Holding

The Supreme Court held that a court cannot compel compliance with an order that is impossible to implement and that the direction to the Additional Advocate‑General was unjustified, rendering the contempt proceedings improper.

Summary

The respondent, a lecturer, sought ad‑hoc promotion to Associate Professor and obtained an interim order from the High Court directing the State Government to grant the promotion. The government failed to implement the order, leading the respondent to initiate contempt proceedings, after which the High Court issued a non‑bailable warrant and ordered the Additional Advocate‑General to assist the court rather than defend the government. The government appealed, arguing that the interim order was impossible to comply with because promotion could only be made by the Public Service Commission and the respondent lacked the requisite experience, and that the direction to the Additional Advocate‑General was unlawful. The Supreme Court held that while courts must protect their dignity, they should not enforce compliance with an order that is practically impossible to execute, and that the High Court’s direction to the Additional Advocate‑General was unjustified. Consequently, the contempt proceedings were deemed inappropriate, the government was instructed to tender an unconditional apology, and the appeals were allowed.

Issues considered

Whether an interim order directing a promotion that is contrary to statutory rules and therefore impossible to implement can be enforced and give rise to contempt proceedings.
Whether the High Court was justified in directing the Additional Advocate‑General not to defend the appellant but to assist the court.
Whether the appellant’s failure to comply with the interim order, citing genuine difficulties, amounts to contempt of court.
Whether the appellant should have invoked appellate remedies instead of ignoring the order during contempt proceedings.

Subjects

contempt of courtinterim orderimpossible compliancepromotionpublic service commissionappellate procedurenon‑bailable warrantAdditional Advocate Generaljudicial dignity

Judgment

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\'

A MOHD. IQBAL KHANDAY
v.
ABDUL MAJID RATHER

APRIL 6, 1994

B
[M.N. VENKATACHALIAH, CJ. ANDS. MOHAN, JJ.]

Contempt of Court : Court's orde~ompliance with-Court should
preserve its dignity by ensuring compliance with its ordet'-But should not
require obedience to order incapable of compliance with---Contemnor--Duty
c of-Should not ignore court's order and plead difficulties at implementation
stage-Should take prompt steps by invoking appellate procedures with regard
to order incapable of compliance.

In a Writ Petition filed by the respondent seeking promotion to the
D post of Associate Professor, the High Court passed an interim order dated
21.9.1992 directing the appellant tu grant ud-hoc promotion to the respon-
dent. Subsequently, the respondent initiated contempt proceedings against
the appellant for not implementing the Court's order and the High Court
directed issue of non-bailable warrant against the appellant and directed
E the Additional Advocate General, representing the appellant, not to defend
him but to assist the court. The High Court also declined to accept the
unqualified apology tendered by the appellant till he implemented the
order dated 21.9.92 and purged himself of the contempt and further
directed him to be personally present in the Court on the next date of
F hearing.
J
The appellant preferred appeals in this Court contending that (1)
the interim order was incapable of compliance with and its implementation
was against the rules inasmuch as the respondent was not possessed of
the requisite experience and it was not the appellant who could accord
G promotion since it was to be done by the State Public Service Commission
or the Departmental Promotion Committee; (2) the Court was not justified
in directing the Additional Advocate General not to defend the appellant
but to assist the Court.

H Allowing the appeals, this Court
396
MOHD. IQBAL v. ABDUL MAJID 397
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' HELD : 1. The law of contempt is based on sound public policy by A
punishing any conduct which shakes the public confidence in the ad-
ministration of justice. The Court must always be zealous in preserving its
authority and dignity but at the .ame time it will be inadvisable to require
compliance of an order impossible of compliance at the instance of the
person proceeding against for contempt. [400-F, 401-E]
B
t 2. Normally speaking, it cannot be gainsaid that the order ought
to have been obeyed but it appears that there are insuperable difficulties
in implementing the order. The appellant was expressing his genuine
difficulties with regard to the implementation of the order. In such a
situation the insistence of the courts on implementation may not square c
with realities of the situation and the practicability of implementation
of the courts's direction. Hooking a party to contempt proceedings and
enforcing obedience to such orders hardly lends credence to judicial
process and authority, more so, in the peculiar facts and circumstances
of the case. (401-A, DJ D
.. 3. The High Court was not justified in directing the Additional
Advocate-General not to appear for the appellant but only assist the Court.
(401-FJ
4. However, the conduct of the appellant necessitating issue of non~ E
bailable warrant is not in keeping with the responsibility of the office he
holds. Greater respect should have been shown to court and if he was
aggrieved by the order, he should have taken prompt steps to invoke the
appellate procedures. The appellant could not ignore the order and plead
the difficulties of implementation at the time contempt proceedings are
~

initiated. He should tender an unconditional apology before the High
F
' Court for these lapses. [401-G-H, 402-A]

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2297-98
of 1994.
G
From the Judgment and Order dated 1.9.93 of the J ammu & Kashmir
High Court in Contempt No. 52 of 1993_:•
.. •
Ashok Mathur for the Appellant.

