Holding

The appeal is not maintainable under Section 19; the Division Bench correctly set aside the single judge’s directions as the judge exceeded his jurisdiction, exercising power under Section 18 of the Rajasthan High Court Ordinance.

Summary

The Rajasthan High Court had earlier quashed a seniority list of engineers prepared with retrospective effect and directed a fresh list. Contempt proceedings were initiated under Section 12 of the Contempt of Courts Act, 1971, and a single judge, while considering the merits, held that the respondents had not wilfully disobeyed the court’s orders and directed the list to be prepared again. The State appealed the single judge’s directions. The Division Bench held that an appeal against such directions is not maintainable under Section 19 of the Act, but could be entertained as a Letter Patent Appeal, and consequently set aside the single judge’s directions, finding that the judge had exceeded his jurisdiction by delving into the merits. The Division Bench exercised its power under Section 18 of the Rajasthan High Court Ordinance to correct the mistake. The Supreme Court dismissed the appeals, confirming that the Division Bench was correct in its exercise of jurisdiction.

Issues considered

Whether an appeal against the directions of a single judge in contempt proceedings is maintainable under Section 19 of the Contempt of Courts Act, 1971.
Whether a single judge may consider the merits of the matter and issue fresh directions in contempt proceedings.
Whether the Division Bench can set aside the single judge’s directions under Section 18 of the Rajasthan High Court Ordinance.

Legislation cited

Contempt of Courts Act, 1971s. 12, s. 19

Subjects

contempt of courtseniority listservice lawappeal maintainabilitySection 19Section 12Section 18Rajasthan High Court Ordinancejudicial review

Judgment

A J.S. PARIHAR
v.
GANPAT DUGGAR AND ORS.

SEPTEMBER 11, 1996 ..
B [K. RAMASWAMY, FAIZAN UDDll\J" AND G.B. PATTANAIK, JJ.]

Service Law :

Rajastha.n Civil Engineering Services (Public Health
C Branch}-Seniority list of Engineers--Prepared with retrospective ef-
f ect~uashed by the High Court with a direction to prepare the seniority list
afresh-Fresh seni01ity list prepared--Contempt proceedings initiated-Single
Judge giving directions-Appeal by State-Division Bench holding that appeal
not maintainable under S.19 of the contempt of Courts Act but as a Letters
Patent Appeal-Set aside the directions of Single Judge-On appeal, held the
D Single Judge was exercising his jurisdiction to consider the matter on merits
in contempt proceedings, which is not pennissible-Division Bench rightly
exercised its power under S.18 of the Rajasthan High Court Ordinance to
co1Tect the mistake committ~d by the Single Judge-Since Division Bench
already seized of the matter it was not necessary for the State to go in appeal.
E Contempt of Courts Act. 1971.

Ss.12, 19-Contempt proceedings-Single Judge going into merits of the
case and giving directions-Not pennissible-Division Bench of High Court
exercising power under, S.18 of Rajasthan High Court Ordinance to co17"ect
F the mistake committed by Single Judge-Held, the Division Bench justified in
doing so, since appeal under S.19 not maintainable-Rajasthan High Cowt
Ordinance-S.18.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12494-96
of 1996.
G
From the Judgment and Order dated 3.4.96 of the Rajasthan High
Court in D.B.C.S.A. No. 1-2 of 1995 and D.B.C.L~ .to A. No. 40 of 1995.

Sushil K. Jain for the Appellant.

H Aruneshwar Gupta for the Respondent.
110
··-
J.S. PARIHAR v. GANPATDUGGAR 111

The following Order of the Court was delivered : A
We have heard the counsel on both sides.

' . Leave granted.
l
These appeals by special leave arise from the order of the Division B
Bench dated April 3, 1996 made in Special Civil Appeal Nos. 1 & 2 of
1995. The facts are not in dispute. The controversy relates to the prepara-
tion of the seniority list of the engineers in Rajasthan Civil Engineering
Services (Public Health Branch). In W.P. No. 560n9 by order dated
October 6, 1988 the Division. Bench of the High Court declared the C
seniority list prepared with retrospective effect in terms of the amended
Rules as unconstitutional; it accordingly quashed the list and directed
preparation of the seniority list afresh to determine the inter se seniority
on that basis and to grant promotion to the appellants within the specified
time. The same order came to be reiterated by order of another Division
Bench dated September 9, 1989 made in W.P. No. 1074/80. It was further D
reiterated in the order dated March 22, 1990. When the seniority list came
to be prepared, the contempt proceedings were initiated under Section 12
of the Contempt of Courts Act, 1971 (for short the "Act"). The learned
single Judge on consideration of the merits in the seniority held that the
respondents had not wilfully disobeyed the orders of the Court and gave
E
directions as under :

