Khanday Vs. Abdul Majid Rather  INSC 243 (16 April 1994)
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj)
1994 AIR 2252 1994 SCC (4) 34 JT 1994 (3) 177 1994 SCALE (2)506
Judgment of the Court was delivered by MOHAN, J.- Special leave granted in both
Both these matters can be dealt with under common- judgment. The short facts
are as under.
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.
made clear that this period of deputation on foreign assignment could not be
counted as against teaching experience.
Government Order No. 134-HME dated 25-2-1986, he was, promoted as Assistant
Professor on ad hoc basis.
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.
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.
6. On 21-9-1992, the High Court issued notice on the writ petition.
I also passed an interim order directing the 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.
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.
by this order, SLP No. 15573 of 1993 has come to be preferred.
Against the order dated 1-9-1993 referred to above, SLP No. 15563 of
1993 has come to be preferred.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
the same time, we are constrained to observe that 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.
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.