GANDHI, J. - (1.) THIS appeal has been preferred under Section 18 of the Rajasthan High Court Ordinance 1949 against the order dated 5-5-1999 passe in Civil Misc. , Application No. 231/1997.
(2.) BRIEF facts of this case are that the petitioner was working as Associate Professor in the University of Rajasthan. A seniority list of Associate Professor was declared. In the said seniority list, name of the petitioner was not shown. Being aggrieved with this, the petitioner approached the Court by way of filing S. B. Civil Writ petition No. 1329/1991 seeking a directions that his name be included in the list of candidates interviewed for the post of Associate Professor (Reader ). The said Writ petition came to be allowed vide order dated 16-10-1992 directing respondent-University to include the petitioner's name in the list of candidates interviewed by the University of Rajasthan for the post of Associate Professor (Reader) under the Rules governing the department of Economic Administration and Financial Management (for short `the E. A. F. M. ). The name of the petitioner was included in the list of the candidates to be interviewed. He was subjected to the process of selection and selected. He filed a contempt petition No. 515/93 seeking implementation of the order dated 16-10-1992 passed in the writ petition No. 1329/91. The learned Single Judge decided the contempt petition while doing so he issued certain additional directions also such as for fixation of pay and seniority which was beyond the scope of the contempt jurisdiction. Not satisfied with this even, the writ - petitioner filed a Misc. , Application No. 231/1997 which came to be decided in the following terms:- " As a result of the above discussion and keeping in view the seniority of the petitioner as per C. A. S. since the petitioner already stood promoted as Associate Professor, pursuant to the direction of this Court dated 16-10-1992, as he was found suitable for the same pursuant to the recommendations of the Screening Committee, I am of the view that the respondents have to make proper placement of the petitioner in the order of seniority vis-a-vis Dr. S. K. Batra, who was immediately junior to the petitioner from the date of joining since the petitioner had joined the University prior to Dr. S. K. Batra, and consequently ranks senior in terms of his appointment, should be ranked senior as Associate Professor as per the requirement of rule 13a of the Rules. The respondents are accordingly directed to publish the final seniority list within four weeks and provisional seniority list published earlier on 29-8-1997, by the respondents shall stand modified accordingly. " The order under appeal has been challenged on the ground that the learned Single Judge has travelled beyond his jurisdiction while issuing such directions in a contempt petition which is beyond the scope of contempt jurisdiction. Heard learned counsel for the parties. Learned counsel for the respondent at the very outset has raised objections with regard to maintainability of the appeal under Section 19 of the Contempt of Court Act, 1971. Learned counsel for the appellant submitted that the appeal is maintainable under Section 18 of the High Court Ordinance, 1949 and the learned counsel in support of his plea has relied upon the judgment of the Hon'ble Apex Court delivered in the case of Midnapore Peoples' Coop. Bank Ltd. & Ors. vs. Chunilal Nanda & Ors. reported in (2006) 5 SCC 399. In this judgment, the Apex Court was dealing with the similar point as to whether appeal against such an order is maintainable and framed the following questions for consideration:- " 9. On the aforesaid facts and the contentions urged, the following questions are arise for consideration: (i) Where the High Court, in a contempt proceeding, renders a decision on the merits of a dispute between the parties, either by an interlocutary order or final judgment, whether it is appealable under Section 19 of the Contempt of Courts Act, 1971? If not, what is the remedy of the person aggrieved? (ii) Where such a decision on merits is rendered by an interlocutory order of a learned Single Judge, whether an inter- court appeal is available under clause 15 of the Letters Patent? (iii) In a contempt proceeding initiated by a delinquent employee (against the enquiry officer as also Chairman and Secretary in charge of the employer Bank), complaining of disobedience of an order directing completion of the enquiry in a time-bound schedule, whether the court can direct (a) that the employer shall reinstate the employee forthwith; (b) that the employee shall not be prevented from discharging his duties in any manner; (c) that the employee shall be paid all arrears of salary : (d) that the enquiry officer shall cease to be the enquiry officer and the employer shall appoint a fresh enquiry officer; and (e) that the suspension shall be deemed to have been revoked. The court upon consideration of the framed questions and the position which emerged from the judgments considered, in regard to appeals against orders in contempt proceedings, summarised thus: " I. An appeal under Section 19 is maintainable only against an order or decision of the High Court passed in exercise of its jurisdiction to punish for contempt, that is, an order imposing punishment for contempt. II. Neither an order declining to initiate proceedings for contempt, nor an order initiating proceedings for contempt nor an order dropping the proceedings for contempt nor an order acquitting or exonerating the contempnor, is appealable under Section 19 of the CC Act. In Special circumstances, they may be open to challenge under Article 136 of the Constitution. III. In a proceeding for contempt, the