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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOs.     2504-2505     OF     2012   

Salauddin Ahmed & Anr. … Appellants  

Vs.

Samta Andolan … Respondent

J     U     D     G     M     E     N     T   

ALTAMAS     KABIR,     J.      

1. These appeals arise out of the common judgment  

and order dated 23rd February, 2012, passed by the

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Division Bench of the Rajasthan High Court in D.B.  

Civil Contempt Petition No.941 of 2010 and D.B.  

Civil Contempt Petition No.359 of 2011, whereby the  

alleged contemnors were held to be guilty of  

contempt of court for having violated the order  

passed by the Division Bench of the Jaipur Bench of  

the Rajasthan High Court on 5th February, 2010, in  

D.B. Civil Writ Petition No.8104 of 2008.

2. From the materials on record it transpires that  

on 27th November, 1972, the State of Rajasthan  

issued a Notification providing for reservation for  

Scheduled Castes/Scheduled Tribes candidates to the  

extent of 15% for Scheduled Castes and 7.5% for  

Scheduled Tribes. Subsequently, on and from 3rd  

October, 1973, such reservation was increased to  

16% and 12% for Scheduled Castes and Scheduled  

Tribes candidates, respectively. On 29th January,  

1981, the Rules for promotion based on the criteria  

of seniority-cum-merit were introduced.  In 1992,

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in the case of Indira Sawhney Vs. Union of India &  

Ors. [(1992) Supp.3 SCC 217], this Court had held  

that reservation in promotional posts for Scheduled  

Castes and Scheduled Tribes candidates was not  

permissible.  The effect of the said decision was  

neutralized by the Constitution (Seventy Seventh  

Amendment) Act, enacted on 17th June, 1995, whereby  

Article 16(4-A) was inserted in the Constitution to  

provide for reservation in respect of Scheduled  

Castes and Scheduled Tribes candidates in  

promotional posts.

3. The aforesaid amendment led to a spurt of  

litigation. In 1996, while considering the said  

issue in the case of Ajit     Singh     Januja     &     Ors.   Vs.  

State     of     Punjab     &     Ors.   [(1996) 2 SCC 715] (Ajit  

Singh-I), this Court held that even if the person  

in reserved category is promoted earlier than a  

general category candidate due to operation of  

roster, and subsequently, the general category

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candidate was also promoted, the candidates in the  

general category would regain their seniority as  

existing in the cadre prior to promotion. This  

method of allowing a subsequent promotee to regain  

seniority came to be known as the “catch-up”  

principle. On 30th January, 1997, the Union of India  

issued a memorandum to all the various departments  

asking them to implement the decision rendered by  

this Court regarding regaining of seniority  

pursuant to the said direction.  Thereafter, on 1st  

April, 1997, the State of Rajasthan followed suit  

and introduced the “catch-up”  principle. A  

provisional seniority list of candidates belonging  

to the Rajasthan Administrative Services was issued  

on 26th June, 2000, on the basis of the Notification  

dated 1st April, 1997.  However, it was never given  

effect to and was ultimately quashed by the  

Rajasthan High Court in Writ Petition (Civil)  

Nos.2968 of 2000, 2176 of 2000, 3373 of 2000 and  

3385 of 2000.

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4. In 2001, the Parliament passed the Constitution  

(Eighty Fifth Amendment) Act inserting the words  

“consequential seniority”  for members of reserved  

category.  Thus the said amendment removed the  

basis of the judgment rendered by this Court in  

Union     of     India     &     Ors.   Vs. Virpal     Singh     Chauhan    

[(1995) 6 SCC 684] and in Ajit     Singh-I  ’s case  

(supra).  The provisions of the said amendment were  

given retrospective effect from 17.6.1995, in order  

to remove the provision relating to the “catch-up”  

principle with retrospective effect.   

5. In 2002, a writ petition was filed before this  

Court by the All India Equality Forum against the  

State of Rajasthan, seeking to strike down the  

Constitution (Eighty Second Amendment) Act and the  

Constitution (Eighty Fifth Amendment) Act of 2001.  

The writ petitioner claimed similar reliefs as in  

M.     Nagaraj     &     Ors.   Vs. Union     of     India     &     Ors.   [(2006)  

8 SCC 212].  Thereafter, on 11th November, 2002, the

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interim order regarding implementation of Article  

16(4-A) of the Constitution was clarified and it  

was indicated that if certain candidates from  

reserved category were entitled to promotion in  

terms of the provisions of Article 16(4-A), they  

would be promoted.  It was, therefore, the stand of  

the Union of India that the interim order could not  

be construed to be a bar to implementation of the  

amendment to Article 16(4-A).  The order also  

provided that no person was to be reverted from  

their existing placement or standing in the  

seniority list.   

