This contempt application has been filed by petitioner of Civil Rule No. 3656 of 1991 for the alleged non-compliance/disobedience of this Court order dated 5.7.94 whereby the civil rule was finally decided with direction was made for reinstatement of petitioner in services and for releasing 10% of arrears of his salary with liberty to pass appropriate orders in case their services have to be terminated again. It is alleged that despite the order passed by this Court the compliance was not made and the services have not been reinstated hence says petitioner, the respondents are liable for being punished for contempt. Sri AC Pegu and SK Dey respectively posted as Director of Elementary Education, Assam as well as the DI of Schools, Silchar to whom notices of contempt was issued by this Court have filed application being Misc Case No. 28 of 1998 praying therein that the notice may be dropped against them for the reason that the order passed by this Court on 5.7.94 requiring the needful to be done in one month could not have been their own liability as they joined respectively as Director and Inspector on 11.12.96 and 21.7.1997. They have also relied on section 20 of the Contempt of Courts Act in that regard and say that the application is not maintainable against them for being barred by time. On merits it has been stated that now in 1997 appointment can not legally be made on the basis of select list of 1987 which has expired long ago. For this reason, the alleged contemners say this Court's order under reference is incapable of compliance by them. 2. On the contrary the learned counsel for the petitioner maintains that in view of the fact that application had been filed under Article 215 of the Constitution for which no limitation is provided nor could legally be provided therefore, the objection of limitation taken by the contemner against maintainability of the application is misconceived. Learned counsel has placed reliance on the judgment of learned Single Judge reported in 1994 (2) GLJ 14. 3. Learned counsel has placed reliance on the judgment of learned Single Judge reported in 1994 (2) GLJ 14. 3. Giving due regard to the judgment which is based on the Supreme Court judgment about maintainability of application, it is first to be seen as to under which situation application would be maintainable under section 12 of the Contempt of Courts Act and when it will be maintainable under the provisions of Article 215 of the Constitution. It obviously cannot be left for the applicant to chose his own course of action to suit his own convenience to avoid the bar of limitation. The period provided under section 20 of the Act is in keeping with the public policy of not allowing the liverage of contempt proceedings to the litigant at his own choice. In my opinion where complaint is to be made by a litigant about non-compliance of Courts order in such situation application will be maintainable under section 12 of the Contempt of Courts Act. Therefore in a situation like the one in present case it was necessary for the applicant to have take the appropriate steps and filed the application under section 12 of the Act within the period which has been provided under section 20 of the contempt of Courts Act. In cases where there is some extraordinary circumstance which prevented the applicant from filing the application within that time then in that case if the Court is satisfied from the facts placed before it, of the sufficiency of the reasons in that special case the limitation provided under section 20 will not be precluded the Court from utilising its powers under Article 215 of the Constitution as the Court of record. Looking to the fact of the present case objections taken by the officers of the Govt appears to have sufficient force. Having come to the scene after joining their respective posts as Director and Deputy Inspector of Schools in 1997 how can the alleged contemners be accountable for the failings of their predecessors who at that relevant time were holding the charge of the respective officers when the order was made by this Court requiring them to do the needful. It is in this connection that objection regarding limitations has to be viewed. It is in this connection that objection regarding limitations has to be viewed. If the application was filed by the petitioner within the period of one year this Court could have got hold of the responsible persons. By now those erring officers might have either retired from service or for some other reason they may not be available to enable this Court to consider their explanation and take necessary action if, the situation demanded taking of such action. The applicants, in my opinion, are right in saying that for being not in the scene at the relevant time, when the order was passed by the Court and within which time as per that order the needful had to be done, they are not at all answerable for the lapses of their predecessors hence notices must be dropped. As would appear from the order passed by this Court in the year 1994 order of reinstatement of petitioners service and payments of salary was to be done within one month from the date of the order. Until there was a fresh direction by the Court requiring the alleged contemners to do those things now they will have no answerability if it was no done nor will have justification for doing it of their ends own. 4. Their stand further is that the appointment letters on which petitioners rely for their claim of reinstatement as per this Court's order of 1994 had never been issued from the office concerned nor petitioner had ever been appointed. The orders showing their appointment in public services have been forget hence it cannot be given effect notwithstanding the Courts order. I fully agree with the stand of the applicants. 5. It cannot be required by this Court from the applicant to do someting which may be illegal and not permissible by law. If what the alleged contemner say is correct claim for petitioner's reinstatement though passed an order by this Court cannot be accepted and the respondent will be fully justified in not appointing the petitioner. 6. Further contention of the alleged contemner in their application is that the posts on which petitioners seek their reinstatement and payment of arrears of salary had never been created or sanctioned by the State Govt. 6. Further contention of the alleged contemner in their application is that the posts on which petitioners seek their reinstatement and payment of arrears of salary had never been created or sanctioned by the State Govt. Application seeking appointment on the post from petitioner is also not available in their offices including the order of appointment which has been set up by the petitioners. 7. In view of the above circumstances, this Court would be doing injustice to the two officers who have been summoned by it on the petitioners asking if they are to be punished. If an act which is required to be performed is either illegal or beyond the capacity or authority of the officer concerned no case of contempt will be made out against such an officer inasmuch as the necessary ingredients for consti­tuting contempt is wilful act or omission to act and not the incapacity of obedience. 8. From what has been seen above it appears that even if the respondent (alleged contemner) want to comply the order of the Court they will not be justified in doing so without acting illegally hence no case of contempt is made out against them. 9. For the reasons and circumstances detailed herein above the contempt application is rejected as I am of the view that no charge of contempt of Court either under section 12 of the Contempt of Court Act or under Article 215 of the Constitution is made out against Director of Education and the DI of Schools. Hence notices issued by this Court against them stands discharged. 10. It is however provided that the Director as well as the Inspector will hold enquiry in the matter, after giving notice to the petitioner and other concerned persons, and if petitioners are able to satisfy the Director of Education about the existence of the sanctioned post and of the validity issued appointment orders in their favour he shall comply with this Court order dated 5.9.94 within a further period of 3 months from the date a certified copy of this order is supplied and is made available to those officers. Order accordingly.