Of Orissa & Anr Vs. Aswini Kumar Baliarsingh
 Insc 485 (8
Sinha & Dalveer Bhandari S.B. Sinha, J.
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.
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.
submission of Mr. J.K. Das, learned counsel appearing for the appellant was
that the High Court exceeded its jurisdiction in issuing the aforementioned
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.
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
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
the reasons stated in the aforesaid judgment dated 27.6.1997 and the subsequent
order dated 3.9.1997, 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.
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.
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.
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.
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
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.
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:
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 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.
the reasons aforementioned, the impugned judgment cannot be sustained. It is
set aside accordingly. The appeal is allowed. No costs.