6. After having introduced the same, the State of  

Rajasthan by its Notification dated 28th December,  

2002, withdrew the “catch-up”  principle after the  

introduction of the Constitution (Eighty Fifth  

Amendment) Act.  From the Notification dated 28th  

December, 2002, it would be seen that an attempt  

was made to preserve the rights of general category

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candidates, who had already been promoted vide  

Notification dated 1st April, 1997. It was also  

indicated that persons who had already been  

promoted vide Notification dated 1st April, 1997,  

were not to be reverted.

7. The vires of Article 16(4-A), 16(4-B) and  

Article 335 of the Constitution was challenged and  

in M.     Nagaraj  ’s case (supra) it was considered by a  

Constitution Bench of this Court, which upheld the  

validity of Articles 16(4-A), 16(4-B) and the  

amendment to Article 335 of the Constitution, but  

imposed certain conditions regarding reservation in  

promotion and accelerated promotions.  This Court  

directed that the State should collect quantifiable  

data, after which the Committee should also examine  

the requirements relating to backwardness,  

inadequacy in representation and efficiency for the  

purpose of grant of reservation in promotion and  

accelerated promotions. One of the areas of dispute

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between the parties is that the State Government  

also withdrew the “catch-up” principle in favour of  

general category candidates with retrospective  

effect, but without following the principles  

enunciated in M.     Nagaraj  ’s case (supra). On 24th  

June, 2008, a seniority list was drawn up without  

considering the “catch-up”  principle, which also  

gave effect to the Notification dated 25th April,  

2008.

8. On 22nd August, 2008, D.B. Civil Writ Petition  

No.8104 of 2008 was filed by Bajrang Lal Sharma and  

others, challenging the said Notification dated 25th  

April, 2008, and the seniority list drawn up  

consequent thereto. While entertaining the writ  

petition, the Division Bench of the High Court  

stayed the said Notification dated 25th April, 2008.

9. On 4th March, 2009, a seniority list was  

prepared, but the same was quashed by the learned  

Single Judge. The Notifications dated 28th December,

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2002 and 23rd April, 2008, were challenged before  

the High Court by several candidates belonging to  

the general category and the same were ultimately  

quashed by the High Court on 5th February, 2010, on  

the ground that the conditions precedent laid down  

in M.     Nagaraj  ’s case (supra), had not been  

followed.  The High Court was also of the view that  

the right which had vested to the candidates by  

virtue of the Notification dated 1st April, 1997,  

and had been protected by Notification dated 28th  

December, 2002, had been illegally taken away vide  

Notification dated 25th April, 2008.

10. On 16th November, 2010, the general category  

employees filed a contempt petition against the  

Chief Secretary for not implementing the order  

passed by the High Court on 5th February, 2010,  

which was registered as D.B. Civil Contempt  

Petition No.914 of 2010 in D.B. Civil Contempt  

Petition No.8104 of 2009, titled as Samta     Andolan   

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Vs. Salauddin     Ahmad     &     Anr  .  On an application filed  

before this Court, this Court vide its order dated  

16th November, 2010, stayed the contempt proceedings  

pending before the High Court.   

11. The case made out in the Contempt Petition was  

that despite the judgment dated 5th February, 2010,  

and the dismissal of the various Special Leave  

Petitions filed by the State of Rajasthan and  

others on 7th December, 2010, the State authorities  

were not complying with the said judgment.  

According to the Petitioners in the Contempt  

Petitions, the judgment of the High Court passed on  

5th February, 2010, became final after the dismissal  

of the Special Leave Petitions, but despite the  

same, they were not being complied with by the  

concerned authorities of the State. The authorities  

were deferring compliance of the judgment dated 5th  

February, 2010, on the ground that they were  

undertaking the exercise of collecting quantifiable

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data required to enable the State of Rajasthan to  

exercise its powers under Article 16(4-A) of the  

Constitution.  It was the further grievance of the  

Contempt Petitioners that the letter issued by the  

State on 14th February, 2011, was in purported  

compliance of the judgment dated 7th December, 2010,  

passed in SLP(C) No.6385 of 2010, asking all the  

Departments to give information with regard to the  

SC/ST employees from 1.4.1997 onwards on year-wise  

basis, which was not contemplated in the M.     Nagaraj    

judgment. It was also the case of the Contempt  

Petitioners that Article 16(4-A) is an enabling  

provision based on the Government’s information  

with regard to the backwardness and inadequate  

representation of SC/ST employees, which could not  

be given retrospective effect.   

