JUDGMENT B.S. Chauhan, J.
1. This special appeal has been preferred against the orders dated 17.5.2004 and 30.4.2004, passed by the learned Single Judge while dealing with the Contempt Petition No. 820 of 2002, Rajesh Kumar Srivastava v. A.P. Verma and Ors., by which earlier order dated 28.1.2004, passed in the same contempt petition is being endorced directing the State Government to frame the transfer policy and implement the same for the Doctors,
2. The facts and circumstances giving rise to this case are that the Hon'ble Apex Court decided the public interest litigation D.K. Joshi v. State 'of U.P. and Ors., (2000) 5 SCC 80, issuing certain directions to the State Government to restrain the unqualified/unregistered Doctors to indulge in any kind of medical practice. Subsequently, a Contempt Petition No. 292 of 2002, Rajesh Kumar Srivastava v. A.P. Verma, Chief Secretary, V.P., was filed before the Hon'ble Apex Court raising the grievance that the directions issued by their Lordships in the said judgment were not being complied with at all and the State Government was not taking any steps to \ensure the compliance of the same. The Hon'ble Supreme Court vide its order dated 8.10.2001 did not entertain the petition, rather gave liberty to the petitioner therein to file the petition before this Court and in pursuance of the same, the said contempt petition has been filed herein and entertained by this Court. In order to prevent the quacks to spoil the life of the members of the society, a large number of directions have been issued from time to time by this Court. In order to check the menace of private practice and running their own Nursing Homes or working in other Nursing Homes by the Government Doctors at the cost of public, in the said case, on 28.1.2004, amongst others, the following directions were also issued :
"The Principal Secretary, Medical Health and Family Welfare, it is directed, to ensure that no Medical Officer in the Government Service is posted beyond three years in any District, and that air para medical staff serving in the Primary Health Centre/Community Health Centre/District Hospitals and other hospitals run by Government of U.P. for more than five years shall be transferred from that centre/hospital Any Doctor in employment of State Government offering their services to the unauthorised medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorised practice."
3. Being aggrieved, a large number of special appeals have been preferred against the same contending that a Court while entertaining a contempt petition, cannot issue this kind of direction. More so, the petition is limited only to prevent the unqualified and unregistered persons to indulge in medical practice and issuing such a direction is beyond the competence of the Contempt Court. In a special appeal, a Division Bench of this Court stayed the operation of the above said direction. However, in the Special Appeal No. 320 of 2004, Dr. Ravindra Kumar Goel and Ors. v. State of U.P. and Ors., decided on 27th April, 2004, another Division Bench of this Court held that the transfer is a condition of service. It is a matter between employer and employee and the Court generally does not interfere in such matters unless the transfer of employee is found to be in violation of the statutory provision or held to have been made mala fide. But, while dealing with the issue of competence of the Contempt Court to issue such a direction, the Court held as under:-
"In our opinion, it is correct to say that the principles of transfer are policy matters, and they should ordinarily be decided by the State Government and not by this Court. Hence we modify direction No. 8 contained in the judgment of the learned Single Judge, and we hold that this directive shall be treated as a recommendation rather than a binding directive on the State Government."
4. Subsequently, the State Government has framed the transfer policy and implemented the same, hence this special appeal has been preferred challenging the consequential orders.
5. The issues involved herein are as to whether a Court while dealing with the contempt petition can issue a direction beyond the scope of contempt proceedings and matter not related to the issue involved in the contempt petition.
6. A Coordinate Bench does not have a right to examine the corruptness of a Division Bench judgment unless it is held to be per incuriam or based on evidence not on record, being perverse, and even for that purpose, the matter is to be referred to a Larger Bench. The judicial discipline does not warrant sitting in appeal against the judgment of the Coordinate Bench.
7. In Noorali Babul Thanewala v. Sh. K.M.M. Shetty and Ors., AIR 1990 SC 464, the Hon'ble Supreme Court while dealing with a similar issue, held that a Court dealing with the contempt matter has a right not only to pass an order to purge the contempt by directing the contemnor to implement the order passed by it but also has competence to issue necessary further consequential directions for the enforcement of the said order.
8. In Major Gen. (Old Capt.) Virender Kumar v. Chief of the Army Staff and Ors., (1994) Supp 2 SCC 303, the Hon'ble Supreme Court held that contempt proceedings are meant for implementation of the orders passed by the Court, but it does not have the power to decide an issue which had not been involved earlier while passing the main order. Similar view had been reiterated in Satyabrata Biswas and Ors. v. Kalyan Kumar Kisku and Ors., AIR 1994 SC 1837.
