ORDER
D.K. Seth, J.
Facts :
1. The petitioner was a LD Clerk working in the Health Department. Before he had entered into the service, he had obtained a Diploma in Engineering. Therefore, he had made a representation on 24th of November, 1978 that he should be given the benefit of the scale of a diploma holder Engineer and be treated as Sub-Assistant Engineer. This writ petition was disposed of on 20th August, 1991. In the said order, it was held that the petitioner was entitled to the benefit of being treated as Sub-Assistant Engineer in terms of Notification No. 10303-F dated November 19, 1974 and the Rule was thus made absolute. It was further directed that the petitioner will get the scale of Rs. 425-1050/- from the date of presentation of the writ petition in 1986 including arrears of other allowances, but he will not be entitled to special pay and other allowances as the Sub-Assistant Engineers are entitled from 1st April, 1978 onwards in terms of Memo. No. 4175-F, dated 4th April, 1978. This order was directed to be given immediate effect in terms of the Notification dated 19th November, 1974. Now it is alleged that the respondents have not complied with the said order. Therefore, contempt application has since been filed.
1.1 An Affidavit-in-Opposition has been filed. In the said Affidavit-in-Opposition, it was pointed out that the Notification dated 19th November, 1974 was withdrawn with effect from 1st of April, 1981 by a Notification dated 30th July, 1981. Therefore, the order passed in 1991 in the writ petition appears to create a situation, which has left the respondents face an extreme difficult situation in the implementation thereof. The said Notification dated 30th July, 1981 provides that from the date of the notification, no one could be termed as Sub-Assistant Engineer.
Submission on behalf of the Petitioner :
2. Mr. Bhattacharyya, learned Counsel for the petitioner, points out that there is an order of the Court. The embargo created by Notification dated 30th July, 1981 cannot stand in the way, unless the respondents obtain an order of modification of the order or gets the order set aside by a competent Court of jurisdiction. This question cannot be gone into while deciding contempt, since the Contempt Court does not have the power to go behind the order of which contempt is alleged.
Submission on behalf of the Respondents:
3. It is pointed out by Mr. Joydip Kar, the learned Counsel for the respondents, that the Notification dated 19th November, 1974 provides for granting scale of Sub-Assistant Engineer to all Test Relief Overseer and other diploma holder Engineers. Therefore, in order to get the benefit of the said notification, one has to come within the scope and ambit of the Notification dated 19th November, 1974. He has referred to the decision in State of West Bengal v. Debdas Kumar, 1991 (suppl) 1 SCC 138 : (1991 AIR SCW 704).
3.1 Mr. Kar has also relied upon another decision of the Apex Court in State of West Bengal v. Abhijit Chowdhary, Civil Appeal No. 4620 of 1998, disposed of on September 4, 1998 (1999 AIR SCW 4795), following the decision in Debdas Kumar (supra).
3.2 Relying on these decisions, Mr. Kar sought to point out that in view of such a situation, the petitioner, a Lower Division Clerk, could not be given the benefit of Sub-Assistant Engineer either the scale or the designation.
Reply on behalf of the Petitioner :
4. In reply Mr. Bhattacharyya pointed out that several such persons holding clerical posts have since been given the said benefit.
Scope of Contempt:
5. It is not for this Court to examine such question. The only question that remains to be decided is that there is an order passed by this Court, which is binding between the parties. As rightly contended by Mr. Bhattacharyya, this Court cannot go behind the said order and examine the justification of the order. The only jurisdiction a Contempt Court exercises is related to the enforcement of the order and to examine whether the said order has been flouted or violated resulting into a contumacious conduct punishable under the provisions of Contempt of Courts Act. Whether the action is contumacious conduct is to be justified from the fact that it was committed deliberately with an intent to violate the order. Such action or inaction must have some mens rea behind it to bring it within the purview of contumacious conduct. Therefore, the Court is required to examine whether the violation is wilful and deliberate. In the process, it can examine the extent of the wilfulness and deliberateness of the action or inaction on the part of the respondents having regard to the facts and circumstances in each case.
5.1 In the present case, as pointed out by Mr. Kar, it appears that when the judgment was delivered, the Notification dated 19th November, 1974 was not operating in the field and that in terms thereof, no benefit could be given to the petitioner by reason of the said order. On this context, it does not seem to carry any substance. Once there is an order by this Court, good, bad or indifferent, the same has to be complied with. Therefore, existence or non-existence of the order could have been pointed out to the Court when the order was passed and either it could have applied for modification of the order or could have sought for review thereof or it could have challenged the order before any higher forum and got it set aside. Petitioner has not taken any such step.