High Court can decide whether any contempt of court has been committed, and if so, what should be the punishment and matters incidental thereto. In such a proceeding, it is not appropriate to adjudicate or decide any issue relating to the merits of the dispute between the parties. IV. Any direction issued or direction made by the High Court on the merits of a dispute between the parties, will not be in the exercise of "jurisdiction to punish for contempt" and, therefore, not appealable under Section 19 of the CC Act. The only exception is where such direction or decision is incidental to or inextricably connected with the order punishing for contempt, in which event the appeal under Section 19 of the Act, can also encompass the incidental or inextricably connected directions. V. If the High Court, for whatsoever reason, decides an issue or makes any direction, relating to the merits of the dispute between the parties, in a contempt proceedings, the aggrieved person is not without remedy. Such an order is open to challenge in an inter-court appeal (if the court appeal was of a learned Single Judge and there is a provision for an intra-court appeal), or by seeking special leave to appeal under Article 136 of the Constitution of India (in other cases ). " In view of the above, the Supreme Court adjudicated point No. 1 with regard to the maintainability of the Special Appeal under Clause 15 of the Letters Patent as intra court appeal corresponding to Rule 18 of the Rajasthan High Court Ordinance, 1949 wherein the appeal was dismissed by the Division Bench holding it not maintainable. The Apex Court pronounced in para 18 of the judgment as under:- 18. The Division Bench, therefore, committed a serious and obvious error in holding that the appeal (MAT No. 4075 of 1998) was not maintainable under Clause 15 of the Letters Patent. Though the order of the learned Single Judge dated 20-11-1998, by which several directions to the Bank with reference to the first respondent were issued, is not a final "judgment", it is an "interlocutory judgment" which finally decides several rights and obligations of the employee vis-a-vis the employer and, therefore, appealable under clause 15 of the Letters Patent. The Apex Court further observed in para 21 as under:- " 21. There was also no justification for the further direction by the learned Single Judge in the contempt proceedings, that too by an interlocutory order, that the complainant should immediately and forthwith be restrained into the service of the Bank, and shall be deemed to be in the service of the Bank all through, that the employee shall not be prevented in any manner from discharging his duties and that he shall be paid all arrears of salary within four weeks, and that the suspension order shall be deemed to have been revoked. These were totally outside the scope of the proceedings for contempt and amounted to adjudication of rights and liabilities not in issue in the contempt proceedings. "
(3.) IT was held by the Supreme Court that an appeal against such an order is maintainable if intra court appeal is available. Such an intra court appeal can be filed and is maintainable under Section 18 of the High Court Ordinance, 1949. In J. S. Parihar vs. Ganpat Duggar & Ors. reported in (1996) 6 SCC 291, the issue of law dealt with by the Supreme Court was similar. Seniority list of the Engineers in Rajasthan Civil Engineering Services (Public Health Branch) was the subject matter of writ petition No. 560/1979 which was decided by the order dated 6-10-1998. The Division Bench declared the said list as un-constitutional and directed to the respondents to prepare fresh seniority list afresh to determine the inter se seniority on the basis of the grant of promotion to the appellants. This order was reiterated by the other Division Benches. Contempt proceedings were initiated seeking implementation of the said order passed by the Division Benches invoking Section 12 of the Contempt of Courts Act, 1971. The learned Single Judge exercising contempt jurisdiction besides seeking implementation of the order also directed that; " Of course, it appears quite just and reasonable that the non-petitioners did not intend to disobey the directions given by this Court on account of the legal advice that has been tendered to them and on account of certain interpretations put to the judgment rendered in Kailash Chand Goyal case on the basis of Gyaneshwar case and as some confusion prevailed with the non- petitioners on account of that, they could not comply this order. However, the non-petitioners are directed to comply with the order of this Court dated 22-3-1990 by giving effect to the ratio of the decision that has been rendered by a Division Bench of this Court in Kailash Chand Goyal case and the seniority list should be prepared as directed in the judgment in Kailash Chand Goyal case and promotions should be accorded accordingly. If this order is not complied with within a period of six months from today, the petitioner will be free to move a contempt petition afresh against the non-petitioners. " State filed an appeal against this order. Preliminary objection was taken on the maintainability of the appeal. The Division Bench held that the appeal is not maintainable under Section 19 of the Contempt of Courts Act, 1971. It was further held by the Division Bench that appeal would be maintainable as a letters patent appeal as the direction issued by the learned Single Judge would be a judgment within the meaning of Section 18 of the Rajasthan High Court Ordinance, 1949. Exercising such jurisdiction, the Division Bench set aside the direction issued by the learned Single Judge. The lis was taken to the Supreme Court. ;