Judgment UDAY SINHA, J. 1. This is an appeal under sec. 19(1)(a) of the Contempt of Courts Act, 1971. The appellant has been convicted by S. K. Jha, J., under sec. 12 of the said Act and has been sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000.00 in default to undergo simple imprisonment for a further period of one month. 2. The appellant was posted as Regional Deputy Director of Education at Patna (hereinafter called as R.D.D.E.). He joined this posting in July, 1984. As R.D.D.E. his work of official activities covered Basic schools in which education was imparted till Class VIII. Till March, 1972 education was imparted in Middle Schools and Basic Schools till Class VIII. Thereafter, teaching in Class VIII was discontinued. Subsequently from January, 1979 teaching in Class VIII in such schools was once again resumed. On 1-9-1979 the State Government issued a Circular outlining the policy in regard to teaching in Class VIII in Middle schools and Basic schools and the modality for selection of teachers for grant of salary of B.A. trained teachers. Respondents 2 to 16 who were petitioners in C.W.J.C. No.4100 of 1984 were B.A. trained teachers teaching in Basic schools. Prior to January, 1979 only one teacher, i.e. the headmaster of Middle/Basic schools was paid the salary of B.A. trained teachers. In 1980 by the Circular issued by the State Government which was Annexure 2 to the writ application, it was decided that the scale of B. A. trained teacher would be accorded to one more teacher besides the headmaster in schools where teaching was to be done up to Class VIII. It has been asserted that in terms to the above policy decision, teachers in Basic schools in Tirhut, North Chhotanagpur, South Chhotanagpur and Saran Divisions had been paid the salary of B.A. trained teachers on the second post purporting to act in terms of Government Circular No.Lwa./3-02363/79 SHI-285 dated 20-12-1979 (Annexure-1) the then R.D.D.E., Patna ordered by orders dated 14-2-1984 and 28-3-1984( Annexures 1A and 1B) that the fifteen respondents (Respondents 2 to 16) would be paid the salary of B.A. trained teachers with effect from 1-4-1980. From 4-7-1984 the then R.D.D.E. went away on leave preparatory to retirement and the appellant took over charge from her. From 4-7-1984 the then R.D.D.E. went away on leave preparatory to retirement and the appellant took over charge from her. Shortly after assuming charge, the appellant learnt about the grant of B. A. trained teachers scale to 55 teachers including the 15 petitioners of the writ application. In his view there was no sanctioned post available for B.A. trained teachers. He, therefore, by Annexure 6 to the writ application dated 13-7-1984 stayed the payments of B.A. trained teachers to all of them until fresh orders were passed. That annexure also shows that on the very same day the appellant referred the matter to Director, Primary Education and enquired whether creation of second post of B.A. trained teachers had been sanctioned. If it had been so sanctioned, when had it been sanctioned. It was requested that a copy of that order creating the post might be forwarded to him. Fifteen beneficiaries and Rajkiya Buniyadi Vidyalaya Sikshak Sangh, Patna Division moved this Court by C.W.J.C. No.4100 of 1984 on 17-8-1984, for quashing the order of stay passed by the R.D.D.E. The order was Annexure-6 to the writ application. The matter was listed for admission on 6-11-1984. On that day S. K. Jha, J. admitted the application. His Lordship ordered that the matter may be listed for final hearing at an early date, as the Hon ble Chief Justice may fix, in view of the fact that no interim order was being passed. Part of the order reads as follows : - "In that view of the matter let this case be placed for final hearing on an early date as the Hon ble the Chief Justice may fix, in view of the fact that no interim order is being passed. It is, however, made perfectly clear that even during the pendency of this writ application if petitioners services are being utilised in any manner they shall be paid their minimum legal dues for such period." No specific interim order was passed except an order for payment of minimum legal dues. 3 The above order shows clearly that n9 specific interim order was passed. The order was for payment of minimum legal dues. The petitioners in the writ application were claiming the salary admissible to B.A. trained teachers. 3 The above order shows clearly that n9 specific interim order was passed. The order was for payment of minimum legal dues. The petitioners in the writ application were claiming the salary admissible to B.A. trained teachers. The stand of the R. D.D.E. was that they were not entitled to the scale of B. A. trained and that they were entitled only to the scale of Matriculate trained. In that clash of claims, payment of minimum legal dues could only mean payment of matric trained scale. The order of the appellant contained in Annexure-6 to the writ application dated 13-7-1984 thus remained operative. 