9. Similar view has been reiterated by the Hon'ble Apex Court in Director, Elementary Education and Ors. v. Pratap Kumar Nayak, (1997) 9 SCC 107, observing that a Court or Tribunal cannot issue a direction in contravention of the direction issued in the main order, and it does not have the power to act beyond the main order and issue fresh directions.
10. In Mareswar Prosad Paul and Ors. v. Tarak Nath Gangoli and Ors., AIR 2002 SC 2215, while dealing with a similar issue the Apex Court observed as under:
"The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the Court and if the conduct of the party who is alleged to have committed such disobedience is contumacious. The Court exercising contempt jurisdiction is not entitled to enter into questions which have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The Court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained. At the cost of repetition be it stated here that the Court exercising contempt jurisdiction is primarily concerned with the question of contumacious conduct of the party, which alleged to have committed deliberate default in complying with the directions in the judgment or order. If the judgment or order does not contain any specific direction regarding a matter or if there is any ambiguity in the directions issued therein then it will be better to direct the parties to approach the Court which disposed of the matter for clarification of the order instead of the Court exercising contempt jurisdiction taking upon itself the power to decide the original proceeding in a manner not dealt with by the Court passing the judgment or order. If this limitation is borne in mind then criticisms which are sometimes levelled against the Court exercising Contempt of Court jurisdiction that it has exceeded its powers in granting substantive relief and issuing a direction regarding the same without proper adjudication of the dispute' in it entirety can be avoided. This will also avoid multiplicity of proceedings because the party which is prejudicially affected by the judgment or order passed in the contempt proceeding and granting relief and issuing fresh directions is likely to challenge that order and that may gave rise to another round of litigation arising from a proceeding which is intended to maintain the majesty and image of Courts."
11. In Baldeobhai Gopalbhai Patel v. K.M.V. Cooperative Housing Society Limited and Ors., (2000) 10 SCC 251, the Hon'ble Supreme Court dealt with an issue where the High Court issued the direction to demolish the construction raised in violation of the order of the Court in addition to sending the contemnor to jail for imposing the punishment holding him guilty of Contempt of Court. The Apex Court held that as the matter was yet to be decided finally, the High Court ought not to have passed the order of demolition of the construction raised in the breach of the Court's order.
12. In Special Leave Petition (Criminal) No. 585 of 2004, Smt. Shail v. Shri Manoj Kumar &. ors., decided on 29th March, 2004, the Hon'ble Apex Court dealt with an issue wherein the petitioner therein had filed an application for maintenance before the Family Court, and as it was not decided, she approached this Court, wherein this Court passed the order directing the Family Court to decide her application within stipulated period. As the same was not decided, she filed the contempt petition and proceedings were initiated against the Presiding Officer of the Family Court. The matter went to the Hon'ble Supreme Court and the petitioner therein urged that whatever may be the legal and factual position as it was difficult or her to survive, this Court ought to have awarded her the maintenance in order to save her from destitution. The Hon'ble Supreme Court placing reliance upon its earlier judgment Surya Dev Rai v. Ram Chander Rai and Ors., AIR 2003 SC 3044, held that the High Court while exercising the supervisory powers, which are required to be exercised sparingly with care and caution, ought to have granted the maintenance itself and the direction issued to the petitioner to appear before this Court on the next date of hearing in the said contempt petition and seek the relief of maintenance from the High Court.
13. In Smt. Abida Begam v. R.C.E.O., AIR 1959 All 675, a Division Bench of this Court held :
"It may not be possible for us to grant a decree in the suit, but, in spite of that fact, we think that this Court has jurisdiction under Article 226 of the Constitution to grant the relief as against the defendant No. 1, even thought this matter had not come in its writ jurisdiction on an application under Article 226."
14. It may be mentioned that in the said case, the Division Bench was deciding a special appeal against the judgment of a learned Single Judge who had decided a second appeal under Section 100 C.P.C Thus, the Court was not exercising writ jurisdiction but the jurisdiction of second appeal However, it was observed that even in such a jurisdiction in certain exceptional cases the Court can issue writs. Thus the decision in Abida Begam's case (supra) is an authority for the proposition that in exceptional cases a Judge sitting in a particular jurisdiction can issue a directive relating to another jurisdiction also so as to do justice.
