THE HONBLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA Shiva Kirti Singh & H.K.Srivastava, JJ. Heard learned counsel for the appellants. Nobody appears on behalf of the sole respondent although name of his counsel, Mr Vikas Mohan appears in the daily cause list.

2. The appellants were respondents in a contempt petition bearing MJC No.2352 of 2005. By the order under appeal dated 2 27.6.2006, the learned Single Judge proceeded to examine the legality and propriety of an order dated 18.5.2006, contained in Annexure - C to the supplementary show cause of the respondents (appellants herein). The learned Single Judge held that denial of promotion on the post of Joint Director was not legally correct because the denial was on the ground of not having completed the requisite experience on the lower post of Deputy Director. For this proposition, reliance was placed upon observations made in an order dated 19.6.2006 in another case of one K. D. Prasad belonging to the same directorate i.e. Directorate of Agriculture. The learned Single Judge thus found denial of promotion to the respondent herein to be against law and directed that the State respondents should grant the scale of Joint Director to him with effect from the date he officiated on the said post as was done in the case of Sri K. D. Prasad. The arrears of salary in terms of such order were also directed to be paid.

3. The main grievance raised on behalf of the appellants is that contempt proceeding should have been disposed of by the learned Single Judge after noticing that the State and its authorities had complied with the order of the Writ Court and had already considered the case of the concerned employee for promotion to the post of Joint Director. If the concerned employee i.e. respondent herein was not satisfied with the order denying him promotion to the post of Joint Director, he should have been granted liberty to challenge such an order through an appropriate writ proceeding but instead of that, 3 accepting the grievance of the employee and interfering with the order by the impugned order, according to learned counsel for the appellants, is without giving sufficient opportunity to the appellants to place their case properly in support of the order dated 18.5.2006.

4. We were taken though the order dated 18.5.2006 contained in Annexure- C to the supplementary show cause in the contempt proceeding to show that the claim for promotion was considered and not accepted not only on the ground of lack of requisite experience on the post of Deputy Director but also on the ground that the post of Joint Director was an ex cadre post which implied that it had to be filled up by selection and nobody had a right to such a post by virtue of seniority etc.

5. Although nobody has appeared on behalf of the respondent but we find that there was no further pleadings by either of the parties to challenge the correctness of the order dated 18.5.2006 or in support of that order. In that view of the matter, we find substance in the submissions advanced on behalf of the appellants that they did not have sufficient opportunity to defend the order dated 18.5.2006 and that the said order was based not only upon KALAWADHI (a requisite experience in terms of length of service in lower post) but also on the ground of the post being ex cadre.

6. In that view of the matter, the part of the order quashing the order dated 18.5.2006 and directing for grant of scale of Joint Director to the petitioner (respondent herein) is set aside. It has come 4 in the order contained in Annexure - C to the supplementary show cause that the respondent herein had already superannuated on 30.6.1998. Even then we grant him opportunity that, if so advised, he may challenge the order dated 18.5.2006 through an appropriate proceeding in accordance with law.

7. Learned counsel for the appellants placed reliance upon an order of Division Bench in a contempt proceeding in the case of Ashok Kumar v. State of Bihar, reported in 2009 (1) PLJR 107 , to submit that the legality or propriety of order passed by the alleged contemnors should be left to be decided through an appropriate proceeding and cannot be decided in exercise of contempt jurisdiction. We are in respectful agreement with the aforesaid view that ordinarily contempt jurisdiction is not to be used for interfering with discretionary orders passed in compliance of directions of the Writ Courts.

8. The appeal is allowed to the aforesaid extent. No costs.

(Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J.) Patna High Court The 17th August, 2010 S.Kumar AFR