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CASE NO.: Appeal (civil)  7472 of 2003

PETITIONER: State of Orissa & Anr.

RESPONDENT: Aswini Kumar Baliarsingh

DATE OF JUDGMENT: 08/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

The respondent herein was appointed as an Assistant Teacher.  The  Inspector of Schools did not approve his appointment.  A writ petition was  filed by him, wherein by an order dated 3.9.1997 the High Court directed the  Inspector of Schools to do so.  The said order was carried into effect by  posting him as Assistant Teacher in a school by an order dated 19.2.1999.   He joined the said school.  He acquired the qualification in May, 1999.  He  was removed from services on or about 27.5.2000 in terms of the  Government Orders bearing No.11667/SME dated 24.4.2000 and  No.13680/SME dated 11.5.2000 stating that he did not have the requisite  qualification as on 7.6.1994.  Indisputably, an original application has been  filed by the respondent before the State Administrative Tribunal bearing  No.1678(C)/2000, which is pending.  He also filed an application for  initiating proceedings under Contempt of Courts Act before the High Court,    inter alia, against the Inspector of Schools for alleged disobedience of the  said order dated 3.9.1997.  By reason of the impugned judgment, the High  Court set aside the said order of the Inspector of Schools dated 27.5.2000  and directed the appellants to take the respondent back in service and to give  him appropriate posting within one month therefrom.  It was further directed  that arrears of salary should be paid to him as early as possible, preferably  within six months from the date of his joining.

The submission of Mr. J.K. Das, learned counsel appearing for the  appellant was that the High Court exceeded its jurisdiction in issuing the  aforementioned directions.   

Mr. Rajib Roy, learned counsel appearing on behalf of the respondent,  on the other hand, submitted that the High Court had the requisite  jurisdiction to pass the impugned order in terms of the provisions of  Contempt of Courts Act.   

Our attention was also drawn to the fact that even on a previous  occasion the Inspector of Schools did not comply with the order of the High  Court dated 3.9.1997 and the respondent had initiated a proceeding for  contempt against them.   

The contemnors were not impleaded in the contempt proceedings in  their personal capacity, but were impleaded in their official capacity.  In  O.J.C. No.3298/96 the High Court in issuing the direction by its order dated  3.9.1997, relied on an earlier judgment dated 27.6.1997 [Bibekananda Das v.  State of Orissa) passed in O.J.C.No.1012/96, stating :

"For the reasons stated in the aforesaid judgment  dated 27.6.1997 and the subsequent order dated 3.9.1997,

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we direct the Inspector of Schools to approve the  appointment of the petitioner with effect from 7.6.1994  and pay him the scale of pay of an assistant teacher  (untrained graduate) with effect from the said date.  The  arrears, if not already paid, may be calculated and paid to  him within a period of four months of receipt of writ.   The Inspector of Schools will continue to pay to the  petitioner the current salary in the untrained graduate  scale of pay.  We make it clear that the Inspector of  Schools will give the petitioner reasonable time to  acquire the B. Ed. qualification (unless he gets exemption  under the relevant rules).  Annexure-4 is accordingly  quashed."   

Thus no direction was issued by the High Court against the State of  Orissa.  It is not in dispute that the cause of action for filing the contempt  petition arose as the Inspector of Schools passed an order consequent upon  the Government Orders issued by the Government of Orissa on or about  24.4.2000.  The Inspector of Schools was bound to give effect to the said  orders.  The said Government orders may be legal or illegal; but by no  stretch of imagination, it can be said that the Inspector of Schools committed  contempt of court in complying with the directions of the State of Orissa.   For the purpose of setting aside the order of the Inspector of Schools, the  Government Orders were required to be set aside.  The said Government  Orders having been issued subsequent to the order of the High Court, no  direction indisputably had been or could be issued in that behalf in the writ  petition.  A contempt petition, in our opinion, thus, was not maintainable.   

Further more, as noticed hereinbefore, the respondent had already  initiated a proceeding before the State Administrative Tribunal questioning  the legality of the said action on the part of the State of Orissa.  The High  Court in relation thereto did not have the jurisdiction, as an appropriate  proceeding was required to be initiated before the Tribunal at the first  instance in view of the judgment of this Court in L. Chandra Kumar vs.  Union of India & Ors. [AIR 1997 SC 1125 : (1997) 3 SCC 261].  The  contemnors, in any event, having not been impleaded as parties in their  personal capacity.  In the contempt petition only Director of Secondary  Education and Inspector of Schools were impleaded as parties in their  official capacity.  Even the State of Orissa was not impleaded as a party  respondent therein.   

The learned counsel, however, may be correct in contending that  while exercising its contempt jurisdiction, the High Court may, in a given  case, issue appropriate direction, although no penal action is taken against  the contemnors.   But, even in respect thereof, a finding would be required to  be arrived at to the effect that the contemnors have disobeyed the order of  the Court.  Only when such a finding is arrived at, the court may in exercise  of its inherent jurisdiction put the parties to the same position as if its order  was not violated.     

In All India Regional Rural Bank Officer Federation & Ors.  vs.  Govt. of India & Ors. [(2002) 3 SCC 554], whereupon reliance has been  placed, such a direction was issued, but only after a finding was arrived at,  that the Central Government had issued a notification in utter violation of  the orders passed by this Court.

In Director of Education, Uttaranchal & Ors. vs. Ved Prakash  Joshi & Ors. [2005 (5) SCALE 529 : (2005) 6 SCC 98], whereupon again  reliance has been placed by Mr. Roy, this Court opined:  

"\005\005.The court exercising contempt jurisdiction is  primarily concerned with the question of contumacious  conduct of the party who is alleged to have committed  default in complying with the directions in the judgment  or order. If there was no ambiguity or indefiniteness in

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the order, it is for the concerned party to approach the  higher Court if according to him the same is not legally  tenable. Such a question has necessarily to be agitated  before the higher court. The court exercising contempt  jurisdiction cannot take upon itself power to decide the  original proceedings in a manner not dealt with by the  Court passing the judgment or order. 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, non-compliance 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."    In the instant case, the action taken by the respondents in purported  violation of the Court’s order arose owing to a subsequent cause of action,  namely, orders passed by the state of Orissa and unless the said orders were  set aside, the Inspector of Schools can be said to have flouted the order of  the High Court.  The said decisions, therefore, have no application in the  instant case.

For the reasons aforementioned, the impugned judgment cannot be  sustained.  It is set aside accordingly.  The appeal is allowed.  No costs.