case of the petitioner

Shri M.K. Sthapak after comparing his case with one Shri V.P. Gujral. It is observed in para 9 of the proceedings of the Selection Committee that Shri

V.P.Gujral had obtained “very good†entry in the meeting of the Selection Committee that was held on 30.12.1980 and as the petitioner has not

acquired the very good status, he cannot be granted the said benefit. However, in the case of Shri M.L. Kharche, even though his overall performance

has been assessed as “goodâ€, he was granted the benefit after comparing his case with certain other persons, who had acquired the status of

good. But, in the proceedings of the Selection Committee which considered the case of Shri C.L. Ohari, for appointment to the All India Service (IFS)

which is available in the record, we find that the Selection Committee conducted its deliberation i.e. the Review Selection Meeting on 9.2.2009 and

considered his case and finding Shri C.L. Ohari to have obtained good rating for the five years period from 1973 to 1977, he has been granted IFS

cadre, that also after taking note of the fact ACRs that for the years 1973 to 1977 are not available, but, treating him to be a good worker based on the

ACRs prior to 1973 he has been granted the said benefit. Admittedly, in the proceedings of the DPC produced before us, which was held on

13.6.2014, while considering the case of the present petitioner Shri M.K. Sthapak based on the ACRs prior to 1980, he has been assessed as good.

Once the petitioner is assessed as good based on the ACRs prior to 1980 and when based on the good category, in the case of Shri C.L. Ohari, he has

been granted the IFS cadre, there is no reason as to why similar benefits should not be granted to the present petitioner also. Normally, we should

have remanded the matter back to the Review DPC for consideration, but, as already indicated by us herein above the same would result in delay and

once we are satisfied that the case of the petitioner has not been properly considered and when documents showing grant of benefits to Shri C.L.

Ohari are available on record and when based on his “good†performance for the years from 1973 to 1977 Shri C.L. Ohari has been granted IFS

cadre, the petitioner who is also possessing identical “good†entries for these period should also be granted similar benefits and, therefore, we

direct for grant of IFS cadre to the petitioner also at par with Shri C.L.Ohari. Notification in this regard be issued and all consequential benefits

flowing out of grant of IFS cadre be granted to the petitioner notionally w.e.f. the date it was granted to Shri C.L.Ohari, but, actual monetary benefit

w.e.f. 1st of March 2009. The entire exercise for complying with the aforesaid directions be undertaken and orders passed and benefit conferred to

the petitioner within a period of 30 days from the date of receipt of certified copy of this order.

On going through the aforesated order, it is noted that this Court has observed in para 17 as under:-

“As far as the present petitioner is concerned, we find that except for granting him appointment in the cadre of IFS all other benefits have been

granted to him from a particular date.â€​

At this stage, it would be appropriate to take note of the directions issued by the Tribunal in para 62 of the order dated 18.01.2002, wherein the

Tribunal has directed to consider the case of the petitioner for appointment/promotion to Indian Forest Service and if found fit, be given the

appointment/promotion. It is thus clear that no specific or positive directions was given to grant promotion to the petitioner to Indian Forest

Service.  It appears that a review DPC was convened on 13.06.2014 and the committee after consideration did not find the petitioner suitable and

rejected his case.  In view of this fact, the order passed by the State Administrative Tribunal stands duly implemented and complied with.Â

Hence, in our considered opinion, no case of commission of contempt is made out and rule nisi issued against the respondents are discharged.

As regard the directions passed vide order dated 14.02.2017, exercising the original jurisdiction under Article 226 and 227 of the Constitution of

India, whereby the respondents were directed to treat the petitioner senior to Shri C.L. Ohari and to grant him all the benefits of promotion with effect

from the same date, as also the benefit of refixation of pay, pension etc, as has been granted to Shri C.L. Ohari and also directed to grant arrears on

refixation of pay and pension from 01.03.2009 . It was also directed to grant Indian Forest Service cadre to the petitioner at par with Shri C.L.

Ohari and a notification to be issued in this regard and all consequential benefits flowing from the cadre of Indian Forest Service be granted to the

petitioner. It is clear from the record that the aforementioned order was passed after considering the additional facts and documents that was

brought on record by the petitioner by filing additional affidavits and rejoinder affidavits.

It is also reflected from the order of the Tribunal that the petitioner has claimed seniority to Shri F.C. Malhotra relying on the case of J.P. Agrawal

and N.K. Kutty. The case of C.L. Ohari was never mentioned before the Tribunal. It is clear that there is a significant alteration in the stand of the

petitioner as evident from the additional affidavit and rejoinder affidavits. The petitioner now has sought to raise a dispute with regard to his seniority

with C.L. Ohari, which is contradicted by the State. These are all disputed questions of facts, which could not have been decided in contempt

jurisdiction. The exercise of contempt jurisdiction is summary in nature and an adjudication of liability of the alleged contempt for willful

disobedience of the court is normally made or admitted on undisputed and adjudicated facts only, as held by the Supreme Court in the case of Noor

Saba Vs. Anoop Mishra and another (2013) 10 SCC 248.