15. A similar view has been reiterated by the Full Bench of Madras High Court in Vidya Charan Shukla v. Tamil Nadu Olympic Association and Anr., AIR 1991 Mad 323, where the Court held that every Court of Record has an inherent jurisdiction to" punish the contemnor and even in contempt proceedings the Contempt of Court is not limited only to enforce the order passed earlier, and to punish the contemnor but also to pass an appropriate order as required in the facts and circumstances of the case. While deciding the said case, the reliance had been placed upon a large number or earlier judgments of various Courts, including the judgment of the Hon'ble Supreme Court in Sukhdev Singh v. Hon'ble C.J. S. Teja Singh & Hon'ble Judges of the Pepsu High Court at Patiala, AIR 1954 SC 186.
16. Thus, in view of the above, the law on the issue can be summarised that the power of punishing a contemner, is inherent in every Court of Record. It is essential and necessary for the purpose of smooth working of the Court. The Court while exercising the power of contempt generally does not go beyond the order passed earlier which has not been complied with, but in exceptional circumstances, where the facts so warrant the Court can also pass the orders which are necessary in the facts and circumstances of the case.
17. There is another aspect of the matter which also requires to be examined. The petitioner-appellants in this case had approached earlier the Hon'ble Supreme Court raising their grievance that the order passed by the Hon'ble Supreme Court is not being complied with. The Hon'ble Supreme Court did not consider it proper to entertain the contempt petition and it was disposed of vide order dated 8.10.2001 observing as under:
"It is appropriate for the petitioner to move the High Court for the relief sought for. The contempt petition is dismissed accordingly."
18. There can be no dispute to the settled legal proposition that the Court of Record is competent to initiate the contempt proceedings in respect of a matter seized by it and also in respect of the contempt of the Court subordinate to it, but it is beyond imagination that the High Court can entertain the contempt petition for non-compliance of the order passed by the Hon'ble Supreme Court. The Hon'ble Apex Court did not ask the petitioner therein to file the Contempt Petition rather directed to approach this Court for seeking appropriate relief. Though petitioner therein approached this Court by filing contempt petition, but in strict legal sense, considering the scope of contempt jurisdiction, it cannot be held that it is a contempt petition, but directions issued by their Lordships cannot be ignored. It is misnomer and in such circumstances, there cannot be any bar in passing the orders which are incidental and necessary in such a case. The submission made by the learned Counsel for the petitioner-appellants that an order without jurisdiction is void, is acceptable, but such an issue is neither involved herein nor it is required to be examined at all.
19. The Coordinate Bench of this Court already held that the order passed by the learned Single Judge issuing a direction for transfer and framing the transfer policy is merely a recommendation. Therefore, appellants herein cannot have any grievance whatsoever as the issues raised by the appellants herein have already been dealt with by the Coordinate Bench in Ravinder Kumar Goel and others (supra).
20. Secondly, the Government frames the transfer policy in respect of its employees from time to time. Doctors cannot claim to be of a separate class, nor it is their case that they are not to be governed by the said policy. The transfer policies framed by the State always provide a guideline to transfer an employee after serving three years generally at a particular place. The said transfer policy or any other guidelines issued by the State Government from time to time in respect of transfer of the Medical Officers, separately had not been implemented strictly in their cases. State Government considering the directions issued by this Court which have been held to be recommendation only, framed the transfer policy of transferring the Doctors who have served at a particular place for ten years. A Government servant does not have a right to serve at a place of his choice. It is for the employer to consider as to where and for how long the services of a particular employee are required. How the appellants could have a grievance for implementing the transfer policy which the State is required to enforce even without direction of any Court It is not something which this Court has directed to do, which was not permissible in law or not known to the State Authorities. It was only a recommendation to wake up the so-called administration from its deep slumber as under what circumstances the Authorities were discriminating the other Government employees from the Medical Officers by not transferring them from a particular place for the decades altogether; and as to why the other officers are being transferred generally after serving at one place for three years. It cannot be a legal issue for examination by any Court when appellants who are Government servants and know very well that transfer is an incidence of service. Be that as it may, it is for the State to adopt the policy and the Court has to keep its hands off unless the policy is found to be unreasonable and arbitrary. Framing the policy of transfer after 10 years' stay at one particular place may be a premium for the Doctors for flourishing their Nursing Homes at the place of their service or serving in the Private Nursing Homes to the disadvantage of the society as a whole. The transfer policy framed by the State Government may be counter-productive of its desired aims. It is strange that the appellants have a grievance against a discriminatory policy framed by the State Government, which is totally to their advantage and discriminatory against all other employees and against the public interest.. Thus, seeing the present State of offering in the Medical Service, we have no hesitation to say that 10 years' stay policy may be counter-productive.
21. As the Division Bench of this Court has already held that, the said directions are only recommendatory, we see no reason to take a view contrary to the same. Appeal is devoid of any merit. The facts of the appeal do not warrant any interference. It is accordingly dismissed. Special Appeal dismissed.