"In Gyaneshwar's case, only retrospectivity of these amendments
was challenged and, therefore, it was felt by the learned Judges of
the Division Bench that retrospectivity of these amendments has
already been held to be ultra vires in Kai/ash Chand Goyal's case F
and so, it had not been declared as such afresh. In that case, the
notifications whereby amendments were introduced were not chal-
lenged but only their retrospectivity was challenged and, therefore,
the decision of this Court in Gyaneshwar's case does not hold the
field. The controversy raised in this case is squarely covered by the
decision of this Court in Kai/ash Chand Goyal's _case (supra) and G
in Kai/ash Ozand Goyal's case, the impugned notifications An-
nexures 5 to 6 have been quashed in their entirety and so,k the
seniority of the petitioner has to be determined on the basiS of the
directions given by this Court in Kai/ash Chand Goyal's case
(supra) and promotions have to be accorded accordingly. Of H
112 SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A course, it appears quite just and reasonable that the non-
petitioners did not intend to disobey the directions given by this
Court on account of the legal advice that has been tendered to
them and on account of certain interpretations put to the judgment
rendered in Kailash Chand Goyal's case (supra) on the basis of
Gyaneshwar's case (supra) and as son1e confusion prevailed with
B the non petitioners on account of that, they could not comply this
order. However, the non- petitioners are directed to comply with
the order of this Court dated 22.3.1990 by giving effect to the ratio
of the decision that has been rendered by a Division Bench of this
Court in Kai/ash Chand Goyal's case (supra) and the seniority list
c should be prepared as directed in the judgment in Kai/ash Chand
Goyal's case (supra) and promotions should be accorded according-
ly. If this order is not complied with within a peliod of six months
from today, the petitioner will be free to move a contempt petition
afresh against the non-petitioners."
D
The State had filed appeal against these directions. A preliminary
objection was taken on the maintainability of the appeal and also argu-
ments were advanced. The Division Bench while holding the appeal as not
maintainable under Section 19 of the Act, held that the appeal would be
maintainable as a Letter Patent Appeal as the direction issued by the
E learned single Judge would be a Judgment within the meaning of Clause
(18) of the Rajasthan High Court Ordinance. Accordingly the Division
Bench set aside the directions issued by the learned single Judge. Thus
these appeals by special leave.

F The question is : whether an appeal against the directions issued by
the learned single Judge is maintainable under Section 19 of the Act?
Section 19 of the Act envisages that "an appeal shall lie as of right from
any order or decision of High Court in the exercise of its jurisdiction to
punish for contempt where the order or decision is that of a single Judge,
G to a bench of not less than two Judges of the Court". Therefore, an appeal
would lie under Section 19 then an order in exercise of the jurisdiction of
the High Court punishing the contemner has been passed. In this case, the
finding was that the respondents had not wilfully disobeyed the order. So,
. there is no order punishing the respondent for violation of the orders of
H the High Court. Accordingly, an appeal under Section 19 would not lie.
J.S. PARIHAR v. GANPATDUGGAR 113

The question then is : whether the Division Bench )Vas right in setting A
aside the direction issued by the learned single Judge to redraw the
seniority list. It is contended by Mr. S.K. Jain, learned counsel appearing
for the appellant, that unless the learned Judge goes into the correctness
. - of the decision taken by the Government in preparation of the seniority list
in the light of the law laid down by three Benches, the learned Judge cannot
come to a conclusion whether or not the respondent had wilfully or
B
deliberately disobeyed the orders of the Court as defined under Section
2(b) of the Act. Therefore, the learned single Judge of the High Court
necessarily has to go into the merits of that question. We do not find that
the contention is well founded. It is seen that, admittedly, the respondents
had prepared the seniority list on 2.7.1991 Subsequently promotions came c
to be made. 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 D
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
wilful violation of the order. After re-exercising the judicial review in
contempt proceedings, afresh direction by the learned single Judge cannot E
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. It would not be permissible under Section 12 of the Act.
Therefore, the Division Bench has exercised the power under Section 18
of the Rajasthan High Court Ordinance being a judgment or order of the F
single Judge, the Division Bench corrected the mistake committed by the
learned single Judge, Therefore, it may not be necessary for the State to
file an appeal in this Court against the judgment of the learned single Judge
when the matter was already seized of the Division Bench.

The appeals are accordingly dismissed. It may be open to the ag- G
grieved party to assail the correctness of the seniority list prepared by the
State Government, if it is not in incomformity with the directions issued by
the High Court, if they so advised, in an appropriate forum. No costs.

G.N. Appeals dismissed. H