12. On account of the inaction of the alleged  

contemnors on the said ground, the Contempt  

Petitioners not only prayed for taking severe

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action against the Contemnors, but to also give  

suitable directions to the said Respondents/  

Contemnors to implement the judgment dated 5th  

February, 2010, passed in D.B. Civil Writ Petition  

No.8104 of 2008 and that the Petitioners be allowed  

to regain their accrued and vested seniority.

13. As indicated hereinabove, the Division Bench of  

the High Court found the Appellants herein to be  

guilty of having committed contempt of Court for  

deliberate and willful violation of the order  

passed by the Division Bench of the Jaipur Bench of  

the Rajasthan High Court on 5th February, 2010.

14. Thereafter, on 7th December, 2010, the State of  

Rajasthan filed a Special Leave Petition against  

the order passed by the High Court on 5th February,  

2010, by which the Notifications dated 28th  

December, 2002 and 25th April, 2008, had been  

quashed.  While upholding the judgment of the High  

Court, this Court also observed that the claims of

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the reserved category candidates could be  

considered after following the principles laid down  

in M.     Nagaraj  ’s case (supra).  On 22nd December,  

2010, a substantive writ petition was filed by  

Captain Gurvinder Singh & Ors. etc. challenging the  

vires of the Rajasthan Scheduled Castes, Scheduled  

Tribes, Backward Classes, Special Backward Classes  

& Economically Backward Classes (Reservation of  

Seats in Educational Institutions in the State and  

of Appointments & Posts in Services under the  

State) Act of 2008, hereinafter referred to as  

“2008 Act”.  The main ground of challenge was with  

regard to the reservation exceeding the 50% ceiling  

due to extension of reservation to Special Backward  

Classes & Economically Backward classes.  The High  

Court by its order dated 22nd December, 2010,  

restrained the State from giving effect to Sections  

3 and 4 of the 2008 Act.  It is the case of the  

Appellants that the said order was directed against  

the reservation in respect of Special Backward

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Classes & Economically Backward Classes and had  

nothing to do with reservation in respect of  

promotion for Scheduled Castes and Scheduled Tribes  

candidates.   

15. On 31st March, 2011, the State Government  

constituted the Bhatnagar Committee to look into  

the different aspects relating to reservation in  

promotion and consequential seniority in terms of  

the judgment rendered in M.     Nagaraj  ’s case (supra).  

Immediately, thereafter, on 13th April, 2011, a  

further contempt petition was filed by Shri Bajrang  

Lal Sharma.  The Bhatnagar Committee Report was  

submitted to the State Government on 19th August,  

2011 and on 11th September, 2011, the State  

Government, in exercise of its powers under the  

proviso to Article 309 of the Constitution of India  

and on the basis of the Bhatnagar Committee Report,  

framed a Rule with retrospective effect from 1st  

April, 1997, so that the vacuum which had been

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created could be filled up.  The Rule also provided  

for roster-based promotion based on the posts  

available and also preserved the rights of the  

general category candidates who had earned  

promotions between the period 1st April, 1997 to 28th  

December, 2002, or the promotions which had  

actually been given effect to in terms of the  

repealed Notification dated 1st April, 1997.

16. Appearing for the Appellants, the learned  

Attorney General pointed out that the Notification  

issued by the State Government on 11th September,  

2011, had been declared void by the High Court by  

holding that the same did not amount to valid  

compliance and the Notification dated 1st April,  

1997, should be given effect to.  The learned  

Attorney General submitted that since by the  

Notification dated 11th September, 2011, the earlier  

Notification dated 1st April, 1997 had been  

withdrawn, the same could not be given effect to

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without first declaring the Notification dated 11th  

September, 2011, to be ultra vires.

17. The learned Attorney General submitted that the  

Notification dated 11th September, 2011, could not  

have been declared ultra vires in the absence of a  

substantive writ petition challenging the same,  

and, in any event, it could not be questioned in a  

contempt proceeding or be declared ultra vires  

therein, particularly, when the Bhatnagar Committee  

had been appointed in terms of the order passed by  

this Court in M.     Nagaraj  ’s case (supra) and the  

Notification dated 11th September, 2011, was issued  

in pursuance of the Report of the said Committee.   

              18. The learned Attorney General urged that by the  

order passed by the Division Bench of the High  

Court in D.B. Civil Writ Petition No.8104 of 2008,  

the Notifications dated 28th December, 2002, and  

25th April, 2008, were declared to be ultra vires  

the Constitution.  As a result, the consequential

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orders passed by the State, including preparation  

of the seniority list of the Super-time Scale  

Officers and the Selection Scale of the Rajasthan  

Administrative Service Officers, passed on the  

basis of the aforesaid Notifications, were quashed.  