5.2 The other contention that can be raised that the judgment is per incuriam in view of the fact that it was delivered on the basis of a law, which was then non-existent. If such a contention is raised, and if it is found and proved that it was so done, in that event, it may be per incuriam, but for the purpose of treating the same as a precedent. But as between the parties, it is always binding and cannot be said to be of no effect.
5.3 Therefore, on merit, Mr. Joydip Kar may not be justified in his submission that it cannot be implemented because of its non-existence at the time when the judgment was delivered.
5.4 Even assuming that it could be implemented, Mr. Kar had pointed out that even in the 1974 Notification, the petitioner could not claim the benefit of the said order. That question also is of no substance since the Court has passed an order despite such a situation that the petitioner, being a Lower Division Clerk, could not come within the ambit of the said notification, as was so held in the decision in Debdas Kumar (1991 AIR SCW 704) (supra) and the unreported decision in Abhijit Chowdhury (1999 AIR SCW 4795) (supra).
5.5 It appears from the decision in State of West Bengal v. Debdas Kumar, 1991 (Suppl) 1 SCC 138 : (1991 AIR SCW 704) that the other diploma holder Engineers can be brought in the said category are those who are Operator-cum-Mechanics/Electricians with diploma holder Engineers and working in various departments in the engineering services. It has been so spelt out in paragraph 14 of the said judgment, which runs as follows:–
The persons brought under the category of ‘other diploma holder Engineers’ can only be the persons like the Operator-cum-Me-chanic/Electrician with diploma in Engineering and working in various departments in the Engineering Services. It is to be noticed that the respondents have been absorbed in the posts of Operator-cum-Me-chanics after having attended to the training sponsored under the “Training of Educated Unemployed Youth’s in the operation of river lift, deep tubewells and shallow tubewells etc.” Clause (iv) of Part IV of the Notification, which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all Sub-Assistant Engineers also relates to these two categories, that is the Overseers, Sub-Overseers and Estimators, who are already members of the Subordinate Engineering Service and the ‘other diploma-holder Engineers’ now termed as Sub-Assistant Engineers.
5.6 In the decision in State of West Bengal v. Abhijit Chowdhury, (1999 AIR SCW 4795) (supra), It was held as follows:–
The respondents rely upon a decision of this Court in the case of State of West Bengal v. Debdas Kumar (1991 (Supp) 1 SCC 138 : (1991 AIR SCW 704) where this Court gave effect to the Notification of 19th November, 1974. This Court held that the “other diploma-holder Engineers” in the Notification of 19th November, 1974, who are entitled to be termed as Sub-Assistant Engineers are only persons like Operators-cum-Mechanics or Electricians working in various departments in the Engineering Service. When these persons acquire a diploma in Engineering, they would get redesignated as Sub-Assistant Engineers. But this provision will not apply to members of the clerical cadre, who may subsequently acquire a diploma in Engineering. The writ petition in that case had been filed in 1978 and the petitioners had acquired a diploma in Engineering prior to the notification of 31-7-1981 or the coming into force of West Bengal Services (Revision of Pay and Allowances) Rules, 1981. In the first place, the Tribunal could not have applied this judgment without ascertaining whether the six respondents before it were in any Engineering Service, and not clerical or other posts. Secondly, the Tribunal could not have applied the notification of 19-11-1974 in view of the subsequent amendment to the West Bengal Services (Revision of Pay and Allowances) Rules, 1970 by the Notification of 30-7-1981, as also in view of the replacement of those Rules by the West Bengal Service (Revision of Pay and Allowance) Rules of 1981, and thereafter, by the West Bengal Services (Revision of Pay and Allowances) Rules of 1990.
5.7 In this judgment as quoted above, it appears, following the decision in Debdas Kumar (1991 AIR SCW 704) (supra), other diploma-holder Engineers were categorised as those working in the Engineering Service and it was specifically pointed out that those provisions will not apply to members of the clerical cadre, who subsequently acquired diploma in Engineering.
Nullity : Impossibility : Genuine difficulty:
6. Now, we may examine as to whether the State Government can plead that the order is a nullity and that it is not possible to implement the said order and that there is genuine difficulty in implementing such order.
