JUDGEMENT Sankari Prasad Das Ghosh J. :- This is an appeal against order passed on 24-12-85 by Ajit Kumar Sengupta, in Contempt Rule No. 15255 (W) of 1985, started on the ground of wilful disobedience of an order passed on 10-8-84 in Civil Rule No. 11959 (W) of 1984 under Article226 of the Constitution. The respondent No. 1, Sukumar Podder along with 27 other persons (the respondents Nos. 2 to 28) filed an application under the Contempt of Courts Act. 1971 against Sri Bijay Chatterjee the District Magistrate, Malda, and the contemner-respondent No. 2, Sri Md. Nurul Absar. On the basis of that application for contempt a Rule was issued on 11-10-85 to show cause as to why the contemners-respondents Nos. 1 and 2 should not be committed to prison or otherwise dealt with for having violated the court's order dated 10-8-84 passed in C.R. No. 11959 (W) of 1984. The Rule was made returnable on 20-12-85. Subsequently, on 24-12-85, the following order was passed by Ajit Kumar Sengupta, J. : "Respondent No. 2 is present in court today. He has given an undertaking through his counsel that the payment as directed by my order dated 10th August, 1984 will be made on or before 11th January, 1986. Let this matter appear on 13th January, 1986 for further orders. In the meantime officer shall submit a report if the service has been effected on the respondent No. 1". It is against this order dated 24-12-85 passed in the Contempt Rule No. 15255 (W) of 1985, that the present appeal is directed. 2. It appears that in June, 1984, one Sri Balai Chandra Basak was the Chairman of the old Malda Municipality. On 20-6-84, a radiogram was sent by the Deputy Secretary to the Government of West Bengal, Local Government and Urban Development Department, to the District Magistrate, Malda, to see that no illegal appointments in the Old Malda Municipality in contravention of S. 66(5) of the Bengal Municipal Act, 1932 (hereinafter referred to as "the Act" for the sake of convenience) were made. The District Magistrate. Malda, sent a copy of that radiogram to the chairman of Old Malda Municipality. The Chairman, Mr. Basak, sent a reply to the District Magistrate that no such appointment would be made by him in the Municipality. The respondents Nos. 1 to 28 were, however, given appointments by the Municipality on or about 28-7-84. The District Magistrate. Malda, sent a copy of that radiogram to the chairman of Old Malda Municipality. The Chairman, Mr. Basak, sent a reply to the District Magistrate that no such appointment would be made by him in the Municipality. The respondents Nos. 1 to 28 were, however, given appointments by the Municipality on or about 28-7-84. On 31-7-84, the Head Clerk of the municipality wrote to the District Magistrate that after 4 p.m. on 30-7-84 18 persons, out of the 28 appointees had their names forcibly entered in the Attendance Register through the respondent No. 26, Md. Murtaja Ali. Thereafter on 2-8-84, the District Magistrate, Malda kept in abeyance all the 28 appointments until further orders under S. 548(2) of the Act on the ground that the appointments were made by the chairman of the Municipality in contravention of S. 66 of the Act and were irregular and in excess of powers conferred by law. Copy of this order of the District Magistrate dated 2-8-84 was sent to all the respondents Nos. 1 to 28. Thereafter, the respondents Nos. 1 to 28 moved this court under Art. 226 of the Constitution and had an ex parte order on 10-8-84 from Ajit Kumar Sengupta, J. for issuance of Rule upon the opposite parties in the writ petition for showing cause why a writ in the nature of Mandamus, of a writ in the nature of prohibition or a writ in the nature of certiorari should not be issued in terms of prayers of the writ-petitioners. By that ex parte order dated 10-8-84, Sengupta, J. was also pleased to issue ad interim injunction in terms of prayer (c) till 1st day of September, 1984 with liberty to apply for extension on 20-8-84. Prayer (c) in the writ petition was for issuing interim injuction in the nature of status quo restraining the respondents, including the present appellant, from interfering with the work of the respondents in any manner whatsoever, later on, this order of interim injunction was extended until further orders. Subsequently, on 16-8-84, an order was passed by the Government of West Bengal, Department of Local Government and Urban Development, suspending all appointments of the respondents Nos. 1 to 28, as made by the Commissioner of Old Malda Municipality, under S. 548 (1) of the Act, pending hearing to be given to the Commissioners in this regard. Subsequently, on 16-8-84, an order was passed by the Government of West Bengal, Department of Local Government and Urban Development, suspending all appointments of the respondents Nos. 1 to 28, as made by the Commissioner of Old Malda Municipality, under S. 548 (1) of the Act, pending hearing to be given to the Commissioners in this regard. On 5-9-84, the Government superseded the Commissioners of the municipality for period of six months under S. 553 of the Act on various grounds including the irregular appointment made by the Commissioners of the Municipality in contravention of the provisions of S. 66 of the Act and appointed the contemner-respondent No. 2 (appellant), who happened to be the District Panchayat Officer, Malda, as Administrator under S. 554(1) of the Act. Copy of the Government Order dated 16-8-84 was sent to the Administrator by the Government on 13-9-84. After receipt of