Aggrieved by the said order, the State of Rajasthan  

and Shri Suraj Bhan Meena filed separate Special  

Leave Petitions before this Court which were  

disposed of on 7th December, 2010.  This Court  

allowed the claim of Suraj Bhan Meena (SC/ST  

candidates), subject to the conditions laid down in  

M.     Nagaraj  ’s case (supra).   

19. While the various above-mentioned proceedings  

were being pursued, Writ Petition No.13491 of 2009  

was filed challenging the vires of the 2008 Act.  A  

prayer was also made to review the ceiling limit in  

favour of SC, ST and OBC candidates of 16%, 12% and  

21%, respectively. The Notification dated 25th  

August, 2009, was also questioned.  The subject

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matter of the Writ Petition was focussed on  

reservation to special backward classes and  

economically backward classes.  By an order dated  

22nd December, 2010, passed in the said Writ  

Petition, a Division Bench of the Rajasthan High  

Court stayed the operation of Sections 3 and 4 of  

the Act along with Notification dated 25th August,  

2009, and the matter was referred to the Rajasthan  

State Backward Classes Commission, before whom the  

State Government was directed to place the  

quantifiable data within a period of one year.  The  

stay granted was directed to continue till the  

matter was decided afresh.

20. Subsequently, contempt proceedings were taken,  

being No.359 of 2011, challenging the letter dated  

14th February, 2011, issued by the State of  

Rajasthan to the Heads of all Departments asking  

for information regarding representation of SC/ST  

employees.  Ultimately, by the order impugned in

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these appeals, the High Court held the Appellants  

herein to be guilty of contempt of Court, inasmuch  

as, despite sufficient time having been given to  

the Respondents to comply with the order dated 5th  

February, 2010, the Appellants failed to do so even  

after a lapse of 14 months after their Special  

Leave Petitions were dismissed by this Court.  The  

High Court also took note of the fact that the  

Appellant No.1 herein, Shri Salauddin Ahmed, did  

not even reply to the show-cause notice issued to  

him, which the High Court interpreted to mean that  

the said Appellant had nothing to say in his  

defence regarding the allegation of contempt of  

Court made against him.  The High Court further  

noted that on several occasions time was sought for  

by the State to comply with the order passed on 5th  

February, 2010, but nothing was done in the matter.  

Giving the Appellants 3 days’  time to purge  

themselves of the contempt and to comply with the  

orders passed by the Court, the Court further

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directed the Appellants to be present in person  

before the Court for the purpose of sentencing in  

case of non-compliance.   

21. Aggrieved by the order of the Division Bench of  

the Rajasthan High Court, the State Government  

filed Civil Appeal No.2504-2505 of 2011 and on 27th  

February, 2012, this Court issued notice and stayed  

further proceedings before the High Court.   

22. The learned Attorney General submitted that the  

order dated 5th February, 2010, was in two parts.  

While one part dealt with quashing of the  

Notifications dated 28th December, 2002 and 25th  

April, 2008, the other part was with regard to the  

directions given in M.     Nagaraj  ’s case (supra) for  

the collection of quantifiable data.  It was  

further submitted that the State of Rajasthan had  

consistently acted as per the directions given in  

paragraph 68 of the judgment rendered in Suraj     Bhan    

Meena’s case (supra), whereby it was directed that

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the claim of the Petitioners, Suraj Bhan Meena and  

Sriram Chordia, in SLP (C) No.6385 of 2010, would  

be subject to the conditions laid down in M.  

Nagaraj’s case (supra).

23. The learned Attorney General submitted that  

pursuant to the directions given in Suraj     Bhan    

Meena’s case (supra), the State of Rajasthan issued  

a letter to all the Departments on 14th February,  

2011, to ensure compliance of the judgment dated 7th  

December, 2010.  In addition, the State Government  

sought information with regard to representation of  

SC/ST employees in public employment from 1.4.1997  

to 1.4.2010 on a year-wise basis.  The learned  

Attorney General contended that on 8th March, 2011,  

one more contempt petition was filed, viz.,  

Contempt Petition No.359 of 2011, in relation to  

the letter dated 14th February, 2011, referred to  

hereinabove. It was submitted that the State cannot  

collect data with retrospective effect in pursuance

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of the decision in M.     Nagaraj  ’s case (supra) and  

the judgment dated 7th December, 2010.  It was also  

submitted that the State of Rajasthan was not  

required to collect the quantifiable data to comply  

with the judgment dated 5th February, 2010.   

24. It was also contended that the contempt  

petitioner had misunderstood the import of the  

judgment dated 5th February, 2010, passed by the  

Division Bench of the High Court in relation to the  

judgment of this Court dated 7th December, 2010.  