6.1 In the decision of Debdas Kumar (supra), it was specifically pointed out that other diploma-holder Engineers will include the persons, who were in the Engineering Services and performing Mechanical or Engineering work, subsequently acquired diploma in Engineering. This was, however, explained in the decision in Abhijit Chowdhury (supra). It applied in respect of persons, who are in the Engineering Services. It does not apply to persons engaged in clerical cadre. Admittedly, the petitioner is not performing any Mechanical or Engineering works. He is discharging only clerical jobs. Therefore, it seems that there is genuine difficulty on the part of the State Government to implement the said order.
6.2 The fact that some persons, who were in clerical cadre, had been given such benefit cannot be the ground to obviate difficulty faced by the respondents. Court cannot direct the respondents to do something which is, otherwise, impermissible in law and that it cannot be treated to be a ground to remove the difficulties of the State in implementing the order, as pointed out by Mr. Kar. Such a question had cropped up before the Apex Court which was ultimately considered by this Court in Subir Banerjee v. Sunil Kumar Dasgupta (1998) 3 Cal LT 98. A Division Bench of this Court had discussed the various decision of the Apex Court and held that in case of genuine difficulty, it cannot be said that the action or inaction on the part of the respondents is deliberate and wilful within the meaning of Section 2(b) of the Contempt of Courts Act. We may now refer to the said decision, which proceeds to hold as follows:–
17. Section 2(b) of the Contempt of Courts Act defines Civil Contempt to mean wilful disobedience of any judgment, decree, direction, order, writ or other process of a Court or wilful breach of an undertaking given to a Court.
18. The order passed by the Division Bench is hedged with conditions. If such conditions have not been fulfilled, it cannot be said that the alleged contemnor has wilfully disobeyed the order of this Court. Furthermore, a person cannot be forced to do something contrary to rules. Admittedly, the alleged contemnor is bound by the statutory rules. He or the Ad hoc Committee has not party to the writ application. In the earlier writ application, the Learned single Judge did not issue any rule against the alleged conternnor but merely asked him to file a report. Certain directions had been issued by the Learned single Judge as also by the Division Bench although neither the alleged contemnor was heard at any point of time nor his application for recalling the order was considered. In the contempt proceeding, the Court’s jurisdiction is limited. It cannot issue any suo motu order, which would go against the parameters of the contempt jurisdiction. The only question is as to whether the conternnor is guilty of wilful disobedience.
19. In the Niaz Mohammad v. State of Haryana, , the law is stated in the following terms :
But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The party in whose favour the order has been passed, is entitled to the benefit of such order. The Court while considering the issue as to whether the alleged contemnor should be punished for not having complied with or carried out the direction of the Court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any judgment, decree, direction, order, writ or other process of a Court. Before a contemnor is punished for non-compliance of the direction of a Court, the Court must not only be satisfied about the disobedience of any judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional.
20. It is well known that a consequential order can be passed only when a person is found guilty of committing Contempt of Court. In Pallav Goswami v. Ava Rani Sinha, reported in (1995) 100 CWN 20 pages 27 and 28 : (1996 AIHC 3118), it is stated :
We are not unmindful of the Division Bench decision of this Court in Dulal Ch. Bhar v. Sukumar Banerjee, , Saibal Kr. Gupta v. B.K. Sen, and Sunil Kr. Ghosh v. The State of West Bengal, (1995) 1 Cal HN 166 : (1995 Cri LJ 2179), as also the decisions of the Supreme Court in Md. Idris v. Rustam Jahangir Napuji, and Noorali Babu Thanewala v. Sh. K.M. M. Setty, wherein it has been held that in a Contempt Application, the Court is competent to issue necessary further consequential directions for enforcing its orders. But such necessary further consequential direction for enforcing the order of the Court is in addition to inflicting punishment to the contemnor, if found guilty of Contempt of Court.
22. It is now well settled when there is a genuine difficulty, there cannot be any contempt of Court. In Mohd. Iqbal Khandey v. Abdul Majid Rather , the Apex Court stated that law in the following terms:–
The law of contempt is based on sound public policy by punishing any conduct which shakes the public confidence in the administration of Justice. The order dated 21-2-1992 while directing notice also required the appellant to accord promotion to the respondent as Associate Professor. It requires to be noticed here that is the main prayer in the writ petition itself. In such circumstances, the correctness of such an interim order is open to serious doubt. For a moment, it is not to be understood that the Court has no power to pass such an order but the question is whether while granting such interim reliefs, the discretion of the Court has been correctly exercised? If the writ petition is ultimately dismissed, the respondent would not have granted an undue advantage of getting a promotion underservedly. But we are not on the merits of the interim order.
