Case Note & Summary
The matter arose from a writ petition filed by the respondent before the High Court of Jammu and Kashmir at Srinagar, seeking ad hoc promotion to the post of Associate Professor with effect from 14-3-1989. The respondent had been appointed as Lecturer in the Faculty of Medicine, Medical College, Srinagar, in 1981, and had taken a foreign assignment in Saudi Arabia for two years and ten months, which was treated as deputation without pay and allowances and was specifically excluded from counting towards teaching experience. He was later promoted as Assistant Professor on ad hoc basis in 1986 and regularised on the recommendation of the Public Service Commission in 1989, with confirmation effective from 25-1-1987. In the writ petition, he alleged that promotions to others were arbitrary and that he was denied promotion despite having requisite experience, contending that the foreign assignment period ought to be counted as teaching experience. On 21-9-1992, the High Court issued notice and passed an interim order directing the State Government and the appellant to grant ad hoc promotion to the respondent to the post of Associate Professor. When the order was not implemented, the respondent initiated contempt proceedings in March 1993. On 1-9-1993, the High Court issued non-bailable warrants, framed a rule in the contempt petition, and directed the Additional Advocate-General representing the appellant not to appear for the appellant and instead to assist the court. On 13-9-1993, the High Court declined to accept the unqualified apology tendered by the appellant until the order was implemented and the appellant purged himself of contempt. The appellant preferred two special leave petitions against these orders. The Supreme Court granted special leave and heard the appeals together. The appellant contended that the interim order practically allowed the writ petition without hearing, that compliance was impossible because promotion to Associate Professor was a selection post requiring the Public Service Commission or Departmental Promotion Committee, that the respondent lacked the requisite teaching experience because the government order excluded the foreign assignment, and that the appellant was not the authority to grant promotion. The respondent argued that the rightness or wrongness of the order could not be urged in contempt proceedings, that the order ought to have been obeyed, and that the defiant attitude justified non-bailable warrants and the direction to counsel. The Supreme Court balanced the dignity of the court in requiring obedience against the performance of an act contrary to rules. It observed that the interim order was essentially the main relief in the writ petition and its correctness was open to serious doubt. The Court found that there were insuperable difficulties in implementation: the post was a selection post; mere seniority was not enough; the government had excluded the foreign assignment from teaching experience; the respondent lacked the mandatory qualifications; and promotion could be granted only by the Public Service Commission, not by the appellant. It held that hooking a party to contempt proceedings and enforcing obedience to such an order hardly lends credence to judicial process and authority, especially where the order is impossible of compliance. The Court further held that there was no justification for directing the Additional Advocate-General not to appear for the appellant. However, the Court also observed that the appellant's conduct necessitating non-bailable warrants was not in keeping with the responsibility of his office, and that he should have promptly invoked appellate procedures instead of ignoring the order. It directed that it would be proper for the appellant to tender an unconditional apology before the High Court for these lapses, and requested that the main writ petition be disposed of on merits. Accordingly, the civil appeals were allowed, and no order as to costs was made.
Headnote
A) Contempt of Court - Enforcement of Interim Orders - Compliance Impossible - Not mentioned - The interim order directed ad hoc promotion to Associate Professor, which was the main relief in the writ petition; the High Court later initiated contempt proceedings for non-compliance. The Supreme Court held that the order was incapable of compliance because the post was a selection post, the respondent lacked prescribed teaching experience as the foreign assignment was excluded, and promotion could only be granted by the Public Service Commission/Departmental Promotion Committee. Held that hooking a party to contempt proceedings and enforcing obedience to such an order hardly lends credence to judicial process and authority, and the court should not require compliance of an order impossible of compliance at the instance of the person proceeding for contempt (Paras 15-16). B) Judicial Review - Interim Relief - Exercise of Discretion - Not mentioned - The interim order dated 21-9-1992 directing the appellant to accord promotion was essentially the main prayer in the writ petition, making its correctness open to serious doubt because if the writ petition was ultimately dismissed, the respondent would gain an undue advantage. Held that while the court has power to pass such an interim order, the discretion must be correctly exercised (Para 14). C) Professional Ethics - Right to Counsel - Direction to Additional Advocate-General Not to Appear - Not mentioned - The High Court directed the Additional Advocate-General, who represented the appellant, not to appear for the appellant in the contempt petition and to assist the court instead. The Supreme Court held that there was no justification for this direction once the appellant had expressed genuine difficulties and the contempt proceedings were not sustainable (Para 17). D) Contempt of Court - Apology and Purge - Non-Acceptance of Unqualified Apology - Not mentioned - The High Court declined to accept the appellant's unqualified apology until the order was implemented and the appellant purged himself of contempt. The Supreme Court observed that the appellant's conduct necessitating issuance of non-bailable warrants was not in keeping with the responsibility of his office, and that if aggrieved he should have promptly invoked appellate procedures; the proper course was to tender an unconditional apology before the High Court for the lapses (Paras 18-19). E) Service Law - Promotion - Eligibility and Selection Post - Not mentioned - The post of Associate Professor was a selection post; mere seniority was not sufficient; a government order specifically excluded the period of deputation on foreign assignment from reckoning teaching experience; and promotion could be granted only by the Public Service Commission, not by the appellant. Held that the respondent did not possess the requisite qualification and mandatory rules would be violated by a promotion (Para 15).
Issue of Consideration
Whether contempt proceedings could be sustained for non-compliance of an interim order that was impossible to comply with and contrary to service rules; whether direction to the Additional Advocate-General not to appear for the appellant was valid.
Final Decision
Civil appeals allowed; High Court orders in contempt proceedings set aside; main writ petition directed to be disposed of on merits; no order as to costs.
Law Points
- contempt proceedings cannot enforce impossible compliance
- interim order granting main relief raises serious doubt
- selection post promotion requires Public Service Commission or Departmental Promotion Committee
- foreign assignment excluded from teaching experience
- Additional Advocate-General cannot be barred from representing party
- party must obey order or invoke appellate remedy promptly