The learned Attorney General submitted that it was  

on account of the confusion in the mind of the  

Petitioner that a prayer had been made in the  

Contempt Petition for suitable directions upon the  

contemnors to implement the judgment dated 5th  

February, 2010, passed in D.B. Civil Writ Petition  

No.8104 of 2008 and to allow the Petitioners to  

regain their accrued and vested seniority given to  

them in pursuance of the seniority list of

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26.6.2000.  It was submitted that the seniority  

list of 26.6.2000 had already been quashed by the  

High Court in a dispute between direct recruits and  

promotees and the said matter is pending in this  

Court by way of a Special Leave Petition.  

25. The learned Attorney General submitted that the  

constitution of the Bhatnagar Committee in  

pursuance of the order passed by this Court on 7th  

December, 2010, was challenged by filing of  

interlocutory applications, both before this Court  

and also before the High Court. All the  

interlocutory applications were taken up for  

consideration and disposed of by this Court on 20th  

July, 2011.  The learned Attorney General submitted  

that in the said order, this Court had recorded the  

fact that Mr. M.L. Lahoti, learned counsel  

appearing for the Respondents, did not challenge  

the formation of the Committee, but contended that  

its findings should have prospective operation and

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could not affect the case of the writ petitioners,  

Suraj Bhan Meena and others. It was also emphasized  

that this Court took cognizance of the constitution  

of the Bhatnagar Committee, but did not pass any  

restraint orders with regard to its functioning.  

On the other hand, while disposing of the several  

interlocutory applications, this Court also  

observed that the parties would be free to make  

their submissions with regard to the action taken  

by the State Government in the matter pending  

before the High Court.  The learned Attorney  

General urged that the High Court had noticed the  

order passed by this Court on 7th December, 2010,  

but had not considered the directions contained  

therein.  

26. The learned Attorney General submitted that the  

Bhatnagar Committee Report had been submitted on  

19th August, 2011, and after due consideration of  

the Report, a Notification was issued on 11th

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September, 2011.  However, it was also noticed by  

the High Court that the constitution of the  

Bhatnagar Committee, as also the Notification  

issued on 11th September, 2011, was not in  

conformity with the judgment rendered by the High  

Court on 5th February, 2010, without noticing that  

the same was in compliance of the directions  

contained in paragraph 68 of the judgment delivered  

by this Court on 7th December, 2010.  The learned  

Attorney General submitted that the directions  

contained in the aforesaid judgment dated 7th  

December, 2010, recognizing the rights of the  

reserved category (Petitioners therein) and  

directing the determination of such rights, be  

undertaken after completion of the exercise laid  

down in M.     Nagaraj  ’s case (supra).   

27. On maintainability, it was contended that it  

was beyond the powers of this Court to declare a  

law ultra vires in the contempt jurisdiction.  It

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was also contended that in view of the decision of  

this Court in State     of     U.P.   vs.   Hirendra     Pal     Singh    

[(2011) 5 SCC 305], a judicial order could not be  

passed to give effect to a repealed law or a law  

which was no longer in existence, as has been done  

in the instant case.  The learned Attorney General  

reiterated that the High Court had erroneously  

declared the Notification dated 11th September,  

2011, to be ultra vires without any challenge being  

made to such Notification.  

28. The learned Attorney General submitted that the  

Bhatnagar Committee had been formed pursuant to the  

directions given by this Court in Suraj     Bhan    

Meena’s case (supra) and this Court while disposing  

of the Special Leave Petitions filed by Suraj Bhan  

Meena and others categorically indicated that the  

impugned order of the High Court was, in fact,  

based on the decision in M.     Nagaraj  ’s case (supra)  

as no exercise had been undertaken in terms of

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Article 16(4-A) to acquire quantifiable data  

regarding the inadequacy of representation of the  

Scheduled Castes and Scheduled Tribes communities  

in public service and that the Rajasthan High Court  

had rightly quashed the notifications dated 28th  

December, 2002 and 25th April, 2008, issued by the  

State of Rajasthan providing for consequential  

seniority and promotion to the members of the  

Scheduled Castes and Scheduled Tribes communities.  

The Special Leave Petitions were, therefore,  

disposed of by observing that the claim of the  

Petitioners, Suraj Bhan Meena and Sriram Chordia in  

SLP (C) No.6385 of 2010, would be subject to the  

conditions laid down in M.     Nagaraj  ’s case (supra).  

The Special Leave Petitions filed by the State of  

Rajasthan were consequently dismissed.  The learned  

Attorney General urged that this Court had, in  

fact, directed that the parties would be free to  

make their submissions with regard to the action

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taken by the State Government in the matter pending  

before the High Court.  

