( 1 ) HEARD the learned counsel for the appellants Sri Vijay Bajpai and Sri o. P. M. Tripathi for the respondents. ( 2 ) SRI O. P. M. Tripathi has raised a preliminary objection regarding the maintainability of the Special Appeal under Chapter VIII Rule 5 of the High court Rules. The objection is raised on the ground that the order impugned has been passed in proceedings under Section 12 of the Contempt of Courts act pending before the learned Contempt Judge, and therefore, against the aforesaid order, Special Appeal would not lie. Submission is that Special appeal would lie only after an order is passed by the learned Single Judge exercising original jurisdiction conferred upon him either under Article 226 or under Article 227 of the Constitution. The contempt proceedings are initiated and are dealt with under specific Act, namely, Contempt of Courts Act, 1971 wherein right of appeal against the order passed in contempt proceedings has been provided under Section 19 thereof. Section 19 of the Contempt of courts Act, 1971 gives a right of appeal against the orders mentioned therein. ( 3 ) IN response, learned counsel for the appellants Sri Vijay Bajpai has submitted that thought the order under appeal has been passed by the learned single Judge in exercise of contempt proceedings registered under the contempt of Courts Act but since a fresh direction has been issued which did not flow from the orders passed in the writ petition, the violation of which was the subject matter of contempt and, therefore, this direction would be deemed to have been issued by the learned Single Judge in his writ jurisdiction under article 226 of the Constitution and the Special Appeal would be maintainable. He relies upon the case of J. S. Parihar Vs. Ganpat Duggar and others, 1996 (6) SCC 291 . In the aforesaid case the learned Single Judge directed for redrawing the seniority list, though a plea was taken by the State that orders passed by the court in writ petition have been complied with and the seniority list has already been prepared. The Contempt Judge, however, found that the seniority list was not properly prepared and, therefore, issued directions for redrawing the seniority. The order was passed under Section 12 of Contempt of Courts Act, 1971. Aggrieved by the aforesaid directions issued in contempt proceedings, the State filed a Special Civil Appeal. The Contempt Judge, however, found that the seniority list was not properly prepared and, therefore, issued directions for redrawing the seniority. The order was passed under Section 12 of Contempt of Courts Act, 1971. Aggrieved by the aforesaid directions issued in contempt proceedings, the State filed a Special Civil Appeal. In appeal, the Division bench of Rajasthan High Court set aside the orders passed by learned Single judge and thereafter the matter was taken to the Apex Court. The Supreme court upheld the order passed by the Division Bench in Special Civil Appeal and observed as under:-"we do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2. 7. 1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in contempt proceedings to find out whether it is in conformity with the directions issued by the earlier benches. It is seen that once there is an order passed by the government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench. " ( 4 ) IN the light of the aforesaid preposition of law laid down by the supreme Court in a matter where the Contempt Judge passes an order which has the effect of passing an order on a fresh cause of action which might have accrued to the complaining party and which does not show any disregard or deliberate disobedience to the orders of the Court while making its compliance, which would include non-compliance also, the Special Appeal can be filed challenging such an order/direction issued. ( 5 ) THE margin between a fresh direction or the direction being issued by the Contempt Judge for compliance of the order, violation of which has been complained of, and to pass an order against the fresh cause of action which might have accrued to the complainant because of the incorrect implementation of the Courts order is very thin. The Contempt Court has got full jurisdiction to make an order complied with, which has deliberately been violated and to award proper punishment also, in case of deliberate non compliance or willful disobedience. The Contempt Court has also the power to give an opportunity to the contemner to comply with the orders in its true letter and spirit, issued by the court before further proceeding to try the contemner and award punishment. In doing so, if some directions are issued strictly in accordance with the directions issued by the court in writ petition (any order of the court, violation of which has been complained of), it would not mean that it is either rewriting the judgment or the order or reviewing the aforesaid judgment or order. In doing so, if some directions are issued strictly in accordance with the directions issued by the court in writ petition (any order of the court, violation of which has been complained of), it would not mean that it is either rewriting the judgment or the order or reviewing the aforesaid judgment or order. ( 6 ) THE maintainability of the Special Appeal would also depend not only on the question as to whether the case put forward by the appellant against a direction issued by the Contempt Court or the order passed, which according to him is an order which has the effect of reviewing or rewriting the original judgement or an order which could have been passed only on a fresh petition being brought as against the fresh cause of action but also on the question as to whether prima facie such a direction can be amenable to jurisdiction of special Appeal. ( 7 ) IN the instant case, the Special Appeal has been entertained and has been directed for being listed for hearing and in view of the law laid down by the Apex Court, we do not find any reason to dismiss the Special Appeal as not being maintainable, after considering the directions issued by the learned contempt Judge in a petition filed under Section 12 of the Act. ( 8 ) AFTER overruling the aforesaid objection of the learned counsel for the respondents Sri O. P. M. Tripathi, we proceed to consider the appeal on merits. The orders passed in writ petition no. 2084 (SS) of 2001 and also the judgement passed in writ petition no. 2382 (SS) of 2001 dated 3. 