High CourtDivision BenchAppeal allowed

Balakrushna Behera and Anr. v. Satya Prakash Dash

Case / Petition Number:Civil Appeal No. 4179 of 2006
Neutral Citation:SUPREME COURT REPORTS [2007] 11 S.C.R.

Case Details & Bench

Court
High Court
Hon'ble Judges
  • A.K. Mathur
  • Markandey Katju
Judgment Date
2007-10-22
Court Decision / Holding
The Court held that a writ of mandamus cannot compel appointment to a post that has been abolished by the State Government. An appointment cannot be claimed as a right merely on the basis of selection. Therefore, no contempt is established. The orders of the High Court directing presence in court and the contempt proceedings were set aside, and the appeal was allowed with no order as to costs.
Final Disposition
Appeal allowed

Parties to the Case

Appellants / Petitioners

  • Balakrushna Behera and Anr.

Respondents

  • Satya Prakash Dash

Legal Representation & Advocates

Counsels for Petitioners

  • • Janaranjan Das
  • • Swetaketu Mishra

Counsels for Respondents

  • • B. K. Pattnaik
  • • Rutwik Panda
  • • Jana Kalyan Das

Case Synopsis & Summary

This Supreme Court judgment concerns contempt of court arising out of a writ petition seeking mandamus to complete a recruitment process for the post of Lecturer in South & South East Asian Studies at Utkal University of Culture. The High Court of Orissa, by its order dated 10.3.2005, directed the University to complete the entire selection process and publish the results within two months. The results were published, but no appointment letter was issued to the selected candidate, prompting a contempt petition directed at the University’s Registrar and Vice-Chancellor. The appellants contended that, although the High Court directed completion and publication, the State Government’s approval was required for any appointment under the University’s statutes, and that post-restructuring had led to abolition of the posts in question. The State Government declined to grant approval. In response, the University argued that the second proviso to Statute 4(1) of the Utkal University of Culture First Statute, 2001 requires funding and prior administrative approval for appointments, and thus no appointment could be conferred where the post has been abolished. The Court ultimately held that directing appointment to an abolished post is untenable, and that the respondent had no indefeasible right to appointment after selection. The High Court’s contempt findings were set aside, and the contempt notice discharged.

Provisions of Law Cited

Article 226 of the Constitution of IndiaSecond proviso to Statute 4(1) of the Utkal University of Culture First Statute, 2001Statute 4(1) of the Utkal University of Culture First Statute, 2001Statute 4(3) of the Utkal University of Culture First Statute, 2001

Legal Doctrines & Maxims

  • No indefeasible right to appointment after selection (selection does not confer a right to appointment)
  • A post, if abolished, cannot be subject to mandamus for appointment; no contempt arises where post has been abolished and there is no enforceable order to appoint

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellants argued that the High Court directed the University to complete the entire selection process and publish results; the University complied with the directive by publishing results within the time frame, but did not issue an appointment letter. They contended that, under the Second proviso to Statute 4(1) of the Utkal University of Culture First Statute, 2001, all appointments require prior approval of the State Government, and that after restructuring the posts were abolished; the State Government refused to grant approval, making appointment impossible. Therefore, there was no enforceable right to appointment, and contempt could not be established. It was argued that the Post’s abolition rendered any mandamus to appoint untenable; the Court cannot compel appointment to a post that no longer exists, and the University’s compliance with the order extinguished the basis for contempt.

Contentions of Respondents

Respondents contended that the appointment process is governed by Statute 4(1) and its second proviso, requiring prior State Government approval. Given the abolition of the posts and lack of funds, no appointment could be made pending governmental clearance. They argued that contempt petitions were not misplaced since the High Court’s directions included mandamus to complete the process and publish results; however, abolition of the post justified denying appointment even after selection, and therefore there was no contempt of court to punish.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Shankarsan Dash v. Union of India[1991] 3 SCC 47PositiveCited as authority that there is no indefeasible right to appointment by mandamus; supports the proposition that directing appointment to an abolished post is untenable and may not constitute contempt.

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Extracted Judgment Text

Exact text extracted from official judgment records.