In  Sudhir Vasudeva, Chairman & Managing Director, Oil and Natural Gas Corporation Ltd. & ors. Vs. M. George Ravishekharan and others

(2014) 3 SCC 373 the apex Court while considering the contour of power of the Court while exercising its contempt jurisdiction has held :-

“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. 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 selfevident ought to be taken into account for the purpose of

consideration as to whether there has been any disobedience or willful 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 above principles would appear to be the cumulative outcome of the precedents cited at the Bar, namely, Jhareswar Prasad Paul

and Another vs. Tarak Nath Ganguly and Others (2002) 5 SCC 352, V.M. Manohar Prasad vs. N. Ratnam Raju and Another (2004) 13 SCC 610,

Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others (2008) 5 SCC 339 and Union of India and

Others vs. Subedar Devassy PV (2006) 1 SCC 613.â€​

In V. Kanakrajan (supra), the Supreme Court has held :-

“2. Inasmuch as the scope of the present appeal, which is directed against the dismissal of contempt application, is very limited, we are not inclined

to go into other contentions raised by the appellant challenging the validity of certain related orders passed by the authorities. As a matter of fact, the

High Court by the judgment under appeal held as follows while rejecting the contempt application :

It was not directed by us that the question of promotion of the petitioner should be considered only on the basis of the confidential reports. It may be

that the effect of the confidential reports being in favour of the petitioner, the respondents should have granted him promotion. But we are not

considering the merits of the report of the competent authority in not recommending the promotion of the petitioner. We are also unable to consider

whether the competent authority was justified in observing that the petitioner is not a suitable candidate for promotion as per rules. The remedy of the

petitioner, in our opinion, lies not in an application for contempt but in a separate writ petition against the order that was communicated to him by the

Chief Personnel Officer dated May 18, 1981.

In the circumstances, we do not think that the petitioner has been able to make out a case for contempt against the respondents. The petitioner will,

however, be at liberty to move against the said Order of the Chief Personnel Officer by writ application.

We are of the view that the High Court was right in declining to entertain the application for any contempt and reserving the right of the petitioner

by separate proceedings to challenge the consequential orders passed by the authorities.

In (2017) 4 SCC 571 Director General Youth Services and Sports Department and others Vs. Sanjay Gupta and others, the Supreme Court has held:-

“4. Reading the orders of the High Court dated 23.04.2001 and 17.05.2012, we do not find any specific direction issued by the High Court for

appointment of the respondent-contempt petitioners with retrospective effect from the year 1997. The directions issued were for due consideration of

the cases of the respondentcontempt petitioners against the available vacancies. After the order of the Division Bench was passed confirming the

order of the learned Single Bench the cases of the respondentcontempt petitioners were duly considered and they were appointed in the year 2015.Â

In the absence of any specific direction for giving retrospective effect to the said appointments, we do not see how the respondent-contempt

petitioners can lay a claim for being appointed with retrospective effect. That apart, we also fail to see how in the exercise of contempt jurisdiction

the High Court could have granted a relief which was beyond the reliefs granted in the writ proceedings. We, therefore, cannot uphold the view

taken by the High Court in the impugned order.â€​

In the case of Bihar Finance Service House Construction Co-operative Society Ltd. Vs. Gautam Goswami and others (2008) 5 SCC 339, the Supreme

Court has held :-

“While exercising the said jurisdiction the Supreme Court does not intend to reopen the issues which could have been raised in original

proceeding nor shall it embark upon other questions including the plea of equities which could fall for consideration only in original proceedings. The

court is not concerned with as to whether the original order was right or wrong. The court must not take a different view or traverse beyond the

same. It cannot ordinarily give an additional direction or delete a direction issued. It will not do anything which would amount to exercise of its review

jurisdiction.â€​

In the case of State of Bihar and others Vs. Rajendra Singh and another (2007) 15 SCC 688, the Supreme Court has held :

“6. If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor

feasible, it should always either approach to the Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of

the order cannot be urged in contempt proceedings. 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, noncompliance 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 direction 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.â€​

In the case of Union of India Vs. Subedar Devassy PV 2006 AIR SCW 342 the Supreme Court reiterated the view taken in the case of K.G.

Derasari Vs. Union of India (2001) 10 SCC 347 and held :-

“If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor

feasible, it should always either approach the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the

order cannot be urged in contempt proceedings. 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, noncompliance with 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 direction 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.â€​

Similar view is held in (2017) 9 SCC 608 Viswajeet Khanna and others Vs. Sukhwinder Singh and others.

From, the aforestated decisions of the Supreme Court as well as the decision of the Division Bench of this Court, it is apparent that once the order

of which noncompliance is alleged has been complied with, one way or the other, the Court cannot sit and decide its correctness, in exercise of

contempt jurisdiction, nor the Court could have granted a relief which was beyond the relief granted in the said order. In the instant case also, once

the order of State Administrative Tribunal stands complied with, one way or other, it was not open for the Court to dissect the said order and examine

its correctness on merits, and then to further grant relief to the petitioner.

For the aforesaid reasons and after considerable deliberations, we are respectfully unable to subscribe to the view taken vide order dated

14.02.2017. In the circumstances and in view of the law laid down by the Supreme Court in the aforementioned cases, we consider it appropriate

that this matter be referred to Hon'ble the Chief Justice to constitute and appropriate Bench, as his Lordship may consider appropriate. The

questions that arise in the present petition, in the backdrop of facts and law noted above are:Â Â Â

(1) Whether the High Court whileexercising its contempt jurisdiction can direct, amplified/modified the order of which non-compliance is alleged by

exercising the power under Article 226 and 227 of the Constitution of India ?

(2) Whether the petitioner ought to havebeen relegated to approach the appropriate forum for appropriate remedy to challenge the consequential order

passed by the authorities ?

(3) Whether the directions supplemental to the order that has become final should be issued by the Court while exercising the jurisdiction in the domain

of the contempt law ?

(4) Whether decided issues can be reopened or plea of equities can be considered by invoking the jurisdiction under Article 226 and 227 of the

Constitution of India while exercising the jurisdiction in the domain of contempt law ?

Let the matter be placed before Hon'ble the Chief Justice on administrative side for constitution of a larger Bench.