4. On 8-2-1985 the petitioners of the writ application filed an application in which it was prayed that direction be issued to the respondents to implement the order dated 6-11-1984 and to pay salary to the petitioners in the B.A. trained scale forthwith. The respondents to the writ application were (i) the State of Bihar through the Education Commissioner, (ii) the Director, Primary Education, Bihar and (iii) appellant Promod Ban Bihari Singh. Interlocutory application filed by the petitioners for implementation of order dated 6-11-1984 was put up for consideration and on 15-2-1985 S. K. Jha, J. ordered as follows : - "Heard learned counsel for the petitioners and learned counsel for the State. The order passed by this Court on 6-11-1984, a copy of which has been marked Annexure-9 to the present petition at flag T is absolutely unequivocal and needs no further clarification but the interpretation put upon, the last paragraph of this order by the Regional Deputy Director of Education (respondent No. 3) as well as by learned counsel for the State induces me to clarify that all that the second paragraph of the order as aforementioned says is that all such teachers whose works are being taken shall be paid their legal dues in spite of no interim relief having been granted. In that view of the matter, it is directed that the authorities concerned shall in duty bound pay to the petitioners the B.A. trained scale which they were getting earlier and against which post their work is being utilised. With this clarification the petition at flag T is disposed of." Whatever the ambiguity in that order may have been, the last but one paragraph clearly directed the authorities concerned to pay to the petitioners the salary admissible to the B.A. trained teachers. With this clarification the petition at flag T is disposed of." Whatever the ambiguity in that order may have been, the last but one paragraph clearly directed the authorities concerned to pay to the petitioners the salary admissible to the B.A. trained teachers. To whom was the order directed or who was supposed to carry it out was not spelt out clearly. The expression "the, authorities" would mean the headmasters of the respective schools who were the Drawing and Disbursing Officers of teachers, the Education Commissioner, respondent No. 1, S. B. Mishra, the Director, Primary Education, respondent No. 2 and Promod Ban Bihari Singh, the then R.D.D.E., respondent No. 3 to the writ application. Giving a wide interpretation, it would mean that all the above four were expected to carry out the dictate of the order mentioned above. The appellant being one of the persons covered by the expression "authorities" cannot contend that the appellant was made a scape-goat while the other were let off with impunity. That would be no defence for the appellant. Since the teachers filed a contempt application only against the appellant, the attention of the learned Judge was not directed towards finding out if others also should have been proceeded against. 5. The contempt application was filed by the teachers against the R.D.D.E. Pramod Ban Bihari Singh, the appellant alone. Cause was shown by the appellant and on perusing the show cause Jha, J. was of the view that a prima facie case of contempt of court had been made out. Proceedings for contempt was, therefore, drawn up and notice of the proceeding was issued to the appellant. It may be mentioned here that on 19-11-1985 the appellant filed an application for modification of Courts order dated 15-2-1985. In that application it was stated in paragraph 21 that the R.D.D.E. had no authority to grant B.A. trained scale and the order of the erstwhile R.D.D.E. was in excess of jurisdiction and was, therefore, illegal. Similarly, granting B.A. trained scale which was in the cadre of Subordinate Education Service by the R.D.D.E. (the present appellant) would also be illegal and without jurisdiction. Prayer was, therefore, made by the appellant to reconsider and modify order dated 15-2-1985. The main contempt application was put up before Jha, J., once again on 6-12-1985. Similarly, granting B.A. trained scale which was in the cadre of Subordinate Education Service by the R.D.D.E. (the present appellant) would also be illegal and without jurisdiction. Prayer was, therefore, made by the appellant to reconsider and modify order dated 15-2-1985. The main contempt application was put up before Jha, J., once again on 6-12-1985. Although final orders had not been passed in the contempt proceeding, and the appellant had not been found guilty of contempt of court, Jha, J. ordered that the contemner i.e. the appellant must purge himself of the contempt within a period of six weeks from 6-12-1985. His Lordships also ordered that the application for modification of order dated 15-2-1985 would be considered after the contemner purged himself of the contempt. That was not right. All that I need say is that the petition was for recall of order dated 15-2-1985 and the order on 6-12-1985 was that the petition for recalling will be considered only after order dated 15-2-1985 has been carried out. If the order dated 15-2-1985 had to be carried out, there