R. Sasiprabhu for the Respondent. H
'
398 SUPREME COURT REPORTS [1994] 3 s.c.R:

A The Judgment of the Court was delivered by

MOHAN, J. Special leave granted in both SLPs.

Both these matters can be dealt with under common judgment. The
short facts are as under :
B
The respondent was appointed as Lecturer in the Faculty of •'
Medicine, Medical College, Srinagar, tinder Order No. 197-ME of 1981.
He took up foreign assignment with Subya General Hospital at Saudi
Arabia. He was in Saudi Arbia for a period of two years and ten months.
C The said period was treated as on deputation without pay and allowances.
It was directed that he will be entitled to count the said deputation
towards increments and other service benefits, It was made clear that this
period of deputation on foreign assignment could not be counted as against
teaching experience. '
D By Government Order No. 134-HME. dated 25.2.86, he was
promoted as Assistant Professor on ad hoc basis. Thereafter his services
l
as such came to be regularised on the basis of the recommendation of the
Public Service Commission as per Government Order No. 304-HME dated
7.4.89. The respondent was confirmed on the post of Assistant Professor
E with retrospective effect from 25.1.87.

He filed writ petition No. 2452/92 before the High Court of Jammu
& Kashmir at Srinagar inter alia seeking 'ad hoc' promotion to the post of
Associate Professor with effect from 14.3.89. It was urged in the writ
F petition that promotion granted to various other persons were arbitrary and
he had been denied such a promotion despite having requisite experience.
The further contention was that it was wrong on the part of the Govern-
ment in not counting period of foreign assignment as against his teaching
experience,

G On 21.9.92, the High Court issued notice on the writ petition. It also r
passed an interim order directing the State Government and the appellant
herein to grant ad hoc promotion to the respondent to the post of As-
sociate Professor. In March, 1993 for non-implementing this order, con-
tempt proceedings .were initiated by the respondent. On 8.3.93 the High
H Court issued notice on the contempt petition and called upon the appellan\
MOHD.IQBAL v. ABDUL MAJID
. .[MOHAN,
,.
J.) 399

to implement the Order dated 21.9 .92. When the contempt proceedings A
came up for hearing on 1.9.93, the learned J~dge passed an order dir~~ting
issue of non-b~ilable warrants and framed "rule" in the said conteni.Jlt
petition. The learned Judge also directed the Government advocate-Addi-
tio_nal Advocate-General, representing the appeUaJ,lt, should not appear on
behalf of the appellant in the said conteinpt petition to defend him and on B
the contrary should assist the court ,, " ;: "
j v· .. f•P
The appellant filed his counter in the contempt proceedings. Besides,
a detailed counter was also filed in the writ petition in which it was stated
that the claim of. the respondent for promotion WO& misconceived since
such a promotion to the post of Associate Prqfessor under the relev_ant rule S
were required to be made by the Public. Service Commission or by
Departmental Promotion Committee. It was further urged that he did not
possess the requisite qualifications/experience eligible for promotion. More
than above this, the post of Associate professor-was a·selection po~t. M_ere
gaining of experience was not sufficient to ·entitle the respondent to·.claim D
promotion. ''J "• ' ,,
' ·' ,,, '.
On 13.9.93, the appellant was personally present·in the _c9urt. The
learned Judge declined to accept the unqualified apology .tendered by the
appellant till the order dated 21.9.92 was implemented and the ·appellant E
purged himself of contempt. The contempt proceedings were adjourned to
27.9.93 and it was directed that the appellant be present in the ·court on
the said date. Aggrieved by this order, S.L.P. No. 15573/93 has come to be
preferred. : !' ·
'I
Against the order dated 1.9.93 referred t~ above, S.L.P. No.'15563/93 F
has come to be preferred. ·
,,
It is urged on behalf of the appdlants that in "the facts and i cir-
cunistances of the case, the interim order could not have been passed
because practically it amounts to allowing the writ petition without hearing G
the appellant. Therefore, it is a wrong order. E~en assuining otherwise, it '
1
is incapable of_ compliance and the iniplemeriiation will be against the
relevant rules. Under such rules, the respondent is not possessed of the
requisite experience. It is not the appellant who could accord promotion
since it has to be done by tbe Service Commission or the Departmental H
! ' -" , ' • I' i '., . · .
400 SUPREME COURT REPORTS (1994] 3 S.C.R.

