of U.P. & Ors Vs. Ashok Kumar Saxena
& Anr  INSC 59 (4 February 1998)
Thomas, M. Srinivasan Srinivasan. J.
is a case of gross abuse of power by the High Court in its exercise of contempt
jurisdiction. The High Court has not only misunderstood the scope of its own
order but also been overzealous in the purported enforcement of the same with
the result it has passed a totally unwarranted order casting a stigma on the
appellant in Civil Appeal No.748 of 1997 who was then the Engineer-in-Chief,
Department of Irrigation, Lucknow (U.P.). The two S.L.Ps bracketed with the
appeal are against the same order - one by the State Government and its
officials and the other by the second respondent in the above appeal. For the
sake of convenience, we will refer to the parties by their ranks in the civil
appeal and the petitioners in S.L.P. No.21052 of 1996 as the State Government.
order dated 7.10.1995 the State Govt. transferred the first respondent herein
who was working as Assistant Engineer from Northern Division. Ganga Canal, Roorki to IIIrd Sub-Division, Dhampur, Irrigation
Department, Moradabad. By the same order the second
respondent who was working as Assistant Engineer at Dhampur was attached to
Irrigation Department, Moradabad. The second respondent filed a writ
petition in the High Court challenging the order of transfer. A Division Bench
of the High Court dismissed the petition in liming on 16.10.1995 by the
R.S. Yadav for petitioner and Sri Afsar for the respondents are heard. By the
impugned order the petitioner is transferred from Dhampur to Moradabad which is only 70 Km, away from Dhampur.
It is a transfer matter and no interference in such a matter is called for in
the writ jurisdiction. The petition has no merit and is accordingly
18.10.1995 the President's Rule was imposed in the State. Orders were issued by
the Chief Secretary for reviewing various important orders passed by the
previous Government between 1.10.95 and 18.10.95 including the orders of
transfer of officials. Consequently the appellant passed an office order dated
31.10.1995 staying the order of transfer dated 7.10.1995. Accordingly the first
respondent reported back at Northern Division, Ganga Canal Roorki on 11.11.1995.
On 19.12.1995 the appellant issued fresh orders of transfer in accordance with
Government order dated 12.12.1995 posting the first respondent at Eastern Ganga Canal Construction
Circle, Haridwar. The
first respondent challenged the same as well as the earlier order dated
31.10.1995 in writ Petition No. 4078 of 1996. On 1.2.1996 the High Court passed
an order in the following terms:
appears that this Annexure-2 was passed by the Engineer-in-Chief after
respondent had failed to obtain any order in his favour from the High Court and
the order of transfer was challenged by Respondent No.5 in This Court. The
Court did not grant any relief in his Favour but soon thereafter the
represented to the Engineer-in-in- Chief. The Engineer-in-Chief passed the
order staying the first order dated 7.10.1995, whereby the petitioner had
already been functioning at Dhampur. We, therefore, direct that irrespective of
any one of these irrespective of any one of these annexures contained in Annexures
1,2 and 3 the petitioner shall continue to function at Dhampur and Respondent
No.5 will continue on the post which he is holding.
petitioner is satisfied to continue at Dhampur" The first respondent filed
an application for clarification in the last sentence of the first paragraph.
That application was ordered on 14.2.96 by which the second respondent was to
continue in the post which he was holding Moradabad. It is stated that both the aforesaid orders were passed without
issuing notice to the second respondent though he was the fifth respondent in
the writ petition.
coming to know the orders, the second respondent filed an application for
recalling the previous orders.
that application came up on 24.5.1996 the counsel for the first respondent
could not be present on account of the illness and the Court adjourned the said
application on that ground. However, the Court observed that the second
respondent had no grievance with the order by which the first respondent was
directed to continue to function at Dhampur. The Court also observed that the
authorities should be at liberty to pass any appropriate order relating to the
posting of the second respondent herein.
matter came up before the Court on 3.7.1996. The Court opined that the matter
could not be proceeded without the physical presence of the appellant in the
Court and directed its Registrar to communicate the order to the
Engineer-in-Chief, Irrigation Department, U.P. asking him to produce the
appellant before it positively on 8.7.1996. Even at that stage the Court
directed that if the appellant "evades his presence in Court on that date,
he shall be brought into police custody withe the assistance of Superintendent
of Police of the area where he has been serving". The Court also directed
the order to be sent by Fax as well as personal messenger to the
Engineer-in-Chief besides by Fax to the Chief Secretary of the State and
simultaneously to the Principal Secretary of the Irrigation Department. Above
all, the Court directed the Additional Chief Standing Counsel Mr. Hussain to
take appropriate steps for execution of that order. In our opinion, there was
no circumstance warranting the over-anxiety displayed by the Court in that
order. There it no presumption that a responsible officer of the Government
would disobey an order of the Court requiring his presence in Court on a
particular date. What was the occasion for the Court to direct the officer to
be taken into police custody even when it was only issuing a notice calling
upon him to be present? Significantly, the order did not indicate anywhere that
it was issuing a notice of contempt.
in the order passed on 5.7.1996 the Court described him as "alleged
contemnor". In that order the Court stated that second respondent herein
desired to withdraw his review applications and all other pleadings in the writ
petition though according to second respondent he was compelled by the Court to
do so. The Court also recorded that the first respondent herein stated that he
did not pursue his writ petition in view of the fact that the order of transfer
dated 7.10.1995 had been implemented in the sense that he was working at Dhampur.