could be no question of recalling it. If the matter had been considered coolly and the order had been recalled there would be no contempt. If his Lordship had made up his mind to reject the application for recalling order dated 15-2-1985, that should have been stated explicitly by rejecting that application. The last part of the order gives the impression that his Lordship had the feeling that the petition for recall of order dated 15-2-1985 had been filed on 6-12-1985. That was clearly erroneous. That petition had been filed on 19-11-1985. It is patent that the order calling upon the appellant for purging himself of the contempt should have been passed only after disposal of the petition for recall of order dated 15-2-1985. On 15-2-1986 the contempt matter was finally disposed of (M.J.C. 173 of 1985). Jha, J. found the appellant guilty of contempt and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs. 1000/-, in default to undergo simple imprisonment for a further period of one month. 6. The broadside at the Advocate General in the order under appeal is a separate chapter. We need not go into its detail as the observations against him made in paragraphs 6 and 7 of the order have been quashed by the Supreme Court. 1000/-, in default to undergo simple imprisonment for a further period of one month. 6. The broadside at the Advocate General in the order under appeal is a separate chapter. We need not go into its detail as the observations against him made in paragraphs 6 and 7 of the order have been quashed by the Supreme Court. The Advocate General moved the Supreme Court for expunging the uncalled for remarks against him and the Supreme Court expunged it in unequivoval terms. The Supreme court after holding that the learned Judge was not justified in making the remarks that he did against the Advocate General, observed as follows : "We must, therefore, hold, though with a tinge of regret, that the remarks made by the learned Judge were not justified and could have been avoided.We accordingly expunge these remarks in the order dated 11-2-1986." 7. For our purposes it would not have been necessary to refer to the unjustified remarks of S. K. Jha, J. against the Advocate General and its expunctions by the Supreme Court. It has been done only because, while disposing of the Advocate Generals appeal, a Bench of the Supreme Court, of which Khalid, J. was also a member, observed in very strong terms that the present appellant was guilty of contempt. The judgment stated as follows : "the learned Judge was perfectly right in committing the third respondent (the present appellant) for contempt of court but, as we have pointed out above, he could have avoided passing strictures against the appellant, though he had every reason to feel angry with what had happened" The above observation with regard to the guilt of the appellant would have completely sealed the fate of the appellant and the appeal filed by him would have become meaningless. No court would have considered his appeal on merit with any seriousness. The appellant, therefore, moved the Supreme court in Civil Misc. Petn. No. 12943 of 1986. A Bench of the Supreme Court presided over by R. B. Mishra and V. Khalid, JJ. No court would have considered his appeal on merit with any seriousness. The appellant, therefore, moved the Supreme court in Civil Misc. Petn. No. 12943 of 1986. A Bench of the Supreme Court presided over by R. B. Mishra and V. Khalid, JJ. disposed of the appellants application in the following terms by order dated 5-5-1986 : "The High Court will dispose of the case before it (i.e. the present appeal before us) un-influenced by the findings recorded by this Court in the order dated 2-4-1986 against respondent Pramod Ban Bihari Singh in C. A. No. 1248 of 1986." We are thus faced with the exparte stringent observations of the Supreme Court on the one hand and another observation of the Supreme Court completely defacing the earlier remarks of the Supreme Court as far as the appellant was concerned. Since the appellant was not heard when the appeal of the Advocate General was disposed of, several important matters were not brought to the notice of their Lordships of the Supreme Court in favour of the appellant. Since the last order of the Supreme Court has directed this Court to dispose of the appellants appeal filed on 27-2-1986 uninfluenced by the earlier findings of the Supreme Court, we are bound to carry it out. The present appeal was filed on 27-2-1986. The appeal of the Advocate General was disposed of by the Supreme Court on 2-4-1986. There is nothing in the order of the Chief Justice Bhagwati in Civil Appeal No. 1248 of 1986 filed by the Advocate General that the Supreme Court was aware of the fact that the appellant had filed his appeal against his conviction recorded by S. K.Jha. J. I have not the least doubt that if it had been brought to the notice of the Supreme Court that the appeal of the appellant was pending before a Division Bench, the Supreme Court would not have made any observation in regard to the guilt of the appellant and would have confined itself only to the appeal of the Advocate General. 