29. The learned Attorney General concluded on the  

note that as recently observed by this Court in  

Dinesh     Kumar     Gupta   Vs. United     India     Insurance     Co.    

Ltd. [(2010) 12 SCC 770], in order to establish  

that a civil contempt had been committed, it would  

have to be shown that the concerned authority had  

willfully and deliberately disobeyed the orders  

passed by the High Court without any reasonable or  

rational interpretation of the order.  It was also  

observed that it would not also be correct to hold  

that a contempt had been committed when the  

disobedience was neither deliberate nor willful,  

but the steps taken were on account of the  

ignorance of the correct legal position and the  

action taken was in good faith without any malafide  

motive to defeat or defy the Court’s order.

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30. The learned Attorney General submitted that in  

this case, in compliance with the decision in Suraj  

Bhan     Meena  ’s case (supra) and the directions given  

both in M.     Nagaraj  ’s case (supra)and in Suraj     Bhan    

Meena’s case (supra), the concerned authorities had  

appointed the Bhatnagar Committee to enter into a  

fact finding exercise in accordance with the  

provisions of Article 16(4-A) of the Constitution.  

It could not be said that there was any willful or  

deliberate intention or malafide motive on the part  

of the concerned authorities in not complying with  

the directions contained in the judgment of the  

High Court dated 5th February, 2010. The Contempt  

Petition was, therefore, liable to be dismissed.   

31. Mr. C.S. Vaidyanathan, learned Senior Advocate,  

who had appeared for the second contemnor, Khemraj  

Chaudhary, while adopting the submissions made by  

the learned Attorney General, submitted that the  

steps taken by the Respondents were in keeping with

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the directions given both in M.     Nagaraj  ’s case  

(supra)and in Suraj     Bhan     Meena  ’s case (supra), for  

identifying such members of the SC/ST communities  

who would be entitled to the benefits provided  

under Article 16(4-A) of the Constitution.  Mr.  

Vaidyanathan reiterated the submissions made before  

the High Court that the Contempt Petitions were, in  

fact, not maintainable as the orders out of which  

the same had arisen had merged in the order of this  

Court when the Special Leave Petitions were  

dismissed by a reasoned judgment.  Accordingly, by  

virtue of the doctrine of merger, the said orders  

do not exist and, if any contempt is alleged, it  

would be with regard to the orders passed by this  

Court and the High Court had no jurisdiction to  

entertain the matter.      

32. Mr. Vaidyanathan further submitted that on  

account of non-compliance with the three  

requirements indicated in M.     Nagaraj  ’s case

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(supra), the notification dated 28th December, 2002,  

stood vitiated.  However, with the quashing of the  

said notification dated 28th December, 2002, the  

notification dated 1st April, 1997, which stood  

deleted by notification dated 28th December, 2002,  

stood revived and continued to be in operation.  

33. Mr. Harish Salve, learned Senior Advocate, who  

also appeared for the Respondents, contended that  

Civil Appeal No.171 of 2002, filed by the State of  

Rajasthan against Hanuman Singh Bhati & Ors., was  

pending before this Court, but this Court had not  

stayed the operation of the orders either of the  

Single Bench or the Division Bench.  As a result,  

even by sheer inaction in carrying out the  

directions contained in the judgment of this Court  

dated 7th December, 2010, the contemnors had  

violated the orders of this Court, as there was no  

justification for the contemnors not to give effect  

to the directions contained in the said order.  Mr.

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Salve submitted that in Maninderjit     Singh     Bitta   Vs.  

Union     of     India     &     Ors.   [(2012) 1 SCC 273], this  

Court had held that even inaction to implement the  

orders of the Court amounts to disobedience within  

the meaning of civil contempt.  Mr. Salve urged  

that in the absence of any stay, the contemnors  

ought not to have sat over the matter, but should  

have taken steps to implement the directions  

contained in the said order.  Mr. Salve submitted  

that so long as the catch up principle in terms of  

the Notification dated 1st April, 1997, continued to  

be in existence, no change could be made in matters  

of promotion, unless the requirements set out in M.  

Nagaraj’s case were fully satisfied.  Mr. Salve  

urged that in the facts and circumstances of this  

case, contempt was writ large on account of  

inaction of the contemnors in giving effect to the  

directions contained in the judgment dated 5th  

February, 2010.

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34. Dr. Rajeev Dhawan, learned Senior Advocate, who  

also appeared for the Respondents, approached the  

matter from a slightly different angle.  Arguing  

that the doctrine of merger could not be applied to  

a contempt proceeding, Dr. Dhawan referred to  

Kunhayammed     &     Ors.   Vs. State     of     Kerala     &     Anr.    