Right or wrong, the order has been passed. Normally speaking, it cannot be gainsaid that the order ought to have been obeyed but it appears that there are insuperable difficulties in implementing the order. First is that the post of Associate Professor, according to the respondent, is a selection post. Secondly, the mere seniority, even if that is assured in favour of the respondent, would not be enough to gain such a promotion. Thirdly, the specific order of the Govt. was to exclude the period of deputation on foreign assignment from reckoning the duration of the teaching experience of the respondent. Therefore, the respondent did not possess the requisite qualification. Fourthly, such necessary qualifications seem to be mandatory under rules. That being the position to accord such a promotion, will be violative of the rules. Fifthly, the promotion could be granted only by the Public Service Commission and not by the appellant.
23. The said decision has been followed by a Division Bench of the Patna High Court in TISCO v. R.M. Mittal reported in (1998) 1 All Pat LR 444.
24. Further, it is well known that any appointment made in violation of the Rules is illegal. In Biman Chandra Karmakar v. State of West Bengal, reported in (1998) 1 Cal LJ 374, the law is stated in the following terms :
However, having heard the learned Counsel for the parties, we are of the opinion that when valid statutory rules are in operation, recruitment of Primary Teachers must be made by the respective District Primary School Councils, which are creatures of statute, in terms of the said Rules. It is well known that an appointment has to be made in terms of Statutory Rules and an appointment, which has been made in violation thereof, would be a nullity. Reference in this connection may be made to the case and . There cannot be any doubt that after framing of 1991 Rules, all the earlier circular letters and orders ceased to operate. In fact, the State Govt. also in terms of a circular letter dated 13-7-96 clarified the position that the aforementioned Director’s Circular bearing No. DNES/SL. No. 1/1987 has become inoperative.
As in Ratan Kumar Saha’s case (1997) 1 Cal LJ 501, the Division Bench of this Court had not taken into consideration the provision of Rules 8 and 9, the said decision must be held to have been passed sub-silentio and is not binding on this Bench.
25. Allegedly the power of the alleged contemnor is circumscribed by the statutory rules and as Rule 11 (a) has not been relaxed by the State, in our opinion, it is a case where even assuming that a contempt proceeding is maintainable against the alleged contemnor, he has genuine difficulty in complying with the order and thus, it is not necessary to proceed with the matter any further.
Test applied :
7. An analysis of the said decision reminds us that simple violation or inaction, on the part of the respondents, to comply with the order of the Court, is not ipso facto a contumacious conduct, in the absence of any mens rea. Unless such violation or inaction is deliberate and wilful, it cannot be termed contumacious. A Court cannot implement or enforce an order, which on the face of it is contrary to law and violative of the rules. A relief, obtained by an order from the Court, not otherwise available in law, cannot be enforced through execution. If it is unenforceable through execution, it cannot be enforced through a civil contempt. If it appears that when the cause of action alleged to have been arisen, there was, in fact, no cause of action and that the Court was misled to pass an order on such cause of action, then such person, who had obtained such order, cannot take advantage of such order and get it implemented through Court. The Court is not supposed to compel someone to do something illegal. The Court is not supposed to enforce an order, which, in law, cannot be enforced. In fact, in such a case, it is to be viewed from the angle that the person had obtained the order by misleading the Court and that such an order was obtained through an equity jurisdiction before which such person had come with unclean hands. On the principle that a person with unclean hands is not entitled to equity will stare on his face, when he would seek to enforce such order inequitably obtained by him by misleading the Court.
7.1. What constitutes misleading of a Court is already a settled principle. If a person does not disclose a particular document or a proposition in law, which had undergone a change and was no more applicable in the facts and circumstances of the case by reason of subsequent amendment or withdrawal, he is understood to mislead the Court. When an order is obtained overlooking the law, which had brought about a change in the law on the basis whereof the relief was claimed, in such event, the Court is presumed to be misled.