8. I shall now proceed to consider how far the appellant was guilty of contempt of this Court. 8. I shall now proceed to consider how far the appellant was guilty of contempt of this Court. We have this day by a separate judgment dismissed C.W.J.C No. 4100 of 1984 filed by the 15 teachers by which they had claimed that they were entitled to the grant of scale of pay admissible to the B. A. trained teachers. We have held that there was no sanctioned post available for Basic schools, at least in Patna Division. The prayer for quashing Annexure-6 of the writ petition has been dismissed. The question, however, is whether there had been disregard of the peremptory order passed by this Court by order dated 15-12-1985. We are firmly of the view that there was no post available. The order of Mrs. Shanti Upadhya, the predecessor of the appellant, itself shows that there was no post available. She has stated in her order that these promotions/appointments to the B.A. trained scale would be adjusted against the units to be created in future. It is true that the payments would not have been made to the teachers from the private pocket of the appellant, yet it is the duty of every civil servant to see that illegal payments are not made. As a custodian of the public funds, he is to stop illegal payments. The entire mix up would have been avoided if Jha, J. had ordered on 6-11-1984 or 15-2-1985 that Annexure 6 to the writ application would remain stayed until final disposal of the writ application. That, however, was not done although that was the easiest course instead of putting any civil servant in jeopardy. Here was a position where illegal payments were being made which he was obliged to stop and on the other hand was the order of the High Court ordering him to make payments legally or illegally. Torn between Scylla and Charybdis the appellant filed an application on 19-11-1985. The appellant had sought instruction from the Government whether second post of B.A. trained teacher had been created in the State Basic schools. By Annexure-E to the writ application, the Deputy Director, Primary Education wrote to him that he had been ordered to inform the appellant that the second post of B.A. trained teachers in the Basic schools had not been created. By Annexure-E to the writ application, the Deputy Director, Primary Education wrote to him that he had been ordered to inform the appellant that the second post of B.A. trained teachers in the Basic schools had not been created. In that application it was also stated that after the stoppage of B. A. trained scale of salary, none of the 55 teachers in Patna Division had been drawing B.A. trained scale. Only six petitioners before the High Court had been drawing that scale. They were Ram Chandra Choudhary, Ramadhar Singh, Ramanand Pandey, Krishna Singh, Bhagwan Singh and Krishna Mishra. These six persons had been drawing the scale of B.A. trained teachers against the specific order of the appellant by bringing the Headmaster in collusion. Some paragraphs of this petition need be emphasised. They must be quoted in extenso : "14. That it is submitted that in view of the fact that no second post has been created by Government, the erstwhile R.D.D.E. was not entitled to grant B.A. trained scale to teachers in the Basic Schools in anticipation of creation of posts in future. 15. That it is further submitted that creation of post is done by Cabinet after getting its financial implication examined and cleared by the Finance Department. 16. That in the aforesaid circumstances stated above the erstwhile R.D.D.E. committed a serious illegality in granting the B.A. trained scale against non-existent post. xx xx xx xx xx 21. That it is further stated that the R.D.D.E. has no authority to grant B.A. trained scale and the order of the erstwhile R.D.D.E. is in excess of jurisdiction and is, therefore, illegal. Similarly granting B.A. trained scale which is in the cadre of Subordinate Education Service by the present R.D.D.E. would also be illegal and without jurisdiction." The above should have receivedserious consideration by S. K. Jha, J. and called for recall of the orderpassed on 15-2-1985 but his Lordship was in no mood to consider whether orderdated 15-2-1985 was justified or unjustified. This petition should have beendisposed of before calling upon the appellant to purge himself of the contemptas ordered on 6-12-1985. If an order passed by a single Judge is not correct,the affected person has always a right to move the Court to recall/review itsorder before any conviction for contempt is recorded. It was essential todispose of the petition for modification/recall before disposing of thecontempt matter. If an order passed by a single Judge is not correct,the affected person has always a right to move the Court to recall/review itsorder before any conviction for contempt is recorded. It was essential todispose of the petition for modification/recall before disposing of thecontempt matter. Without disposing of the petition filed by the appellant on19-11-1985, it is difficult to hold that the appellant was guilty of contemptof this Court. 