Abdul Moin, J. - Heard Sri Apoorva Tewari, learned counsel appearing for the applicant and Sri Manjeev Shukla, learned Additional Chief Standing counsel appearing for the respondent-contemnor.

2. The present contempt petition has been filed alleging non compliance of the judgment and order dated 16.02.2018 passed by the writ Court in Writ Petition No. 731 (SB) of 2013 Inre; Suresh Tiwari Vs. State of U.P and Ors. The writ Court while allowing the petition had quashed two orders dated 19.02.2013 and 08.09.2016 and the respondents were directed to consider the applicant for notional promotion under service rules with all consequential benefits strictly in accordance with the directions issued by this Court in Writ Petition No. 1502 (SB) of 2010 vide judgment and order dated 24.01.2011. Incidentally, the judgment and order dated 24.1.2011 has been reproduced in the judgment of the writ Court dated 16.02.2018 itself.

3. In purported compliance to the judgment of this Court, the respondents have proceeded to pass the order dated 29.03.2019, a copy of which is annexure 2 to the petition whereby the case of the applicant has been rejected. Being aggrieved with the said order instead of filing a fresh petition, the present contempt petition has been filed.

4. This Court had issued notice to the respondents on 09.05.2019. Thereafter, the respondents have filed the short counter affidavit on behalf of respondent no. 1 to which a rejoinder affidavit has also been filed.

5. Sri Apoorva Tiwari, learned counsel for the applicant contends that the order passed by the writ Court was categoric i.e of considering the case of the applicant for notional promotion under service rules strictly in accordance with the earlier direction of this Court dated 24.01.2011. It is contended that the respondents while proceeding to reject the claim of the applicant for promotion as Engineer-In-Chief have patently erred in law and have gone beyond the judgment of the writ Court inasmuch as they have also considered the Government order dated 23.08.1997 which had also been placed before this Court while filing the counter affidavit in the earlier petition and thus it would be deemed that the writ Court has considered all aspects of the matter and thereafter issued a positive direction for consideration of the case for notional promotion in accordance with service rules and as such, the respondents could not have rejected the claim of the applicant rather should have promoted the applicant as Engineer-In-Chief and in not doing so and rejecting the case of the applicant through the order dated 29.03.2019, the respondents run in contempt of the order passed by the writ Court. It is also contended that once the said grounds as find place in the order dated 29.03.2019 had already been taken by the respondents while rejecting the case of the applicant through the orders dated 19.02.2013 and 08.09.2016 and both the said orders have been quashed by the writ Court, as such it was no longer for the respondents to reiterate the said grounds in the order dated 29.03.2019.

6. On the other hand, Sri Manjeev Shukla, learned Additional Chief Standing counsel on the basis of averments contained in the counter affidavit submits that in purported compliance to the directions issued by the writ Court, the respondents have proceeded to consider the case of the applicant for promotion as Engineer-In-Chief but taking into consideration the Government order dated 23.08.1997 and certain other grounds, the case of the applicant has been rejected. It is contended that writ Court has categorically directed the respondents to consider the applicant for notional promotion under service rules. It is said that the direction of the writ Court was for "Consideration" in accordance with the service rules and once the Government order dated 23.08.1997 which had been considered in the order of rejection of the claim of the applicant, has been considered which does not provide for any such notional promotion more particularly when no junior to the applicant has been promoted to the said post, consequently the order dated 29.03.2019 cannot be said to be in contempt of the judgment of this Court.

7. Heard learned counsel appearing for the contesting parties and perused the records.

8. The writ Court vide judgment and order dated 16.02.2018 had allowed the petition after quashing the rejection orders dated 19.02.2013 and 08.09.2016 and the respondents were directed to consider the applicant for notional promotion under the service rules. Admittedly, the respondents have considered the applicant for promotion but finding that the Government order dated 23.08.1997 which provides that in the case of notional promotions, the same can only be granted where any junior to the said person who is being considered for notional promotion has been promoted and it was found that no person junior to the applicant had been promoted, consequently the claim of the applicant has been rejected. Once the order of the writ Court was only for consideration in accordance with the service rules and admittedly the Government order dated 23.08.1997 places a condition for promotion on notional basis i.e a junior to the person, whose case for promotion is to be considered, having been promoted and admittedly no junior to the applicant having been promoted, consequently it cannot be said that because the applicant has not been promoted as Engineer-In-Chief, as such the respondents run in contempt of the order passed by the writ Court.

9. Another aspect of the matter would be that the respondents in compliance to the order passed by the writ Court have considered the case of the applicant and have rejected the same. In order to make out the case of contempt there has to be deliberate and willful disobedience of the order passed by the writ Court. Once admittedly the respondents, to the best of their ability have considered the case of the applicant and have passed an order and the said order is not to the liking of the applicant, it cannot be said that the respondents run in contempt to the order passed by the writ Court.

10. In this regard, the Court may consider the law laid down by the Honble Supreme Court per which there has to be deliberate and wilful disobedience by the contemnor in order to make out a case for contempt.

11. The Honble Supreme Court in the case of Debabrata Bandopadbyay and others versus State of West Bengal and another, (1969) AIR SC 189 has held as under :-

"9. A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemner must be punished. It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of contempt is called for when the lapse is deliberate and in disregard of ones duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."

12. The Honble Supreme Court in the case of B.K. Kar versus The Hon ble the Chief Justice and his companion Justices of the Orissa High Court and others, (1961) AIR SC 1367 has held as under :-

"7. Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional. .................. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court."

