http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MOHD. IQBAL KHANDAY

       Vs.

RESPONDENT: ABDUL MAJID RATHER

DATE OF JUDGMENT16/04/1994

BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) VENKATACHALLIAH, M.N.(CJ)

CITATION:  1994 AIR 2252            1994 SCC  (4)  34  JT 1994 (3)   177        1994 SCALE  (2)506

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by MOHAN, J.- Special leave granted in both SLPS. 2.   Both  these  matters can be dealt  with  under  common- judgment.  The short facts are as under. 3.   The respondent was appointed as Lecturer in the Faculty of Medicine, Medical College, Srinagar, under Order No. 197- ME  of  1981.   He took up  foreign  assignment  with  Subya General  Hospital at Saudi Arabia.  He was in  Saudi  Arabia for a period of 2 years and 10 months.  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. 4.   By  Government  Order No. 134-HME dated  25-2-1986,  he was,  promoted  as  Assistant Professor  on  ad  hoc  basis. Thereafter  his services 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- 1989.  The respondent was confirmed on the post of Assistant Professor with retrospective effect from 25-1-1987. 5.   He filed Writ Petition No. 2452 of 1992 before the High Court of Jammu & Kashmir at Srinagar inter alia seeking  ’ad hoc’  promotion  to  the post of  Associate  Professor  with effect  from 14-3-1989.  It was urged in the  writ  petition that  promotions  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  Government  in  not counting  period  of  foreign  assignment  as  against   his teaching experience. 36 6.   On 21-9-1992, the High Court issued notice on the  writ petition.   I  also passed an interim  order  directing  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

State  Government and the appellant herein to grant  ad  hoc promotion  to  the  respondent  to  the  post  of  Associate Professor.   In March 1993 for non-implementing  this  order contempt  proceedings were initiated by the respondent.   On 8-3-1993  the  High  Court issued  notice  on  the  contempt petition  and  called upon the appellant  to  implement  the order dated 21-9-1992.  When the contemp proceedings came up for hearing on 1-9-1993, the learned Judge passed are  order directing  issue of non-bailable warrants and framed  "rule" in  the  said  contempt petition.  The  learned  Judge  also directed  the  Government  Advocate   Additional   Advocate- General,  representing the appellant, should not  appear  on behalf  of  the appellant in the said contempt  petition  to defend him and on   the contrary should assist the court. 7.   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 was misconceived since such  a promotion  to  the  post of Associate  Professor  under  the relevant rule was 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 post.   Mere  gaining of experience was  not  sufficient  to entitle the respondent to claim promotion. 8.   On  13-9-1993, the appellant was personally present  in the  court.   The  learned  Judge  declined  to  accept  the unqualified apology tendered by the appellant till the order dated  21-9-1992  was implemented and the  appellant  purged himself   of  contempt.   The  contempt   proceedings   were adjourned  to  27-9-1993  and  it  was  directed  that   the appellant  be  present  in  the  court  on  the  said  date. Aggrieved  by this order, SLP No. 15573 of 1993 has come  to be preferred. 9.   Against the order dated 1-9-1993 referred to above, SLP No. 15563 of 1993 has come to be preferred. 10,  It  is urged on behalf of the appellants  that  in  the facts and circumstances of the case, the interim order could not  have  been  passed because practically  it  amounts  to allowing  the writ petition without hearing  the  appellant. Therefore, it is a wrong order.  Even assuming otherwise, it is  incapable of compliance and the implementation  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  the  Public  Service  Commission  or   the Departmental    Promotion   Committee.     Therefore,    the implementation   is   impossible.   It   was   under   these circumstances,  the  appellant  appeared  and  tendered  his apology. 11.  There  is no justification for the court to direct  the counsel  for  the appellant,  namely,  Additional  Advocate- General  not to appear for the appellant and that he  should assist the court.  Thus it is prayed that the impugned order may be set aside. 37 12.  In  opposition  to this, the learned  counsel  for  the respondent  would  urge the rightness or  wrongness  of  the order cannot be urged in the contempt Proceedings.  Properly speaking,  the  order  to accord  promotion  dated  1-9-1992 though  interim in nature, ought to have been  obeyed.   Not only  hat was not obeyed but the court was  necessitated  to issue non-bailable warrants because of the defiant  attitude adopted by the appellant.  Such an attitude could hardly  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

commended.  Therefore, the High Court 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. 13.  Having regard to the above, we have got to balance  the dignity of the Court in requiring obedience to its orders as against  the  performance  of  an  act  contrary  to   rules compelled by the court’s direction. 14.  The law of contempt is based on sound public policy  by punishing  my conduct which shakes the public confidence  in the  administration of justice.  The order  dated  21-9-1992 while directing notice also required the appellant to accord promotion  to  the respondent as  Associate  Professor.   It requires  to be noticed here that is the main prayer in  the writ petition itself. in such circumstances, 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  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. 15.  Right  or wrong, the order has been  passed.   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.  First is that  the post of Associate 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 deputation on foreign assignment from reckoning the duration of  the teaching 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  Public  Service Commission and not by the appellant. 16.  From  the  above,  it appears that  the  appellant  was expressing  his  genuine  difficulties with  regard  to  the implementation  of  the order dated 21-9-1992.   In  such  a situation the insistence of the courts on implementation may not   square  with  realities  of  the  situation  and   the practicability  of implementation of the court’s  direction. In  our  considered  view,  hooking  a  Party  to   contempt proceedings  and enforcing obedience to such  orders  hardly ends credence to judicial process and authority; more so, in the peculiar 38 facts and circumstances of the case.  The court must  always be  zealous in preserving its authority and dignity  but  at the  same time it will be inadvisable to require  compliance of an order impossible of compliance a? the instance of  the person  proceeding against for contempt.  Practically,  what the  court by means of the contempt proceedings seeks is  an execution which cannot meet with our approval. 17.  Equally,  there is no justification for  directing  the Additional Advocate-General not to appear for the  appellant but only assist the court in view of what we have  expressed above. 18.  At  the same time, we are constrained to  observe  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

the  conduct  of the appellant necessitating issue  of  non- 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.  It will be proper  for the appellant to tender an unconditional apology before  the High Court for these lapses. 19.  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 Associate Professor has  to be  decided  first.   Accordingly,  the  civil  appeals  are allowed  as indicated above.  There shall be no order as  to costs. 39