- (1.) Heard the learned counsel for the appellants Sri Vijay Bajpai and Sri O.P.M. Tripathi for the respondents.
(2.) Sri O.P.M. Tripathi has raised a preliminary objection regarding the maintainability of the Special Appeal under Chapter VIII Rule 5 of the High Court Rules. The objection is raised on the ground that the order impugned has been passed in proceedings under Section 12 of the Contempt of Courts Act pending before the learned Contempt Judge, and therefore, against the aforesaid order, Special Appeal would not lie. Submission is that Special Appeal would lie only after an order is passed by the learned Single Judge exercising original jurisdiction conferred upon him either under Article 226 or under Article 227 of the Constitution. The contempt proceedings are initiated and are dealt with under specific Act, namely, Contempt of Courts Act, 1971 wherein right of appeal against the order passed in contempt proceedings has been provided under Section 19 thereof. Section 19 of the Contempt of Courts Act, 1971 gives a right of appeal against the orders mentioned therein.
(3.) In response, learned counsel for the appellants Sri Vijay Bajpai has submitted that thought the order under appeal has been passed by the learned Single Judge in exercise of contempt proceedings registered under the Contempt of Courts Act but since a fresh direction has been issued which did not flow from the orders passed in the writ petition, the violation of which was the subject matter of contempt and, therefore, this direction would be deemed to have been issued by the learned Single Judge in his writ jurisdiction under Article 226 of the Constitution and the Special Appeal would be maintainable. He relies upon the case of J.S. Parihar Vs. Ganpat Duggar and others, 1996(6) SCC 291. In the aforesaid case the learned Single Judge directed for redrawing the seniority list, though a plea was taken by the State that orders passed by the court in writ petition have been complied with and the seniority list has already been prepared. The Contempt Judge, however, found that the seniority list was not properly prepared and, therefore, issued directions for redrawing the seniority. The order was passed under Section 12 of Contempt of Courts Act, 1971. Aggrieved by the aforesaid directions issued in contempt proceedings, the State filed a Special Civil Appeal. In appeal, the Division Bench of Rajasthan High Court set aside the orders passed by learned Single Judge and thereafter the matter was taken to the Apex Court. The Supreme Court upheld the order passed by the Division Bench in Special Civil Appeal and observed as under:- "We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2.7.1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.";