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PETITIONER: J.S. PARIHAR

       Vs.

RESPONDENT: GANPAT DUGGAR & ORS.

DATE OF JUDGMENT:       11/09/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. FAIZAN UDDIN (J) G.B. PATTANAIK (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have heard the counsel on both sides.      Leave granted.      These appeals  by special leave arise from the order of the Division 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  preparation of  the controversy relates to  the preparation  of the  seniority list  of  the engineers in  Rajasthan Civil  Engineering Services  (Public Health Branch).  In W.P.No. 560/79 by order dated October 6, 1988 the  Division Bench  of the  High  Court  declared  the 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 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 willfully  disobeyed  the  orders  of  the  Court  and  gave 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 Kailash Chand Goyal’s case      and so, it had not been declared as      such  afresh.  In  that  case,  the

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    notifications  whereby   amendments      were introduced were not challenged      but only  their retrospectivity was      challenged  and,   therefore,   the      decision   of    this   Court    in      Gyaneshwar’s case does not hold the      filed. The  controversy  raised  in      this case  is squarely  covered  by      the  decision   of  this  Court  in      Kailash Chand  Goyal’s case (supra)      and in  Kailash Chand Goyal’s case,      the     impugned      notifications      Annexures 5  to 6 have been quashed      in  their   entirety  and   so  the      seniority of  the petitioner has to      be determined  on the  basis of the      directions given  by this  Court in      Kailash Chand  Goyal’s case (supra)      and promotions  have to be accorded      accordingly. Of  course, it appears      quite just  and reasonable that the      nonpetitioners 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      some confusion  prevailed with  the      nonpetitioners 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      Kailash Chand  Goyal’s case (supra)      and the  seniority list  should  be      prepared   as   directed   in   the      judgment in  Kailash Chand  Goyal’s      case (supra)  and promotions should      be accorded  accordingly.  If  this      order is not complied with within a      period of  six months  from  today,      the petitioner will be free to move      a contempt  petition afresh against      the non-petitioners."      The State  had filed appeal against these directions. A preliminary objection  was taken  on the  maintainability of the appeal  and also  arguments 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 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.      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

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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, to a bench of not less than two  Judges of  the Court."  Therefore, an appeal would lie under  Section 19  when 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 willfully disobeyed the order. So, there is no  order punishing  the respondent  for violation of the orders of  the High  Court.  Accordingly,  an  appeal  under Section 19 would not lie.      The question  then is:  whether the  Division Bench was right in  setting 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  take  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 willfully or 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 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 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,  afresh  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.  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  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  aggrieved 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.