this copy of the Government Order, the appellant published a notice on the Notice Board of the municipality on 17-9-84. It was stated in that notice that all irregular appointments given by the erstwhile Chairman remained suspended as per Government Order No. 1643 dated 16-8-84. Copy of this notice was sent to the respondent No. 1, Sukumar Poddar, by the appellant as the respondent No. 1 along with others had made a representation dated 11-9-84 before the Administrator (appellant), who joined on 10-9-84, for making arrangement for payment of salary to them and for taking proper steps to allow them to function smoothly on the basis of the order passed by Ajit Kumar Sengupta, J. on 10-8-84 under Art. 226 of the Constitution. No salary was paid by the appellant to any of the respondents, who could not also work in the municipality. An application for contempt for wilful disobedience of the order dated 10-8-84 passed by Sengupta, J. was thereafter filed in court and the impugned order dated 24-12-85 was passed, showing that an undertaking was given by the appellant through his advocate for making payment, as per direction of the court on 10-8-84, on or before the 11-1-86. The propriety of this alleged undertaking stated to have been made by the appellant, through his advocate, in court is in question in this appeal. 3. Mr. T. K. Chatterjee, the learned Advocate for the respondents Nos. The propriety of this alleged undertaking stated to have been made by the appellant, through his advocate, in court is in question in this appeal. 3. Mr. T. K. Chatterjee, the learned Advocate for the respondents Nos. 1 to 28, has raised a preliminary objection about the maintainability of this appeal under S. 19 of the Contempt of Courts Act, 1971. According to Mr. Chatterjee, the impugned order is an interlocutory order, which is not appealable. We are unable to accept this contention. It has been held by the Supreme Court in the case of Chhaganbhai v. Soni Chandubhai, AIR 1976 SC 1909 that breach of an undertaking amounts to breach of an injunction of court. As the impugned undertaking in this case affects the right of the parties, it is not an interlocutory order. In case of breach of the undertaking given by the appellant through his advocate, the appellant can be punished for contempt. As such, an appeal lies against the impugned order. We are supported in this view also by the decision of this court in the case of R. Chatterjee v. Rambadan Choubey, (1981) 85 Cal WN 1003. The contention regarding non-maintainability of this appeal thus fails. 4. Mr. A. P. Chatterjee, the learned Advocate for the appellant, has contended that the appellant did not give any undertaking and that, if any such undertaking, as recorded by Sengupta, J. was given by Mr. Sankar Mukherjee, the learned Advocate for the appellant, it was given on a total misapprehension of facts. Mr. A. P. Chatterjee has further contended that the appellant did not hear what was recorded by the learned Judge. According to Mr. A. P. Chatterjee, if the appellant could have heard what was being dictated in court, he would have immediately objected that he had not given any such undertaking. After hearing the learned Advocates for both the parties, we are not prepared to accept the contention of Mr. According to Mr. A. P. Chatterjee, if the appellant could have heard what was being dictated in court, he would have immediately objected that he had not given any such undertaking. After hearing the learned Advocates for both the parties, we are not prepared to accept the contention of Mr. A. P. Chatterjee that the appellant did not give any undertaking, as recorded by Sengupta, J. Even then, after hearing the learned Advocates for both the parties at length, we have no hesitation to say that the appellant should be released from the undertaking for the following grounds :- First, the undertaking must have followed from some queries from the court on 20-12-84 or on 24-12-85 as to whether the appellant was prepared to give any undertaking. This is conceded even by Mr. T. K. Chatterjee, the learned Advocate for the respondents. Sengupta. J. must have made this query on the basis of the averment in the application for contempt to the effect that after hearing the writ petition on 10-8-84. His Lordship had been pleased to issue a Rule upon all the respondents on the prayer of the writ-petitioners and commanding the respondents to give salary according to pay scale at proper time and further passed an order of ad interim injunction in the nature of status quo restraining the respondents in the writ petition, including their officers, from interfering with the writ-petitioners' work in any manner whatsoever till further orders. Actually, there was no such order by Sengupta, J. on 10-8-84 commanding the respondents in the writ petition to give salary according to pay scale at proper time. We have gone through the certified copy of the order dated 10-8-84 passed by Sengupta, J. as shown to us by Mr. T, K. Chatterjee. We are unable to find any order by Sengupta, J. on 10-8-84 commanding the respondents to give salary according to the pay scale at proper time. We have gone through the certified copy of the order dated 10-8-84 passed by Sengupta, J. as shown to us by Mr. T, K. Chatterjee. We are unable to find any order by Sengupta, J. on 10-8-84 commanding the respondents to give salary according to the pay scale at proper time. In the absence of any order by Sengupta, J. on 10-8-84, commanding the respondents in the