7.2. In the present case, the petitioner had been claiming benefit out of the Notification dated 19th November, 1974. But the said Notification was withdrawn by a Notification dated 30th July, 1981 with effect from 1st of April, 1981. The petitioner had moved the writ petition in 1986. He obtained the order on 20th of August, 1991. The Court’s attention was not drawn to the Notification dated 30th July, 1981 nor the subsequent amendment of the West Bengal Services (Revision of Pay and Allowances) Rules 1970 by the said Notification dated 30th July, 1981 and those of the West Bengal Service (Revision of Pay and Allowances) Rules 1981 and the West Bengal Services (Revision of Pay and Allowances) Rules 1990. Inasmuch as, by reason of the changes brought about by these Notifications and the amendments or changes brought about by the said Ropa Rules, the benefit arising out of the Notification dated 19th November, 1974 was no more available to the petitioner. Admittedly,’ the petitioner was in the clerical cadre not in the engineering service. The Court’s attention was also not drawn to the decision in State of West Bengal v. Debdas Kumar, 1991 (Suppl) 1 SCC 138 : (1991 AIR SCW 704) since decided by the Apex Court on 19th February, 1991. By reason of such omission to take note of the law as was in force when the order was being passed and the law, which was in force on the date when the writ petition was moved or the cause of action was attempted to be enforced, renders such judgment per incuriam.
Can the Contempt Court examine the order and go behind it :
8. A Court, dealing with contempt, is not supposed to question the validity of the order, on the principle that an Executing Court cannot go behind the decree. While exercising jurisdiction of contempt, the Court cannot question the validity or invalidity of the order of which contempt is alleged. But, there are exceptions, i.e., when the order on the face of it is a nullity. A decision per incuriam, though binds the party in certain respect, but it also makes such an order a nullity when an entitlement is conferred when there was none and which a person is not entitled to obtain. A civil contempt is in the nature of execution. When there are genuine difficulties and the respondents are unable to implement the order in view of the position in law, the same cannot be said to be a wilful and deliberate inaction, On the other hand, it is a legal disability, which prevents the respondents from implementing the order. An inaction due to legal disability can never be said to be wilful and deliberate. At the same time, the Court, which had passed the order, could not have passed the order in the absence of law entitling the petitioner to the relief claimed, can be said to have exercised its jurisdiction in void. Ajurisdiction exercised in void, results into passing an order in void. Therefore, such orders are void and a nullity. Such order is unenforceable and inexecutable. Therefore, the Court, assuming jurisdiction under the Contempt of Courts Act, cannot come in aid of such person, who seeks implementation of such order, when in law, such order is unenforceable and inexecutable.
8.1. Having regard to the facts and circumstances of the present case discussed above, it appears that the petitioner had obtained an order in August 1991 on the basis of a writ petition filed iq, 1986 in respect of a relief on the basis of 1974 Notification, which stood withdrawn by virtue of 1981 Notification as well as Ropa Rules 1981 and the subsequent 1990 Ropa Rules at a point of time when such relief was not at all available to him. At the same time, the petitioner being in a clerical post, his acquisition of the qualification would not have entitled him to the benefit available under the 19th November, 1974 Notification, even though he might have acquired the qualification during valid subsistence of the 1974 Notification, since he was not a member of the Engineering Service, in respect of whom the said Notification could have been applied or was applicable. Even on merit, petitioner could not have claimed any relief under the 1974 Notification. This also adds to the proposition that the order sought to be enforced was a nullity.
8.2. The elaborate discussion that we have made above, having regard to the facts and circumstances of the case reveals that the inaction alleged does not bear ingredients of mens rea to be imputed upon the alleged contemnors and thus cannot be termed wilful and deliberate.
8.3. Violation of an order, compliance of which is impossible is also a substantive defence in a civil contempt, though, however, such impossibility is to be proved by the alleged contemnor (Lewis v. Ponty Pridal Caerehilly and New Port Railway Company, (1895) 2 TLR 203. If the carrying out of the order would require the alleged contemnor to act contrary to law, is also a valid defence in a contempt proceeding (Subir Banerjee v. Sunil Kumar Dasgupta, (1998) 3 Cal LT 98 (DB). This defence was substantially upheld by the Apex Court in Niaz Mohammad v. State of Haryana . In Md. Iqbal Khandey v. Abdul Mazid Rather, , it was held that where it is impossible to comply with the order, no contempt should be drawn against the alleged contemnor for inaction to implement such order. However, impossibility is distinct from difficulty. If it is difficulty then it is a contempt. However genuine difficulty is excepted. If it is impossibility, it is not. In the present case, distinctly the inaction is on account of impossibility and not difficulty.
Conclusion :
9. In the facts and circumstances as discussed above, it appears that the difficulty as pointed out by Mr. Kar is not only genuine difficulty but appears to be an impossibility, which does not render on the part of the respondents to say as contumacious. As such, I am not inclined to entertain the contempt petition.
Order :
10. The contempt petition, therefore, fails and is, accordingly, dismissed.
There will be no order as to costs.
Urgent xerox certified copy of this order, if applied, be supplied within seven days.