13. The Honble Supreme Court in the case of Niaz Mohammad and others versus State of Haryana and others, (1994) 6 SCC 332 [LQ/SC/1994/900] has held as under :-

"9 . Section 2(b) of the Contempt of Court Act, 1971 (hereinafter referred to as the) defines "Civil Contempt" to mean "willful disobedience to any judgment, decree, direction, order, writ, or other process of a court...". Where the contempt consists in failure to comply with or carry out an order of the court made in favour of the party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under CPC. The party in whose favour an order has been passed, is entitled to the benefit of such order. The Court while considering the issue as to whether the alleged contemner should be punished for not having complied and 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 while defining civil contempt, have said that it must be willful disobedience to any judgment, decree, direction, order, writ or other process of a court. Before a contemner 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 willful and intentional. The Civil Court while executing a decree against the judgment debtor is not concerned and bothered whether the disobedience to any judgment, or decree, was willful. Once a decree has been passed it is the duty of the court to execute the decree whatever may be consequences thereof. But wile examining the grievance of the person who has invoked the jurisdiction of the Court to initiate the proceeding for contempt for disobedience of its order, before any such contemner is held guilty and punished, the Court has to record a finding that such disobedience was willful and intentional."

14. The Honble Supreme Court in the case of Mrityunjoy Das and another versus Sayed Hasibur Rahaman and others,2002 3 SCC 739 has held as under :-

"13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tentamounts to obstruction of justice which if allowed, would even permeate in our society (vide Murray & Co. v. Ashok Kr. Newatia & Anr.). This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction to the majesty of law. It is in this context that the observations of the this Court in Murrays case (supra) in which one of us (Banerjee, J.) was party needs to be noticed.

"The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by Courts of Law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined. It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which even can remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the people in general."

14. The other aspect of the matter ought also to be noticed at this juncture viz., the burden and standard of proof. The common English phrase "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the standard of proof, be it noted that a proceeding under the extra-ordinary jurisdiction of the Court in terms of the provisions of the Contempt of Court Act is quasi criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Re Bramblevale 1969 3 All ER 1062 lend support to the aforesaid. Lord Denning in Re Bramblevale stated:

"A contempt of court is an offence of a criminal character. A man may be sent to prison for it,. It must be satisfactorily proved. To use the timehonoured phrase, it must be proved beyond all reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence.... Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt."

15. In this context, the observations of the Calcutta High Court in Archana Guha v. Ranjit Guha Neogi,1989 2 CalHN 252 in which one of us was a party (Banerjee, J.) seem to be rather apposite and we do lend credence to the same and thus record our concurrence therewith.

16. In The Aligarh Municipal Board and Others v. Ekka Tonga Mazdoor Union and Others, (1970) CriLJ 1520 [LQ/SC/1970/282] : , this Court in no uncertain term stated that in order to bring home a charge of contempt of court for disobeying orders of Courts, those who assert that the alleged contemners had knowledge of the order must prove this fact beyond reasonable doubt. This Court went on to observe that in case of doubt, the benefit ought to go to the person charged.

17. In a similar vein in V.G. Nigam and others v. Kedar Nath Gupta and another, (1992) CriLJ 3576 [LQ/SC/1992/671] : , this Court stated that it would be rather hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.

18. Having discussed the law on the subject, let us thus at this juncture analyse as to whether in fact, the contempt alleged to have been committed by the alleged contemners, can said to have been established firmly without there being any element of doubt involved in the matter and that the Court would not be acting on mere probabilities having however, due regard to the nature of jurisdiction being quasi criminal conferred on to the law courts. Admittedly, this Court directed maintenance of status quo with the following words - "the members of the petitioner-Sangha who were before the High Court in the writ petition out of which the present proceedings arise". And it is on this score the applicant contended categorically that the intent of the Court to include all the members presenting the Petition before this Court whereas for the Respondent Mr. Ray contended that the same is restricted to the members who filed the writ petition before the High Court which culminated in the initiation of proceeding before this Court. The Counter affidavit filed by the Respondents also record the same. The issue thus arises as to whether the order stands categorical to lend credence to the answers of the respondent or the same supports the contention as raised by the applicants herein - Incidentally, since the appeal is pending in this Court for adjudication, and since the matter under consideration have no bearing on such adjudication so far as the merits of the dispute are concerned, we are not expressing any opinion in the matter neither we are required to express opinion thereon, excepting however, recording that probabilities of the situation may also warrant a finding, in favour of the interpretation of the applicant. The doubt persists and as such in any event the respondents being the alleged contemners are entitled to have the benefit or advantage of such a doubt having regard to the nature of the proceeding as noticed herein before more fully."

15. What comes out from a perusal of the aforesaid judgements is that for an act of contempt to be made out against the contemnor, there has to be a deliberate and wilfull disobedience and defiance of the order passed by a Court of law and that the directions which are alleged to have been violated should be unambiguous.

16. Keeping in view the aforesaid discussion and the law in this regard, it cannot be said that there is any deliberate or wilful disobedience of the judgement and order dated 16.2.2018 passed by the writ Court.

17. Accordingly, the contempt petition is dismissed.

18. However, it would be open to the applicant to challenge the order dated 29.03.2019, in case he is so aggrieved, before the appropriate Court in the appropriate proceedings.