_f_ _y-_ A _1_ ....., ·~ , ' # BALAKRUSHNA BEHERA AND ANR. # _v._ SA TY A PRAKASH DASH OCTOBER 22, 2007 **[A.K. MATHUR AND MARKANDEY KAT JU, JJ.]** B _Contempt of Court:_ _Selection of Lecturer in University-On a writ petition filed by a_ c _candidate, High Court directing the University to complete the selection process-Accordingly result declared, but selected candidate not given appointment-Contempt petition-Notice issued by High Court to Registrar and Vice-Chancellor of University-Plea that appointment was to be approved by Government-Meanwhile State_ D _Government abolished the post-High Court in contempt Proceedings directing Registrar and Vice-Chancellor to be present personally in Court on given date-HELD : Court cannot direct the State Government in a writ of mandamus to appoint a person against a post which has been abolished-In view of second proviso to Statute 4(1)_ E _of Statutes of University, since no appointment could be made without prior approval of State Government and the post having been abolished, even after selection, candidate cannot claim a right to the post, nor is there any contempt of Court-Thus, no contempt is made out against the noticees-Orders of High Court set aside-Notice of_ F _contempt discharged-Constitution of India-Article 226 ._ _Shankarsan Dash_ v. _Union of India,_ **[1991) 3 SCC 47, relied on.** CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4179 of 2006. G ~~ From the Judgment and final Order dated 24.1.2006 of the High Court of Orissa at Cuttack in Misc. Case No. 151 of2005. Janaranjan Das and Swetaketu Mishra for the Appellant. 605 606 SUPREME COURT REPORTS [2007] 11 S.C.R. ~. A B.K. Pattnaik, Rutwik Panda and Jana Kalyan Das for the Respondent. The Order of the Court was delivered by ## **ORDER** B Heard learned counsel for the parties. Leave granted. This appeal is directed against the judgment and orders dated 24.1.2006 of the High Court of Orissa whereby contempt proceedings C were initiated against the appellants herein and they were directed to be present in Court for further proceeding in the matter of Contempt. The brief facts r.ecessary for the disposal of the present appeal are that the respondent herein filed a writ petition against the Utkal University D of Culture and sought a mandamus that the University be directed to complete the entire selection process for the post of Lecturer in South & South East Asian Studies. The Division Bench of the High Court vide order dated 10.3.2005 disposed of the writ petition and directed that "it is a fit case where the opposite parties should be directed by issuing a writ in E the nature of mandamus to complete the entire process of selection and publish the result." The Court accordingly issued a writ in the nature of mandainus commanding opposite parties 1 & 2 to complete the entire process of selection and publish the result in respect of the post of Lecturer in South & South East Asian Studies within a period of two months from F the date of communication of the said order, It was further observed that "it was needless to mention that after declaration of the result, consequences to follow by opposite parties 1 & 2". After passing of the said order, the same allegedly having not been complied with by the University authorities within the time stipulated, a G contempt petition was filed by the respondent herein (writ petitioner before the High Court). In reply to the contempt petition, the appellants herein (the Registrar and Vice-Chancellor of the University) stated that in view of Statute 4(3) of the Utkal University of Culture First Statute, 2001 since the Board of Management differed from the recommendation of the H Selection Committee, the matter had to be referred to the Chancellor of ' "'<- -.c: >--- _,1--"1._ _f_ BALAKRUSHNA BEHERA _v._ SA TY A PRAKASH DASH 607 y-~ _I' 1_ the University. In the meantime, the High court issued notice the contempt A of Court for alleged disobedience of its judgment dated I 0.3.2005, but in view of the results having been published, the contr.mpt proceedings were dropped. It is alleged that despite the selection of the respondent herein, no appointment letter was issued to the respondent. Hence, he filed yet another contempt petition on which the impugned orders dated B 24.1.2006 and 27 .1.2006 were passed. By the said orders the Vice Chancellor and Registrar of the University were directed to be personally present in Court. The plea taken by the appellants herein the reply to show cause was that as per the Second proviso to Statute 4(1) of the Utkal University of ,C Culture First Statute, 200 I, all appointment have to be approved by the State Government. The second proviso to Statute 4(1) of the Utkala University of Culture First Statute, 200 l reads as under: > "Provided further that the appointment of all the teaching faculties D including Professors, Deans, Experts and Consultants are subject to availability of funds and on prior approval of administrative department and Finance Department of State Government." - _--.J_ )o- \..~ The State Government took the stand that in view of the restructuring/ reorganising of the whole set up the posts of Lecturer in South & South E East Asian Studies have been abolished and therefore the respondent herein could not be appointed to the said post. The appellants herein of Course wrote to the State Government for grant of approval for their appointment and funds for the said posts but the State Government declined to grant approval and abolished the posts and consequently no appointments could be made to the said post. Thereafter, the Division Bench by the impugned order dated 24.1.2006 directed the Registrar and Vice Chancellor of the University (appellants herein) to be present in Court on 27.1.2006. Aggrieved against the impugned orders dated 24.1.2006 and[G ] 27.1.2006 passed by the Division Bench of the High Court, the present appeal by special leave has been filed. We have heard learned counsel for the parties and perused the record. H 608 SUPREME COURT REPORTS [2007] 11 S.C.R. A ~ " A The first and foremost question is whether the Court can direct the State Government by a writ of mandamus to appoint a person against a post which has been abolished by the State Government. Our answer to this question is in the negative. The respondent even after selection has no indefeasible rightto be appointed on the post because a selection does B not confer a right of getting appointment which can be enforced by filing a writ petition under Article 226 of the Constitution. In this view we are supported by a Constitution Bench decision of this Court in the case of _Shankarsan Dash_ v. _Union of India,_ [1991] 3 SCC 47. Since the respondent has only an inchoate right to the post, there is no question of C contempt against the appellants herein. The initial direction of the High Court was to complete the selection process and publish the results. That was done by the appellants herein. There was no order of the High Court directing that the respondent be appointed. Hence we fail to see how there is any contempt of Court. D Subsequently some developments took place and the State Government abolished the posts in question and re-organized the set up of the University. In the facts and circumstances of the case, in our view the High Court could not have directed the initiation of contempt proceedings against the appellants when the respondent has no perfect E or complete right to seek a mandamus for appointment to the post. The appellants have complied with the order of the Division Bench of the High Court and completed the process of selection and Published the reults within the time granted by the High Court. In view of second proviso to Statute 4(1) of the Statutes of the University, since no appointment could F be made without the prior approval of the State Government, and. the State Government having abolished the posts in question, the respondent cannot claim a right to the post, nor is there any contemt of Court. 'Y· _. ~ In view of the aforegoing reasons, we are of the view that no contempt is made out against the appellants herein and the orders dated G 24.1.2006 and 27 .1.2006 are accordingly set aside and the notice of contempt against the appellants is discharged. The appeal is allowed. No order as to costs. RP. Appeal allowed. H