12. 02 are the subject matter of the pending contempt proceedings before the learned Single judge. The respondents feeling aggrieved by the non compliance of the directions issued in the aforesaid orders passed by the High Court, appears to have moved under Section 12 of the Contempt of Courts Act. Notices were issued to the contemner, who had put in appearance and after exchange of affidavits, the matter was taken up for orders before the Contempt Judge. ( 9 ) THE operative portion of the order dated 17. 5. 2001 passed in writ petition no. Notices were issued to the contemner, who had put in appearance and after exchange of affidavits, the matter was taken up for orders before the Contempt Judge. ( 9 ) THE operative portion of the order dated 17. 5. 2001 passed in writ petition no. 2084 (SS) of 2001, which is also quoted in the impugned order, is reproduced hereinbelow:"having considered the submissions made by the learned counsel for the parties and having examined the material on record, the respondents are directed to give preference to the petitioners in the event the respondents intend to make direct recruitment or appoint on deputation on posts of which duties and functions are similar to those of Supervisors and instructors under the Old Scheme and those petitioners who have rendered three years of continuous service till 31. 3. 2001 ignoring artificial breaks are declared entitled to be considered for appointment under the New Scheme in the manner indicated above. ". ( 10 ) IN the counter affidavit filed by the appellants, the following plea was taken which has been taken note of by the Contempt Judge:"in fact, the Assistant Teachers of Basic Shiksha Parishad, who are part of the regular educational system of the State of U. P. have been directed to work as supervisors at BRC/nprc to supervise the work of instructors working at Alternative Education Centres. In this view of the matter, it cannot be said that the judgment and order dated 3. 12. 2002 passed by this Hon. Court have been disobeyed or flouted in any manner. It would also be relevant to mention here that most of the assistant Teachers are working as Supervisors w. e. f. 4. 12. 2000, 3. 3. 2001 and 26. 6. 2001 i. e. much before passing of the judgment and order dated 3. 12. 2002. 12. 2002 passed by this Hon. Court have been disobeyed or flouted in any manner. It would also be relevant to mention here that most of the assistant Teachers are working as Supervisors w. e. f. 4. 12. 2000, 3. 3. 2001 and 26. 6. 2001 i. e. much before passing of the judgment and order dated 3. 12. 2002. " ( 11 ) FROM the order under appeal, it is clear that during the course of arguments, the appellants expressed their inclination to offer appointment to the respondents on the post of Acharya, which is evident by the following observations made by the learned Contempt Judge:" From the colloquy in the course of arguments, it is discernible that the respondents have shown inclination to offer appointment to the petitioners on the post of Acharya" ( 12 ) FURTHER the Contempt Judge observed "as a sequel to insistence of the petitioners that they should be appointed as supervisors, the learned counsel for the respondents clarified across the bar that under the new Scheme no post by the name of "supervisors" has been sanctioned for which proceeds the submission, State Government has to be approached for sanctioning the equivalent posts. The petitioners are present in Court through his counsel. In consultation with his clients, the learned counsel for the petitioners urged that the post of Acharya being offered to the petitioners is a post inferior to supervisors and it would be fraught with the consequence that those who were earlier working under the petitioners are instructors, would rank higher in hierarchical order. " ( 13 ) THE Court thereafter proceeded to consider the directions issued by the court in the writ petition and the compliance, which is said to have been made by the appellants. The Court observed that the orders were not complied with but before taking any steps or passing any orders, it appears that a request was made at the bar by the counsel for the contemners, may be on some suggestion coming during the course of arguments, that the respondents are agreeable to move the State Government for requisite sanction of posts. The aforesaid relevant observation made by the Court is as under:-"at this stage learned counsel for the contemnors commiseratingly submitted that the respondents are agreeable to move the State government for requisite sanction posts similar to the nature of posts of supervisors held by the petitioners under the Old Scheme and sought time to do the needful in the matter. " ( 14 ) IN the light of the aforesaid suggestion and offer given during the course of arguments before the Contempt Judge, the Contempt Court passed the following order:-"in the above perspective, I feel inclined to take benign view that before proceeding further accordingly in the matter, one more opportunity be afforded to the contemnors to comply with the order of the Court and in this connection, it may be directed that the petitioners shall be appointed on the posts of Acharya forthwith and in the meantime, the respondents may refer the matter to the State government within 7 days from today for assimilation of the petitioners, under the New Scheme on similar posts held by them under the Old Scheme. " ( 15 ) SO far the appointment being given on the post of Acharya to the respondents is concerned, learned counsel for the appellants has not been able to specify that any fresh direction has been issued in this regard by the contempt Judge, rather, during the course of arguments he has stated that appointments have already been given to the respondents on the post of acharya. This also finds mention specifically in ground (x) of the memo of appeal, wherein it has been stated as under:-"because the Opp-parties have been permitted to work as Acharyas as per provisions contained in the new scheme known as Alternative and innovative Education Yojana in compliance of the Honble Courts order dated 24. 