[(2000) 6 SCC 359].  Dr. Dhawan urged that the  

doctrine of merger depends on the facts of each  

case.  Dr. Dhawan submitted that even in Suraj     Bhan    

Meena’s case (supra), this Court upheld the  

judgment of the High Court dated 5th February, 2010,  

without making any changes, which could have  

altered the purport of the said judgment.  Dr.  

Dhawan also contended that so long as the “catch-

up”  doctrine continued to be in force under the  

Notification dated 1st April, 1997, which stood  

revived on account of the quashing of the  

Notifications dated 28th December, 2002 and 25th  

February, 2008, it could not be contended that by  

appointing the Bhatnagar Committee, the alleged

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contemnors had not willfully violated the  

directions given by this Court in Suraj     Bhan    

Meena’s case (supra).   

35. Dr. Dhawan fairly conceded that an order may be  

violated without any willful intent to disobey the  

same.  Referring to paragraph 459 of Halsbury’s  

Laws of England, dealing with “unintentional  

disabilities”, Dr. Dhawan pointed out that  

sometimes it may so happen that an order of Court  

is breached without any intention on the part of  

the offender to do so.  Dr. Dhawan submitted that  

this could be such a case and, accordingly, the  

contemnors could be directed to purge themselves of  

the contempt by withdrawing all the Notifications,  

including the Notification dated 11th September,  

2011, and implementing the order dated 5th February,  

2010, and also to punish the contemnors without  

sentence.     

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36. In order to establish that a person had  

deliberately and willfully committed contempt of  

Court, two essential ingredients have to be proved.  

Firstly, it has to be established that an order has  

been passed by the Court which either directs  

certain things to be done by a person or to  

restrain such person or persons from doing certain  

acts and that the person or persons had knowledge  

of the said order. Secondly, it has to be  

established that despite having knowledge of such  

order, the person concerned deliberately and  

willfully violated the same with the intention of  

lowering the dignity and image of the Court.  We  

have to see whether in the facts of this case the  

said two tests are satisfied.

37. Admittedly, Civil Writ Petition No.8104 of  

2008, along with several other writ petitions, were  

disposed of by the Division Bench by its judgment  

and order dated 5th February, 2010, by quashing the

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Notifications dated 25th April, 2008 and 28th  

December, 2002, issued by the State Government  

without following the exercise indicated in M.  

Nagaraj’s case (supra).  As has been mentioned  

hereinbefore, by its Notification dated 25th April,  

2008, the Government of Rajasthan in exercise of  

its powers conferred by the proviso to Article 309  

of the Constitution of India, amended the Rajasthan  

Various Service Rules, as mentioned in the Schedule  

appended therewith, with effect from 28th December  

2002.  By such amendment, the existing proviso to  

the Rule providing that a candidate, who had got  

the benefit of the proviso inserted vide  

Notification dated 1st April, 1997, on promotion to  

an immediate higher post, would not be reverted and  

his seniority would remain unaffected, subject to  

the final decision of this Court in Writ Petition  

(C) No.234/2002, was deleted.  For the sake of  

record, it may be indicated that before the  

Division Bench of the High Court it had been

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conceded by the learned Advocate General that the  

exercise as contemplated in M.     Nagaraj  ’s case  

(supra), had not been undertaken by the State  

before issuing the Notifications dated 25th April,  

2008 and 28th December, 2002.  It is on that basis  

that the said two Notifications and all  

consequential orders or actions taken by the  

Respondent State, including preparation of  

seniority list of Super Time Scale and Selection  

Scale Officers of the Rajasthan Administrative  

Service, on the basis thereof, were also quashed  

and set aside. While quashing the said  

Notifications, the Division Bench took note of the  

observations made in M.     Nagaraj  ’s case (supra) that  

Clause (4-A) of Article 16 was only an enabling  

provision and the State was not bound to make  

reservations of Scheduled Castes and Scheduled  

Tribes in the matter of promotion, but if they did  

wish to exercise their discretion in that regard,  

the State had to collect quantifiable data showing

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backwardness of the class and inadequacy of  

representation of that class in public employment,  

in addition to compliance with Article 335.  The  

same not having been done, the said Notifications  

were quashed.   

38. Inasmuch as, no further action was taken by the  

State and its authorities after the said  

Notifications were quashed, the contempt petition  

was filed mainly on the ground that the State and  

its authorities had by their inaction in complying  

with the requirements set out in M.     Nagaraj  ’s case  

(supra), committed contempt of Court and the same  

was accepted and the Appellants herein were found  

guilty of having committed contempt of Court by  

such inaction.   