Taking not of the same, the Court observed that it did not propose to pass any
further order as the respondents 1 and 2 shall continue at their places of
posting according to the original order of transfer dated 7.10.1995. However,
the Court proceeded to hold that the action of the appellant amounted to
contempt in as much as he had dared to stay the order of transfer after the writ
petition filed by the second respondent herein was dismissed by the Court. The
Court opined that the order dated 16.10.1995 dismissing the writ petition filed
by the second respondent court a final real of the Court on the order of
transfer dated 7.10.95 and therefore the subsequent order dated 31.10.95 passed
by the appellant keeping in abeyance the order of transfer dated 7.10.95 would tentamount
to a deliberate attempt on the part of the appellant to undo the Court's order
and flout the same. The Court referred to unconditional apology tendered by the
appellant and observed that its conscience did not permit it to accept the
Court said that instead f sending him to prison its displeasure be recorded at
his conduct and he be warned to be more careful in future. The Court directed
that the said remark be introduced in his confidential record. The Court also
observed that respondents 1 and 2 herein would continue on the posts to which
they were transferred by the order of transfer dated 7.10.95.
is that order which is in challenge before us in these three matters. We are
not concerned here with the correctness of the order of transfer passed by the
State Government of the order of transfer passed by the State Government of the
validity of the contentions put forward by respondents 1 and 2 against the same
in the High Court.
parameters of the powers of a Court under Article 226 vis a vis an order of
transfer for are well settled. In N.K. SINGH VERSUS UNION OF INDIA 7 ORS.
(1994) 6 S.C.C. 98 this Court held that interference by judicial review is
justified only in cases of mala fides or infraction of any professed norms or
principles and where career prospects remain unaffected and no detriment is
caused to the concerned Government employee, challenge to the transfer must be
eschewed. Reiterating the said proposition in Sri Abani Kanta Ray Versus State
of Orissa & Ors. J.T. 1995 (7) S.C.467 the Court added that transfer being
an incidence or service, is not to be interfered with by the Courts unless it
is shown clearly arbitrary.
this case, the High Court passed an order on 18.10.95 dismissing the writ
petition filed by the second respondent refusing toe interfere with the order
of transfer. Thereby the High Court upheld the validity of the order of the
Government transferring the second respondent.
doing so the High Court did not and could not have put any fetters on the power
of the Government to pass any subsequent order of transfer or re-call the order
of transfer already made. The High Court had in occasion to restrict such
powers of the Government which were in fact recognized and acknowledged by the
Court in the very same order of dismissal. It cannot therefore be said by any
stretch of imagination that by the said order the High Court put its final seal
of approval of the order of transfer dated 7.10.1995 passed by the Government.
The High Court had not and could not have taken over the administration of the
State by the said order dismissing the writ petition. There was therefore no
bar against the Government or the appellant withdrawing, altering or modifying
the order of transfer passed on 7.1095.
Forgetting the said fundamental principal the High Court proceeded to act on an
erroneous premise that by directing the order of transfer dated 7.10.95 to be
kept in abeyance the appellant had flouted the Court's order dated 16.10.95.
The High Court was so much obsessed with that idea, it became over-anxious to
see that its order as understood by it was carried out and the appellant who
had stayed the order of transfer dated 7.10.95 was punished.
This Court has on several occasions pointed out that the power of punishment
for contempt shall not be exercised lightly but should be exercised only to
uphold the majesty of law and dignity of courts. In Babu Ram Gupta Versus Sudhir
Bhasin and Another AIR 1979 Supreme Court 1528 this Court said:
is well settled that while it is the duty of the Court to punish a person who
tries to obstruct the course of justice or brings into disrepute to the
institution of judiciary this power has to be exercised not casually or lightly
but with great care and circumspection and only in such cases where it is
necessary to punish the contemner in order to uphold the majesty of law and the
dignity of the courts."
is needless to say that the facts in the present case did not warrant the
exercise of power by the High Court to punish the appellant for contempt as he
had not committed any contempt at all. There is no justification for the
observations made by the High Court in the impugned order against the
appellants conduct with a direction that the same should be introduced in his
The direction contained in the last paragraph of the impugned order that
respondents 1 and 2 will continue on the same posts to which they were
transferred by order dated 7.10.95 will not prevent the Government from passing
appropriate order of transfer in accordance with rules as and when it thinks
The Civil Appeal is allowed and the impugned order of the High Court dated
5.7.1996 is set aside. The Special Levee Petitions are accordingly disposed of.
No order as to costs.