9 S. K. Jha, J. observed that three things were apparent from the orders of the Court. They were "(i) formerly Government Pleader No. 1 and subsequently learned Advocate General was representing Sri Pramod Ban Bihari Singh, the contemner throughout, (ii) Order dated 15-2-1985 in C.W.J.C. No. 4100 of 1984 was passed in presence of the learned counsel for the State representing the contemner and (iii) the learned Advocate General prayed for one months time on 6-12-1985 and on assurance given to this Court that he shall look to it that the contemner shall purge himself of the contempt, this Court granted him suo motu and indulgence of granting six weeks time instead of one month as prayed for by him". 10. The Advocate General never represented the appellant. He had been called by the Judge and the Advocate General assured him like a good Officer of the Court. The third circumstance also related to the Advocate General. It is true that the order dated 15-2-1985 was passed in presence of the learned counsel for the State. Learned Judge appeared to have been piqued by the fact that instead of carrying out the order dated 15-2-1985, the State and the appellant had gone in appeal to the Supreme Court. Is it not the right of a litigant to move a higher Court against an order which it considers to be erroneous or illegal? Here was a situation where the Government was clear in its mind that the order of Mrs. Shanti Upadhaya was illegal. A year back the State Government in the Education Department had informed the appellant that no such post, as claimed by the petitioners, had been created. An application was filed by the appellant for cancelling the order dated 15-2-1985. That was not considered by the Bench and it was ordered that it would be considered only after the order of the Bench had been complied with. An application was filed by the appellant for cancelling the order dated 15-2-1985. That was not considered by the Bench and it was ordered that it would be considered only after the order of the Bench had been complied with. There would be no point in considering the petition for recall of the earlier order if the Government was forced to carry out the illegal order. In that situation, the State Government had no alternative but to move the Supreme Court. I am not aware of any law which prohibits a party from moving a higher Court. That is certainly not contempt. No authority has been shown to us laying down that without complying with a Courts order, its legality cannot be challenged before a Superior Court. In my view, filing of appeal before the Supreme Court against the order dated 15-2-1985 did not constitute contempt. The appellants before the Supreme Court were the State Government, the Director of Education and the appellant. If moving the Supreme Court constituted contempt, R. B. Mishra, Director of Education was equally in contempt but no action was taken against them. The State Government did not consider the order of S. K. Jha, J, passed on 15-2-1985 as correct. It, therefore, filed appeal to the Supreme Court as there was no other way out. The appellant was too small a fry but for the sake of formality, he had to join as the appellant. I have not the least doubt that filing of the appeal did not constitute contempt of Court. 11. It is not in controversy that the drawing and disbursing officer of a school is the headmaster. The teachers have to be paid by their headmaster concerned. The appellant is not the person by whom payments have to be made. In that view of the matter, the appellant was not required to do anything. The order of the High Court was there for the headmasters to honour. The order of the High Court virtually amounted to stay of Annexure-6. Thus, it is difficult to hold that the appellant was required to do anything in the matter. Annexure-6 having been impliedly stayed, the headmasters concerned should have gone on paying to the teachers. The order of the High Court was there for the headmasters to honour. The order of the High Court virtually amounted to stay of Annexure-6. Thus, it is difficult to hold that the appellant was required to do anything in the matter. Annexure-6 having been impliedly stayed, the headmasters concerned should have gone on paying to the teachers. Any headmaster not paying would do so at his own peril, but in the absence of any order by the High Court calling upon the appellant to take any positive action, there was no contempt committed by him. The payments were not being made by the headmasters concerned. Therefore, the persons contravening the order of the High Court were the concerned headmasters and not the appellant. For this reason as well no contempt has been committed by the appellant. 12. For all the reasons, stated above. I am of the view that no contempt was committed by the appellant. The conviction and sentence of the appellant are ill merited and must be set aside. The appeal is accordingly allowed and the conviction and sentence recorded against the appellant are hereby set aside. B.N.AGRAWAL, J. 13 I agree.