writ petition to give salary to the writ-petitioners, there was no question of giving any undertaking to pay salary and any query by Sengupta, J. as to whether the contemner-respondent No. 2 was prepared to make any payment, must be on the basis of the mis-statement in the application for contempt that an order was passed on 10-8-84 directing the respondents in the writ petition to pay salary to the writ-petitioners. Needless to say, power to punish for contempt should be kept sheathed and the sword should be drawn only sparingly if the court is convinced that there has been wilful defiance or disobedience. In the present case, the sword ought to have been drawn not against the contemner-respondent No. 2 (appellant), but against the writ-petitioners, who filed an application for contempt on making a statement in that application that on 10-8-84, Sengupta, J. passed an order commanding the respondents in the writ petition to pay the salary to the writ-petitioners. The query made by Sengupta, J. as to whether the contemner-respondent No. 2 was prepared to give any undertaking, based on mis-statements in the application for contempt, led to the undertaking in question and as such the undertaking cannot be acted upon. Secondly, the Government Order dated 16-8-84, suspending the appointments of the respondents Nos. 1 to 28 to the Old Malda Municipality in contravention of the provisions of Section 66 of the Act, became known to the respondent No. 1 after the appellant sent them a copy of that Government order along with the notice published by him in the Notice Board of the municipality on 17-9-84, stating that all irregular appointments given by the erstwhile Chairman, should remain suspended as per G. O. No. 1643 dated 16-8-84. As already stated, a copy of that notice was sent to the respondent No. 1 by the appellant with reference to the prayer of the respondent No. 1 and the other respondents Nos. As already stated, a copy of that notice was sent to the respondent No. 1 by the appellant with reference to the prayer of the respondent No. 1 and the other respondents Nos. 2 to 28 to the notice dated 11-9-84 to the appellant for arranging immediate payment of their salary and for allowing them to function smoothly. This Government Order dated 16-8-84 is mentioned in the application for contempt. Curiously enough, till date no action has been taken by the respondents in this appeal to challenge the Government Order dated 16-8-84. The order of ad interim injunction passed by Ajit Kumar Sengupta, J. was because of the order dated 2-8-84 passed by the District Magistrate, which was challenged by the writ-petitioners in their writ petition. There can be no question of any payment to the writ-petitioners after passing of the Government Order 16-8-84, without challenging that Government Order. As such, there can be no undertaking to pay any salary to the writ-petitioners in spite of the Government Order dated 16-8-84. 5. In the case of Aswani Kumar v. P. C. Mukherjee, AIR 1965 Cal 484 : (1965 (2) Cri LJ 471) it has been held that in a proceeding for contempt for alleged breach of a writ, the respondent may impeach not only the form of the writ, but also the grounds on which the writ had been issued. In the order dated 2-8-84 passed by the District Magistrate, keeping in abeyance the appointments, in exercise of power under S. 548(2) of the Act, it was mentioned that the appointments were in contravention of the provisions in S. 66 of the Act, were irregular and had been made in excess of the powers conferred by law. The appointments were in contravention of the provisions in Ss. 66(1), 66(4) and 66(5) of the Act. According to the proviso to S. 66(1) of the Act, no appointment can be given if it exceeds the existing number of posts by one per cent without prior sanction of the Government. The existing number of posts in the Old Malda Municipality on 28-7-84 was about 27. As such, 28 posts could not be created by the municipality or filled in by the writ-petitioners. Under the proviso to S. 66(4) of the Act, a person shall not be appointed to a post carrying a monthly salary of more than Rs. The existing number of posts in the Old Malda Municipality on 28-7-84 was about 27. As such, 28 posts could not be created by the municipality or filled in by the writ-petitioners. Under the proviso to S. 66(4) of the Act, a person shall not be appointed to a post carrying a monthly salary of more than Rs. 250/- or a salary rising by periodical increments to more that Rs. 250/- without the sanction of the Commissioners at a meeting. Under that proviso to that S. 66(4) of the Act, a person shall not be appointed to a post carrying a monthly salary of more than Rs. 750/- or salary rising by periodical increments to more than Rs. 1000/- per month without the prior approval of the State Government. There is no material before us to show that any of these two provisos to Section 66(4) of the Act were complied with before issuing letters of appointments to the writ-petitioners. Under S. 66(5) of the Act, recruitments to different posts of officers and employees, other than class IV posts, of a municipality shall be made through local employment exchange and in accordance with such principles of recruitment as are applicable to the employees of the State Government. It appears that on 22-8-84, the Employment Officer-in-Charge, Malda, had also written to the Chairman of the municipality about the violation of the provision of Compulsory Notification of Vacancies Act, 1959 