39. The next thing that we are required to consider  

is whether such inaction was on account of any  

circumstances which prevented the State Government  

and its authorities from taking action in terms of

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the observations made by the Division Bench of the  

High Court in its judgment dated 5th February, 2010,  

or whether such inaction was on account of the  

deliberate intention of the State and its  

authorities not to give effect to the same.   

40. The learned Attorney General, who had appeared  

for the State of Rajasthan and its authorities, had  

submitted that the Order dated 5th February, 2010,  

was in two parts.  While one part dealt with the  

quashing of the two Notifications, the other was  

with regard to the observations made in the said  

order with regard to the directions given in M.  

Nagaraj’s case (supra) for collection of the  

quantifiable data before giving effect to the  

provisions of Article 16(4-A) of the Constitution.  

The learned Attorney General has also emphasized  

that in order to give effect to the second part of  

the judgment and order of the Division Bench of the  

Rajasthan High Court and the directions given in

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paragraph 68 of the judgment in Suraj     Bhan     Meena  ’s  

case (supra), the Government of Rajasthan had  

appointed the Bhatnagar Committee to obtain the  

quantifiable data to comply with the directions  

given in the two aforesaid judgments.  The learned  

Attorney General has also pointed out that  

directions have been given to all the different  

departments on 14th February, 2011, to ensure  

compliance with the directions contained in Suraj  

Bhan     Meena  ’s case (supra).   

41. Although, it has been urged on behalf of the  

Respondents that there was a restraint order on the  

State and its authorities from giving effect to the  

observations made in the order passed by the  

Division Bench of the High Court on dated 5th  

February, 2010, or even in the order passed in  

Suraj     Bhan     Meena  ’s case (supra), the State and its  

authorities remained inactive on the plea that it  

had appointed the Bhatnagar Committee to collect

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the data necessary in terms of the judgment and  

order passed in M.     Nagaraj  ’s case, which had been  

reiterated by this Court in Suraj     Bhan     Meena  ’s case  

(supra).   

42. The explanation given on behalf of the State  

and its authorities cannot be discounted, since in  

order to act in terms of the sentiments expressed  

by the High Court and this Court, it was necessary  

to collect the quantifiable data in respect of  

Scheduled Castes and Scheduled Tribes candidates.  

For collection of such data, the State appointed  

the Bhatnagar Committee which was entrusted with  

the work of obtaining such quantifiable data so  

that the provisions of the amended Clause (4-A)  

included in Article 16 of the Constitution could be  

given effect to in terms of the directions given in  

M.     Nagaraj  ’s case subsequently reiterated in Suraj  

Bhan     Meena  ’s case.  

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43. The various submissions advanced by Mr. Salve,  

Dr. Dhawan and Mr. Sanjeev Prakash Sharma in  

support of the decision of the Division Bench of  

the High Court, holding the Appellants guilty of  

contempt of Court and, in particular, the alleged  

inaction to implement the judgment and orders in M.  

Nagaraj’s case and Suraj     Bhan     Meena  ’s case are not  

very convincing, since in order to comply with the  

findings in M.     Nagaraj  ’s case and Suraj     Bhan    

Meena’s case, necessary data was required to be  

collected, in the absence of which it was not  

possible for the State and its authorities to act  

in terms of the observations made in M.     Nagaraj  ’s  

case and in Suraj     Bhan     Meena  ’s case (supra).

44. Accordingly, we are of the view that despite  

the fact that there has been delay on the part of  

the State and its authorities in giving effect to  

the observations made in the two aforesaid cases,  

there was no willful or deliberate intention on

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their part to defy the orders of this Court.  The  

very fact that the Bhatnagar Committee was  

appointed indicates that the State and its  

authorities had every intention to implement the  

aforesaid observations, though the progress of such  

implementation has been tardy.  Accordingly, we are  

unable to sustain the impugned judgment and order  

of the Division Bench of the High Court holding the  

Appellants guilty of contempt of Court for  

purported violation of the order passed by the  

Division Bench of the Jaipur Bench of the Rajasthan  

High Court on 5th February, 2010, while disposing of  

the Civil Writ Petition No.8410 of 2008.  

Consequently, the judgment and order under appeal  

has to be set aside.

45.  We, accordingly, allow the appeals and set  

aside the aforesaid judgment, but with the further  

direction that the State and its authorities act in  

terms of the Report of the Bhatnagar Committee, in

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accordance with the decision rendered in M.  

Nagaraj’s case and in Suraj     Bhan     Meena  ’s case  

(supra), within two months from the date of  

communication of this judgment and order.  

46. There will be no order as to costs.    

     ………………………………………………………J.    (ALTAMAS KABIR)

………………………………………………………J.    (J. CHELAMESWAR)

New Delhi Dated:29.08.2012.