Court No. - 40
Case :- SPECIAL APPEAL No. - 1211 of 2019 Appellant :- K. Ravindra Naik Respondent :- Khushaboo Kumari Gupta And Another Counsel for Appellant :- Sudhanshu Srivastava Counsel for Respondent :- Khushaboo Kumari Gupta (In Person)
Hon'ble Munishwar Nath Bhandari,J. Hon'ble Rohit Ranjan Agarwal,J.
By this special appeal, a challenge is made to the order dated 18.11.2019 passed in contempt application preferred by the non-appellant.
It is a case where the appeal preferred by the non-appellant was decided with the following direction:-
"1. Sri K.S.Kushwaha, learned counsel for respondent 2 produced mark- sheet of interview awarding marks to petitioner and also handed over a photocopy thereof to petitioner. He also informed the Court that within a week, on the basis of marks secured by petitioner in interview, her position in merit list shall be examined viz-a-viz last selected candidates and final result shall be communicated to petitioner within a week thereafter."
Pursuant to the direction given by the Division Bench, final result was communicated to the petitioner (non-appellant herein). The contempt petition was filed to seek compliance of the order, which was made however contempt Court passed orders from time to time to seek compliance. It was found that substantial compliance of the order has been made, however, request of the applicant to keep the matter pending consideration so that letter of appointment is also issued by the department concerned was accepted. The learned Single Judge passed an order on 18.11.2019 that the applicant has not been given appointment, thus, a prima facie case is made out for holding the contemnors to be guilty under the Contempt of Courts Act.
The order aforesaid has been challenged on the ground that it was beyond the competence and jurisdiction of the Court hearing a contempt petition. It is stated that the compliance of the order passed by the Division Bench in the appeal preferred by the non-appellant herein was made, thus, Court hearing contempt could not have kept the matter pending for issuance of letter of appointment when it was not even directed. In those circumstances, appeal to challenge the order dated 18.11.2019 is maintainable in the light of the judgment of the Apex Court in case of Midnapore Peoples' Co-op. Bank Ltd. and Ors. vs. Chunilal Nanda and Ors., 2006 5 SCC 399.
Reference of other judgments have also been given to show the maintainability of the appeal in peculiar facts of the case. It is further stated that issue of competence of the Court hearing contempt has been otherwise dealt by the Supreme Court in the case of J.S. Parihar v. Ganpat Duggar, (1996) 6 SCC 291. In the said case, it was held that once the compliance of the order has been made, the Court hearing contempt cannot issue direction on merit.
In the instant case, directions have been given by contempt Court for appointment though not directed by the Division Bench in the appeal preferred by non-appellant herein. The Court hearing contempt has, thus, travelled beyond its jurisdiction by issuing direction for the appointment of applicant and in absence of it to hold the officer guilty for contempt. The Court hearing contempt cannot enlarge the scope of the order and travel beyond what was not even directed. Thus, this Court while hearing this appeal at the interim stage, passed an order on 03.12.2019, whereby the operation of the impugned order was stayed.
We are convinced with the argument raised by learned counsel for the appellant and unable to accept the objection raised by the non-appellant (present-in-person) to hold that appeal is not maintainable because other than aforesaid, no issue was raised, thus, order dated 18.11.2019 is set aside and with the aforesaid appeal is allowed.
It is however made clear that acceptance of appeal would not preclude or restrain the petitioner (non-appellant herein) to seek review of the original judgment or to file a fresh writ petition to seek appointment. The liberty aforesaid has been given so that the petitioner (non-appellant herein) may not remain remediless.
The order under challenge has been interfered only for the reason that when the Division Bench in the appeal did not direct for appointment of the appellant (non-appellant herein), then, direction aforesaid could not have been given in the contempt and not for any other reason.
Order Date :- 6.1.2021 V.S.Singh