3. 2004 and in this view of this matter the fresh direction issued by the Honble Single Judge in contempt proceedings for creation of posts for assimilation of Opp-parties is not sustainable in the eyes of law and is liable to be set aside by the Honble Court. 3. 2004 and in this view of this matter the fresh direction issued by the Honble Single Judge in contempt proceedings for creation of posts for assimilation of Opp-parties is not sustainable in the eyes of law and is liable to be set aside by the Honble Court. " ( 16 ) AFORESAID stand of the appellants establishes beyond doubt that they are not aggrieved by any direction issued or observation made by the contempt Judge with respect to the offer of appointment being given to the respondents on the post of Acharya and rather they have supported the said direction by mentioning that such an appointment could be given under the new scheme also. The only grievance, which subsists, is regarding the direction issued for creation of the post equivalent to the post of supervisor. It does not need any elaborate discussion that in the contempt proceedings the contempt Court would have no jurisdiction to issue any direction for creation of posts, may be equivalent or similar to the post of supervisors, but while considering the argument of the learned counsel for the appellants, we have to see as to what direction has been issued by the learned Single Judge and whether it amounts to a direction for creating new posts for accommodating the respondents and that too despite the plea being taken by the respondents that no such post of supervisor on which respondents were earlier working under Non-Formal Education Scheme did exist under the new scheme. ( 17 ) THE appellants are the Director of Education (Basic) and Zila Basic adhikari, Lucknow. Though the State of U. P. through Secretary, Basic education, U. P. Civil Secretariat, Lucknow was the first respondent in the writ petition but in Special Appeal the State of U. P. has neither been made a party by the appellants even as respondent, nor the State of U. P. has come in appeal against the observations made by the Contempt Judge. Though secretary, Basic Education was impleaded by name in the contempt but secretary, Basic Education by name has also not been made a party in the special Appeal nor he has filed the appeal. Learned counsel for the appellants says that since the State of U. P. was not made a party in the contempt petition, therefore, the State of U. P. has not been impleaded as a respondent. Learned counsel for the appellants says that since the State of U. P. was not made a party in the contempt petition, therefore, the State of U. P. has not been impleaded as a respondent. Be that as it may. The fact, however, remains that the Contempt Judge, while issuing a direction for appointing the petitioners on the post of Archarya forthwith, also directed that the respondents may refer the matter to the State Government within 7 days from today (i. e. from the date of passing of the order) for assimilation of the petitioners, under the new scheme on similar post held by them under the old scheme. ( 18 ) THE aforesaid direction leaves no discretion to the State Government of not accommodating the petitioners in the manner directed therein. The case of the appellants that no such post in the name of Supervisor has been sanctioned and, therefore, the State Government has to be approached for sanctioning the equivalent posts, would not mean that such direction could have been issued by the Contempt Judge for creation of the post and for assimilation of the petitioners under the new scheme on the similar posts held by them under the old scheme. The order passed by the High Court, which was the subject matter of contempt petition also, did not issue any such direction for creation of post and, therefore, even if during the course of arguments, any such suggestion was given, it should have been left to the discretion of the appellants/state Government but no such direction could have been issued by the Court in contempt proceedings. The order passed in the writ petition only said that the respondents are directed to give preference to the petitioners in the event the respondents intend to make direct recruitment or appoint on deputation on posts of which duties and functions are similar to those of Supervisors and instructors under the Old Scheme and those petitioners who have rendered three years of continuous service till 31. 3. 01 ignoring artificial breaks are entitled for appointment under the new scheme in the manner indicated in the said order. 3. 01 ignoring artificial breaks are entitled for appointment under the new scheme in the manner indicated in the said order. In view of the aforesaid direction issued in the writ petition, only preference was to be given in the manner directed therein but the Contempt Judge, while dealing with the contempt petition, issued positive direction for accommodating the petitioners under the new scheme on the similar post held by them under the old scheme. Such a direction does not flow from the orders passed in the writ petition. The direction aforesaid, therefore, deserves to be set aside. ( 19 ) WE would like to clarify that the setting aside of the aforesaid order would not mean any adjudication on the pending contempt proceedings or on the question as to whether the contempt has been made out against the appellants or not and also not on the question as to whether the orders complained of have been complied with or requires further compliance. ( 20 ) THE appointment given on the post of Acharya and accepted by the respondents would also not be a bar for them to claim their appointments, as may be permissible under law on the posts as may be admissible to them. This order also does not debar any of the appellants or the State Government in case they decide to create any such post as has been suggested in the order passed by the Contempt Judge. The Special Appeal is partly allowed. No order as to costs.