by not notifying the vacancies to the Employment Exchange with regard to the appointment of 28 personnel in different posts under the Old Malda Municipality. In these circumstances, as the appointments of the writ-petitioners were in contravention of the provisions in Sections 66(1), 66(4) and 66(5) of the Act, there was no question of paying any salary on the basis of the undertaking as recorded in the impugned order. Indeed, as stated in the case of Abdul Razack v. Azizunnissa Begum, AIR 1970 Mad 14 : (1970 Cri LJ 55) proceedings by way of contempt should not be used as a "legal thumbscrew" by a party against his opponent for enforcement of his claim. As the appointments were in contravention of the provisions in S.66 of the Act, the undertaking cannot be used as a legal thumbscrew to legalise a matter, which is otherwise illegal. 6. Mr. As the appointments were in contravention of the provisions in S.66 of the Act, the undertaking cannot be used as a legal thumbscrew to legalise a matter, which is otherwise illegal. 6. Mr. A.P. Chatterjee also contended about the inability of the municipality to pay arrears to the respondents Nos.1 to 28, amounting about Rs.3.75 lacs on the ground that the financial position of the municipality did not admit payment of such huge sum, when the municipality runs on grants, D.A. sub-vention and tax collections and 80% of the D.A. is paid by the Government. This is disputed by Mr. T.K. Chatterjee, appearing for the respondents Nos.1 to 28. It is not necessary for us to deal with this matter of financial capacity of the municipality as, for the reasons already stated, the impugned undertaking should not stand. 7. Mr. A.P. Chatterjee drew our attention to the distinction made by Lord Denning M.R. in the case of Siebe Gorman and Company Limited v. Pneupac, (1982) 1 All ER 377 at page 380, wherein two meanings have been given to the words "by consent". According to Lord Denning M.R., one meaning of these words is that these words may evidence a real contract between the parties and that in such a case, court would only interfere with such an order on the same grounds as it would do with any other contract. The other meaning of the words, "by consent", is "parties hereto not objecting." If the words, "by consent", have this second meaning, the order passed by consent in such a case can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. The contention of Mr. A.P. Chatterjee is that the impugned undertaking merely amounted to "parties not objecting" and hence, the impugned order dated 24-12-85 should be set aside or rescinded as if there was no such undertaking. This contention cannot be accepted. There is a clearcut distinction between a compromise or a consent order at the instance of the parties and a clear and categorical undertaking given by any of the parties. This contention cannot be accepted. There is a clearcut distinction between a compromise or a consent order at the instance of the parties and a clear and categorical undertaking given by any of the parties. This distinction is mentioned in Halsbury's Laws of England, Fourth Edition, Volume 9, Page 42, paragraph 71 in the following words, which have been quoted with approval by the Supreme Court in the case of Chaganbhai v. Soni Chandubhai, AIR 1976 SC 1909 , the remedy of the injured party, when a party fails to comply merely with the terms of a consent order is, "to apply, not for committal, but for an order for specific performance or an injunction, and then to base proceedings for contempt on a subsequent breach." As such, on the basis of the distinction between the two meanings of the words, "by consent", as made by Lord Denning M.R. in the case Siebe Gorman (supra), the impugned order cannot be set aside or rescinded as if there was no undertaking on the ground that the undertaking merely amounted to "parties not objecting." 8. Mr. A.P. Chatterjee, has also drawn our attention to a Division Bench decision of this court in the case of Subhadra Koer v. Dhajadhari Goswami, (1912) 14 Ind Cas 380 and has contended that an injunction to do an act in violation of the statute may not be obeyed and hence, the appellant is not bound to obey the undertaking. It is not necessary for us to deal with this contention in this appeal arising from the impugned order and not arising from the order of ad interim injunction passed by Sengupta, J. in the Writ petition on 10-5-84. 9. In short, the undertaking was based on the misstatement in the application for contempt. In the absence of any order on 10-8-84 for payment of salary, there was no question of giving any undertaking for payment of salary. The Government Order dated 16-8-84 has not been challenged as yet by the writ petitioners. The appointments were in contravention of the provisions in S.66 of the Act. The appellant is, accordingly to be released from the undertaking. 10. The appeal is, accordingly, allowed. The appellant is released from the impugned undertaking recorded in the order dated 24-12-85. In the special circumstances of the case, parties to bear their own costs of this appeal. 11. The appointments were in contravention of the provisions in S.66 of the Act. The appellant is, accordingly to be released from the undertaking. 10. The appeal is, accordingly, allowed. The appellant is released from the impugned undertaking recorded in the order dated 24-12-85. In the special circumstances of the case, parties to bear their own costs of this appeal. 11. L. M. GHOSH, J. :- I agree. Appeal allowed.