A Promotion Committee. Therefore, the implementation is impossible. It was
under these circumstances, the appellant appeared and tendered his apol-
ogy.

There is no justification for the court to direct the counsel for the
appellant, namely, Additional Advocate-General not to appear for the
B appellant and that he should assist the court. Thus it is prayed that the
impugned order may be set aside.

In opposition to this, the learned counsel for the respondent would
urge the rightness or wrongness of the order cannot be urged in the
C contempt proceedings. Properly speaking, the order to accord promotion
dated 21.9.92 though interin1 in nature, ought to have been obeyed. Not
only that was not obeyed but the court was necessitated to issue non-bail-
able warrants because of the defiant attitude adopted by the appellant.
Such an attitude could hardly be commended. Therefore, the High Court
D was fully justified in not accepting the apology unless the appellant purged
himself for contempt. Equally the direction to the Additional Advocate-
General not to appear on behalf of the appellant is fully warranted. No '·
interference is called for. I

Having regard to the above, we have got to balance the dignity of the
E court in requiring obedience to its orders as against the performance of an
act contrary to rules compelled by the courts direction.

The law of contempt is based on sonnd public policy by punishing
any conduct which shakes the public confidence in the administration of
F justice. The order dated 21.9.92 while directing notice also required the
appellant to accord promotion to the respondent as Associate Professor. '
I
It requires to be noticed here that is the main prayer in the writ petition
itself. In such circumstan'ces, the correctness of such an interim order is
open to serious doubt. For a moment, it is not to be understood that the
court has no power to pass such an order but the question is whether while
G granting such interim reliefs the discretion of the Court has been correctly
exercised? If the writ petition is ultimately dismissed, the respondent would
have gained an undue advantage of getting a promotion undeservedly. But
we are not on the merits of the interim order.

H Right or wrong, the order has been passed. Normally speaking, it
MOHD. IQBAL v. ABDUL MATID [MOHAN, J.] 401

cannot be gainsaid that the order ought to have been obeyed but it appears A
that there are insuperable difficulties in implementing the order. First is
that the post of Associated Professor, according to the respondent, is a
selection post. Secondly, the mere seniority, even if that is assured in favour
of the respondent, would not be enough to gain such a promotion. Thirdly,
the specific order of the Government was to exclude the period of deputa- B
tion on foreign assignment from reckoning the duration of the teaching
t experience of the respondent. Therefore, the respondent did not possess
the requisite qualification. Fourthly, such necessary qualifications seem to
be mandatory under the rules. That being the position to accord such a
promotion, will be violative of the rules. Fifthly, the promotion could be
granted only by the Service Commission and not by the appellant.
c
From the above, it appears that the appellant was expressing his
genuine difficulties with regard to the implementation of the order dated
21.9.92. In such a situation the insistence of the courts on implementation
may not square with realities of the situation and the practicability of D
implementation of the court's direction. In our considered view, hooking a
party to contempt proceedings and enforcing obedience to such orders
hardly lends credence to judicial process and authority; more so, in the
peculiar facts and circumstance of the case. The court must always be
zealous in preserving its authority and dignity but at the same time it will E
be inadvisable to require compliance of an order impossible of compliance
at the instance of the person proceeding against for contempt. Practically,
what the court by means of the contempt proceedings seeks is in execution
which cannot meet with our approval.

Equally, there is no justification for directing the Additional Adov-
F
cate-General not to appear for the appellant but only assist the court in
view of what we have expressed above.

At the same time, we are constrained to observe that the conduct of
the appellant necessitating issue of non-bailable warrant is not in keeping G
with the responsibility of the office he holds. Greater respect should have
been shown to court and if he was aggrieved by the order, he should have
taken prompt steps to invoke the appellate procedures. The appellant
could not ignore the order and plead the difficulties of implementation at
the time contempt proceedings are initiated. It will be proper for the H
-~-------------------------------- --- -

402 SUPREME COURT REPORTS [1994] 3 S.C.R.

A appellant to tender an unconditional apology before the High Court for
these lapses.

We would request the main writ petition. be .disposed of on merits
since the vital question as to the eligibility of the respondent to be
promoted as Associated professor has to be decided first:Accordingly, the
B Civil appeals are allowed as indicated above. There shall be no order ~s to
costs.

T.NA. Appeal> allowed.

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